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The Constitutional Council
I. – COMPOSITION
1. – Members by right
Former Presidents of the Republic are life members by right of the Constitutional Council.
2. – Appointed members
Nine members are appointed for nine years. Three of them, including the President of the Constitutional Council are appointed by the President of the Republic. The President of the National Assembly and the President of the Senate also appoint three members each. One third of the Council is renewed every three years and each of the three personalities who may appoint members does so once every three years.
Since the constitutional revision of July 2008, these appointments must follow the procedure provided for in the last paragraph of article 13 of the Constitution (public consultation with the relevant standing committee in each assembly; impossibility of making 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). Nonetheless the appointments made by the presidents of each assembly are only submitted for the advice of the relevant standing committee in the assembly concerned.
II. – STATUS OF THE MEMBERS OF THE CONSTITUTIONAL COUNCIL
There is no age limit or professional qualification required to be a member of the Constitutional Council.
Before taking office the members of the Constitutional Council take an oath before the President of the Republic.
Their status aims at guaranteeing their independence:
- Their position is irrevocable;
- Their term of office is not renewable (however, in the case of the replacement of a councillor during his term and within three years of the end of such a term, the replacement may be reappointed for an entire term);
- The rules of non-combination of office are very strict. Council members may not be members of the Government, of the Parliament, of the European Parliament or of the Economic, Social and Environmental Council. They may not hold any elected office and may not carry out any managerial functions in companies or leadership positions in political parties;
- If these rules of incompatibility are broken the councillor in question is required to resign from office;
- They are required to observe a duty of secrecy concerning deliberations, may not give consultations and may not express a political position on matters which have been or may be the subject of a decision of the Constitutional Council.
III. – MISSIONS OF THE CONSTITUTIONAL COUNCIL
1. – Consultative powers
The President of the Republic must consult the Constitutional Council when he decides to use the emergency powers granted to him by article 16 of the Constitution (the opinion of the Council is published in the Journal Officiel). Measures taken in accordance with article 16 also require the prior consultation of the Constitutional Council. Since July 2008, article 16 provides that after thirty days of the exercise of emergency powers, the matter may be referred to the Constitutional Council for advice, by the President of the National Assembly, the President of the Senate or sixty Members of the National Assembly or sixty Senators. The Council shall, as of right, carry out such an examination after sixty days.
In addition, the Government consults the Constitutional Council on texts concerning the organization of votes during presidential elections and referenda.
2. – Jurisdictional powers
a) Electoral and Referenda Litigation
The Constitutional Council oversees the legality of elections.
- For presidential elections, it checks the eligibility of candidates, monitors their proposers, ensures that the declaration of estate has been made, establishes a list of candidates, supervises the legality of the electoral operations, examines objections (which can be made by all voters), announces the results of the election, deals with appeals against the decisions of the National Committee on Campaign Accounts and Political Financing and may decide to postpone an election in the case of the death or inability of a candidate to take part.
- For parliamentary elections, the Constitutional Council judges ineligibility (either before the election when it acts as the court of appeal concerning the decisions of the administrative courts, or after the election, when it applies, according to the case, an automatic penalty provided for by law or left to its own judgement. It can thus dismiss an M.P.). It checks the legality of the results at the request of voters or candidates. It can thus validate the results, cancel the election or even (although this has never occurred) quash the result and declare another candidate elected.
- For referenda, the Council is consulted on the text submitted for referendum as well as on the decrees concerning the organization of the vote. Since 2000, it has taken on the power of checking the preparatory operations. It also oversees the legality of the voting operations and examines objections made to it. It announces the results.
b) Monitoring the Law
- Supervision of the respect of the separation between matters for statute and matters for regulation
Article 41 of the Constitution allows the Government and, since the revision of 2008, the President of the relevant assembly, to object to each Members’ bill or to each amendment which is not considered to be a matter for statute, on the grounds of admissibility. In the case of disagreement between the President of the assembly concerned and the Government, it is the duty of the Constitutional Council, to which the matter has been referred by one or the other, to pass judgement within an eight-day time limit.
Similarly, article 37, paragraph 2 of the Constitution provides the Constitutional Council with the power of reviewing, a posteriori, the respect of the area of matters for statute by granting it the right to declare the regulatory nature of legislative bills and thus enabling them to be amended by decree.
- Monitoring of Constitutionality
• The Field of Reference of Monitoring
The monitoring of constitutionality is not limited to the checking of the conformity of the Constitution alone, in the strictest sense. It can be broadened to include what is named the “block of constitutional rules”.
In addition to the fundamental law of the Republic the “block of constitutional rules” notably includes the Preamble to the Constitution. This preamble, by referring to two other texts, the Declaration of the Rights of Man and the Citizen of 1789 and the Preamble to the Constitution of 1946, gives these documents a constitutional value also. Thus the law is submitted to the principles contained in the Declaration of the Rights of Man and the Citizen, to the “fundamental principles recognized by the laws of the Republic” and to the “principles particularly necessary for our times” in the meaning of the preamble of 1946, as well as to the various principles and objectives of a constitutional value defined by the very jurisprudence of the Constitutional Council itself. The “block of constitutional rules” also includes the Environment Charter annexed to the Constitution since its revision on March 1, 2005.
