Preserving the Role of the French Constitutional Council as a Check on Executive Power
The Constitutional Council was established when the Fifth Republic was born in 1958 (Cole 1998, p. 63). Initially designed as a tool to protect the executive against parliament, the Council evolved into a powerful force against the government (Elgie and Griggs 2000, p. 27). It ensures that elections are conducted fairly and that bills conform to the constitution (Slater 1985, p. 180). This essay argues that the most important role of the Constitutional Council today is to serve as a check on executive power in order to protect the rights of citizens. To understand this, we need to contrast its humble beginnings with the landmark judgment of 1971 and the 1974 constitutional reform. Then, the impact of ‘Europeanisation’ on the Council and the consequences of the newly introduced ‘Questions Prioritaires Constitutionelles’ will be considered.
At its inception the weak role of the young Council was apparent as it only ruled on nine occasions between 1958 and 1971, each time in favour of the government. In 1962, the Council found itself unable to invalidate the outcome of a referendum invoked by de Gaulle, even though it clearly exceeded the boundaries of the Constitution (Safran 1998, p. 239). Rightly, it earned the reputation as the ‘sleeping dog’ of the Constitution (Machin 2001, p. 148). Moreover, many critics dismissed the Constitutional Council as being highly politicised (Stone Sweet 2007, p. 73). This is because the Constitutional Council is made up of nine appointees, who are chosen for nine-year, non-renewable terms by the Presidents of the Republic, of the National Assembly and of the Senate (Elgie 2003, p. 180). Even though rules were devised to provide for an independent institution, they did not stop the three Presidents to appoint candidates from their own party ranks. Such criticism is still valid today; but to a much lesser extent than in the pre-1990s period. Until 1981 the Constitutional Council consisted exclusively of Right-wing members and not until 1995 did the Socialists gain their first majority.In the 1970s, the Constitutional Council emerged as an important political actor that finally appreciated the full sphere of its powers while shaking off its submissive image. To date, the 1971 judgment represents the most important watershed in the development of the role of the Constitutional Council. For the first time, the Council declared a piece of legislation unconstitutional on the grounds that it violated constitutional rights (Surel 2008, p. 146). By doing so, the Council referred to rights found in the 1789 Declaration of the Rights of Man as well as the 1946 Preamble to the Constitution of the Fourth Republic. Thus, the judgment effectively expanded the scope of the Council, commonly referred to as ‘bloc de constitutionalité’ (Knapp 2005, p. 95). This denoted a major step towards becoming a check on executive power because the Council proved that it was capable of rendering a government-sponsored law unconstitutional. Not surprisingly, this turning point directly contradicted the intentions of the framers of the Constitution. Namely, it introduced a high degree of uncertainty into the legislative process due to the fact that the obligations set out in the preamble were not entirely clear (Stone 1992, p. 34). Until today, this served as another check on the government as the ruling party could not be sure on which grounds the question of the constitutionality of a bill would be decided.
Merely three years later, the constitutional reform of 1974 further entrenched the direction the Constitutional Council was taking as a growing check on the executive. Pushed forward by President of the Republic Giscard d’Estaing, 60 deputies and 60 senators now also enjoyed the right to refer drafted bills to the Constitutional Council. As professor Yves Surel argues, the reform was “a way to institutionalize some counterweights to the overall centrality of the President in the political regime” (Surel 2008, p. 144). While the government’s control over legislation gradually ceased, the reform pushed the Constitutional Council to the centre of legislative decision making. Now that parliamentary minorities could trigger constitutional review, scrutiny increased which, in turn, intensified the role of the Constitutional Council as a check on executive power: It was used by the opposition as a tool to limit the power of the government (Brouard 2009, p. 386). Consequently, between 1974 and 1981 the numbers of petitions were five times higher than over the past 15 years while annulments of governmental laws similarly increased (Knapp and Wright 2006, p. 401).
Due to these groundbreaking constitutional changes, the government started to anticipate the Council’s decision to avoid annulments wherever possible (Elgie 2000, p. 7). This self-limitation still operates today as a self-inflicted check by the executive itself. The opposition intensifies this procedure because it is in the position to threaten with referrals at any time. Thus, such compromises underscore the Council’s indirect constraining effect on the government, so to speak a “coercive mechanism of compliance” (Knapp and Wright 2006, p. 4). Should the Constitutional Council still reject the bill, it usually supplies the government with the amendments needed for the bill to be passed. Such a ‘corrective revision’ process further explains the Council’s growing authoritative role within the legislative process.
From 1971 onwards, the Council came to be seen as the protector of individuals’ rights and freedoms. For example, the Council made the Left-wing government in 1982 rewrite parts of its bill on nationalisation because the bill breached the right to fair compensation (Slater 1985). Such decisions underline how the Constitutional Council paved the way towards a state in which the elective mandate is subordinate to substantive constitutional principles in the making of legislation: the État de Droit.
The trends that started in the seventies increased over the following decades. The Constitutional Council was used by both sides depending on which party was in power, as a way of counteracting each other. Political scientist Stanley Hoffman argues that through the heightened importance of the Council as a check on the executive, a tradition of judicial review arose – commonly called a “government of judges” (Hollifield and Ross 1991, p. 52). In fact, judicial review increased to such an extent over the 1980s that nowadays almost all controversial bills are referred to the Constitutional Council. In 2007, the Constitutional Council annulled already the third referral that had been made after Sarkozy had been elected as President of the Republic (Surel 2008, p. 147). This recent incident highlights how the Constitutional Council rebels against executive power. Considering that nearly half of the petitioned bills are at least partly annulled, it does not surprise that petitions increase.
In our discussion we must not forget the growing influence of the European Union on France’s legal system. As part of the ‘judicialisation’, European Union law from the 1990s onwards further built the confidence of the Council as a check against the executive. The Council took on another role to ensure that national laws would not clash with European Union laws. Now the government did not only have to make sure its proposed bills complied with the ‘bloc de constitutionalité’, but also with supranational law. In 1992, for instance, the Council ruled that the Constitution needed to be amended because it did not conform to the Maastricht Treaty (Stevens 2003, p. 45). This illustrates how European Union membership reinforces the Council’s tremendous role as a constraint on executive power.
The most recent event exemplifying the role of the Constitutional Council as a limitation on the government was the introduction of the ‘Questions Prioritaires Constitutionelles’. Since March 2010, it is possible for individuals subject to trial before a court to challenge a parliamentary act (Lewin 2010). The courts can then refer the provisions to the Constitutional Council which in turn vets whether the provisions infringe the freedoms warranted by the Constitution. This truly innovative reform, therefore, dramatically widens the spectrum of people being able to petition the Constitutional Council. As a consequence, the role of the Council as a burden on the executive and as a protector of people’s rights has been confirmed afresh.
In conclusion, this essay argues that while the Council possesses minor roles, such as supervising elections, its most important function today is to serve as a check on executive power. This was not the case in its founding years. However, the 1971 judgment and the 1974 constitutional reform shaped the Council to what it is today. Since then, petitions to the Constitutional Council increased exponentially. In addition, the Constitutional Council both directly and indirectly controls the government through corrective revision and self-limitation. On top of this, France’s participation in the European Union regional governance arena manifests the role of the Council. This is reinforced by the recent introduction of the ‘Questions Prioritaires Constitutionelles’ which will yet again increase the volume of referrals to the Council.
In the words of Professor Robert Gildea, the Constitutional Council has, thus, become “a genuine watchdog of the constitution instead of a poodle of the executive” (Gildea 1996, p. 172). Having assessed the development of the Constitutional Council, it seems that its role as a check on executive power is likely to become even more pronounced in the future.