4. Institutions Involved within a Framework of Checks and Balances

Furthermore, the principles could be interpreted differently depending on the characteristics of a specific competence and whether they fall within the scope of the executive, the legislative, or the judicial competences, or a combination of them all.

In the context of legislation and regulation, the principles are specified in proper, participative, transparent, accountable, and effective regulation which respects human rights. In the context of the administration, the principles are explained as requirements of proper, participative, transparent, accountable, and effective administration, which is not contrary to human rights. In the context of judicial procedures, we can distinguish between the above principles and effective judicial procedures which are in harmony with human rights. It can be concluded that the specification of the principles largely depends on the position of the governmental institutions involved, within the constitutional context.

When the different positions of the institutions involved are understood, it is useful to divide the six principles into sub-principles within the administrative institution. These sub-principles are interpreted differently according to the (classical) three branches of the state. In the following chapter, some examples clarify both the principles and sub-principles.

The principle of properness consists of eight subprinciples (illustrated in Figure 2.1): the requirement of formal carefulness (hearing as part of natural justice), the prohibition of the abuse of power or more specifically discretionary power, the norm of material carefulness or rationality, proportionality, legal certainty, legitimate expectations, equality, and reasoning.12 The principle of participation is specified in relation to the scope of the principle and can be related to persons, objects, and to the stage of the decision-making process. The principle of transparency applies in relation to meetings, acts, and governmental information. The principle of accountability is divided into political accountability, judicial accountability, and financial accountability. The principle of effective administration applies in relation to a governmental act, the aim of the specific public power, and the effect of regional or international law. Finally, the principle of human rights is applies in relation to the right of good administration, classical human rights, and social human rights.

4. Institutions Involved within a Framework of Checks and Balances

As addressed previously, the three governmental institutions need different interpretations of the principles of good governance with regard to their different competences: the legislative, the executive, and the judicial power. These traditional institutions can be found at the central, the regional, and the local level, albeit they are sometimes intertwined. Therefore, it is important to realize that each of these powers could take different shapes.

In the context of good governance, growing attention is given to the influence of the so-called ‘fourth power’. This fourth power is mainly understood as the influence of institutions like the Ombudsman and the Court of Audit. The fourth power term is also recognized with regard to civil servants. The scholar Crince Le Roy opens his lecture with a concise overview of several instances of fourth powers in addition to the public service, such as the existence of independent administrative bodies in the

12 Craig 2008; Craig 2016; Harlow and Rawlings 2009.

Legislator Governance: governing acts

Executive Judiciary Ombudsmen & Courts of Audit

Principles of good legislation Principles of good governance

Principles of good administration Principles of good judicion

Effectiveness

Human Rights Properness

Principles of good governance Participation

Transparency

Accountability

Figure 2.1 Principles of good governance

United States, the National Audit Office, and the Ministry of Foreign Affairs. 13 In the Netherlands, the National Ombudsman, the National Audit Office,14 and the Council of State (to the extent of its advisory capacity on draft legislation) are perceived as being included in the fourth power. Not without reason, these institutions are given an independent position in the constitutional system by the Dutch Constitution itself. Since they have an important power by exercising their constitutional duties, they are distinguished as the fourth power next to the three traditional state powers or institutions. As these institutions have a mainly advisory task and are not competent to constitute legally binding rules, their actual power is often regarded as an indirect power.

13 Crince Le Roy 1969, p. 5. 14 The National Audit Office scrutinizes national expenditure (art 76–78 Netherlands Constitution) and the National Ombudsman examines the conduct of administrative authorities (art 78a Netherlands Constitution).

For instance, about 95 per cent of the National Ombudsman’s recommendations are adopted, which is a sign of the institution’s significant influence.

The concept of the fourth power as propagated by Crince Le Roy includes public servants, who have actual rather than legal power. The Dutch Constitution addresses only the legal position of civil servants, who are to be regulated by an ordinary law. The Constitution is completely silent on the exercise of actual power by public servants. In sum, to denote the public service as a fourth power, vis-à-vis the three traditional state powers—the legislature, the executive, and the judiciary—is unfortunate from a strictly legal perspective, because the power wielded by the public service is of a different, non-legal order. In 2000, Bovens made a link in his inaugural oration between the power of the civil service and public accountancy because of three important developments: internationalization (especially in the context of the European Union), privatization, and the emergence of interactive policy.15

A subsequent question is: what is the relation between this fourth power and the other three existing powers? And what are the relationships between these four powers? Montesquieu is perhaps the most misquoted author, both because of the nineteenthcentury context of his essays on justice and law and his impenetrable writing style.16 Quite often, Montesquieu is alleged to have discussed the English Constitution in L’Esprit des Lois from the perspective of a separation of powers. The purpose of this separation is to prevent the state from exceeding the limits of its powers or infringing the freedoms and rights of its citizens. The legislature should not interfere in the implementation and application of its laws; the executive is not allowed to amend the laws; and the judiciary should not (tacitly or not) introduce laws. Montesquieu, however, did not refer to a separation. He did refer to a distribution of powers, which is slightly different from separation. Distribution is about freedom and security, which is only feasible within a moderate constitution allowing for different points of view and forms of action. In such a moderate constitution, no single and indivisible sovereignty obtains which applies to all three powers.17 As the distribution of powers shifts, the National Ombudsman can recover the balance between the state powers.

The idea of a balance of state powers was already developed by Aristotle, who saw such a balance in relation to different classes or estates. This explanation has been elaborated in the doctrine of the mixed state: a mix of monarchy, aristocracy, and democracy. In contrast, the old idea of the indivisible sovereignty of one sovereign has been fully abandoned in the doctrine of separation of powers. Another nuance is that the English discussion distinguished between separation and balance of powers. From the seventeenth century onwards in England, clear statements are found concerning the separation of powers by the likes of Bolingbroke, Harrington, and Locke. Apart from the civil tradition of the European continent, English political thought has been the most important source for Montesquieu’s conception of the separation of powers. This means that Montesquieu should be regarded as belonging to those arguing for a balance of powers, which leaves room for differing interpretations. As to the National Ombudsman in the United Kingdom, this institution is closely related to Parliament, but is still an independent institution. This can be seen as reflecting the notion of a fusion of powers. In sum, various countries have chosen different interpretations of the balance of powers.

15 Bovens 2000. 16 Foqué 1999. 17 In fact, the assumption of state sovereignty is not correct, because the traditional focus on the modern state is being replaced by a focus on individuals. Rousseau already recognized the sovereignty of the citizens. Alleged sovereignty of the state can then only contain a kind of delegated sovereignty.