In October 2008, France celebrated the fiftieth anniversary of the Constitution of its Fifth Republic, which became effective on October 4, 1958. The Constitution, inspired by and largely drafted for General Charles de Gaulle following his call to power during a political crisis occasioned by a revolt of French military forces in Algeria, was not expected to outlast the general or his resolution of the Algerian matter. Given France’s constitutional history, expectations of impermanence were eminently justified. During the period between the French Revolution of 1789 and the adoption of the Constitution of 1958, France had fifteen different constitutions, fluctuating from parliamentary democracy to authoritarian rule. The longest lasting regime during this period was the Third Republic, which endured from 1870 to 1940, but the regime fought for its life during much of that time and ultimately proved unable to provide an effective framework for government. Nevertheless, in hindsight, there was reason for optimism in 1958. The Constitution did not represent the imposition of one view of government or one set of values, as past constitutions had, but was in effect the product of long historical experience, combining as it did, elements of parliamentary government with a strong executive and the incorporation in its preamble of Enlightenment values (the Declaration of the Rights of Man and the Citizen of 1789), the republican principles of the Third Republic (“the fundamental principles recognized by the laws of the Republic”), and the social and humanitarian values of the post-World War II period (the preamble of the 1946 Constitution). Also, importantly, the 1958 Constitution was sufficiently flexible to allow for development and adaptation through amendment, interpretation, and practice.
Other modern constitutions have attracted attention as progressive and enlightened charters for government, particularly the post-war German Constitution (the Grundgesetz) and the more recent South African Constitution. These constitutions articulate and provide for judicial enforcement of a wide range of rights, establish institutions for effective democratic government, and confront and successfully resolve historic social and political fissures in their respective societies. Another recent development that has attracted substantial interest is the emergence of constitutional-type documents and institutions at the regional and international levels. The European Union and the Council of Europe’s human rights regime are the best examples of this phenomenon; but other regional and international agreements and institutions also attest to the recognition of the need for “constitutional” principles and institutions at supranational levels.
The French experience with the Constitution of 1958, however, allows us to focus on an aspect of constitutionalism that is equally, if not more, important in the long run: the entrenchment of constitutionalism in a nation that lacked that tradition, and was even hostile to it, through the peaceful evolution of institutional structures and the expansion and judicial enforcement of protected values. The dynamics of this constitutional evolution, occurring as it did through a combination of constitutional amendment, constitutional jurisprudence, and the practice of established institutions allows us to observe the process of legal adaptation to new political, economic, and social perspectives and realities that is often so troublesome for political societies.
The establishment of a particular constitutional order does not mark the end of history, politics (both within the established order and challenges to it), or economic, social, demographic, ideological, or cultural change. A crucial inquiry regarding all constitutional systems, therefore, is how well a particular system is able to accommodate such changes within established structures. This is so important because the replacement of one constitutional regime with another usually occurs after a period of instability, often accompanied by violence, during which the established order is unable to adapt to or to accommodate change.
Following General de Gaulle’s withdrawal from the political scene with his resignation in 1969 (after French voters had rejected by referendum a proposal he had supported for modification of the Senate), and with new political, legal, economic, demographic, and social realities confronting the nation, the institutional arrangements established by the Constitution of 1958 appeared more and more unsuitable. Particularly significant developments were the growth of European law and institutions, several alternances and three “cohabitations,” the desire to decentralize the highly centralized decision-making and administrative structures and processes of the French state, the rise of liberal economic theories, the increasing ethnic and religious diversity of French society, and the prominence of new values (like increased emphasis on democracy, pluralism, and the equality of men and women, increased concern for the protection of individual rights, and increased concern for the protection of the environment). In response to these changes and the perceived inability of existing political structures to accommodate them, many people called for the adoption of a new Constitution and the establishment of a Sixth Republic. Between 1958 and February 2008, the Constitution was amended twenty-three times, sixteen of those amendments since 1996. In July 2008, the Constitution was substantially amended to take account of these new developments, needs, ideas, and values. The principal thrusts of the July 2008 amendments were to better define and control the power of the executive, to increase the powers of Parliament, and to better assure the protection of fundamental rights.
The American and French experiences provide excellent examples of how different constitutional systems react to change. For the most part, the American system has been successful in containing change within established structures. Contending forces contest their interests and views within the legislative and judicial chambers of government, rather than in the streets or on the barricades. This is so largely because of the role played by the United States Supreme Court in interpreting the Constitution. As Alexis de Tocqueville remarked, “There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question.” In resolving many of those questions, the Supreme Court has interpreted the Constitution flexibly so as to allow constitutional law to accommodate new political, economic, and social situations. Good examples are the Court’s legitimization of federal power when needed to deal with truly national matters, like civil rights, economic regulation, national defense, or international relations; but the limitation of federal power when the political, social, and ideological climate in the country regards problems as better handled at the state and local levels. Eschewing, over time, a univocal interpretation of the powers delegated to the federal government by the Constitution, the Court has in effect adapted the Constitution incrementally to changing political configurations and different challenges facing American society. The most notable failure of the American constitutional system to accommodate contending forces within established structures was the crisis which ultimately led to the Civil War. Following that failure, the integrity of the nation was preserved only by the force of arms rather than by the peaceful operation of the institutions of government. The constitutional system that emerged from the crucible of the Civil War, with the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments, and the enactment of numerous Reconstruction laws, fundamentally altered the American social contract and in fact might—if the United States shared the French propensity for rupture and numeration (rather than seeking to preserve the appearance of continuity)—very well be called the Second Republic.
Until the establishment of the Fifth Republic in 1958, and really not until the famous Freedom of Association decision of the Constitutional Council in 1971 and the equally crucial 1974 constitutional amendment that allowed opposition legislators to refer a parliamentary enactment to the Council, France did not have an effective system for the judicial application and modification of its Constitution through interpretation. Throughout its post-revolutionary history prior to the adoption of the Constitution of 1958, constitutional change was effected either by legislative amendment or by the adoption of a new constitution. It is hard to speak of a true constitutional order if the constitution can be altered by ordinary law; in such case, the constitution is continually subject to the vicissitudes of the political process. Moreover, if the constitution cannot be interpreted to accommodate change, it ceases to be a useful framework for political life. It is thus no accident that since the Revolution, France has had so many different constitutions. In almost all cases, the adoption of a new constitution was accompanied by significant political and social disorder, and often by violence. In effect, the winners impose a constitutional order on the losers. Since constitution-making is not regarded as a one-time enterprise, the losers can look forward to other chances in the future. Why, then, give one's allegiance to the particular constitution that has been adopted? After all, it represents the triumph of the political opposition. Rather than being the symbol of the nation, as is the Constitution in the United States, in France the Constitution has historically been a “contested document.”
The European Union (EU) provides an example of a constitutional system that has responded to change by a combination of judicial and political means. The European Court of Justice (ECJ) has, since the 1960s, “constitutionalized” the Treaty of Rome in a series of important decisions, and had, for nearly three decades, interpreted expansively EU power under the Treaty. Responding, more recently, to concerns that EU legislation was too intrusive in areas of primary concern to member states, the ECJ has been more reluctant to approve EU legislation. The ECJ has also been sensitive to the responsibilities of national constitutional courts, and has taken their views into account as it developed EU law. On the political side, the Treaty of Rome has been revised several times by the agreement of member states. In fact, the process of amendment, which has occurred through periodic conferences since the mid 1980s, may be described as an ongoing process of revision to allow the Treaty to accommodate new needs, initiatives, and political imperatives as they arise. Constitutional developments in France since 1958 have taken a somewhat analogous course, with constitutional change and accommodation occurring through a combination of legal (constitutional jurisprudence) and political (constitutional revision) mechanisms. Another important modality of adaptation has been institutional practice.
