Misplaced Pages

Revision as of 17:29, 29 November 2020

This article is part of a series on
Politics of France
Constitutions Fifth Republic Declaration of the Rights of Man and of the Citizen
Executive President (list) Emmanuel Macron (RE) Prime Minister (list) François Bayrou (MoDem) Government Bayrou
Legislature National Assembly: Membership President: Yaël Braun-Pivet Senate President: Gérard Larcher Congress of the French Parliament
Judiciary Constitutional Council Council of State Court of Cassation Court of Audit Cour de Justice de la République
Administrative divisions Regions Metropolitan regions Auvergne-Rhône-Alpes Bourgogne-Franche-Comté Brittany Centre-Val de Loire Corsica Grand Est Hauts-de-France Île-de-France Normandy Nouvelle-Aquitaine Occitania Pays de la Loire Provence-Alpes-Côte d'Azur Overseas regions French Guiana Guadeloupe Martinique Mayotte Réunion Overseas country French Polynesia Departments
Elections Referendums Presidential Legislative Senate Municipal Political parties
Foreign relations Africa Americas Asia France and the United Nations Foreign alliances Ministry of Europe and Foreign Affairs Politics of the European Union
Related topics Centrism Human rights Political scandals
France portal Other countries
v t e

The current Constitution of France was adopted on 4 October 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 twenty-four times, through 2008.

Provisions

Preamble

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.

Government institutions and practices

The French Constitution established a semi-presidential system of government, with two competing readings. On one hand, the executive branch has both a President of the Republic and a Prime Minister, which is commonly seen in parliamentary systems with a symbolic President and a Prime Minister who directs the government. This reading is supported by Articles 5 and 21 of the Constitution, which respectively states that the President is a Guardian of the State and of the Constitution, while the Prime Minister has the power to decide on Government’s actions and policies.

On the other hand, the Parliament is very weak for a parliamentary system. Parliament has a limited legislative competence: article 34 of the Constitution lists domains exclusive to Parliamentary legislation, but the remaining domains are left to the Executive's regulations. The President also has the crucial powers to call a referendum and to dissolve the National Assembly. While Parliament may make a vote of no confidence on the government, since 1962 a majority in the National Assembly has supported the Government.

Charles de Gaulle, the first President of the Fifth Republic, was instrumental in the adoption of the new constitution, as he was called back from retirement and narrowly avoided a coup resulting from the Algerian War. De Gaulle always supported the second interpretation of the constitution, in favor of a powerful President. The first socialist President François Mitterrand, elected in 1981, also supported this interpretation.

Beginning in 1986, elections have from time to time resulted in Parliaments with a majority that did not support the President. Such periods as known in France as cohabitation, where a President appoints a Prime Minister from the new parliamentary majority. During cohabitation, besides powers reserved to the President by the Constitution, all other government powers would be exercised by the Prime Minister. In 2000, the Constitution was amended by shortening the President's term of office from seven years to five, coinciding with the term of Parliament. The amendment means the Presidential election would take place around the Parliamentary election, making it more likely to have winners who agree with one another and make cohabitation less likely.

The Constitution provides for the election of the President and the Parliament, the selection of the Government, the powers of each and the relations between them. It ensures judicial authority and creates a High Court (a never-as-yet-convened court for trying the Government), a Constitutional Council (an innovation of the Fifth Republic), and an Economic and Social Council.

Treaties and the EU

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.

Amendment

The Constitution also sets out methods for its own amendment: a referendum (article 11) or a Parliamentary process with Presidential consent. The normal procedure of constitutional amendment is that the amendment must be adopted in identical terms by both houses of Parliament and then must be adopted by a simple majority in a referendum or by a three-fifths supermajority of the French Congress, a joint session of both houses of Parliament (article 89).

Principles

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.

"Constitutional block"

In 1971, a landmark decision by the Constitutional Council (71-44DC) 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. Although considered a juridical coup d’état at the time, the decision formed basis of the Constitutional Council today.

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 of the Rights of Man and of the Citizen of 1789
• The preamble of the Constitution of 1946 (which adds a number of "social rights", as well as the equality of males and females)
• The Charter for the Environment 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.

