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The Revision of the Constitution
Article 89 of the Constitution of October 4, 1958 sets down the rules for the revision of the Constitution. Since coming into force, this procedure has been successfully used twenty-two times.
During the first years of the Fifth Republic, article 11 of the Constitution, which provides for the possibility of having recourse to a referendum in certain limited cases which are listed, was also used to revise the Constitution (28 October, 1962) so as to introduce the election by direct universal suffrage of the President of the Republic. Nonetheless, this contested practice has not been used since the failure of the referendum of April 27, 1969 concerning regionalization and the abolition of the Senate.
The procedure laid down by article 89 has the specific nature of requiring consensus within the executive and within the legislative as well as between the executive and the legislative. The opposition of the President of the Republic, of the Prime Minister or of one or other of the two assemblies would be enough to prevent the entire revision process from succeeding.
I. – THE REVISION PROCEDURE
1. – The initiative for revision
a) The Power to Initiate
The power to initiate a constitutional revision is held by the President of the Republic, upon a proposal of the Prime Minister, or by parliamentarians. In the first case, the bill is referred to as an executive constitutional bill and in the second as a parliamentary constitutional bill. In fact, all twenty-two constitutional revisions carried out in accordance with the procedure of article 89 since 1958 have been based on executive constitutional bills.
b) Limitation of the Power to Initiate
Article 89 states clearly that the republican form of government shall not be the subject of a revision.
It also states that no revision shall be commenced or continued where the integrity of the territory is jeopardized.
In addition, article 7 rules out the possibility of using the revision procedure provided for by article 89 in the case of the vacancy of the Presidency of the Republic. The right to initiate constitutional revision is thus one of the powers that an interim President of the Republic may not carry out.
2. – Examination of the executive or parliamentary constitutional bills
Examination of the executive or parliamentary constitutional bills takes place before each assembly according to the ordinary law legislative procedure. However, one of the new rules introduced by the constitutional revision of July 23, 2008, does not apply. The discussion of an executive constitutional bill is carried out on the basis of the original bill, or in the case of the “shuttle”, on the bill transmitted by the other assembly and not on the bill adopted by the committee.
However, the time constraints introduced by the same revision do apply. This means that there must be a six-week period between the tabling of the executive or parliamentary bill and its discussion in plenary sitting and the Government may not reduce this period by the implementation of the accelerated procedure. Similarly the four-week period stipulated between the transmission of the bill by the first assembly to which it is referred and the discussion in the second assembly, is also applied (in July 2008, the Senate examined the executive constitutional revision bill fourteen days after its transmission by the National Assembly).
In addition, two other specificities concerning the discussion of executive or parliamentary constitutional bills should be noted:
- Executive constitutional bills are not accompanied by an impact study. This is an exemption from the rule set down by the Institutional Act of April 15, 2009;
- The Set Time Limit Debate Procedure introduced by the reform of the Rules of Procedure of May 2009, cannot be used in such a case.
If an ad-hoc committee is not set up (such a committee has never indeed been set up either at the National Assembly or at the Senate) the executive or parliamentary constitutional bills are referred to the Constitutional Law, Legislation and General Administration Committee, although other committees may give their opinion on the matter. Indeed, the National Assembly the Foreign Affairs Committee and the Finance Committee gave their opinion on a bill which led to the revision of June 25, 1992 and added a title to the Constitution called “On the European Communities and the European Union”. It is also thus that the Committee for Cultural, Family and Social Affairs as well as the Finance Committee gave their opinion on a bill which became the Constitutional Act of February 22, 1996 and introduced the law on the financing of social security.
The “shuttle” continues until the bill is passed in identical terms by the two assemblies which, in constitutional matters, have the same powers. Contrary to the normal legislative procedure, the Government cannot ask the National Assembly to take a definitive decision.
3. – The definitive passing of the law
The definitive passing of the executive or parliamentary constitutional bill is subordinate to its approval by referendum. Nonetheless in the case of executive constitutional bills the President of the Republic may rule out a referendum and submit such bills to the approval of the two assemblies gathered together in Congress.