II. Mechanisms for Constitutional Development
The French Constitution of 1958 strikes a good balance between rigidity and flexibility. Thus, while not as easy to amend as the Constitutions of the Third and Fourth Republics, amendment (which the French call révision), especially when undertaken by the Government, although difficult, is not impossible. If the Government proposes an amendment and it is approved in identical terms by the National Assembly and the Senate, it can then be adopted by a three-fifths vote of the two houses of Parliament sitting together in Congress. The president of the Republic may also elect to submit a proposed amendment, either an amendment proposed by the Government or by a Member of Parliament, to referendum (after approval by both houses of Parliament). Since 1958, there have been twenty-four constitutional laws amending the Constitution. Some brought about important changes in the operation of institutions, others constitutionalized new values, and others were in response to European integration or international cooperation. A few amendments were made to overcome decisions of unconstitutionality by the Constitutional Council.
Three constitutional amendments prior to the major revisions of July 2008 brought about significant changes in the structure and operation of French political institutions. The original Constitution provided for the indirect election of the president by an electoral college composed of about 80,000 elected officials—deputies and senators, members of departmental and municipal councils, and mayors. In 1962 the Constitution was amended to provide for the direct election of the president by universal suffrage. This amendment marked a decisive turning point in the functioning of French political institutions, according significantly more power to the president, as now his status was confirmed and legitimated by the people as a whole. The president owed his office to the people alone and could fulfill General de Gaulle’s desire that the Chief of State be the representative of the nation, independent of and superior to the political parties. The constitutional amendment of 1962 was approved by a presidentially initiated referendum, in apparent violation of article 89 of the Constitution. However, the Constitutional Council, in its decision of November 6, 1962, decided that it did not have competence to review a law adopted by way of referendum. The Council opined that “it follows from the spirit of the Constitution, which has established the Constitutional Council as an organ to regulate the actions of public authorities, that the laws that the Constitution envisaged in its article 61 [as subject to review by the Council] are only laws voted by Parliament and not those which, adopted by the people pursuant to a referendum, constitute a direct expression of national sovereignty.”
In 1974 the Constitution was amended to allow sixty deputies or sixty senators to refer a recently enacted law to the Constitutional Council for review of its constitutionality prior to its promulgation by the president of the Republic. Previously, only the president of the Republic, the prime minister, and the presidents of the Senate and the National Assembly had this power. This amendment accorded considerably more influence to the minority (opposition) party in the legislature, as it could now challenge the constitutionality of laws before their promulgation. It also greatly enhanced the role of the Constitutional Council, since now it was able to review almost all important parliamentary enactments for their constitutionality. After the enactment of the 1974 amendment, referrals to the Council increased greatly in number.
In 2000 the Constitution was amended to reduce the term of the president from seven years to five years. This amendment, together with an institutional act of May 15, 2001, requiring presidential elections to take place before legislative elections, has had the effect of necessitating that presidential and parliamentary elections take place in close proximity to each other. This near simultaneity of presidential and legislative elections greatly reduces the chance that different political parties would control the presidency and the National Assembly, and hence the possibility of cohabitation. The power of the president has thus been significantly enhanced at the expense of Parliament. Another consequence of the temporal proximity of presidential and legislative elections is to tie the campaign and election of the president of the Republic more closely to the struggle of the political parties for control of the legislature, thereby increasing the politicization of the presidency and moving the constitutional design away from General de Gaulle’s conception that the president stood over and above party politics as the representative of the interests of the nation as a whole.
Other important amendments related to France’s membership in the European Union and other international engagements. According to the Constitution, if the Constitutional Council decides that an international engagement would violate the Constitution, France cannot undertake that international engagement without a prior modification of the Constitution.
In July 2008 the Constitution underwent major revisions, the purpose of which was to better define the relationship between the institutions of government, to enhance democracy by according more power to the Parliament, and to facilitate the vindication of rights by citizens through the judicial process. The July 2008 amendments are considered in detail in Part III of this article.
One of the principal vices of the Fourth Republic in the eyes of General de Gaulle and his allies was the power of Parliament to interfere with the proper functioning of the executive branch, leading to incoherence in governmental policy and sapping the French state of the ability to effectively confront domestic and foreign challenges. To remedy this defect, the Constitution of 1958 did several things. First, it accorded to the Government an autonomous regulatory sphere in which it had legislative-type power to enact rules and also the power to implement the rules established by Parliament. Parliament may not enact law in the executive’s sphere of competence if the Government objects, nor may it prescribe detailed rules for the implementation of the laws which it may constitutionally enact. Second, the Constitution accorded to the Government the dominant role in the legislative process, by allowing the Government to control the setting of the parliamentary agenda, permitting the Government to introduce legislation, and according Government bills (projets de loi) priority treatment over Members’ bills (propositions de loi) in a number of ways. Third, the Constitution allowed Parliament to delegate to the Government, for a limited period of time, the power to exercise legislative power by ordinance. Fourth, the number of standing committees in each house of Parliament was limited by the Constitution to six, thus making parliamentary consideration of legislation rather cumbersome. Finally, the Government possessed a powerful device to have its legislation enacted, by, in effect, challenging the National Assembly to either accept a Government bill or to overturn its own Government by a vote of no-confidence.
To enforce the constitutional scheme, the Constitution established a Constitutional Council, whose principal function was thought at the time to be the review of just-enacted legislation to assure that it fell within Parliament’s legislative sphere (“the domain of the law”) and did not encroach on the Government’s autonomous regulatory domain. Also, institutional acts and changes in the procedural rules of the parliamentary chambers were subject to the mandatory review of the Constitutional Council. Again, this was to assure that Parliament did not interfere with the Government’s constitutionally given prerogatives in the legislative process.
In spite of the original purposes for which the Constitutional Council was established, and which it fulfilled from 1958 on, the Council soon undertook the more significant and controversial function of reviewing just-enacted legislation (but before its promulgation by the president of the Republic) for its conformity to the substantive provisions of the Constitution. In its most important decision to date, the Freedom of Association decision of July 16, 1971, the Council struck down a parliamentary enactment on the ground that it violated a substantive principle of constitutional status. It found that principle not in the text of the Constitution itself, but in the “fundamental principles recognized by the laws of the Republic,” a source referred to in the preamble to the Constitution of 1946, which the Council held had been incorporated by reference into the Constitution of 1958 by its own preamble, which refers to “the preamble of the Constitution of 1946.” The effect of the 1971 decision was to create what the French call “the constitutional bloc” (bloc de constitutionnalité), consisting of the Constitution itself, and other sources of law mentioned in its preamble, including the Declaration of Rights of Man and the Citizen of 1789 and the preamble to the Constitution of 1946, which in turn refers to “the fundamental principles recognized by the laws of the Republic” and to “the political, economic, and social principles particularly necessary in our time.” Later, in 2005, the Constitution was amended to incorporate the Charter for the Environment of 2004.
Since 1971, the Constitutional Council has played a major role in the legislative process, interpreting and applying the Constitution and other principles with constitutional status (valeur constitutionnelle) to just-enacted legislation. Now that minority deputies and senators can refer laws to the Council, almost all important legislative enactments receive its scrutiny for their constitutionality. In conducting this review, the Council, of necessity, interprets and develops the Constitution—both in its decisions that have separation of powers implications and those affecting matters of substantive law. Here are some examples.
