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February 2011

 File n°2 

The President of the Republic

 

 

 

 

 

 

    Key Points

    The President of the Republic is elected for five years by direct, universal suffrage and is the keystone of the institutions of the Fifth Republic. This method of election provides him with legitimacy in keeping with the breadth of his powers.

    These powers are either personal (the recourse to a legislative referendum provided for by article 11 of the Constitution, the right to dissolve the National Assembly, the emergency powers of article 16, the appointment of the Prime Minister, the right of referral to the Constitutional Council etc.) or submitted to the counter-signature of the Prime Minister (the appointment of ministers, the convening of Parliament in extraordinary session, the signature of ordinances, the promulgation of laws, the right to grant pardon etc.).

    More generally, it is the responsibility of the President of the Republic to enforce respect of the Constitution, to ensure the proper functioning of the public authorities and to guarantee national independence and territorial integrity. He is the guarantor of the independence of the judicial authority.

    The actual powers of the President of the Republic can change in certain circumstances: when the presidential and the parliamentary majority coincide, the office of the President has primacy; on the contrary, a period of “cohabitation” provides actual political supremacy to the Prime Minister.

    The reality of institutional practice and some reforms which have been implemented in recent times have strengthened the position of the President of the Republic. At the same time, the Constitutional Act of July 23, 2008 has increased the powers of Parliament.

See also files 1, 3, 5 and 6

 

    I. – THE STATUS OF THE PRESIDENT OF THE REPUBLIC

    1. – The election of the President of the Republic

    The President of the Republic is elected for five years by direct, universal suffrage. This rule, which is provided for in the first paragraph of article 6 of the Constitution, is the result of two essential institutional reforms:

    The 1962 revision of the Constitution carried out by referendum according to article 11, which by introducing the election of the President of the Republic by universal, direct suffrage, provided the office of President with a legitimacy in keeping with the breadth of its powers (prior to this reform, the President was elected by a college made up of parliamentarians and locally elected representatives);

    The 2000 revision of the Constitution carried out through Parliament according to article 89 but approved by referendum, which reduced the presidential term from seven to five years. This reform brought an end to the French Republican tradition of seven-year terms by opting for a solution close to the average length of presidential terms in other countries.

    The election takes place between twenty and thirty-five days before the expiry of the term of the President of the Republic in office. The end of the term is brought forward in the case of the death, resignation or dismissal of the President of the Republic (the vacancy then being declared by the Constitutional Council) or in the case of permanent incapacity of the President (the matter is referred to the Constitutional Council by the Government and the former must declare the incapacity permanent by an absolute majority of its members). In such cases the interim is carried out by the President of the Senate who takes on all the powers of the President of the Republic with the exception of the right to dissolve the National Assembly, the right to call a referendum and the right to initiate legislation concerning revision of the Constitution.

    Under the current law, every French citizen having reached the age of twenty-three may be a candidate in the presidential election, provided he has obtained the sponsorship of five hundred nationally or locally elected officials. Additional provisions impose a geographical distribution of the sponsors (they must come from at least thirty different departments or overseas territorial units without more than one tenth coming from the same department or the same overseas territorial unit). The Constitutional Council must check the validity of the candidacies. In addition, each candidate who is officially announced must provide the Constitutional Council with a detailed declaration of his estate.

    The official election campaign opens two weeks before the first round and continues, if need be, during the two weeks which separate the two rounds. In practice, the debates begin well before the official opening of the campaign. Each candidate must have a campaign account which is audited by the National Committee on Campaign Accounts and Political Financing (CCFP) with an appeal possible to the Constitutional Council. The CCFP checks in particular that the expenses of the official campaign do not exceed the legal limits currently set at around sixteen million Euros for the first round and twenty-one million Euros for both rounds). The State refunds 5% of the expenditure limit to each candidate who has received less than 5% of the votes cast, and 50% of the limit in the first and second rounds for each candidate who gains more than 5% of the votes cast.

    The election is held according to a two-round majority system. Only the first two candidates after the first round go forward to compete in the second round. This second round is held fourteen days after the first.

    The Constitutional Council is the sole judge of the election. It is in charge of the election litigation procedure and thus examines all disputes concerning operations both prior to the election as well as those dealing with the ballot itself.

    Since the constitutional revision of July 23, 2008, paragraph 2 of article 6 of the Constitution provides that “no one may hold office for more than two consecutive terms”.

    2. – The question of the liability of the President of the Republic

    The definition of the liability of the President of the Republic given in 1958 in articles 67 and 68 of the Constitution has seemed over the years uncertain and ambiguous. Along with the uncertainty of the idea of “high treason”, there is also an ambiguity regarding the scope of the provisions of article 68 concerning acts performed by the President outside the exercise of his duties. These provisions were indeed interpreted in a different way between 1999 and 2001 by the Constitutional Council and then by the Court of Cassation.

