Hollande Takes First Step Towards Necessary Reform of Constitutional Council

François Hollande.Photo: Flickr.com/jmayrault

François Hollande.
Photo: Flickr.com/jmayrault

In his New Year’s speech to the “wise men” of the Constitutional Council, François Hollande declared that he would put an end to the right held by former Presidents to be members of this institution. Hollande’s decision acknowledges one fact: the Constitutional Council has gone from a technical, marginal institution to a guardian of the Constitution, with the American Supreme Court as a model. As a result, it needs to be reformed.

In the minds of the American people, the Supreme Court is just as old as their country; an institution that is an integral part of their Constitution. In France, however, having a group of justices deciding whether or not some ideas are compatible with the constitution and sometimes banning laws that violate it is a new concept, and sometimes even a shocking one.

The Constitutional Council has little in common with the US Supreme Court despite all the simplistic comparisons that can be made between them. It was created in 1958 at the dawn of the 5th Republic. For a long time, it remained just an institution in which laws were analyzed technically before they were published. Were they well written? Implementable? Was there a direct conflict with the fundamental principles of the Constitution? It could neither settle actual cases nor be a source of jurisprudence after the laws were put in place.

In the past few years though, this institution has undergone an important evolution, a change coming from the media and the people, who tend to consider the Council as the highest and unbiased authority of the Republic.

It would be unfair, though, to assert that the American example was ignored in the history of the French Republic. There have been debates throughout French political history about the establishment of a constitutional check, since the very beginning of the French Revolution. It was always rejected because of a simple principle: the law expresses the “general will” as put forward by Rousseau in his Social Contract, and works for the greater good of all the citizens. This law comes from the sovereign people and it is the work of the State to work for the good of all.

Nevertheless, there is no need to be a political expert to see that there is never a complete and unanimous consensus over any issue. As a result, in that paradigm, the will of the majority is turned into the “general will,” an honorable goal that nonetheless has its pros and its cons.

The history of the US gave birth to a radically different system. From the publication of the Federalist Papers, which debated the principles of the would-be Constitution, American institutions were built with mechanisms to defend the minority opinion from majority hegemony. In order to preserve the rights of minority voices from the invocation of the “greater good” and to find an articulation between the Federal and the State powers, a system of “checks and balances” was instituted, and the Supreme Court became the key defender of the Constitution. This political system was erected with one central thread in mind: to preserve individual freedoms and find a balance between diverging interests.

It is then obvious that in the American system a law could be questioned, since what emerged from the majority is not inherently the greater good. But one has to take a look at the French system nowadays: the French president has (more or less) all the power he wants, with institutions so well designed that he is almost always sure to have a majority in the Assembly to support him. Even though every President wants to be the “President of all the French,” it is obvious that most of his decisions reflect the political views of his party and the views of barely more than half of the French people.

During his presidency, Nicolas Sarkozy was severely criticized by the left and by the current President Hollande for his tendency to announce laws and decrees in reaction to national events that provoked great emotion all over the country. Nevertheless, one has to be fair with Sarkozy. His behavior was just a symptom of our time, and this is not only a French ill. The result is straightforward: the political sphere is increasingly infringing upon the autonomy of the legal sphere. As Prime Minister Alain Juppé declared very simply in 1995, “the State legislates too often, and badly.”

The Journal Officiel of the French Republic contains all the legislative texts of the Republic. In 1976, it already contained 7,070 pages, 17,141 in 1990 and 19,982 in 1995. The numbers speak for themselves: they are what the legal profession calls an “inflation” of legal texts.

The Constitutional Council is not the only solution to the problem of consistency within the legal institution. But it can be one possibility for the jurists and the technicians of the institutions to have a certain control over the amount and quality of the legal texts that are published every year. This is the role the French Constitutional Council tends to play, but it is not ready to do so.

Hollande’s move has been interpreted as a direct consequence of the recent Sarkozy controversy, as the former President is now a member of the Council, a council that itself has to come to a conclusion over Sarkozy’s questioned campaign accounts. But this is not the first controversy the council has faced: Gérard Ducray was saved from conviction on sexual harassment charges by the Constitutional Council, when it repealed the law due to “imprecision.” The only problem is that Ducray had close friends in the Council.

François Hollande, himself a jurist and former magistrate, must be well aware of this, so his decision cannot be just a reaction to Sarkozy’s presence in the Council. This small yet symbolic reform of the Constitutional Council is just the first step needed to give the institution the shape to fit its new role. The issue is not whether or not to give such importance to a judiciary control of the law. The Council is imposing itself as one of the highest institutions of the Republic and it clearly lacks transparency. The judgments of the Supreme Court, for instance, must be rigorously justified. The decision of the majority and the opinion of the majority are clearly explained, as are those of the dissent. Clearly Hollande’s measure is but a small step, but it is one in the right direction towards making the Council more capable of fulfilling the role that it already has already taken up.

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