Principles of the Republic

In the Constitution, are written the principles of the French Republic:

• Social welfare, which means that everybody must be able to access free public services and be helped when needed.
• Laïcité, which means that the churches are separated from the State and the freedom of religion is protected.
• Democracy, which means that the Parliament and the Government are elected by the people.
• Indivisibility, which means that the French people are united in a single sovereign country with one language, the French language, and all people are equal.

Amendments

The Constitution, in Article 89, has an amending formula. First, a constitutional bill must be approved by both houses of Parliament. Then, the bill must either be approved by the Congress, a special joint session of both houses, or submitted to a referendum.

In 1962, Charles de Gaulle proposed that the President be elected by direct suffrage. He bypassed the amendment procedure by directly sending a constitutional amendment to referendum (article 11). The Art. 11 procedure was envisioned as a procedure for proposing legislation, including changing the organization of constitutional institutions. The 1962 referendum was approved by 62% of the vote but only 46% of registered voters. The amendment permitted the establishment of a popularly-elected presidency, which would otherwise have been vetoed by the Parliament.

The referendum was highly controversial at the time, but the Constitutional Council ruled that it can only review legislative acts for unconstitutionality, not executive acts; since the referendum was proposed by the executive, it was unreviewable. Since a referendum expressed the will of the sovereign people, the Council ruled that the amendment had been adopted. Some scholars had regarded the amendment as a post hoc manifestation of the constituent power, which is the inherent power of the people to bypass an existing constitution to adopt a new constitution.

Article 11 was used for constitutional changes for the second and final time in 1969, but the "No" prevailed, causing Charles de Gaulle to resign from the presidency.

On 21 July 2008, Parliament passed constitutional reforms championed by President Nicolas Sarkozy by a margin of two votes. The changes, when finalized, introduced a consecutive two-term limit for the presidency, gave Parliament a veto over some presidential appointments, ended government control over Parliament's committee system, allowed Parliament to set its own agenda, allowed the president to address Parliament in-session and ended the president's right of collective pardon. (See French constitutional law of 23 July 2008).

Former constitutions

France had numerous constitutions in its history:

• The Kingdom of France, under the Ancien Régime, was an absolute monarchy and lacked a formal constitution; the regime essentially relied on custom. That said, certain rules, the "fundamental laws of the Kingdom" (les lois fondamentales du Royaume), were outside the power of the monarch to change without further consent. These rules were mainly about the inheritance of the Crown, which required strict primogeniture unless the heir was not Catholic, and from the Treaty of Troyes onward was strictly agnatic (male-only) as well. The Parlement of Paris, a primarily judicial body with quasi-legislative functions that was tasked with applying the lois fondamentales, rarely brooked modification of the laws. For instance, Louis XIV tried by his will and testament to change the inheritance order, but the Parlement annulled it. On the other hand, the law was occasionally changed, as when the provisions of the Peace of Utrecht renouncing the claim of Louis XIV's grandson Philippe to inherit the throne of France were approved to allow him to inherit the throne of Spain.
• The Revolutionary Era saw a number of constitutions:
  • The Constitution of 1791, adopted 3 September 1791, established the Kingdom of the French, a constitutional monarchy, and the Legislative Assembly
  • The Girondin constitutional project in process of being adopted before the coup that led to the Montagnard faction being in control
  • The Constitution of 1793, ratified 24 June 1793, but never applied due to the suspension of all ordinary legality 10 October 1793 (under the French First Republic)
  • The Constitution of the Year III, adopted 22 August 1795, established the Directory
  • The Constitution of the Year VIII, adopted 24 December 1799, established the Consulate
  • The Constitution of the Year X, adopted 1 August 1802, established the Consulate for Life
  • The Constitution of the Year XII, adopted 18 May 1804, established the First French Empire
• Following the restoration of the Monarchy:
  • The Charter of 1814, adopted 4 June 1814, established the Bourbon Restoration
  • The Charter of 1815, adopted 22 April 1815, was used during the Hundred Days
  • The Charter of 1830, adopted 14 August 1830, established the July Monarchy
• Mid-19th Century:
  • The French Constitution of 1848, adopted 4 November 1848, established the French Second Republic
  • The French Constitution of 1852, adopted 14 January 1852, established the French Second Empire
  • The French Constitutional Laws of 1875 of the French Third Republic, 24 and 25 February, and 16 July 1875
• 20th Century:
  • The French Constitutional Law of 1940, adopted 10 July 1940, established Vichy France
  • The French Constitutional Law of 1945, adopted 1945, organized the Provisional Government of the French Republic
  • The French Constitution of 1946, adopted 27 October 1946, established the French Fourth Republic
  • The French Constitution of 1958, adopted 4 October 1958, established the French Fifth Republic (the current Constitution in force)