Although originally established to assure that Parliament did not interfere with the executive power, the Council has often interpreted the Constitution to enlarge parliamentary competence. For example, in its R.A.T.P. decision of 1959, it recognized a broad parliamentary competence to legislate with respect to autonomous administrative authorities, although it also set certain limits to parliamentary competence (the law enacted by Parliament could not descend into the details of implementation). In its Site Protection Law decision of 1969, the Council included within the domain of the law any situation involving the modification of or derogation from a general principle of law. In its important Freezing of Wages and Prices decision of 1982, the Council had before it a law enacted by Parliament providing for the freezing of wages and prices. As part of that law, Parliament provided for fines of between 20 and 50 francs (approximately $4-10) for certain violations of the law. According to the Constitution, however, fines for misdemeanors (contraventions) fall clearly within the domain of the regulatory power of the Government. In deciding whether Parliament nevertheless had the competence to adopt this provision, the Constitutional Counsel had to settle a long-standing controversy: whether Parliament lacked the power, under all circumstances, to enact laws whose subject matter fell within the regulatory domain (General de Gaulle’s view), or whether, on the contrary, Parliament could legislate with respect to matters within the regulatory domain unless challenged by the Government under article 37(2) or article 41 of the Constitution. The Council decided that Parliament could deal with a matter by law, even if it fell within the regulatory domain, if the Government did not object.
When the Council regarded legislative power as overreaching or inappropriately exercised, it interpreted the Constitution to impose significant limitations. In its Future of the School decision of 2005, for instance, concerned about the declining quality of the law, including, importantly, the tendency of enacted law to be diffuse and wordy (la loi bavarde), the Constitutional Council forcefully reiterated its requirement that “the law” must possess a certain nature: the law must be normative, that is to say, it must establish rules; it must be clear, accessible, and intelligible; and it must not be concerned with details of implementation.
Also, the Council has not been hesitant to construe its jurisdiction broadly in order to preserve the constitutional separation of powers scheme. For example, in a 1987 decision, the Council held that it could review an ordinance for its constitutionality even through Parliament had not enacted a law to approve the ordinance. Ordinances that have not been ratified by Parliament are considered to be administrative acts. As such they are not subject to review by the Constitutional Council, but may be reviewed by the Council of State. Ordinances which have been ratified by Parliament may be reviewed by the Constitutional Council for their constitutionality if the ratifying statute is referred to the Council. In its 1987 decision, the Constitutional Council extended its jurisdiction to review ordinances that had not been ratified by Parliament if a subsequent statute presupposing the validity of the ordinance is referred to the Council. The Council has also adopted an expansive interpretation of individual rights and the principle of equality in a series of landmark cases (Freedom of Association, Vehicle Searches, Bioethics, Ex Officio Taxation) and has approved certain affirmative action (discrimination positive) measures, although such measures would seem to be contrary to the French notion of equality.
But expansive, facilitative interpretation has its limits. Where the Constitution is clear, in spite of political consensus and contemporary needs and values to the contrary, the Council enforces the constitutional scheme. For instance, in its Decentralization decision of 1982, the Council held that the constitutional principle of the indivisibility of the Republic prohibited depriving, even temporarily, the national Government’s representative in the departments (préfet) of power to assure compliance of local legislative and regulatory measures with national law. In its Gender Quotas I decision of 1982 and Gender Quotas II decision of 1999, the Council also found laws to advance gender equality to violate the constitutional principle of equality.
The jurisprudence of the Council demonstrates that the Constitution can be adapted to changing needs and values, but only up to a point. Then, constitutional change must occur through the political process, i.e., amendment to the Constitution itself. Thus, in 1999, then-article 3, now the second paragraph of article 1, of the Constitution was amended to add the words: “Statutes shall promote equal access by women and men to electoral mandates and elective offices.” In a 2006 decision, the Constitutional Council refused to validate a legislative enactment imposing the requirement of predetermined proportions of women and men on the boards of directors and supervisory councils of private companies and public-sector enterprises, on joint consultative production committees, among employee representatives, on candidate lists for labor tribunals, and in joint public bodies, on the ground that the constitutional amendment of 1999 applied only to “elective political positions.” In July 2008 the second paragraph of article 1 of the Constitution was amended by adding the italicized words: “Statutes shall promote equal access by women and men to elective offices and posts as well as to professional and social positions,” (emphasis supplied). This amendment overruled the Council’s 2006 decision.
In a press conference in January 1964, President de Gaulle said that “a Constitution is a spirit, institutions, and practice...” Practice has played a major role defining the relationship of governmental institutions, particularly the awkward and peculiar relationship between the president of the Republic and the prime minister during periods of cohabitation. There have been three periods of cohabitation so far, each occurring in a different political context, and each having its own characteristics. Perhaps it is the vagueness of the Constitution regarding the relationship between president and prime minister that has allowed successive presidents and prime ministers to tailor their relationship to suit the political environment of the time. The Constitution as applied by the Constitutional Council has had little relevance in defining the relationship between president and prime minister during periods of cohabitation.
The Constitution of 1958 created a “bicephalous” executive branch: a president, originally indirectly elected, but since 1962 elected by direct universal suffrage, and a prime minister responsible to the National Assembly. The president is elected by the people and is responsible to them. Article 5 of the Constitution expresses General de Gaulle’s conception of the presidency, as articulated in his Bayeux and Épinal addresses of 1946. Although article 5 may be viewed as largely symbolic, with its legal significance uncertain, as it refers primarily to the general purposes of the presidential function, a broad reading has been the basis for the assertion of vast presidential power. One thing is certain, however: article 5 clearly rejects a ceremonial or passive conception of the presidency and instead expresses a dynamic, active conception of the presidential office. Because of the vagueness of article 5 and article 20 (which provides that “The Government shall determine and conduct the policy of the Nation”), the relationship between the president and the Government (under the leadership of the prime minister) has evolved flexibly, responsive to the contemporary political environment and to the practicalities of governing. This has certainly been the case during periods of cohabitation and also during those periods when the president’s party was a minority in the governing parliamentary coalition (from 1958 to 1962 and again during the presidency of Valéry Giscard d’Estaing, from 1974 to 1981).
The legislative elections of March 1986 resulted in a small majority for the parties of the Right in the National Assembly. President Mitterrand (Parti socialiste) named Jacques Chirac (Rassemblement pour la République) as prime minister. This was the first time since the inception of the Fifth Republic in 1958 that the president and the prime minister were from opposing parties. This cohabitation was particularly tense and difficult for two principal reasons: first, the incoming Government of the Right wanted to make significant changes in some of the policies of the preceding Governments of the Left (most importantly, to privatize large sectors of the economy that had recently been nationalized); and second, President Mitterrand intended to seek reelection in 1988, and Prime Minister Chirac was almost certainly going to be the opposing candidate.
A potential constitutional crisis arose early in the Mitterrand-Chirac cohabitation. On March 20, 1986, Prime Minister Chirac announced that he intended to submit two laws to Parliament authorizing the Government to legislate by ordinances. He stated that article 20 of the Constitution provides that the Government, directed by the prime minister, determines and conducts the policy of the nation, and made clear that in his opinion “the Government possesses all the powers to act which are recognized by the Constitution, whether it involves regulatory measures of any kind, individual or general, which appear necessary to implement its policies. In particular, in order to accomplish with the least delay the recovery of the country and to make our institutions more effective, two authorization laws will be submitted to Parliament authorizing the Government to legislate by ordinances...” President Mitterrand responded by stating his view that “the major reforms of the preceding legislature, like decentralization, workers’ rights, new freedoms, and reform of work time, took the normal legislative route. So I think that ordinances, which... cannot reconsider vested social rights, will have to be used sparingly and that authorization must be sufficiently precise to enable the Constitutional Council to make a decision with full knowledge of what is involved...” Two authorization laws, allowing the government to act by ordinance, were enacted to reverse policies of the previous Socialist-dominated legislature: one allowing the Government to privatize enterprises previously nationalized and the other allowing the Government to undertake a new delimitation of electoral districts. The Constitutional Council approved both laws, subject to certain interpretive reservations. President Mitterrand, however, refused to sign the ordinances subsequently adopted by the Government. According to article 13(1) of the Constitution, “The president of the Republic shall sign Ordinances and Decrees deliberated upon in the Council of Ministers.” Does this mean that the president is required to sign ordinances adopted by the Council or Ministers? Or may he exercise his discretion in deciding whether to sign the ordinance or not? The Chirac Government decided not to raise a constitutional challenge to President Mitterrand’s refusal to sign the privatization and electoral apportionment ordinances, and subsequently introduced the text of both ordinances as Government bills which were then enacted by the Parliament.