    The constitutional revision of February 19, 2007 confirmed the traditional immunity granted to the President of the Republic concerning acts performed in the exercise of his duties and introduced a temporary immunity concerning all his other acts which comes to an end at the same time as the presidential term of office.

    a) The Maintaining of the Principle of the Non-liability of the President of the Republic Concerning Acts Performed in the Exercise of His Duties

    This is a republican principle which has only two exceptions: the first concerning matters within the competence of the International Criminal Court and the second regarding a breach of duties by the President of the Republic patently incompatible with his continuing in office (this notion has replaced the previous idea of “high treason” following the constitutional revision of February 19, 2007).

    The requirement of a ministerial counter-signature for many of the acts carried out by the President of the Republic is the corollary of this principle as it allows ministers to shoulder the political responsibility for the acts of the President of the Republic.

    b) The New Temporary Immunity of the President of the Republic for Acts Performed Outside the Exercise of His Duties

    Article 67 of the Constitution introduces total temporary immunity for the length of the presidential term of office, thus suspending in civil and criminal matters both all proceedings against the President of the Republic as well as the limitation period. This total temporary immunity comes to end one month after the end of the term of office.

    During the term of office, this protection may only be removed by Parliament sitting as the High Court and dismissing the President for a breach of his duties patently incompatible with his continuing in office, thus rendering him once more subject to trial by courts of ordinary law.

    c) The Sitting of Parliament as the High Court to Dismiss, and No Longer Try, the President of the Republic

    The new drafting of article 68 of the Constitution dating from February 19, 2007 now recognizes the power of the entire Parliament sitting as the High Court to dismiss the President of the Republic, instead of merely judging him, for a “a breach of his duties patently incompatible with his continuing in office”.

    After the adoption by both the National Assembly and the Senate, in identical terms, of a motion ordering the convening of Parliament as the High Court, the latter must give its ruling on the dismissal by secret ballot within one month. Rulings given require a majority of two thirds of the members of the House involved and of the High Court. No proxy voting is allowed. Only votes in favour of the dismissal from office or the convening of the High Court are counted.

    The decision of the High Court takes effect immediately.

    II. – THE POWERS OF THE PRESIDENT OF THE REPUBLIC

    1. – Personal powers

    These are powers the President of the Republic may exercise without counter-signature.

    Powers of guaranteeing and arbitration

        • In Constitutional Matters

          Article 5 of the Constitution, in stating that “the President of the Republic sees to the respect of the Constitution”, grants him in practice the power of interpretation of the Constitution (a power which Presidents have used on several occasions: e.g. the use of referendum for constitutional revision or the refusal to sign ordinances).

          The right to appoint three members of the Constitutional Council and the right of referral to this institution (articles 59 and 61 of the Constitution) provided to the President of the Republic are also examples of his role as the guarantor of the institutions.

        • In Judicial Matters

          The President of the Republic is the guarantor of the independence of the judicial authority (article 64 of the Constitution). He is assisted in carrying out this mandate by the High Council of the Judiciary.

    Powers during crisis

        • The Emergency Powers granted by Article 16 of the Constitution

          This provision, which grants the President of the Republic emergency powers of public safety, has its historic justification in the events of 1940 when the President of the Republic of the time, Albert Lebrun, although personally hostile to the armistice, had to give way and allow power to pass to Marshall Pétain. The crisis which France was crossing at the moment of the adoption of the 1958 Constitution (the Algerian War) also helps to explain this provision. In fact, article 16 has only been applied once. This was in 1961 following the attempted military putsch in Algiers.

          Its provisions have always represented one of the most controversial points of the Constitution even if the subject has lost much of its topicality. In fact its use was somewhat restricted by the constitutional revision of July 2008.

          For the President of the Republic to have recourse to the emergency powers of article 16, two basic conditions must be fulfilled at the same time:

          – There must be “a serious and immediate threat to institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments”. This particularly refers to war or to movements of insurrection;

          – The proper functioning of the constitutional public authorities must be interrupted.

          The President of the Republic must decide if these two conditions have been fulfilled. If he were to go beyond his rights, the Parliament could convene itself as the High Court and dismiss him for a breach of his duties patently incompatible with his continuing in office.

          The formal conditions are not very restrictive and are limited to the consultation of the Prime Minister, the Presidents of the two assemblies and of the Constitutional Council (whose reasoned advice must be published in the Journal Officiel).

