FCL CHP 1 FIXED PDF - Summary of the Constitution of the Fifth Republic

Summary of the Constitution of the Fifth Republic 1st rep: 1792-1904 2nd rep: 1848-1952 3rd: 1870-1940 4th: 1946-1958 Chapter 1: The Constitution of the Fifth Republic I. The Adoption of the Constitution A: The Origin and Fall of the Fourth Republic - Established in 1946 post-World War II, the Fourth Republic faced instability, ending in May 1958. Major issues arose from the Algerian War. - On May 13, 1958, a coup attempt in Algeria prompted President Coty to appoint Pierre Pﬁmlin as head of government. Pﬁmlin favored negotiations with the FLN, leading to military insurrections that forced his resignation in may 1958. - Coty requested Charles de Gaulle to become head of government, leading to de Gaulle's appointment on June 1, 1958, with signiﬁcant parliamentary support. - The Fourth Republic's primary failure was governmental instability, with an average government lasting only six months. 2. Key Legislative Changes On June 9, 1958, three important laws were enacted: 1. Special powers for the government in Algeria. 2. Full legislative powers granted to the government. 3. A constitutional law mandating the creation of a new constitution, addressing structural issues of the Fourth Republic. - Modify art 90 and create a fast procedure to modify the C of the 4th rep. - Basic conditions that DG must respect in order to draft that news constitution: 5 fundamental principles in the drafting pricess of the new constitution à Democracy à Separation of power à Accountability of the gov to the parliament à Independence of the judicial authority à Special relationship between France and the (former) colonies - Two conditions were established to draft the new constitution à The government will have to consult a comity, the Comité Consultatif Constitutionel, and it will have to consult the Conseil d’état. à The draft of the constitution will need to be approved by the people. There will be a referendum The Constitution of the Fifth French Republic was promulgated on October 4, 1958. This marked the official adoption of the new constitutional framework, following its approval in a referendum held on September 28, 1958. B: The Drafting of the Constitution - The constitutional drafting involved two committees: - A **Comité Consultatif Constitutionnel** led by Michel Debré. - An **Interministerial Committee** that modiﬁed initial drafts. - The draft was ﬁnalized in July 1958 and presented to the Constitutional Advisory Committee, which approved the basic structure on **August 14, 1958**, despite some concerns over certain articles. The Constitutional Advisory Committee Composition Total Members: 39 o 16 members from the National Assembly. o 10 members from the Council of the Republic (former Senate). o Others were experts and political figures. Chairperson: Paul Reynaud o Last Prime Minister of the Third Republic before full powers were handed to Marshal Pétain in 1940. Role of the Committee The committee was tasked with providing advisory opinions on the draft Constitution. Key Milestone: On August 14, 1958, the committee agreed on the basic structure of the draft Constitution. Disagreements: 1. Article 89 (Referendum): § Concern: The provision allowing laws to be adopted directly by the people through referenda could bypass Parliament, undermining its authority. 2. Article 16 (Special Powers): § Concern: This article granted the President special powers in extraordinary circumstances. The committee feared it might be misused to establish an authoritarian regime, especially given the lack of similar tools in 1940 during the Third Republic's collapse. 3. Article 23 (Incompatibility of Roles): § Concern: This article prohibited individuals from simultaneously holding positions in both government and Parliament. Many committee members, who were also parliamentarians, opposed this restriction. Note: The committee’s role was advisory only, meaning its approval was not mandatory. Submission to the Council of State After the Constitutional Advisory Committee’s review, the draft was sent to the Council of State for its opinion. Key Event: On August 27, 1958, Michel Debré delivered an important speech to the Council of State: o Explained the drafters' intentions. o Emphasized the goal of establishing a rationalized parliamentary system while limiting the President’s powers to ensure a balanced executive. The Council of State reviewed the draft and delivered its opinion. Final Adoption of the Draft Constitution September 3, 1958: o The government formally adopted the final draft of the Constitution. o The text included revisions and corrections based on feedback from the advisory process and Council of State review. C: The Adoption of the Constitution - De Gaulle presented the Constitution to the public on **September 4, 1958**, a symbolic date linked to the proclamation of the Third Republic. - The Constitution was approved in a referendum on **September 28, 1958**, with a low abstention rate (15%) and overwhelming support for both the Constitution and de Gaulle. The Establishment of the New Institutions Progressive Implementation through Organic Laws Definition of Organic Laws: o Laws passed by Parliament, but with a specific goal: to clarify and detail the content of the Constitution. o In 1958, some of these laws were adopted directly by the government using a special tool provided in the Constitution: the ordonnance (a decree with legislative force). Sources of the Constitution of 