President Mitterrand was reelected in 1988, and his party emerged with a few more seats in the National Assembly than the parties of the center Right, but not enough for a majority. Nevertheless, President Mitterrand was able to select a prime minister from his own party and to control the legislative agenda. The legislative elections of March 1993, however, resulted in a substantial majority for the parties of the center Right (486-91) in the National Assembly. President Mitterrand (Parti socialiste) named Édouard Balladur (Rassemblement pour la République) as prime minister. The political context of this cohabitation was very different from that of the first cohabitation, as President Mitterrand, old and ill, and Prime Minister Balladur, who disclaimed presidential ambitions, were not competitors for the presidency in the upcoming election of 1995. Effective power passed to the prime minister.
In 1997 President Jacques Chirac dissolved the National Assembly and called for legislative elections, which he had the power to do pursuant to article 12 of the Constitution. He did so because he thought that the electoral position of his party, although deteriorating, was still strong, and he wanted to assure a continuing parliamentary majority for the last five years of his seven year term of office. To his great chagrin, however, the parties of the Left won 320 seats in the National Assembly and the parties supporting President Chirac won only 251 seats. President Chirac (Rassemblement pour la République) named Lionel Jospin (Parti socialiste), whom he had defeated in the presidential election two years before, as prime minister. Because of the radically altered political environment, Prime Minister Jospin was able to exercise considerably more power than the prime ministers during the first two cohabitations.
III. Constitutional Revisions of 2008
A. The Balladur Commission Report
Although comprehensive constitutional reform had been considered during the 1990s, and a report had been prepared in 1993 recommending numerous revisions, reform did not occur at that time. A decade and a half later, in July 2007, President Nicolas Sarkozy established a commission of thirteen members, chaired by former Prime Minister Édouard Balladur, to make proposals for the modernization and restructuring of the institutions of the Fifth Republic. Vice-chairs of the Commission were Jack Lang (former Minister of Education and a leading Socialist politician) and Pierre Mazeaud (former president of the Constitutional Council).
In a letter to Chairman Balladur, the president charged the Commission with several tasks: to make recommendations to better define the relationship between the president of the Republic and the prime minister, to suggest ways to “rebalance” the relations between the executive and Parliament, and to strengthen the “judicial authority.” More specifically, President Sarkozy directed the Commission’s attention to the following matters: a more precise definition of the powers of the president of the Republic and the prime minister; more transparency in the exercise of the presidential function; limitations on presidential power (like according Parliament a role in important appointments); enhancing the powers of Parliament in the legislative process (like giving the houses of Parliament more control over their own agendas, increasing the number of standing committees, enlarging the role of Parliament in overseeing administrative action and budgetary matters and in the determination of European, international, and defense policy, and allowing Parliament to adopt resolutions susceptible of influencing the work of the Government); strengthening the role of the parliamentary opposition (like assuring that the opposition has access to information and financial resources to function effectively and allowing the opposition to establish investigatory committees); better insuring the independence of the judiciary (by reforms to the High Council of the Judiciary) and the protection of individual rights (like allowing individuals to refer laws to the Constitutional Council and allowing the Constitutional Council to examine laws already in force for their constitutionality). President Sarkozy also asked the Commission to advise him on the desirability of introducing some degree of proportionality into parliamentary elections.
The Balladur Report is divided into three sections: “a better controlled executive power” (un pouvoir exécutif mieux controlé), “a strengthened Parliament” (un Parlement renforcé), and “new rights for citizens” (des droits nouveaux pour les citoyens). Each section contains detailed recommendations which deal with most of the matters raised by President Sarkozy in his charge to the Commission. The constitutional law, based in large part on the Commission’s recommendations, was approved by majorities in both houses (National Assembly, 344-230-2; Senate 195-127-7) and just barely approved by the required three-fifths vote in Congress (539-357) (538 votes were needed). Parliament and later Parliament in Congress approved most of the recommendations of the Balladur Commission, but did reject four significant proposals: to clarify the relationship of the president of the Republic and Government by better defining their respective roles, to introduce some proportionality into the election of the National Assembly, to rein in the regime of cumul des mandats by ministers and members of Parliament, and to reform representation in the Senate. Parliament also added one significant change not recommended by the Commission—to limit the president of the Republic to two terms.
B. Executive Power (un pouvoir exécutif mieux contrôlé)
According to the Balladur Commission, under the 1958 Constitution the division of functions and responsibilities between the president and the prime minister was “ambiguous,” with “the prime minister occup[ying] an ill-defined position.” Particularly problematic for the Commission was the practice which allowed the president at his discretion to terminate the appointment of the prime minister outside of periods of cohabitation, in apparent violation of article 8 of the Constitution. Nevertheless, the Commission decided not to recommend a modification of article 8 to explicitly allow the president to dismiss the prime minister. It regarded article 8’s application in practice as a reasonable adaptation rendered desirable in some circumstances because of the dual source of executive authority: according to republican tradition, the Government, since it is responsible to the National Assembly, derives its authority from the people; and the president also derives his authority from the people, based on his popular election pursuant to the constitutional amendment of 1962. To clearly define presidential power in this area would “deprive our institutions of the flexibility necessary in the case of cohabitation.”
The Commission did recommend, however, that the functions of president and prime minister be better defined and divided. Thus, it proposed that article 5 be amended to include the words: “He [the president] determines the policy of the Nation.” It also recommended that article 20 be amended to read: “It [the Government] conducts the policy of the nation” (a change from the existing language, which reads: “The Government shall determine and conduct the policy of the nation.”). Parliament did not adopt these recommendations; so articles 5, 20, and 21 (along with article 8) remain unchanged. This major initiative to better define the role of president and prime minister and Government, to make clear that the president sets policy and the prime minister and his Government implement it, was in the final analysis simply too far removed from the republican tradition to be acceptable to Parliament. This should have come as no surprise to the Commission, which recognized that the responsibility of the Government to Parliament is the “cornerstone” (pierre angulaire) of the French conception of government. For this concept to have meaning, the Government must play a role not only implementing policy, but also in determining it.
The Commission had more success with its recommendations to better define the prerogatives of the president. An amendment to article 18 now provides the opportunity for the president to address a joint session of Parliament “convened in Congress.” The personal appearance of the president before Parliament has a long and controversial history in France. It became part of the French notion of separation of powers that the president could not appear in the parliamentary chambers (l’interdiction d’entrée dans les hémicycles parlementaires). While the president was not allowed to address Parliament in person, he could “communicate with the two houses of Parliament by messages which may be read, but may not be the occasion for debate.” This practice dates back to laws of 1873 and 1875, which prohibited the president from appearing before Parliament. The concerns that motivated these enactments were that the president would use his personal appearance before Parliament to bully and dominate the legislative body and also that his such appearance would symbolize the replacement of the prime minister by the president as the principal executive authority.
An amendment to article 13 limits the nominating powers of the president. Previously the president could name persons to certain positions, without any parliamentary participation or oversight. Giving this unencumbered power to the president, in conjunction with adoption of an ordinance containing an extensive list of positions subject to the presidential appointment power, accorded with the spirit of the 1958 Constitution, which was to enlarge the powers of the president and to diminish those of Parliament. Now, after the amendment to article 13, certain nominations must be considered by “the relevant standing committee in each assembly. The President of the Republic may not make an appointment when the sum of the negative votes in each committee represents at least three-fifths of the votes cast by the two committees.” The amendment also provides that an institutional act shall determine the posts with respect to which the president possesses the power of appointment and are therefore subject to parliamentary participation. The purpose of this provision is to prevent confusion as to which positions fall within the president’s power of appointment rather than that of the Government and thus to limit the scope and discretion of the president’s power to appoint to high offices.