Congress, whose Bureau is that of the National Assembly, is convened by a countersigned decree of the President of the Republic to meet in Versailles. As its sole aim is to approve the bill passed by the two assemblies, on behalf of the sovereign people, it may not of course amend it. Debates are thus limited to an explanation of vote put forward by each political group at the National Assembly and the Senate. After that the vote is taken. It is taken either by each voter being called to the rostrum or, since the modification in the Rules of Procedure of June 28, 1999, according to other procedures set down by the Bureau of the Congress. Thus, since that date (when Congress was called to vote twice on two constitutional bills on the same day for the first time), votes have been organized in eight polling stations set up in the immediate vicinity of the Chamber. For the constitutional bill to be approved, it must receive a three-fifths majority of the votes cast.
II. – CONSTITUTIONAL REVISIONS SINCE 1958
- June 1960, according to a dispensatory revision procedure dealing with provisions concerning the “Community”, i.e. the geo-political unit linking France to its former African colonies (this procedure was repealed by the Constitutional Act of August 4, 1995):
• Constitutional Act n° 60-525 of June 4, 1960 aiming at completing the provisions of Title XXI of the Constitution (independence of African and Malagasy member states of the Community).
- October 1962, by referendum in accordance with article 11 of the Constitution:
• Law n° 62-1292 of November 6, 1962, concerning the election of the President of the Republic by universal suffrage.
- December 1963, by the Congress:
• Constitutional Act n° 63-1327 of December 30, 1963, modifying the provisions of article 28 of the Constitution (modification of the dates or parliamentary sessions).
- October 1974, by the Congress:
• Constitutional Act n° 74-904 of October 29, 1974, revising article 61 of the Constitution (extension of the right of referral to the Constitutional Council for 60 M.P.s and 60 Senators).
- June 1976, by the Congress:
• Constitutional Act n° 76-527 of June 18, 1976, modifying article 7 of the Constitution (modification of the electoral campaign rules for presidential elections – in the case of the death or incapacity of a candidate).
- June 1992, by the Congress:
• Constitutional Act n° 92-554 of June, 1992, adding to the Constitution the title: “On the European Communities and the European Union” (for the ratification of the Maastricht Treaty).
- July 1993, by the Congress:
• Constitutional Act n° 93-952 of July 27, 1993, revising the Constitution of October 4, 1958 and modifying Titles VIII, IX, X and XVI (setting up the Court of Justice of the Republic in charge of judging the criminal liability of members of the Government).
- November 1993, by the Congress:
• Constitutional Act n° 93-1256 of November 25, 1993, dealing with international agreements concerning the right to asylum.
- July 1995, by the Congress:
• Constitutional Act n° 95-880 of August 4, 1995, extending the field of application of referenda, introducing a single ordinary parliamentary session, modifying the parliamentary system of immunity and repealing provisions concerning the Community and transitory provisions.
- February 1996, by the Congress:
• Constitutional Act n° 96-138 of February 22, 1996, introducing laws on the financing of social security.
- July 1998, by the Congress:
• Constitutional Act n° 98-610 of July 20, 1998, concerning New Caledonia.
- January 1999, by the Congress:
• Constitutional Act n° 99-49 of January 25, 1999, modifying articles 88-2 and 88-4 of the Constitution (modification of provisions concerning the European Union).
- July 1999, by the Congress:
• Constitutional Act n° 99-568 of July 8, 1999, inserting at Title VI of the Constitution, article 53-2 recognizing the International Criminal Court.
• Constitutional Act n° 99-569 of July 8, 1999, concerning equality between men and women.
- September - October 2000, by referendum:
• Constitutional Act n° 2000-964 of October 2, 2000, concerning the length of the term of office of the President of the Republic.
- March 2003, by the Congress:
• Constitutional Act n° 2003-267 of March 25, 2003, concerning the European Arrest Warrant.
• Constitutional Act n° 2003-276 of March 28, 2003, concerning the decentralized organization of the Republic.
- March 2005, by the Congress:
• Constitutional Act n° 2005-204 of March 1, 2005, modifying Titre XV of the Constitution.
• Constitutional Act n° 2005-205 of March 1, 2005, concerning the environment charter.
- February 2007, by the Congress:
• Constitutional Act n° 2007-237 of February 23, 2007, modifying article 77 of the Constitution.
• Constitutional Act n° 2007-238 of February 23, 2007, modifying Titre IX of the Constitution.
• Constitutional Act n° 2007-239 of February 23, 2007, concerning the prohibition of the death penalty.
- February 2008, by the Congress:
• Constitutional Act n° 2008-103 of February 4, 2008, modifying title XV of the Constitution.
- July 2008, by the Congress:
• Constitutional Act n° 2008-724 of July 23, 2008, on the modernization of the institutions of the Fifth Republic.