See also

• Article 49 of the French Constitution
• Constitutionalism
• Constitutional economics
• French Community, which succeeded the French Union
• Government of France
• Politics of France
• De Gaulle's 1946 Bayeux speech, in which he outlined his vision of the constitution

Notes and references

1. "Les révisions constitutionnelles". Conseil Constitutionnel. Retrieved 15 June 2016.
2. ^ Bell, John; Boyron, Sophie; Whittaker, Simon (27 March 2008). Principles of French Law. Oxford University Press. doi:10.1093/acprof:oso/9780199541393.001.0001. ISBN 978-0-19-954139-3.
3. ^ Jackson, Vicki C. (2014). Comparative constitutional law. Tushnet, Mark V., 1945- (Third ed.). St. Paul, MN. ISBN 978-1-59941-594-9. OCLC 887207632.{{cite book}}: CS1 maint: location missing publisher (link)
4. See e.g. articles 5, 12, 19, and 64, on the role of the President of the Republic, the right to dissolve the National Assembly, the personal powers of the President, and the power to appoint three members of the Conseil constitutionnel, among whom is its president.
5. see article 68 of the constitution
6. International treaties enter into domestic legal system by law which, according to the French Constitution (Article 55), has above-the-primary rank: Buonomo, Giampiero (2004). "Incompatibilità tra parlamento italiano ed europeo: le "contraddizioni" costituzionali e i paletti ai consiglieri regionali". Diritto&Giustizia Edizione Online.  – via Questia (subscription required)
7. (in French) Decision nr. 71-44 DC, granting constitutional authority to the preambles of 1789 and 1946
8. https://www.conseil-constitutionnel.fr/le-bloc-de-constitutionnalite/texte-integral-de-la-constitution-du-4-octobre-1958-en-vigueur | website = Conseil Constitutionnelle
9. ^ Dieter Nohlen & Philip Stöver (2010) Elections in Europe: A data handbook, p674 ISBN 978-3-8329-5609-7
10. See C. cons. 6 Nov. 1962, Election du Président de la République, Rec. 27.
11. "France backs constitution reform". BBC News. 21 July 2008. Retrieved 4 September 2009.
12. "Le testament de Louis XIV". www.histoire-image.org (in French). 10 September 2015. Retrieved 18 December 2018.
13. "Le testament et les codicilles de Louis XIV". mediatheque-numerique.inp.fr. Retrieved 18 December 2018.

Further reading

• "Constitution". Journal Officiel de la République Française (in French): 9151–9173. 5 October 1958. Retrieved 14 May 2012.
• Ghevontian, Richard (1979). L'élaboration de la Constitution de la V République (Th. Etat). Aix-en-Provence.
• Jamot, Didier (2019). Annuaire des engagements internationaux ayant fait l'objet d'une loi d'autorisation sous la Ve République. Logiques juridiques (in French). Paris: L'Harmattan. ISBN 978-2-3431-6237-9.
• Oliva, Éric; Sandrine Giummarra (2011). Droit constitutionnel. Aide-mémoire (in French) (7 ed.). Paris: Sirey. ISBN 978-2-247-10965-4.
• Frédéric Monera, L'idée de République et la jurisprudence du Conseil constitutionnel – Paris : L.G.D.J., 2004 -.
• Martin A. Rogoff, "French Constitutional Law: Cases and Materials" – Durham, North Carolina: Carolina Academic Press, 2010.

External links

• "La Constitution". Légifrance (in French). Retrieved 14 May 2012.
• "Constitution of October 4, 1958" (PDF).
• "Texte intégral de la Constitution du 4 octobre 1958 en vigueur". Conseil constitutionnel (in French). Retrieved 14 May 2012.

• France
• Law

• Constitutions of France
• 1958 in law
• Legal history of France
• 1958 documents