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Constitutional Council of France
The Constitutional Council was established by the Constitution of the Fifth Republic on 4 October 1958. It is the highest constitutional authority in France. Its duty is to ensure that the principles and rules of the constitution are upheld.
The council can only do so when issues are brought before it, it has no power to judge otherwise. Thus, statute legislation can only be judged to be unconstitutional if it is brought before the council before it is promulgated, not after it had been passed. However, executive decisions and regulations can be quashed by the administrative courts and the Conseil d'État. Furthermore, Courts, especially the Court of Cassation, may refuse decisions that they deem contrary to French Law, or treaties such as the European Convention on Human Rights.
The council is made up of
- nine members who serve a non-renewable term of nine years, one third renewable every three years; their selection is made by the president of the Republic, the president of the National Assembly and the president of the Senate, they each have to choose one third of its composition;
- the former presidents of the Republic who have chosen to sit in the council (which is incompatible with the pursuit of political activity).
The president of the Council is then selected by the president of the Republic.
As of 2005, the current members are:
- Pierre Mazeaud, president of the Council, named by the president of the Republic in February 1998, named by the president of the Republic on February 27, 2004;
- Valéry Giscard d'Estaing, former president of the Republic;
- Simone Veil, named by the president of the Senate in February 1998;
- Jean-Claude Colliard , named by the president of the National Assembly in February 1998;
- Olivier Dutheillet de Lamothe , named by the president of the Republic in March 2001;
- Dominique Schnapper , named by the president of the Senate in March 2001;
- Pierre Joxe , named by the president of the National Assembly in February 2001;
- Pierre Steinmetz , named by the president of the Republic in February 2004;
- Jacqueline de Guillenchmidt , named by the president of the Senate in February 2004;
- Jean-Louis Pezant , named by the president of the National Assembly in February 2004.
The members of the Constitutional Council, except for former presidents of the Republic, are sworn in by the president of the Republic. The president of the Republic takes the oath of office before the president of the Constitutional Council.
The members of the Council should abstain from partisanship. They should refrain from making declarations that could lead them to be suspected of partisanship. The possibility for former presidents to sit in the Council is a topic of moderate controversy; some see it as incompatible with the absence of partisanship.
The Constitutional Council sits in a section of the Palais Royal.
Powers and tasks
The constitutional council has two main areas of power:
- The first is the supervision of elections, both presidential and parliamentary and ensuring the legitimacy of referendums (Articles 58, 59 and 60). They issue the official results, they ensure proper conduct and fairness and that spending limits are adhered to. The council is the supreme authority in this respect. The council can declare an election to be invalid if it was improperly conducted, or if the elected candidate used illegal methods or spent for his campaign over the legal limits.
- The second area covers the following aspects: interpretation of the fundamental meanings of the constitution, procedure, legislation and treaties. The Council can declare dispositions of laws to be contrary to the Constitution of France or to the principles of constitutional value that it has deduced from the Constitution or the Declaration of the Rights of Man and of the Citizen. It may also declare laws to be in contradiction to treaties that France has signed, such as the European Convention on Human Rights. In the case when a disposition of a law is declared to be contrary to constitutional or treaty dispositions, it is rendered invalid. The Council may also impose reserves as to the interpretation of certain dispositions in statutes. The decisions of the Council, in those cases, are binding on all authorities.
In some cases, examination of laws by the Council is compulsory. Organic bills, the ones which fundamentally affect government and treaties need to be assessed by the council before they are considered ratified (Article 61-1 and 54); amendments concerning the rules governing parliamentary proceeding need to be considered. Guidance may be sought in regard to whether reform should come under statute law (voted by Parliament) or whether issues are considered as règlement (regulation) to be adopted with decree of the prime minister. The requalification of legislative dispositions into regulatory matters initially constituted a significant share of the (then light) case load of the Council.
In the case of other statutes, seeking the oversight of the Council is not compulsory. However, the president of the Republic, the president of the Senate, the president of the Assembly, the prime minister or 60 deputies or senators can submit a statute for examination by the Council before its signing into law by the President. In general, it is the parliamentary opposition which brings laws that it deems to infringe on civil rights before the Council.
While, since the 19th century, the judicial review that the Conseil d'État brings on the act of the executive branch has played an increasingly large role, France has long been reticent about judicial review of legislative branch actions. The argument was that unelected judges should not be able to directly overrule the decisions of the democratically elected legislature. This may also have reflected the poor impression that the political action of the parlements – courts of justice under ancien régime monarchy – had left; often, these courts had chose to block legislation in order to further the privileges of a small caste. Whatever the reasons, the idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body.
Originally, the Constitutional Council was meant to have rather technical responsibilities: ensuring that national elections were fair; arbitrating the division between statute law (from the legislative) and regulation (from the executive); etc. However, the Council role of safekeeping fundamental rights was probably not in the original intents of the drafters of the Constitution of the French Fifth Republic; it was thought that Parliament should be able to see for itself that it did not infringe on such rights.
However, in 1971, the Council ruled unconstitutional (decision 71-44DC) some dispositions of a law changing the rules for the incorporation of private nonprofit associations, because they infringed on freedom of association, one of the principles given in the 1789 Declaration of the Rights of the Man and of the Citizen; they used the fact that the preamble of the French constitution briefly referred to those principles to justify their decision. For the first time, a statute was declare unconstitutional not because it infringed on technical legal principles, but because it was deemed to infringe on personal freedoms.
Still, the Council still has to deal with technical cases of litigious conformity of laws to the French Constitution. Among these:
- The Council has increasingly frowned upon parliamentary amendments voted into the Finance Law (the budget) for motives unrelated to the finances. Since the budget has to be voted quickly, such amendments, known as "budgetary jumpers" (cavaliers budgétaires) may have a chance to pass, because parliamentarians may hesitate delaying the budget to remove them. However, they are an abuse of parliamentary procedure.
- In January 2005, Pierre Mazeaud, then president of the Council, announced that the Council would take a stricter view of language of a non-prescriptive character introduced in laws. Previously, this language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences just dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wished instead of effective legislation. Mazeaud also said that, because of the constitutional objective that law should be accessible and understandable, law should be precise and clear, and devoid of details or equivocal formulas.
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