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Monitoring the Constitutionality of Laws
The monitoring of the constitutionality of laws enables the checking of the conformity of such laws to constitutional provisions. The introduction of the monitoring of constitutionality in France in 1958, strengthened the power of the Constitution and led to a jurisprudence with significant consequences.
I. – THE CONSTITUTIONAL COUNCIL
The Constitutional Council is made up of nine appointed members and certain ex officio members.
1. – Appointed members
The President of the Republic, the President of the Senate and the President of the National Assembly each appoint three constitutional councillors (one every three years) for a nine-year term. The length of this term and its non-renewable nature aim at guaranteeing their independence. There are no professional qualifications and there is no age limit to be a member; therefore, every person of French nationality with full political and civil rights is eligible. In practice, the members of the Constitutional Council are often former politicians, high-ranking civil servants or lawyers.
Since the constitutional revision of July 23, 2008, these appointments are subject to the procedure set out in the last paragraph of article 13 of the Constitution (public consultation of the relevant standing committee in each assembly; blocking of the appointment when the sum of the negative votes in each committee represents at least three fifths of the votes cast by the two committees). It is nonetheless stated that the appointments made by the presidents of each assembly are only subject to the opinion of the relevant standing committee in the assembly concerned.
2. – The President
The President of the Republic also appoints the President of the Constitutional Council from among its members. Any of the members may be so-appointed but the President of the Republic usually chooses a member whom he has just appointed.
The procedure concerning an interim presidency of the Constitutional Council is not laid down in any law but when the then President, Roland Dumas, put himself “on leave” in 1998, he himself handed over all his powers provisionally to the oldest member of the council, before leaving the council definitively in 2000.
The President of the Constitutional Council carries out the chairmanship of the sittings, appoints the rapporteur for each file and has the casting vote in the case of a tie.
3. – Ex Officio Members
Former Presidents of the Republic are all life ex officio members of the Constitutional Council.
Two former presidents of the IVth Republic, Vincent Auriol and René Coty, sat sporadically until 1962.
Mr. Valéry Giscard d’Estaing has participated in the deliberations of the Constitutional Council since June 2004. He has been joined by Mr. Jacques Chirac who sat for the first time in November 2007.
4. – The status of members of the Constitutional Council
The members of the Constitutional Council take an oath before the President of the Republic. Their office entails a duty to preserve secrecy and is incompatible with the exercise of any national, local or European elected position. It is also incompatible with any political activity irreconcilable with the independence required to carry out their duties. Constitutional councillors are also subject to the same professional incompatibilities as M.P.s and may not be appointed to any public post during their term of office. These incompatibilities are also applied to the ex-officio members of the Constitutional Council.
The members of the Constitutional Council receive an allowance which is equal to the salaries earned by the two upper echelons of State officials.
They must refrain from all actions which could compromise the independence and the dignity of their office and in particular from taking any public position on matters liable to be the subject of a decision by the council. The deliberations and votes must also be kept secret.
In addition, constitutional councillors may not be removed, nor appointed for an extra term by the appointing authorities unless they were previously appointed for a period of less than three years as a replacement for a member whose office was terminated before the normal period. Only the Constitutional Council itself may declare the withdrawal from office of one of its members who has not fulfilled his duties. This procedure has never been used.
II. – THE MONITORING PROCEDURES OF CONSTITUTIONALITY
1. – Obligatory monitoring (article 61, paragraph 1 of the Constitution)
Institutional acts before their promulgation and the Rules of Procedure of the assemblies (National Assembly, Senate and Congress) before their implementation, are automatically transmitted to the Constitutional Council which makes a decision on their conformity with the Constitution.
2. – The prior monitoring of ordinary laws (article 61, paragraph 2 of the Constitution)
The Constitutional Council’s jurisdiction only applies to laws passed by Parliament. The Constitutional Council has declared constitutional laws passed by referendum or by Congress to be outside its jurisdiction.
Matters may be referred to the Constitutional Council by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or, since the constitutional revision of 1974, by 60 M.P.s or 60 Senators. The referral must take place in the period between a bill being passed by Parliament and its promulgation, i.e. in a two-week period. Such a referral postpones the promulgation of the bill.
The Constitutional Council has one month to make its declaration although this time limit may be shortened to eight days in urgent circumstances upon the request of the Government.
When the Constitutional Council declares the law in conformity with the Constitution, it may be promulgated.
On the contrary, a decision which declares the whole law to be unconstitutional blocks its promulgation. The legislative procedure which has led to the passing of such a law is annulled and there is no other solution than to begin again from the beginning, unless the reason for the non-conformity constitutes a decisive obstacle which implies, for example, a prior revision of the Constitution itself.
The Constitutional Council may also decide that a law is partly in conformity with the Constitution. In such a case, the law may be promulgated except for the articles or parts of articles which have been declared unconstitutional (and on the condition such articles or parts of articles are “separable” from the rest of the provisions).
3. – The subsequent monitoring of ordinary laws (article 61, paragraph 1 of the Constitution)
Until recently the Constitution made no provision for the monitoring of a law once it had been promulgated. Nonetheless, as of a decision of January 25, 1985, the Constitutional Council accepted that the constitutionality of a law which had been promulgated “may well be contested upon the examination of legislative provisions which modify it, supplement it or affect its field of application”.
The Constitutional Act of July 23, 2008, opened up a new right to people involved in legal proceedings which allowed for referral to the Constitutional Council in the cases of proceedings before administrative and judicial courts, concerning the conformity of statutory promulgated provisions with the rights and freedoms constitutionally guaranteed.
Thus article 61-1 of the Constitution provides that “if, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d’État or by the Cour de Cassation to the Constitutional Council, within a determined period”.
The second paragraph of this article states that an institutional act shall determine the conditions for the application of said article.
4. – The monitoring of international commitments
This form of monitoring deals with treaties as well as all other international commitments. The procedure which is followed is the same as that for laws and such matters can be referred to the Constitutional Council by the same people (although the referral by 60 M.P.s and 60 Senators was only introduced in 1992) up until the ratification of the treaty. If the treaty is not in conformity with the Constitution then the latter must be revised prior to any ratification.
III. – THE CONTENT AND THE IMPLEMENTATION OF DECISIONS
1. – The content of decisions
In the case of prior monitoring, the procedure is written and inquisitorial. The text of the referral (since 1983) and the observations of the Secretary General of the Government (since 1984) are however published in the Journal Officiel. The nature of the procedure has tended to evolve towards the inclusion of all parties involved.
The procedure which will be adopted in cases of priority preliminary rulings on the issue of constitutionality has yet to be established. The parties should be able to present their observations in the presence of the other parties. The proceedings will be public.
As regards international commitments, institutional laws and parliamentary Rules of Procedure, the Constitutional Council must check the conformity to the Constitution of the entire text.
The Constitutional Council may declare the legislative provisions in conformity subject to certain interpretations, either by detailing the way in which they must be interpreted (neutralizing interpretation), by adding to them (constructive interpretation) or by making clear the way in which they must be applied (directive interpretation).
2. – The implementation of decisions
A treaty which is declared unconstitutional cannot be ratified without a revision of the Constitution.
A provision of parliamentary Rules of Procedure which is declared unconstitutional cannot be applied whilst that of a law cannot be promulgated. In the case of a law, the President of the Republic may, nonetheless, promulgate the law minus the provision(s) or request a new deliberation of Parliament (article 10 of the Constitution).
The decisions are published in the Journal Officiel and have the authority of res judicata which applies not only to the ruling but also to the reasons. They “are binding on public authorities and on all administrative authorities and all courts” (article 62 of the Constitution).