Constitution of France The current Constitution of France was adopted on October 4 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth Republic, while the text was drafted by Michel Debré. Since then the constitution has been amended eighteen times, most recently in 2008.
Summary
The preamble of the constitution recalls the Declaration of the Rights of Man and of the Citizen from 1789 and establishes France as a secular and democratic country, deriving its sovereignty from the people.
It provides for the election of the President and the Parliament, the selection of the Government, and the powers of each and the relations between them. It ensures judicial authority and creates a High Court (a never convened court for judging the President), a Constitutional Council, and an Economic and Social Council. It was designed to create a politically strong President.
It enables the ratification of international treaties and those associated with the European Union. It is unclear whether the wording (especially the reserves of reciprocity) is compatible with European Union law.
The Constitution also sets out methods for its own amendment either by referendum or through a Parliamentary process with Presidential consent. The normal procedure of constitutional amendment is as follows: the amendment must be adopted in identical terms by both houses of Parliament, then must be either adopted by a simple majority in a referendum, or by 3/5 of a joint session of both houses of Parliament (the French Congress) (article 89). However, president Charles de Gaulle bypassed the legislative procedure in 1962 and directly sent a constitutional amendment to a referendum (article 11), which was adopted. This was highly controversial at the time; however, the Constitutional Council ruled that since a referendum expressed the will of the sovereign people, the amendment was adopted.
On 21 July 2008, Parliament passed constitutional reforms championed by President Nicolas Sarkozy by a margin of two votes. These changes, if finalized, introduce a two-term limit for the presidency, give parliament a veto over some presidential appointments, end government control over parliament's committee system, allow parliament to set its own agenda, allow the president to address parliament in-session, and end the president's right of collective pardon. (See French constitutional law of 23 July 2008)[1]
[Edit] Impact on personal freedoms
Prior to 1971, though executive, administrative and judicial decisions had to comply with the general principles of law (jurisprudence derived from law and the practice of law in general), there were no such restrictions on legislation. It was assumed that unelected judges and other appointees should not be able to overrule laws voted for by the directly elected French parliament.
In 1971, a landmark decision by the Constitutional Council (71-44DC[2]) cited the preamble of the Constitution and its references to the principles laid in the Declaration of the Rights of Man and of the Citizen as a reason for rejecting a law that, according to the Council, violated one of these principles. Since then, it is assumed that the "constitutional block" includes not only the Constitution, but also the other texts referred to in its preamble: the Declaration, but also the preamble of the 1946 Constitution (which adds a number of "social rights", as well as the equality of males and females) and the Environment Charter of 2004.
Since then, the possibility of sending laws before the Council has been extended. In practice, the political opposition sends all controversial laws before it.
[Edit] Amendments
The Constitution defines in Article 89 the rules for amending itself. First, a constitutional bill must be approved by both houses of Parliament. Then, the bill must be approved by the Congress, a special joint session of both houses; alternatively, the bill can be submitted to a referendum.
In 1962, president Charles de Gaulle controversially submitted a bill to a referendum through another procedure defined at article 11 of the Constitution – see French presidential election referendum, 1962. This procedure has never been used since then for constitutional changes.
6. The Constitutional Council (Conseil Constitutionnel) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.
Its main activity is to rule on whether proposed statutes conform with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the Republic (a priori review); since 1 March 2010, individual citizens party to a trial or lawsuit can also ask for the Council to review whether the law applied in the case is constitutional. In 1971, the Council ruled that conformity with the Constitution entails conformity with two texts referred to by the preamble of that constitution: the Declaration of the Rights of Man and of the Citizen and the preamble of the constitution of the Fourth Republic, both of which list constitutional rights (e.g. freedom of speech).
[Edit] The Council and the enactment of legislation in France
This article refers extensively to individual articles in the Constitution of France. The reader should refer to the official translation of the Constitution on the site of the French National Assembly. Another recommended reading is the Constitutional Council overview on the Council web site.
The Government of France consists of an executive branch (President of the Republic, Prime Minister, ministers, and their services and affiliated organizations), a legislative branch (both houses of Parliament), and a judicial branch. The judicial branch is, unlike for instance the federal judiciary of the United States under the Supreme Court, not organized into a single hierarchy (administrative courts fall under the Council of State, civil and criminal courts under the Court of Cassation), and some of its entities also have advisory functions. For historical reasons there has long been a hostility to having anything resembling a "Supreme Court", that is, a powerful court able to quash legislation.[1][2][3] Whether the Council is a court is a subject of academic discussion,[2][4] but some scholars consider it the supreme court of France.[5]
The Constitution of the French Fifth Republic distinguishes two distinct kinds of legislation: statute law, which is normally voted upon by Parliament (except for ordonnances) and government regulations, which are enacted by the Prime Minister and his government as decrees and other regulations (arrêtés).[1] Article 34 of the Constitution exhaustively lists the areas reserved for statute law: these include, for instance, criminal law.
Any regulation issued by the executive in the areas constitutionally reserved for statute law is unconstitutional unless it has been authorized as secondary legislation by a statute. Any citizen with an interest in the case can obtain the cancellation of these regulations by the Council of State, on grounds that the executive has exceeded its authority. Furthermore, the Council of State can quash regulations on grounds that they violate existing statute law, constitutional rights or the "general principles of law".[6]
In addition, new acts can be referred to the Constitutional Council by a petition just prior to being signed into law by the President of the Republic. The most common circumstance for this is that 60 opposition members of the National Assembly, or 60 opposition members of the Senate request such a review.[7]
If the Prime Minister thinks that some clauses of existing statute law instead belong to the domain of regulations, he can also ask the Council to reclassify these clauses as regulations.[8][9]
Traditionally, France refused to accept the idea that courts could quash legislation enacted by Parliament (though administrative courts could quash regulations produced by the executive). This goes back to the French revolutionary era: pre-revolutionary courts had often used their power not to register laws and thus prevent their application for political purposes, and had blocked reforms. French courts when then prohibited from making rulings of a general nature. Also, it seemed that if courts could quash legislation after it had been enacted and taken into account by citizens, it would introduce legal uncertainties: how could a citizen plan his or her actions according to what is legal or not if laws could a posteriori be found not to hold ? Yet, in the late 20th century, courts, especially administrative courts, began applying the consequences of international treaties, including law of the European union, as superior to national law.
A 2009 reform, effective on 1 March 2010, enables parties to a lawsuit or trial to question the constitutionnality of the law that is being applied to them. The procedure, known as question prioritaire de constitutionnalité, is grossly as follows: the question is raised before the trial judge and, if it has merit, it is forwarded to the appropriate supreme court (Council of State if the referral comes from an administrative court, Cour de Cassation for other courts). The supreme court collects such referrals and submits them to the Constitutional Council. If the Constitutional Council rules a law to be unconstitutional, this law is struck down from the law books; this decision is valid for everybody and not only for the cases at hand.[10]