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General Presentation of French Political Institutions
I. – THE CONSTITUTION OF THE FIFTH REPUBLIC
1. – The fifth republic – a reaction to the difficulties encountered by the fourth republic
The final years of the Fourth Republic were characterized by the paralysis of the system and by its inability to confront the major challenge posed by decolonization.
Faced with an uprising in Algeria, which was demanding its independence and the threat of an insurrectional coup d’État by French military leaders based in Algiers (May 13, 1958), René Coty, the President of the Republic, called upon General de Gaulle, who, at that stage, had withdrawn from political life, to form a new Government.
The Government took office on June 1, 1958. On the basis of the Constitutional Act of June 3, it established a Consultative Constitutional Committee which, during the summer of 1958, examined the draft Constitution drawn up by the Minister of Justice, Michel Debré.
The draft, which was voted on by referendum and was passed on September 28 by 79% of the votes cast, was promulgated on October 4, 1958.
2. – Revisions to the Constitution since 1958
Article 89 of the Constitution lays down the mechanisms for its revision. Bills concerning constitutional revision, be they Government bills submitted by the President of the Republic upon a proposal of the Prime Minister or bills originating in Parliament, must first be passed by the two assemblies on separate occasions but in identical terms. The usual prerogative of the National Assembly to have the ‘”final say” in the case of a disagreement with the Senate does not apply to constitutional bills, which may, by decision of the President of the Republic, be submitted to the two assemblies convened in “Congress” (the bill is passed if accepted by three fifths of the votes cast) or put to a referendum if it was originally Government-sponsored.
So far, the Constitution has been modified on twenty-two occasions following this procedure, each time by way of a Government-sponsored bill.
Some of these revisions have significantly changed the general working of the system and its institutions, including in the following cases:
- The extension of the right of referral to the Constitutional Council to sixty M.P.s or sixty Senators (1974).
- The introduction of a single parliamentary session (1995);
- The shortening of the Presidential term from seven to five years (2000);
- The strengthening of Parliament’s prerogatives (2008).
- Other constitutional amendments, although not fundamentally changing the nature of the system, have represented important steps in the promotion of gender equality (1999) or in the enshrinement in the Constitution of the abolition of the death penalty (2007).
- Other modifications were of a more “technical” nature, such as, for instance, those changing the dates of parliamentary sessions (1963), creating the Court of Justice of the Republic (1993) or changing the legal status of the Head of State regarding criminal law. Numerous revisions have stemmed from the ongoing integration of France within the European Union (June 1992, January 1999, March 2003, March 2005 and February 2008).
- However, the reform concerning the election of the President of the Republic by direct universal suffrage (1962) was not carried out by means of article 89 but directly by referendum, in application of article 11 of the Constitution.
II. – GENERAL CARACTERISTICS OF THE INSTITUTIONS
1. – A mixed system?
The institutions of the Fifth Republic borrow classic elements from both the parliamentary and the presidential systems. This has led some constitutional experts to classify the Fifth Republic as a “semi-presidential” system.
The parliamentary nature of the system is made clear by the existence of a Government led by a Prime Minister who is accountable for his actions before an assembly elected by direct universal suffrage. To counterbalance this accountability, the Prime Minister may call upon the Head of State to dissolve the National Assembly.
On the other hand, the election of the President of the Republic by direct, universal suffrage, his major role in foreign policy but also his pre-eminence in the conduct of national policy, outside of periods of cohabitation, have no equivalent in such parliamentary systems as that of the United Kingdom or the Federal Republic of Germany where the role of the Head of State is more a matter of protocol. These elements in fact make the French system closer to the American model.
Besides, a number of factors have led to an increase in the powers of the Head of State: the reduction of the presidential term to five years, the fact that presidential elections now precede general elections, the new possibility for the President of the Republic to speak before both assemblies convened in Congress, along with new institutional practices.
2. – The Constitution – supreme law
For a long time, the French legal tradition, deeply influenced by the writings of Jean-Jacques Rousseau (The Social Contract, 1762), granted absolute primacy to the law, passed by the representatives of the people and being the “expression of the general will” according to the terms of Article 6 of the 1789 Declaration of the Right of Man and Citizen.
Nonetheless, pursuant to the Constitution of the Fifth Republic, the Constitutional Council, a collegial body made up of nine members appointed by the highest authorities of the State, is responsible for checking the conformity of the law with the Constitution before its promulgation. In the following years, the role of the Council was gradually strengthened. From the early 1970s, the Council broadened its monitoring capacity by including in its “constitutionality base” (i.e. the laws and texts to be used as reference for constitutional monitoring), the Declaration of 1789, the Preamble to the Constitution of 1946 and the fundamental principles identified by the laws of the Republic. In 1974, the ability to refer was broadened to sixty Members of the National Assembly and to sixty Senators.