          In case article 16 is implemented, the distribution of powers provided for by the Constitution is no longer applicable and the President of the Republic assumes full power. He “shall take measures required by these circumstances”. However the Constitution makes it clear that such measures “shall be designed to provide the constitutional public authorities as swiftly as possible, with the means to carry out their duties”. The decisions taken by the President of the Republic are submitted for opinion to the Constitutional Council. During the period of the implementation of the emergency powers, Parliament convenes as of right and the National Assembly may not be dissolved.

          Since the revision of July 23, 2008, it has been made clear that after thirty days of the exercise of such emergency powers, the matter may be referred to the Constitutional Council by the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators, so as to decide if the conditions laid down concerning emergency powers in article 16 are still met. The Council shall make its decision public as soon as possible. It shall, as of right, carry out such an examination and shall make its decision in the same manner after sixty days of the exercise of emergency powers or at any moment thereafter.

        • The Right of Dissolution

          The discretionary right of dissolution belongs to the President of the Republic who must only, before carrying it out, consult the Presidents of the assemblies and the Prime Minister.

          The Constitution sets three limits. Dissolution may not be declared:

          – During an interim presidency;

          – During the period when the President of the Republic has the emergency powers provided for by article 16 of the Constitution at his disposal

          – During the twelve months following a previous dissolution.

          Although it was originally foreseen either as a means to solve a serious crisis by asking the opinion of the people or as a way of deciding or preventing a disagreement with the National Assembly, dissolution has only been used twice for such reasons (1962 and 1968). In the three other cases, it was declared by the President of the Republic either at the beginning of a term to gain a majority in the National Assembly which would support his policies (1981 and 1988) or to bring forward an election to a moment considered more favourable (1997).

    Prerogatives linked to relations with the other institutions

          • With the Government: the President of the Republic appoints the Prime Minister and terminates his appointment; he convenes, approves the agenda of and chairs the Council of Ministers.

          • With the Parliament: the President of the Republic communicates with the Parliament by messages. These messages are read aloud by the Presidents of each assembly and give rise to no debate; since the constitutional revision of 2008, the President of the Republic may also take the floor before Parliament convened in Congress for this purpose. His statement may give rise, in his absence, to a debate without vote (this new procedure was implemented for the first time on June 22, 2009).

    2. – Shared powers

    These are powers which the President of the Republic may only exercise with the counter-signature of the Prime Minister or, if need be, of one or more ministers concerned.

    The power of appointment

        • In accordance with article 8, paragraph 2 of the Constitution, the President of the Republic appoints ministers upon the proposal of the Prime Minister.

        • The President of the Republic (article 13 of the Constitution) makes appointments to the civil and military posts of the State. This power which is shared with the Prime Minister (article 21) means that high-ranking civil servants as well as heads of public establishments and companies are appointed in the Council of Ministers. Nonetheless, since the constitutional revision of July 23, 2008, article 13 makes it clear that for certain posts or positions laid down in an Institutional Act, on account of their importance for the guaranteeing of the rights and freedoms or of the economic and social life of the Nation, 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 President of the Republic cannot make an appointment when the sum of the negative votes in each committee represents at least three fifths of the votes cast by the two committees.

    The signature of ordinances and decrees

        • The President of the Republic signs ordinances (measures which, although they fall within the ambit of statute, have been taken by the Government, empowered beforehand by Parliament, to use this procedure during a limited time).

        • It has happened during a period of cohabitation that the President of the Republic has refused to sign ordinances. It may therefore be concluded that the President of the Republic does not, in such matters, have a binding competence.

        • The President of the Republic also signs decrees which have been deliberated upon in the Council of Ministers.

    The power to convene parliament in extraordinary session

        • The President of the Republic may convene Parliament by decree to consider a specific agenda, in an extraordinary session, upon the request of the Prime Minister or of a majority of the members making up the National Assembly (article 29 of the Constitution).

        • Institutional practice does not make this a binding competence, as the decision to convene Parliament is taken under the sole responsibility and the sole assessment of the President of the Republic.

    Recourse to referendum

          There are three types of national referendum; only the decision to have recourse to a legislative referendum is not submitted to counter-signature but requires the prior intervention of the Parliament or the Government.

        • The constituent referendum which requires a counter-signature (article 89, paragraph 2 of the Constitution) is a procedure which requires the prior passing of the bill by the two assemblies in identical terms. Once the bill has been passed, the President of the Republic may submit it to a referendum or submit it to Parliament convened in Congress which will rule by a majority of three fifths of the ballots cast (if the bill is a Member’s bill, then recourse to a referendum is obligatory). With the exception of the referendum of September 24, 2000, on the five-year presidential term, the Congressional method has always been used.

