Dynamics in the French Constitution
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Dynamics in the French Constitution

Decoding French Republican Ideas

David Marrani

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Dynamics in the French Constitution

Decoding French Republican Ideas

David Marrani

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About This Book

The promulgation of the Fifth French Republic Constitution in 1958 marked the end of a complex constitutional history that has since 1789 seen more than twenty constitutions and five Republics. Lasting now for more than fifty years, the Fifth Republic Constitution has proven to be the right settlement for the French people; a consensual text.

However, while offering the appearance of stability, the Fifth French Republic Constitution has often been reconsidered and changed, not least in the year of its fiftieth anniversary, when the Constitution was 'modernised'. These dynamics of the Fifth Republic Constitution are neither a recent matter nor entirely the result of the successive constitutional amendments. Instead, the history of the Constitution has involved the resurgence of repressed archaic elements from the ancient regime, while the social, economic and environmental contexts have penetrated not only the text itself but more extensively its spirit, and behind it, the philosophy and our perception of the Republic.

In Dynamics in the French Constitution, David Marrani questions the foundations of the French Fifth Republic. In using specific themes, current and traditional debates, contemporary and archaic factors, that have enlightened the road of long lasting Republic, the book explores some of the changes of the last fifty years and the tensions that are present within the constitutional text. In combining theoretical concepts of constitutional law with key contemporary and historical developments, such as the European integration, the response to environmental challenges, the practice of human rights and the pillars supporting French republicanism, this book offers varied and creative tools for a better understanding of the Republic of today.

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Information

Publisher
Routledge
Year
2013
ISBN
9781135105495
Topic
Law
Edition
1

1 Nature and evolution of the Constitution of the French Fifth Republic

Reflections on semi-presidentialism1

1.1 A semi-presidential Constitution?

Since 1789, the number of constitutional texts in France has reflected an ambivalence about the organisation of the polity. On the one hand, by transferring the onus of sovereignty from the monarch to the people (or what we could assume to be its theorised version, the nation) the governing body became a representative regime with an assembly as its main institution. ‘Pure’ and sometimes ‘excessive’ parliamentary systems of government were to be the basis of numerous French constitutional texts. On the other hand, the basic societal organisation, the tribal Indo-European society established through a Franco-Germanic hierarchical monarchic society, was present in many other texts. Ambivalence and discontent, a dialectical relationship between the two poles of the government of the French society could be resumed in the classical conceptualised expressions: parliamentary regime v. presidential regime. The Constitution of the Fifth Republic appears to be an attempt to reconcile the two opposed sides of ‘how to govern a society’. The Fourth Republic, which failed to attract a wide consensus, was replaced after dealing (sometimes in a positive way) with decolonisation by the ‘most monarchic’ regime since the reign of Napoleon III and the Second Empire. It was a recurrent idea during the Third Republic that France has always needed a head. Charles Maurras was the leading figure supporting this claim, but the left wing of the time was also sharing this opinion, and later Duverger claimed, citing Maurras in Échec au Roi: ‘The Republic is a woman without a head.’2 This belief, embedded in the ancien régime, was obviously part of the background preparatory work on the new Constitution. As Professor Jean-Claude Casanova notes: ‘The “real” father of the French Constitution is Charles Maurras, who is the “real” intellectual father of Charles de Gaulle, i.e. that France needs a head.’3 The influence of Charles Maurras on Charles de Gaulle, founder of the Fifth Republic, cannot be dismissed. Neither can his influence on Mitterrand, De Gaulle’s long-lasting political opponent, who not only became head of state under a Constitution that he vigorously criticised as a text permitting ‘the permanent coup d’État’,4 but also its longest-standing President to date. Mitterrand noted in his first press conference that ‘those institutions were a danger before me, they will be again after me. So far, I can accommodate myself to it.’5 In doing so, he (re-)affirmed the monarchist characteristic of these institutions. Both De Gaulle and Mitterrand were educated under the Third Republic when the dialectic between monarchy and democracy was at its zenith; Maurras’ ideas were crucial then. The ideological debate that marked the Third Republic, excluded for conjectural reasons from the constituent debate of 1945 to 1946 (after the Second Word War and the Vichy regime), reappeared in 1958 and was transposed in the text of the Constitution of the Fifth Republic. The structural debate of ‘who should govern’ formed part of the preparatory debate for the drafting of the new Constitution and it is present in the text itself. It is also present in two major modifications that took place in 1962 and 2000, although less evident in the 2008 amendment.6
In this chapter, I wish to demonstrate the tensions within the text of the Constitution, characterised by the constitutional amendment that concern the President. I will start by looking at the theoretical framework to consider how the current semi-presidential system sits between the parliamentary and presidential versions; I will then analyse the constitutional arrangement at the origin of the Constitution and how it evolved, before looking into the dynamics of the Constitution as it now stands.