The Commission grouped a number of proposals under the heading “Making more democratic the exercise of powers by the head of state.” Article 17, as amended pursuant to the Commission’s recommendation, now allows the president to grant pardons only to individuals. He no longer possesses the power to grant collective (or group) pardons. Article 16, dealing with the emergency powers of the president, again following the Commission’s recommendation, now concludes with a paragraph allowing referral, by the president of the National Assembly, the president of the Senate, or by sixty deputies or sixty senators, to the Constitutional Council after emergency powers have been in effect for thirty days for a decision as to whether the conditions for invoking emergency powers still apply. Sixty days after the exercise of emergency powers or at any moment thereafter, the Council “shall, as of right, carry out such an examination and shall make its decision in the same manner...” Emergency powers scare many Frenchmen, conjuring up visions of the assumption of authoritarian power by Napoleon Bonaparte in 1799 (who subsequently abolished the First Republic and established the French Empire), by then-President Louis Napoleon Bonaparte in 1851 (who abolished the Second Republic and established the Second Empire, taking the name Napoleon III), and by Marshal Pétain in 1940 (bringing the Third Republic to its end). The memory of Hitler’s legal assumption of dictatorial power in Germany in 1933, pursuant to the emergency powers provision of the Weimar Constitution, evokes even darker fears. The Vedel Report of 1993 recommended that the emergency powers provision be retained, but that additional safeguards be added to prevent its abuse.
C. Legislative Power (un Parlement renforcé)
The primary goal of the 1958 Constitution was to empower the president and Government to act promptly, efficiently, and firmly to determine and effectuate the national interest. This necessarily involved the expansion of the sphere of executive responsibility and the facilitation of executive action, as well as the curtailment of parliamentary power, all of which the 1958 Constitution duly accomplished. The régime d’assemblée of the Fourth Republic was replaced by the parlementarisme rationalisé (rationalized parliamentarianism) of the Fifth. But, as the National Assembly’s Committee on Constitutional Law’s Warsmann Report puts it: “Parlementarisme rationalisé is an idea that has succeeded too well.” Since the entry into force of the 1958 Constitution, the presidency has gained even more power, often at the expense of Parliament. The critical inflexion points were the constitutional amendment of 1962 on the direct election of the president and the presidential election of 1969, the first presidential election after the resignation of General de Gaulle and his withdrawal from political life. In his famous press conference of January 31, 1964, President de Gaulle clearly expressed his view that the president was the supreme power in the nation. The direct election of the president personalized the office, accorded its occupant legitimacy based on popular national endorsement, and allowed the successful candidate to dominate the media, which has continually acquired more importance in French political life. The election of 1969 offered French voters the choice between two competing views of the presidency: that of Georges Pompidou, who had expressed his commitment to carrying forward General de Gaulle’s vision, and that of Alain Poher, a longtime parliamentarian. With Pompidou’s victory, the Gaullist vision triumphed and carried forward. Over time, the president has become more and more involved (and dominant) in party politics. When the presidency and the Parliament are controlled by the same party, Parliament plays only a subordinate role. Even during periods of cohabitation, Parliament has little real freedom vis-à -vis the Government under the leadership of the prime minister. After the constitutional amendment of 2000 limiting the term of the president to five years, the same length of time as a session of Parliament, presidential and legislative elections will most likely occur in close proximity, greatly reducing the chance of different outcomes and thus of cohabitation.
As the Balladur Report concludes, the presidency has greatly increased its “capacity for action.” “The functioning of Parliament,” on the other hand, “is not adapted for the necessities of our time: the aspirations of citizens very often find only a faint echo in the houses of Parliament; the Parliament barely oversees the actions of the Government and does not engage in a real assessment of governmental policies; the legislature enacts too many laws, in conditions which do not allow it to assure their quality.” Parliament must be reinvigorated to give French citizens confidence in the functioning of their democracy. The 2008 amendments make significant changes in four areas: (1) giving the houses of Parliament more control over their own work; (2) improving the legislative process; (3) giving Parliament a real power of oversight and assessment of governmental action; (4) strengthening the position of the opposition. Although many of the amendments enacted would appear to deal with rather minor procedural matters, collectively they place Parliament in a considerably stronger position vis-à -vis the executive branch than formerly and enhance its ability to be a political (rather than a mere technical) participant in the policy-making process if it has the will to act as such.
1. Parliament’s Control Over Its Work
Strange as it may seem to the American observer, the 1958 Constitution as originally adopted accords to the Government the dominant position in organizing the work of the houses of Parliament. Thus, article 48 provided that the agenda (ordre du jour) of the two houses “is composed of, by priority and in the order fixed by the Government, the discussion of Government bills (projets de loi) and Members’ bills (propositions de loi) accepted by it.” Article 48 was perhaps the most significant constitutional provision in giving the Government control over the work of Parliament. The Government insisted on a strict interpretation and application of its requirements and the Constitutional Council “gave article 48 an interpretation inspired by the spirit in which it was conceived, by committing itself firmly to upholding the governmental prerogative which it establishes.” The 2008 amendment to article 48 has been described as “a major component in the rebalancing of institutions.” Article 48 now provides:
- ... [T]he agenda shall be determined by each House.
During two weeks of sittings out of four, priority shall be given, in the order determined by the Government, to the consideration of texts and to debates which it requests to be included on the agenda.
In addition, the consideration of Finance Bills, Social Security Financing Bills and, subject to the provisions of the following paragraph, texts transmitted by the other House at least six weeks previously, as well as bills concerning a state of emergency and requests for authorization referred to in article 35, shall, upon Government request, be included on the agenda with priority.
During one week of sittings out of four, priority shall be given, in the order determined by each House, to the monitoring of Government action and to the assessment of public policies.
One day of sitting per month shall be given to an agenda determined by each House upon the initiative of the opposition groups in the relevant House, as well as upon that of the minority groups.
During at least one sitting per week, including during the extraordinary sittings provided for in article 29, priority shall be given to questions from Members of Parliament and to answers from the Government.
Another significant amendment enhancing the power of Parliament is the change made to article 49(3). As adopted in 1958, article 49(3) allowed the Government to enact legislation by the devious route of turning the vote on its bill into a vote of confidence. According to that article (before its amendment in 2008):
- The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph.
Of particular concern was the Government’s use of article 49(3) to enact laws authorizing it to legislate on important matters by ordinance. Recourse to article 49(3) has been severely limited by the 2008 amendment of that article, which now reads:
- The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph.
In addition, the Prime Minister may use the said procedure for one other Government or Private Members’ Bill per session.
The article 49(3) procedure can now be used only for finance bills and social security financing bills and one other bill per session.
After due consideration, the Balladur Report decided not to recommend an amendment to article 44, which allows for the so-called “single vote” (often characterized by the pejorative term vote bloqué), regarding it as “an effective instrument for assuring the coherence of the Government bill in the face of inappropriate amendments.” According to that article: “If the Government so requests, the House before which the Bill is tabled shall proceed to a single vote on all or part of the text under debate, on the sole basis of the amendments proposed or accepted by the Government.” Parliamentarians had objected to this procedure as allowing the Government to effectively eliminate consideration of amendments proposed by them.