        • The legislative referendum (article 11 of the Constitution) is a procedure which is initiated by the Government or the Parliament (in practice the latter has never used it). The Government or the two assemblies in a joint proposal, refer the matter to the President of the Republic who decides without countersignature whether to consult the people or not. If the proposal comes from the Government, then the latter must make a statement followed by a debate in each assembly. The field of application of article 11 is huge and can be subject to a wide variety of interpretations. It covers the organization of public authorities, the ratification of a treaty that has an effect on the functioning of the institutions (e.g. the Treaty on European Union, 1992, the Treaty setting up a Constitution for Europe, 2005) or reforms relating to economic and social policies. After the proclamation of the results by the Constitutional Council, the President of the Republic promulgates the referendum law.

        • The referendum of article 88-5 of the Constitution, requiring a counter-signature, provides for the use of this procedure for bills authorizing the ratification of a treaty concerning the membership of a state to the European Union. The scope of this provision, which was passed in 2005, was nonetheless reduced in July 2008, as, from now on, by means of a motion adopted in identical terms by each assembly with a three fifths majority, Parliament may authorize the passing of such a bill by Congress.

        In addition, as of 2003, the President of the Republic may consult the voters of an overseas territorial unit on a question “relating to its organisation, its powers or its legislative system” or on its change of status (article 72-4 of the Constitution). The procedure is the same as that used for article 11. This provision has been used once in Martinique, in Guadeloupe, in Saint-Martin and in Saint-Barthélemy in 2003.

    Powers in matters of diplomacy and defence

        • The Constitution establishes a shared competence in these areas: the President of the Republic is the “Commander-in-chief of the armed forces” (article 15), he “negotiates and ratifies treaties” (article 52). On the other hand, it is the Government which “determines and conducts the policy of the Nation” and which “has the armed forces at its disposal” (article 20).

        • Institutional practice has made these matters the “reserved domain” of the President of the Republic when he has a parliamentary majority and a shared domain during periods of cohabitation. It can be considered that the “reserved domain” has been broadened since the decree of May 15, 2002 which granted the President of the Republic the presidency of the Council of Domestic Security.

    The power to promulgate laws

        • The President of the Republic, by decree countersigned by the Prime Minister, promulgates laws within fifteen days following the transmission of their adopted text to the Government. During this period, he may request a new deliberation of the law passed (also with the counter-signature of the Prime Minister).

    The right to grant pardon

        • This is a traditional prerogative of heads of state which has been inherited from the monarchy and which allows the President of the Republic to grant pardon to a convicted prisoner and thus not carry out all or part of his punishment.

        The constitutional revision of July 23, 2008, made it clear that pardon must be granted on an individual basis; thus, collective pardons may no longer be allowed.

    III. – INSTITUTIONAL PRACTICE

    Beyond the constitutional distribution of powers between the two heads of the executive, the main element which grants pre-eminence to the President of the Republic over the Prime Minister is, of course, his election by direct, universal suffrage. The role of the Head of State cannot be reduced, as it was in the previous Republics, to that of a simple figurehead. His action cannot be limited, in the words of General de Gaulle, “to the inauguration of chrysanthemums”.

    In practice it is clear that the breadth of the powers of the President of the Republic varies according to whether or not the governing majority in the National Assembly coincides with the popular majority which elected him.

    In the first case, the Head of State freely chooses his Prime Minister who is then subordinate to him. The President of the Republic can even ask for the Prime Minister’s resignation. Thus, although the provisions of article 20 of the Constitution state that it is the Government which determines and conducts the policy of the Nation, the President of the Republic sets at least the general directions of such policy.

    During periods of “cohabitation”, i.e. when a governing majority hostile to the policy of the President of the Republic is elected to the National Assembly, the situation is altogether different. The President of the Republic must choose the Prime Minister from within that hostile governing majority so that the Government maintains the support of the National Assembly. As for the appointment of ministers in such a situation, practice has shown that the President of the Republic has, at the very most, a right of veto for certain so-called ‘sovereign’ portfolios. In the field of home affairs, the influence of the Head of State is considerably reduced.

    It is only, in fact, in the field of foreign policy, an area in which the Constitution expressly recognizes his personal powers, that the President of the Republic keeps most of his prerogatives, although he must exercise them in collaboration with the Prime Minister.

    Thus, the breadth of the powers of the President of the Republic and, consequently, the nature of the system, depend, in fact, on the political situation. However the reduction from seven to five years of the presidential term of office and the fact that the presidential elections now precede the general elections should limit the cases of coexistence between a President from one political wing and a National Assembly from the other. The pre-eminence of the President of the Republic has thus been increased.