1.2 Theoretical framework

As I will be considering the Constitution of the Fifth Republic, I will work from the hypothesis that the system in place since 1958 has been a mix of parliamentary and presidential regimes. I will look, therefore, at some broadly accepted definitions of these regimes.
If we follow the classic approach elaborated upon by Sartori, there are three prototypes of systems for government: the parliamentary regime, the presidential regime and the semi-presidential regime.7

1.2.1 Parliamentary regime

According to Sartori, the prototype for a parliamentary regime is the UK’s ‘Westminster system’, although it can also be seen in France in the Constitutions of the Third and (to some extent) Fourth Republics. The system is mainly known for the way the main powers collaborate. The primary characteristic of the parliamentary regime is that the institution itself – parliament – is sovereign. There is a transfer of sovereignty from the people or the nation towards the legislative institution of the governing body. The parliamentary system, in fact, ‘demystifies’ the people or nation as sovereign: the institution becomes the perceived sovereign. Another characteristic is that the parliament is democratically elected. There are different ways to recruit members of the legislative institution, according to the election laws of a country of course. For instance, the UK operates the majoritarian voting ‘first-past-the-post’ system to recruit members of parliament while the French Third Republic operated variations of proportional representation.
The head of government is also leader of the political party or coalition leading the lower chamber. Indeed, under constitutional convention, the leader of the party or coalition of parties with the greatest number of seats in the House of Commons becomes Prime Minister.8
If we now look at a ‘politico-legal’ reading of the system, we find that there is no proper separation of powers but rather a collaboration between the executive and legislative bodies. Consequently, it may be assumed that most of the time the executive can pass any laws it wants to under this system, reinforcing the primary characteristic of the sovereignty of the institution of parliament.
Finally, the government is accountable to the national parliament that checks its work through tools like the vote of confidence, and as ‘counterparty’ the executive may be allowed to dissolve parliament. This double-sided mechanism, which is understood as the core of this system of collaboration, is in fact rarely activated because of the close relationship between the executive and the elected members of the lower chamber.

1.2.2 Presidential regime

Sartori considers the ‘Washington system’ to be a prototype of a presidential regime, although two French examples, the 1791 Constitution and the Second Republic, could also be considered.
Under the presidential system of government, the President is directly elected or nominated but can also be, in some cases (like the 1791 French Constitution), a hereditary monarch. The legislative assembly or assemblies is or are normally directly elected. In the USA, the two chambers are directly elected, although what is ‘represented’ in each chamber is different (people and member states). Under the 1791 French Constitution, and the 1848 Constitution, an unicameral assembly was directly elected.
The system’s main characteristic is that of a ‘strict’ separation of powers. Therefore in this model of strict separation of powers, the link between the executive and legislative bodies is said to be minimal. Indeed, the President and the executive are not ‘controlled’ by the legislature but directly by the people. Thus the President and the executive cannot dissolve the assembly or assemblies.