The Balladur Report did recommend amending article 45(2) to limit the power of the Government to utilize the so-called “accelerated procedure” (previously called the “emergency procedure,” procédure d’urgence) to shortcut parliamentary debate under certain circumstances. The Report proposed that the Government’s use of this procedure be subject to the disapproval of Parliament. Before the 2008 amendment, the Government could simply declare an emergency (“déclar[e] l’urgence”) to send a bill to a joint committee of Parliament after one reading in each house, instead of the ordinary two readings. Article 45(2) now reads:
- If, as a result of a failure to agree by the two Houses, it has proved impossible to pass a Government or Private Member's Bill after two readings by each House or, if the Government has decided to apply the accelerated procedure
without the two Conferences of Presidents being jointly opposed
- , after a single reading of such Bill by each House, the Prime Minister
- or in the case of a Private Members’ Bill, the Presidents of the two Houses acting jointly, may convene a joint committee, composed of an equal number of members from each House, to propose a text on the provisions still under debate. (emphasis supplied)
2. Improvement of the Legislative Process
The Balladur Commission made a number of proposals for constitutional amendments to improve the legislative process: (i) better preparation of the law (requiring impact studies, opinions of the Council of State, pre-enactment involvement of the Constitutional Council, and the expanded use of programming acts); (ii) the “modernization” of the right of amendment; (iii) improving parliamentary consideration of proposed legislation; and (iv) enhancing the role of parliamentary committees. Following up on some of these recommendations, but not all, the 2008 amendments expanded Parliament’s competence to enact programming acts,  increased the number of permanent committees in each house from six to eight, and stipulated that debate on bills in plenary session is, with certain stated exceptions, to begin with the committee text (rather than the Government’s text, as had been the case before).
3. Parliamentary Power of Oversight and Assessment of Governmental Action
One of the principal thrusts of the 2008 amendments was to improve Parliament’s capacity to oversee, to evaluate, and to express its views with respect to Government action. To this end, the 2008 amendments add language to article 24 to constitutionalize Parliament’s supervisory role: “It [Parliament] shall monitor the action of the Government. It shall assess public policies.” Other 2008 additions to the Constitution provide Parliament with the means to better carry out this function. New article 47-2 provides for the assistance of the Cour des comptes to Parliament:
Cour des Comptes
- shall assist Parliament in monitoring Government action. It shall assist Parliament and the Government in monitoring the implementation of Finance Acts and Social Security Financing Acts, as well in assessing public policies. By means of its public reports, it shall contribute to informing citizens.
The accounts of public administrations shall be lawful and faithful. They shall provide a true and fair view of the result of the management, assets and financial situation of the said public administrations.
New article 51-1 allows Parliament to constitute committees of inquiry:
- In order to implement the monitoring and assessment missions laid down in the first paragraph of article 24, committees of inquiry may be set up within each House to gather information, according to the conditions provided for by statute.
Thanks to new article 34-1, Parliament may now adopt resolutions. Its ability to do so had previously been limited by a decision of the Constitutional Council holding that the responsibility of the Government could only be raised pursuant to the conditions and procedures of articles 49 and 50, and that resolutions calling for the implementation or disapproval of certain policies were in effect challenges to the government. New article 34-1 reads:
The Houses of Parliament may adopt resolutions according to the conditions determined by the Institutional Act.
Any draft resolution, whose adoption or rejection would be considered by the Government as an issue of confidence, or which contained an injunction to the Government, shall be inadmissible and may not be included on the agenda.
The 2008 amendments also significantly increase the involvement of Parliament in European policy and in foreign and defense policy. Article 88-4, as amended, provides for the creation of a European Affairs Committee in each house and allows Parliament to enact resolutions pertaining to European policy (by deleting language limiting parliamentary competence only to European measures of a “legislative nature”). Article 88-4, as amended, now provides:
- The Government shall lay before the National Assembly and the Senate drafts of European legislative Acts as well as other drafts of or proposals for Acts of the European Union as soon as they have been transmitted to the Council of the European Union.
In the manner laid down by the rules of procedure of each House, European resolutions may be passed, even if Parliament is not in session, on the drafts or proposals referred to in the preceding paragraph, as well as on any document issuing from a European Union Institution.
A committee in charge of European affairs shall be set up in each parliamentary assembly.
The following language was added to article 35, whose first paragraph provides that “A declaration of war shall be authorized by Parliament”:
The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed by a vote.
Where the said intervention shall exceed four months, the Government shall submit the extension to Parliament for authorization. It may ask the National Assembly to make the final decision.
If Parliament is not sitting at the end of the four-month period, it shall express its decision at the opening of the following session.
4. The Opposition
Since the Government and the National Assembly are controlled by the same political party or a coalition of parties with the same basic political orientation, the opposition party in Parliament must be able to play a significant role in the work of the Parliament if Parliament itself is to be much more than a mere rubberstamp for the Government and to play a significant political role, especially in overseeing the operation of the Government. According to the Balladur Report:
All of the preceding proposals pursue the same objective: the emancipation of the Parliament. That will be attained only if the prerogatives accorded to it benefit all parliamentarians, and not solely those who support the action of the Government.
The thinking of the Commission on this question has been guided by one constant concern: to recognize a more important role for the opposition, allowing it also to play a more responsible role, removed from the sterility of general criticisms which cast discredit on political discourse.
The 2008 amendments add a paragraph to article 4 of the Constitution which deals with political parties: “Statutes guarantee the pluralistic expression of opinions and the equitable participation of political parties and groups in the democratic life of the Nation.” This provision, implementing the principle of pluralism recognized in several decisions of the Constitutional Council, besides recognizing the constitutional status of minority political parties, is intended to reinforce their rights to public financing and to equitable access to the media.
The 2008 amendments also add a new article, 51-1: “The Rules of Procedure of each House shall determine the rights of the parliamentary groups set up within it. They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights.” This provision, which constitutionalizes the rights of the opposition, was necessary because of a 2006 decision of the Constitutional Council, based on the principle of equality, which disapproved of any distinction in parliamentary rules between members of majority and opposition parties.
D. New Rights for Citizens (des droits nouveaux pour les citoyens)
The Balladur Report proposed amendments to the Constitution to recognize, define, and constitutionalize three categories of “new rights for citizens”: political rights—the right of citizens to be represented in the diversity of their opinions, consulted by reason of their situation and their interests, and listened to when they express themselves; legal rights—the right to a system of justice more accessible to the people and more protective of their freedoms; and fundamental rights—the right of the people to have access to the Constitutional Council to protect their fundamental rights.
1. Political Rights
Parliament should better reflect the views of the people. To this end, the Balladur Report proposed adding an element of proportionality (about 20-30 seats) to elections for the National Assembly. This proposal, along with a proposal to better balance the size of Senate districts, was not accepted. The 2008 amendments did include, however, an addition to article 25, which requires an independent commission to publicly evaluate legislation to delimit electoral districts and the distribution of seats for the National Assembly. Article 25(3) reads:
- An independent commission, whose composition and rules of organization and operation shall be set down by statute, shall express an opinion, by public announcement, on the Government and Private Members’ Bills defining the constituencies for the election of members of the National Assembly, or modifying the distribution of the seats of members of the National Assembly or of Senators.
The Balladur Report also proposed enhancing the role and representativeness of the Economic and Social Council. The Economic and Social Council, now called the Economic, Social and Environmental Council (ESEC) after the 2008 amendments, was conceived as a consultative body composed of representatives of the economic and social activities of French society. The 2008 amendments recognize the equal status of environmental considerations. The ESEC can now be seized by Parliament as well as by petition (before the 2008 amendments, it could be seized only by the Government). The institutional act on the ESEC enumerates the economic and social sectors from which ESEC members are selected.
To increase direct democracy, the Constitution was amended to allow a referendum to be held on the initiative of citizens. In order to not undercut parliamentary authority, however, the support of one-fifth of parliamentarians was made necessary.
- A referendum concerning a subject mentioned in the first paragraph [the organization of the public authorities, or with reforms relating to the economic or social policy of the Nation, and to the public services contributing thereto, or which provides for authorization to ratify a treaty which, although not contrary to the Constitution, would affect the functioning of the institutions] may be held upon the initiative of one fifth of the members of Parliament, supported by one tenth of the voters enrolled on the electoral lists. This initiative shall take the form of a Private Members’ Bill and may not be applied to the repeal of a legislative provision promulgated for less than one year.