In 1985, the Council declared that the law “only expresses the general will insofar as the Constitution is respected” (decision no. 85-197 DC of August 23, 1985). The lawmaker must act in compliance with all “principles with a constitutional value”.
This development was strengthened by the constitutional revision of July 23, 2008 which recognized the possibility of referral to the Constitutional Council after promulgation of the law if, during trial proceedings before a court of law, it is claimed that a statutory provision which has already been enacted infringes the rights and freedoms guaranteed by the Constitution.
III. – THE EXECUTIVE
1. – The President of the Republic – keystone of the institutions
The Constitution of the Fifth Republic places the President of the Republic in the highest position and makes him, in the words of Michel Debré, the “keystone” of the system. Article 5 of the Constitution provides that “the President of the Republic shall see that the Constitution is observed. By his arbitration, he ensures the proper functioning of the public authorities and continuity of the State. He is the guarantor of national independence, territorial integrity and observance of treaties”.
Since the constitutional revision of October 2, 2000, the President of the Republic is elected by direct universal suffrage for five years, as opposed to seven previously.
He is provided with individual powers which require no counter-signature. These powers place him at the very heart of French political and institutional life:
- He appoints the Prime Minister and may terminate his period of office;
- He may decide to speak before both Houses of Parliament convened in Congress;
- He may submit to referendum certain bills dealing with the organization of public authorities, with reforms concerning national economic, social or environmental policy or with public services associated with such policies;
- He may, after consulting with the Prime Minister and the Presidents of the two assemblies, declare the National Assembly dissolved;
- When the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and when the proper functioning of the constitutional public authorities is interrupted, he shall take the measures required by such circumstances;
- He may refer a law or a treaty to the Constitutional Council and appoints one third of its members. The power of appointment vested in the President of the Republic is exercised after public consultation with the relevant standing committee in each assembly. The appointment is rejected when the sum of the negative votes represents at least three fifths of the votes cast by each committee.
- The President of the Republic is also provided with a number of shared powers. To use such powers he must obtain the counter-signature of the Prime Minister and, in some specific cases, of the minister concerned:
- Upon proposal of the Prime Minister, he appoints the other members of the Government.
- He presides over the Council of Ministers.
- He promulgates laws that have been fully adopted within fifteen days of their transmission to the Government and he may, before the expiry of this time limit, ask Parliament to reconsider the law or sections of the law.
- He signs the ordinances and decrees deliberated upon in the Council of Ministers and makes appointments to the civil and military posts of the State.
- He is the Commander-in-Chief of the armed forces.
- The constitutional reform of 1962, which introduced the election of the President of the Republic by universal suffrage, strengthened his legitimacy substantially. From being a simple “referee” above party politics, he has become the real leader of a governing majority when the majority in the National Assembly coincides with that which elected him. He determines the main direction of the policies to be pursued by the Government.
2. – The Government
The Constitution provides the Government with many powers.
According to the letter of the Constitution, it is the responsibility of the Government to determine and to conduct the policy of the Nation. Thus the Government has the means to direct, speed up or slow down the discussion of bills during the legislative procedure before the assemblies. The leader of the Government heads the civil service and is responsible for national defence. He has the power to make regulations, i.e. to take either general measures not falling within the ambit of the law or, more often, measures which set down the exact mechanisms for the application of the law (implementation decrees).
The Prime Minister and the Government rely upon the majority which supports them in the National Assembly and, at times, in the Senate.
Each member of the Government takes on a double role, both political and administrative. From an administrative point of view, the minister is placed at the head of a group of units which make up his ministerial department and over which he has hierarchical control by means of ministerial orders and circulars. In this way, he has the power to organize his administration. This allows him to play a pivotal role between the Government’s action and the administrative management in charge of implementing such action.
IV. – PARLIAMENT
1. – A bicameral Parliament dominated by the National Assembly
The institutions of the Fifth Republic set up a Parliament consisting of two assemblies, the National Assembly and the Senate.
The National Assembly is made up of 577 M.P.s, elected for five years (except in the case of dissolution) by direct universal suffrage within constituencies. (Since the constitutional revision of July 23, 2008 this has become the maximum number and is set down in article 24 of the Constitution).
