The Rule of the Courts

Vasco Pereira da Silva

of administrative bodies, nor summon administrators before them on account of their respective functions” 31 . To justify this prohibition, the French revo lutionaries invoked the principle of the separation of powers, but made a ‘heterodox interpretation’ of it (ENTERRÍA / FERNÁNDEZ) 32 , ‘erroneous’ (GILLES LEBRETON) 33 or ‘distorted’ 34 – later euphemistically referred to by doctrine as constituting the ‘French conception” or the “rigid conception” of the separation of powers 35 –, according to which, “instead of recognising that ‘judging the Administration is still judging’, it was preferred to consider that ‘judging the Administration is still administering’ and that ‘jurisdiction was the complement of administrative action’ (PORTALIS)” (PACTEAU) 36 . The “result of this situation is paradoxical: in the name of the separation of powers between the Administration and the Judiciary, what actually occurs is the blurring of the distinction between the functions of administering 31 See, for all, RENÉ CHAPUS, Droit du Contentieux A., 11th edition, cit., p. 41 et seq.; JACQUELINE MORAND-DEVILLER, ‘Judicial Protection of Administrative Legality and the Principle of Separation of Powers’, in MINISTRY OF JUSTICE, ‘Reforma do Contencioso Administrativo – Trabalhos Preparatórios – O Debate Universitário’, volume I, Lisbon, n.d., p. 425. 32 EDUARDO GARCÍA DE ENTERRÍA / TOMÁS-RÁMON FERNÁNDEZ, ‘Curso de Derecho Administrativo’, 12th edition, volume I, Thomson / Civitas, Madrid, 2004, page 510. 33 GILLES LEBRETON, ‘Droit Administratif Général’, 3rd edition, Armand Colin, Paris, 2004, pages 4 and 5. According to this author, it was deduced from the principle of separation of powers that administrative courts should be prevented from controlling the administration, as such control would be tantamount to interference by the judiciary in the domain of the executive power. This deduction was clearly wrong, since the ordinary courts could have controlled the administration without any danger to the executive power, if they had been confined to their mission, which is to judge, not to administer. Moreover, the United States understood this very well.” 34 VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P. – E. de uma T. S. do R. D. de A.’, cit., p. 19. 35 See, for all, GILLES LEBRETON, “Droit A. G.,” cit., pp. 3 et seq.; RENÉ CHAPUS, “Droit du C. A.,” cit., pp. 41 et seq.; J. MORAND-DEVILLER, ‘Tutela J. da L. A.A. e P. da S. de P.’, cit., in ‘Reforma do C. A. – T. P. – O D. U.’, cit., p. 425. 36 BERNARD PACTEAU, Contentieux Administratif, P.U.F., Paris, 1985, p. 16. This formulation, which in my opinion is very apt, was not repeated by the author in subsequent editions of the work (from the 7th edition, 2005).

23