2. Legal Rights: The Justice System
Concern for the independence of the judiciary from the influence of the executive authority, and also for its competence, led to the amendment of article 65 of the Constitution dealing with the High Council of the Judiciary. Article 64, however, which makes the president responsible for guaranteeing the independence of the judiciary and provides that the High Council assists him in this task, was not amended; but article 65 was amended to delete the provision that the president presides over the High Council. That article, as amended, now divides the High Council into two bodies, one with authority over judges (magistrats du siège) and the other with authority over public prosecutors (magistrats du parquet). The Chief President of the Court of Cassation presides over the first body, and the Chief Public Prosecutor at the Court of Cassation over the second. Each section of the High Council is responsible for making recommendations on appointments (judicial or prosecutorial) and for handling disciplinary matters. In addition to freeing the High Council from political influence, the Balladur Commission also wanted to do away with the “corporatism” of which the Council was often accused. To that end article 65 now provides that each section of the High Council is to include six prominent qualified persons who are not members of Parliament or of the judicial or administrative orders. Two of these persons are to be appointed by the president of the Republic, two by the president of the National Assembly, and two by the president of the Senate. These appointments are specifically made subject to the article 13(5) appointment procedure. An important addition to article 65 is the provision allowing a litigant to refer a complaint to the High Council. The conditions for the application of this provision are to be determined by an institutional act. The institutional act to implement article 65 was promulgated by the president of the Republic in July 2010, after it had been found by the Constitutional Council to conform to the Constitution.
3. Fundamental Rights
Perhaps the 2008 amendment that will ultimately have the most long term significance is new article 61-1, which provides:
- If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the
- or by the
Cour de Cassation
- to the Constitutional Council which shall rule within a determined period. An Institutional Act shall determine the conditions for the application of the present article.
Parliament enacted the institutional act to implement article 61-1 in November 2009, and the Constitutional Council held that the act conformed to the Constitution in early December. The institutional act to implement article 61-1 was promulgated on December 10, 2009, and entered into force on March 1, 2010.
Article 61-1 represents a radical change in French constitutional law, as it allows for a judicial authority to find an act of Parliament unconstitutional even though that act has already entered into force. One of the fundamental political principles that emerged during the revolutionary era, became a core element of the “Republican tradition” during the nineteenth century, and later became the dominant principle of legal/political thinking with the definitive triumph of republicanism in the last quarter of that century and the years that followed, was the sanctity of the law (la loi), which had come to mean the statutes enacted by Parliament. Adopting the concept from Jean-Jacques Rousseau’s The Social Contract of 1762, article 6 of the Declaration of the Rights of Man and the Citizen of 1789 states: “The Law is the expression of the general will.” According to Rousseau, the general will, and hence the law which expresses it, is the authentic expression of national sovereignty. As such, it is, according to Rousseau, “indivisible,” “inalienable,” “illimitable,” and “infallible.” While Rousseau maintained that the general will could not be represented (e.g., by representatives elected to a legislative body), later theorists maintained that the general will could be represented, and in fact resided in Parliament. To allow non-elected judges to invalidate or not apply an act of Parliament was totally incompatible with this view that the sovereign will of the people is in effect expressed by laws enacted by Parliament.
The Constitutional Council as originally conceived in 1958 had a limited number of tasks: principally overseeing the regularity of referenda and presidential elections, deciding National Assembly and Senate election disputes, deciding whether an international agreement contains anything contrary to the Constitution (in which case the agreement could not be ratified or approved until the Constitution was amended), passing on the constitutionality of institutional acts and the standing rules of the houses of Parliament, and passing on the constitutionality of any act of Parliament if referred to the Council by certain designated officials (the president of the Republic, the prime minister, the president of the National Assembly or Senate), or (after a 1974 amendment) sixty senators or sixty deputies. With respect to the review of institutional acts, ordinary laws, and parliamentary rules, the clear intent of the framers of the Constitution was to devise a procedure to assure that the constitutional division of authority between the executive power (the Government) and the legislative power (the Parliament) was rigorously enforced. The enforcement of this division of authority was crucial to the success of the parlementarisme rationalisé that lay at the foundation of the political organization of the Fifth Republic.
In 1971, however, the Constitutional Council, in a decision that is often compared with the United States Supreme Court’s decision in Marbury v. Madison, decided that it could review parliamentary enactments for their conformity to substantive provisions of the Constitution (not just provisions dealing with allocation of competence between the executive and legislative branches or those dealing with matters of legislative procedure). In that decision, the Council also held that the preamble to the 1958 Constitution was positive law, containing provisions of constitutional status (valeur constitutionnelle) that it could apply in assessing the constitutionality of legislation. That decision significantly augmented the substantive content of the Constitution, as the 1958 preamble makes specific reference to the Declaration of Rights of Man and the Citizen of 1789 (which contains seventeen articles enumerating a variety of political and civil rights) and the preamble to the 1946 Constitution (which proclaims, “as being especially necessary to our times” sixteen “political, economic and social principles”). In addition, the 1946 preamble contains a reference to “fundamental principles recognized by the laws of the Republic,” which the Council held in its 1971 decision to be another source of law with constitutional status.
In recognition of the original intent underlying review of laws by the Constitutional Council, which was to assure that Parliament did not encroach on the sphere of executive rule-making competence or its procedural prerogatives in the legislative process, the 1958 Constitution as originally adopted provided that ordinary laws could be referred to the Council by only four officials: the president of the Republic, the prime minister, the president of the Senate, and the president of the National Assembly. In 1974 the Constitution was amended to allow sixty deputies or sixty senators to refer enacted laws (but before their promulgation and entry into force) to the Council. But, and it is important to stress, Council review took place, and was constitutionally required to take place, before the law entered into force. So in determining that a referred law did not conform to the Constitution, and therefore could not be promulgated or applied, the Council was not invalidating an act of Parliament, and could in fact be regarded as advising or “counseling” Parliament that the law, or part(s) of it, had to be amended before it could enter into force.
The addition of article 61-1 to the Constitution in 2008 is revolutionary in two respects: first, it allows an individual litigant to raise a question of constitutionality before the Constitutional Council (albeit indirectly); and second, it allows the Constitutional Council to rule on the constitutionality of a law already in force and to invalidate it. Article 62(2) prescribes the legal effect of a declaration of unconstitutionality pursuant to article 61-1:
- A provision declared unconstitutional on the basis of article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.
The institutional act to implement article 61-1 provides that a litigant in the ordinary court system or in the administrative court system may request the court to refer a question of the constitutionality of a law in force to the Constitutional Council. Such referral can be made only by the highest court in each system: the Council of State for the administrative court system or the Court of Cassation for the ordinary judicial system. This procedure is called the “priority question of constitutionality” (question prioritaire de constitutionnalité, or QPC). The institutional act contains certain conditions that must be satisfied for a referral by the Court of Cassation or the Council of State: as summarized by the Council of State in one of its first referrals, “the Constitutional Council may be seized of the priority question of constitutionality on the triple condition that the contested provision is applicable in the litigation or to the procedure, that it has not already been declared to conform to the Constitution by the reasoning or the disposition of a decision of the Constitutional Council, unless there is a change of circumstances, and that it is a question of first impression or is not devoid of a serious character.” The Council rendered its first QPC decision on May 28, 2010. In that decision it held that certain provisions of a few finance laws dealing with military retirement pensions did not conform to the Constitution because they contravened the principle of equality contained in article 6 of the Declaration of 1789. Article 23-10 of the institutional act on the QPC provides that “[t]he parties may present their opposing observations [before the Constitutional Council]. The hearing shall be open to the public...” Allowing formal presentations by attorneys for the parties and requiring that these sessions be open to the public are innovations in the Council’s procedure intended to increase the access and participation of private parties and to enhance transparency.