1.2.3 Semi-presidential regime

Sartori defined the Fifth French Republic as a prototype of a semi-presidential system of government. He described it as a system comprising a head of state with a head of government incorporated in a bicephalous (‘two-headed’) executive, and a parliament with a least one directly elected chamber. It is interesting to analyse what the literature has defined as semi-presidential and what criteria have been retained. In the current literature on semi-presidential systems of government, different conditions are found to describe the system.
Sartori considered four conditions:
• The head of state has to be directly or indirectly elected.
• The head of state shares power with the Prime Minister as the executive is bicephalous.
• The head of state is independent from the legislative power but cannot govern alone. Directives can be given and the government is supposed to apply them, hence the national parliament plays a noticeable part here.
• The Prime Minister is independent from the head of state and dependent upon the parliament: this variation depends on the majority supporting the action of the Prime Minister.
Duverger,9 who was one of the first to undertake a study of semi-presidential systems, specified that a system of government could be considered as semi-presidential if:
• the head of state is elected by direct suffrage;
• the head of state has considerable powers;
• the Prime Minister and the government ‘mirrored’ him, acts under a separation of powers and may remain in office only if parliament does not show any opposition to them (in other words if it is ‘Orleanist’10).
Elgie has given the most recent explanation,11 in which semi-presidential means that:
• there is an elected fixed-term President;
• the Prime Minister is accountable to parliament;
• the dual executive interacts on an outgoing basis.
In order to consider further existing semi-presidential regimes, I wish to look more closely at the account made by Duverger. Duverger, who studied the semi-presidential system of government and conceptualised it in Échec au Roi (‘checkmate’), shows that there is a scale of semi-presidential regimes ranked according to the powers given to the President. He classified seven countries, primarily through their constitutional texts (a ‘theoretical approach’) and, secondly, by examining what was really happening (a ‘practical approach’). Duverger found that Finland had the widest powers given by a Constitution to a head of state. France ranked in only sixth position according to the ‘theoretical approach’ (that is according to the powers of the President listed in the Constitution). In terms of the ‘practical approach’ (what was happening in reality), however, France came first and Finland second. What separates the two is minute as in both cases the President affords great autonomy vis-à-vis the other institutions. For Duverger, the Finnish Constitution dissociated more the President from the government than the French Constitution. This confirmed Sartori’s belief that the Constitution of the Fifth Republic was the prototype of the semi-presidential system of government.
I n fact, looking at the evolution of the Constitution since 1958, it is noticeable that the French semi-presidential system is strongly based on how the President is recruited, on the absence of political accountability, and on the respect of the ‘synchronisation’ between the President’s majority and that of the lower chamber of the French parliament, the Assemblée nationale. It is then obvious that the key institution of the Constitution of the Fifth Republic is its President. The first evolution to be considered then should be the change in how the President was recruited, as organised by the 1962 amendment of the Constitution. The second should be the change brought about by the 2000 amendment, made in relation to the President’s mandate.

1.3 Original institutional arrangement and its evolutions

The ‘establishment’ of the dying Fourth Republic called on General De Gaulle in order to ‘save the country’. He was in charge of organising a new institutional arrangement and designing a new Constitution. In an important postwar presentation, the Speech of Bayeux (16 June 194612), he declared that it was necessary for the country to have a head of state who would be above the political parties. This idea, as we have seen, was the product of a certain ideology and the historical background of the Third Republic, but it became more important because of De Gaulle’s experience of wartime and was forged as part of De Gaulle’s response to the defeat of France. He believed that the outcome would have been different if a strong leader had led the Republic. De Gaulle was ‘the man who won the war’, a legendary figure, and he had a certain idea or vision of France: France, as Maurras said, needed a leader and the President, within that logic, had to be strong.13 The person leading the Republic had to be a strong figurehead. That said, though this description may have fitted well the person of De Gaulle, it was not clear whether the idea of a strong figurehead would survive De Gaulle and last over time or not: ultimately, what needed to be strong was the institution of the head of state. Articles 2 and 3 of the constitutional act of 3 June 1958,14 the guidelines for the redaction of the new Constitution, were instrumental in defining this future architecture. Article 2 specified that the executive body had to be separated from the legislative body. Separate specialised bodies would be entrusted with specific functions. Article 3 specified that the government would be scrutinised by the parliament. If the Speech of Bayeux was a declaration with strong monarchist undertones, the Loi constitutionnelle (3 June 1958) was not. It was evident that the new Constitution would organise a parliamentary system of government, not a presidential one. The institutional balance found in the project of the Constitution, which would be adopted, was a living proof of this statement: there were to be two indirectly elected institutions (the President and the upper chamber of parliament, the Sénat15) and a directly elected institution (the Assemblée nationale),which would be the body representative of the nation.

1.3.1 A parliamentary system with some ‘presidential features’

Therefore, we may want to ask this simple question: Is this 1958 Constitution radically different from previous ones? The Fifth Republic Constitution established a system of government similar to those of the Third and Fourth Republics. As observed by John Bell, ‘[The Constitution] was meant to establish a parliamentary regime, perhaps more strictly organised than before, but a parliamentary regime nevertheless.’16 ‘Similar’, of course, does not mean ‘the same’. Many clues in the text of the Constitution show a drift towards a presidential system. For example, the Third Republic was a parliamentary system. It had a bicameral parliament with both chambers having equal powers. The Fourth Republic was also parliamentary, but had a truncated bicameral system: the 1946 Constitution was a settlement, a compromise between an ‘assembly government’ and a full bicameral system. The lower chamber was strong and the upper weak. The Fifth Republic was designed with a bicameral and (more) egalitarian parliament. The two chambers, lower (Assemblée nationale) and upper (Sénat), do not have equal power...

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