• Implementation of Monitoring
The monitoring of constitutionality is systematic for institutional acts before their promulgation and for the Rules of Procedure of the parliamentary assemblies. The latter do not thus entirely control their Rules of Procedure and, therefore, have lost one of the essential powers of the parliamentary systems prior to the Fifth Republic.
For ordinary laws, such monitoring is optional and is carried out after referral by the President of the Republic, the President of the Senate, the President of the National Assembly, the Prime Minister or, since the constitutional reform of 1974, by 60 M.P.s or 60 Senators.
The monitoring which the Constitutional Council may carry out since the revision of July 20, 1998 and the Institutional Act of March 19, 1999 concerning the laws of the land passed by the Deliberative Assembly of New Caledonia and which, according to article 77 of the Constitution, are legally binding, is also optional.
In July 2008, article 61-1 was added to the Constitution making provision for the possibility of a referral to the Constitutional Council if, during proceedings in progress before a court of law, a person involved in the proceedings claims that a statutory provision, by definition already promulgated, infringes the rights and freedoms guaranteed by the Constitution.
• Consequences of the Decisions of the Constitutional Council: in the case of non-conformity the provision is censured. Several scenarios are then possible:
– The entire law is censured and its promulgation is thus prohibited;
– The law is partially censured; if the Constitutional Council states that the provision in question is not separable from the rest of the law, the law will not be promulgated and will either be dropped or will be newly introduced with the necessary modifications to allow its conformity to the Constitution. If however, the Constitutional Council considers the provision separable, the President of the Republic will promulgate the law without the non-constitutional provision or he will request a reconsideration of the law, in accordance with article 10, paragraph 2 of the Constitution.
The Constitutional Council may also issue a declaration of constitutionality but attach “reservations of interpretation”. Such reservations will direct the interpretation of the law.
The decisions of the Council are binding on the public authorities and all administrative and judicial authorities. There is no appeal against them.
• Monitoring the Compatibility of International Agreements with the Constitution
Since the constitutional revision of 1992, the Constitutional Council, once it is referred to by the same authorities as may refer matters of scrutiny concerning the constitutionality of laws, must check that international commitments do not contain clauses contrary to the Constitution. If such a clause is contained in an agreement then a revision of the Constitution must be enacted before the ratification of the agreement.
3. – Other powers
The Constitutional Council, upon referral by the Government, can certify the inability of the President of the Republic to carry out his office.
It is the judge of parliamentary incompatibility and is the only body which may, upon the request of either assembly or the Minister of Justice, certify the removal of a parliamentarian.
IV. – PROCEDURE AND INTERNAL ORGANIZATION
1. – Procedure
The Constitutional Council is not situated at the summit of a hierarchy of judicial or administrative courts. In that sense it is not a Supreme Court. It is an institution whose sittings follow the rhythm of the requests which are referred to it.
It only sits and passes judgement in plenary sitting. Its deliberations are subject to a quorum and the actual presence of seven councillors is required. In the event of a tie in the voting, the President has the casting vote.
In matters of constitutional monitoring, the Constitutional Council passes a judgement after the reading of the report of one of its members. The procedure is written and carried out in the presence of the parties involved.
In electoral litigation, the examination of the case is entrusted to one of the three sections composed of three members chosen by lot, each of whom must have been appointed by a different authority. Decisions are taken in plenary sitting. Hearings with the parties involved or their council occur more and more often.
The Constitutional Council passes “decisions”, except when carrying out its consultative role or its role concerning the preparatory acts for elections. In accordance with article 62 of the Constitution, there is no appeal against such decisions and they are binding on all administrative authorities and on all courts. Such decisions must be handed down in the same month as the referral (with the exception of those dealing with electoral litigation). They are published in the Journal Officiel.
None of the debates in plenary sitting nor the votes are public or published. Dissenting opinions are thus not disclosed. They can only be made public at the end of the time limit protecting the secrecy of the deliberations of the Constitutional Council, currently 25 years. However, the decision, the referral and any observations made by the Government are published the same day on the internet site of the Constitutional Council and, in the case of the first three documents, in the Journal Officiel within one week.
The procedure which will be implemented in cases of preliminary rulings on the issue of constitutionality has yet to be decided. The parties should be able to present their observations in each other’s presence. The hearing will be public.
2. – Internal organization
The departments of the Constitutional Council (Legal Department, Clerk’s Office, Administrative and Financial Department, Documentation, Library and Internet Department and External Relations Department) are headed by a Secretary General who is appointed by decree of the President of the Republic upon a proposal of the President of the Constitutional Council. The Secretary General coordinates the work of the Constitutional Council.
The Constitutional Council enjoys financial autonomy and this guarantees the separation of powers. Its President sets its budget which is included in the annual finance bill.