The Balladur Commission proposed that article 56, dealing with the composition of the Constitutional Council, be amended to eliminate former presidents of the Republic as ex officio members of the Council in order “to reinforce the judicial mission assigned to the Constitutional Council.” The Commission’s Report pointed out that former presidents usually remain active in political life and that such activity was incompatible with service on a judicial body. Parliament, however, did not accept the Commission’s recommendation, and former presidents continue to serve on the Council.
Another significant 2008 amendment intended to protect fundamental rights is the addition of new article 71-1, which established the constitutional office of the Defender of Rights (le Défenseur des droits). The principal function of the Defender of Rights is to assure that constitutional rights and protections of individuals are recognized and implemented by administrative authorities. The Defender of Rights replaces the Mediator of the Republic, an office which did not have constitutional status. Article 71-1 provides:
- The Defender of Rights shall ensure the due respect of rights and freedoms by state administrations, territorial communities, public legal entities, as well as by all bodies carrying out a public service mission or by those that the Institutional Act decides fall within his remit.
Referral may be made to the Defender of Rights, in the manner determined by an Institutional Act, by every person who considers his rights to have been infringed by the operation of a public service or of a body mentioned in the first paragraph. He may act without referral.
The Defender of Rights is appointed for a non-renewable six-year term by the president of the Republic, subject to the article 13(5) appointment procedure. The Balladur Report recommended that the Defender of Rights be able to refer a law not yet promulgated to the Constitutional Council for a priori review, but this recommendation was not included in the 2008 amendments. New article 71-1 leaves considerable leeway to Parliament to define the position of Defender of Rights and its powers by institutional act.
Besides structural and procedural changes, the 2008 amendments also constitutionalized certain substantive rights. Article 34, among other things, now provides that “Statutes shall determine the rules concerning: civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties; freedom, pluralism and the independence of the media; the obligations imposed for the purposes of national defense upon the person and property of citizens...” The italicized language was added to assure constitutional status (valeur constitutionnelle) to the rights there indicated. An addition to article 1 (indicated in italics), which now reads: “Statutes shall promote equal access by women and men to elective offices and posts as well as to professional and social positions,” was made necessary by decisions of the Constitutional Council invalidating certain gender equality law. New article 75-1 recognizes that “Regional languages are part of France’s heritage.”] The legal import of this provision is uncertain, as it is imprecise, not contained in the title on sovereignty, and relegated to the back of the Constitution.
IV. Conclusion: An Assessment of the 2008 Amendments
The constitutional amendments of 2008 were a major step forward in adapting the French political and legal systems to the twenty-first century. They are not perfect or even complete, but they do represent movement in the right direction. Most importantly, the Balladur Commission as well as Parliament rejected calls for fundamental alterations, either in the direction of a restored parliamentary regime or toward a more pronounced presidentialism. The French tradition, as it has emerged and solidified over the past fifty years, now calls for a mix of the two, or as Jean-Claude Colliard has put it: “a parliamentary regime with a presidential corrective.” Stability and continuity have become overriding considerations. To quote the National Assembly’s Committee on Constitutional Law’s Warsmann Report:
To revise, without overturning; to modernize without denying; to adapt, without destroying: these are the principles which must govern our chamber in its constituent work... The present revision is not an end in itself or a sufficient result. It must be seen not only in the general context of a profound reform of the State, but especially as a point of departure for modifications which will necessitate adaptation, sometimes substantial, of institutional acts, ordinary law, and the rules of the parliamentary assemblies, and which will allow us to take the exact measure of what the proposed constitutional changes imply... This also implies changes in practices. To quote the aphorism of Royer-Collard, “Constitutions aren’t tents made for sleeping.” This also implies changes in practices.
Mainstream thinking has coalesced around a number of evolutionary modifications, as is evinced by the essential similarity of the Vedel Report of 1993 and the Balladur Report of 2008. The Warsmann Report states: “France has exhausted itself in the past in the pursuit of constitutional chimeras” and that it is important to avoid “constitutional adventurism.” The Senate’s Committee on Constitutional Law’s Hyest Report echoes this sentiment, opining that the accomplishments of the Fifth Republic must be preserved. Now that France finally has a Constitution that satisfies the broad center of the political spectrum, both structurally and substantively, the task ahead is to build on and deepen the accomplishments since 1958.
Take, for example, a posteriori constitutional review of laws at the behest of litigants in judicial or administrative courts. What was once unthinkable for fear of “the government of judges” is now a reality. But the QPC established by the 2008 amendments did not spring full blown from the constituent’s mind at that time. There was slow but steady movement in that direction since the establishment of the Constitutional Council in 1958. The mandatory review of institutional acts and parliamentary rules in the original Constitution of 1958, the Freedom of Association decision of 1971 greatly enlarging the judicially cognizable substantive content of the 1958 Constitution, the 1974 amendment allowing opposition parliamentarians to refer a law to the Constitutional Council (and the 1992 amendment allowing parliamentarians to refer a treaty to the Council), review of French laws in force for compliance with the Treaty on the European Union European by the Court of Cassation (as of 1975) and Council of State (as of 1989) and the European Convention for the Protection of Human Rights and Fundamental Freedoms all set the stage for the QPC. The QPC, however, does not allow litigants to raise constitutional questions directly in the Constitutional Council, as for example, the German Constitution (Grundgesetz) does. Instead, objections to a law in force must be raised by litigants in pending proceedings in judicial or administrative courts, and the question of the constitutionality of the law will then be referred to the Council by the Court of Cassation or Council of State if it meets certain conditions. The Council of State and the Court of Cassation perform, in effect, a door-keeper, or filtrage, function.
One might perhaps point to the failure of Parliament to accept the Balladur Commission’s proposals to modify articles 5 and 20 to reflect the reality of presidential dominance and the subordinate role played by the prime minister as an example of the failure of the 2008 amendments to better clarify the relationship between the two sources of executive power. But the system now in place has proven its worth in practice; it allows great flexibility for institutional arrangements to adapt or reflect different configurations of political power as they evolve.
The “rebalanced” (rééquilibrée) relationship between Parliament and the Government is more problematic. While Parliament has certainly gained powers, prerogatives, and resources to better prepare, enact, supervise, and evaluate legislation, and is less subject to Government domination and control, it still remains to be seen whether these new capabilities will actually translate into Parliament’s playing a more active role in the political process. But that said, at least Parliament (including, importantly, the opposition) now has the possibility and the tools to be more assertive in the political arena, if it is willing and able to seize the opportunities available to it.
Since the Revolution of 1789, France has been plagued by the problem of the precariousness of legitimacy of political authority. This has been a destabilizing force and significantly weakens existing institutions. In 1958, and again in 1961, it was eminently conceivable that the republican form of government itself was threatened. And the specter of revolution or radical regime change hung over the events of 1968. Radical regime change is not unthinkable in France, as it would be, say, in the United States. That is perhaps why the presidential election of 2002, when the extreme right-wing candidate Jean-Marie Le Pen was one of the two candidates in the second (final) round of the election, was such a shock to the French political psyche. But radical discontinuity is becoming less and less thinkable today, as French society coalesces more and more around an institutional and values consensus. That consensus has found embodiment in a Constitution that has become an important referent in political life, and with the QPC, will become even more important in the thinking of the entire legal and administrative system as well as that of the average person. As Dominique Rousseau has written, with the QPC “the Constitution is moving out of the universities and into the courts,” and, we may add, into the lives of the French people more generally. It is now poised to embody and symbolize the values of the nation, and as such to act as a powerful unifying force. The slow, organic growth of the institutions and values of the Fifth Republic over time, through political, legal, and customary practice, and the recognition and implementation of that growth by constitutional amendment and interpretation has gradually transformed the Constitution of 1958, from “General de Gaulle’s Constitution” to the Constitution of the French people.
Martin A. Rogoff est Professeur de droit à l’Université du Maine (University of Main School of Law)