The Senate is made up of 343 Senators (348 in 2011, which will also be the maximum number allowed by article 24 of the Constitution) elected for six years by indirect universal suffrage by a college of approximately one hundred and fifty thousand grand electors (95% of whom are delegates of municipal councils). As opposed to the National Assembly, which is wholly re-elected at each election, half the Senate is renewed every three years.
Thus, the institutions provide an unequal bicameralism which gives an advantage to the assembly elected by direct suffrage. Although the two assemblies have identical rights during the course of the legislative procedure, if a disagreement arises with the Senate, the Prime Minister may ask the National Assembly to have the final say. In addition, only the National Assembly can overturn the Government.
2. – Rationalized Parliamentarianism
In 1958, the new Constitution was intended to break with the assembly system, to bring an end to ministerial instability and to shield the Government from a growth in the prerogatives of Parliament to its detriment. It thus reduced such prerogatives.
This is why the rhythm of sessions was very strictly limited. Nonetheless, since the constitutional revision of August 4, 1995, there has been a single nine-month session in place of two sessions of eighty and ninety days.
The realm of matters for statute, i.e. laws passed by Parliament, was limited as follows:
- Only matters which are laid down by the Constitution (article 34 in particular), are considered matters for statute (laws). This disposition concomitantly broadens the scope of regulatory power. This measure represented a development which appeared very important in 1958 since, until then, laws could deal with all questions. In practice, however, the principal matters continue to fall within the ambit of statute;
- The Government has a series of means at its disposal to enforce the respect of this division between law and regulation. Thus it can declare inadmissible any amendment which encroaches on the ambit of statute (article 41) or may use the procedure of “delegalization” (turning an apparent matter for statute into a matter for regulation) of provisions which appear matters for statute but which are in fact matters for regulation (article 37, paragraph 2). These provisions are rarely used, however. To provide them with a little more force, the constitutional reform of July 23, 2008, gave the Presidents of both assemblies the power, which until then had only been held by the Government, to declare inadmissible an amendment which did not fall within the ambit of the law;
- The Government may ask Parliament to provide it with the right to legislate by ordinance in very precise areas and for a limited period (article 38). The Constitutional Act of July 23, 2008 however stipulates an explicit ratification of such ordinances.
Financial inadmissibility was introduced by article 40 of the Constitution in the following terms: “Bills and amendments introduced by Members of Parliament shall not be admissible where their enactment would result in either a diminution of public revenue or the creation or increase of any public expenditure”.
The Government has specific rights during the course of the legislative procedure, although these rights have been reduced by the Constitutional revision of July 23, 2008:
- The Government controls a part of the agenda of the two assemblies, (since March 1, 2009, the rule is that only two out of four weeks are reserved for the consideration of bills chosen by the Government although finance bills and social security financing bills do have priority);
- The Government can speed up the examination procedure for a bill by calling for the holding of a joint committee (made up of seven M.P.s and seven Senators) after only one reading of the bill before each assembly as long as the Conferences of Presidents of the two assemblies do not jointly oppose such an action
- The Government may request a forced vote on all or some of the provisions being discussed before the National Assembly;
- The Government may make its accountability on a finance bill or a social security financing bill an issue of confidence; since March 1, 2009, the Government may make its accountability on any other Government or Member’s bill an issue of confidence only once per session. This procedure allows the bill to pass without vote if no motion of censure is adopted.
In addition, the incompatibility between holding ministerial and parliamentary office results in creating a clear separation between ministers and M.P.s and Senators. This is totally different from the previous systems where executive office was systematically held by parliamentarians, and ministers had a right to vote in the assembly to which they were elected. The new version of the second paragraph of article 25 of the Constitution which was introduced in July 2008, provides however that an Institutional Act (in this case, Act no.2009-38 of January 13, 2009) will set down the conditions in which M.P.s or Senators who accept ministerial positions will be only temporarily replaced by their substitute until they no longer hold such positions.
Thus, when compared to the previous system, the institutions of the Fifth Republic are characterized by the strengthening of the power of the executive and the limitation of parliamentary activity.
The stability of the executive meant that various crises, both external (decolonization) and internal (May 1968) could be overcome without the continuity of the state being undermined. The Fifth Republic thus became, along with the Third Republic, one of the most stable systems in French constitutional history.
Given that this stability, thanks to the permanence of the fait majoritaire, or “majority phenomenon” (the fact that President and Parliament are of the same political family), can be considered as an established fact, it was considered possible in 2008, without calling it into question, to limit the means made available for the supremacy of the executive power and to strengthen the prerogatives of Parliament.