1958 1. Charles de Gaulle’s Ideas Historical Context: o De Gaulle expressed his vision of governance and power distribution in his famous June 1946 speech at Bayeux. o Delivered after the first referendum and before the adoption of the Fourth Republic’s Constitution. Key Principles from the Speech: o Support for a strong executive power. o Mistrust of political parties, emphasizing that the President should stand above political factions (Article 5 of the 1958 Constitution: “The President ensures the continuity of the State.”). o The President should not only be a referee but an active political player. o Support for granting special powers to the President. Interpretations of the Speech: o Anti-Fourth Republic Constitution: A critique of the Constitution of the Fourth Republic, urging people not to adopt it. o Precursor to the 1958 Constitution: Outlined his ideal constitutional framework. 2. Michel Debré’s Contributions Leader of the Justice Ministry and head of the drafting committee. Agreed with De Gaulle’s emphasis on restoring authority in governance. Contributed his legal expertise to design a system that: o Rationalized the parliamentary system. o Clearly defined the boundaries between the powers of the Parliament and the executive, constraining parliamentary influence. 3. Contributions of Key Officials Guy Mollet: Former Prime Minister of France. Pierre Pflimlin: Influential political figure during the drafting process. 4. Influence of Scholars and Doctrine Scholars from the Third and Fourth Republics advocated reforms, including: o Raymond Carré de Malberg: § Law professor from Strasbourg. § Supported referenda and judicial review. o Maurice Hauriou: § Advocated for judicial review as a mechanism to uphold constitutional principles. The Constitution of 1958 Structure and Preamble The Preamble refers to: o The Declaration of the Rights of Man and of the Citizen (1789). o The Preamble of the Constitution of 1946. The Constitution contains 90 articles. In 1973, the Constitutional Council established the concept of the Constitutional Block, expanding constitutional principles beyond the 1958 text. Titles of the 1958 Constitution Title I: Sovereignty. Title II: The President. Title III: The Government. Title IV: The Parliament. Importance of Title Order The order reflects the emphasis on the President and executive power: o In the Fourth Republic Constitution (1946): § Title I: Sovereignty. § Title II: Parliament. § Title III: Economic Council. § Title IV: Treaties. § Title V: The President (executive power ranked last). o In the Fifth Republic Constitution (1958): § The President is addressed in Title II, underscoring the increased importance of executive power. II. Key Features of the Constitution A. Theoretical Framework - The Fifth Republic combines elements of parliamentary and presidential regimes: - A parliamentary regime where the parliament holds power, exempliﬁed by the UK model (parliament is sovereign). - A presidential regime characterized by strict separation of powers, where the executive is not accountable to the parliament. House of Commons o Members are directly elected by the people. Electoral System in the UK: o Majoritarian System: First-past-the-post system. Leadership and Government Formation: o The head of government is also the leader of the political party or coalition that leads the lower chamber. o In the UK, the Prime Minister is the leader of the political party dominant in the House of Commons. o Under a constitutional convention, the leader of the party with the greatest number of seats in the House of Commons becomes the Prime Minister. Comparison with France In France, the head of the executive is not necessarily the leader of the dominant party in the lower house. The executive has the authority to dissolve Parliament. Concentration of Power The leading party in the House of Commons concentrates most of the power. This concentration can lead to a reversal of hierarchies: o In a parliamentary regime, the Parliament is the dominant institution. o However, with concentrated power, the executive may become the dominant institution. Practical Reality: o While theoretically, the government can be overthrown by the House of Commons, in practice, this rarely happens. The Second Republic in France (1848–1852) Example of a Presidential Regime. Elements of a Presidential Regime 1. Separation of Powers: o Strict separation of powers, unlike the flexible separation in other systems. 2. Executive Branch: o The executive is directly or indirectly elected: § USA: Indirect election. § France: Direct election. 3. Legislative Chambers: o The chambers are mostly directly elected. o Difference between the House of Representatives and the Senate 4. Political Accountability: o The President is not politically accountable to Parliament. 5. Impeachment: o Occurs when the President commits a crime. 6. Dissolution of Legislature: o The executive cannot dissolve the legislature. 7. Mutual Destructive Powers: o Absent in this regime. 8. Checks and Balances: o Mechanisms exist for: § The executive to apply pressure on the legislature. § The legislature to apply pressure on the executive. B. Main Characteristics of the Constitution - On August 27th 1958, Michel Debré emphasized that the government aimed to renovate the parliamentary system while avoiding the pitfalls of previous regimes (conventional regime/presidential regime). à The assembly regime or conventional regime is a system in which the globality of power belongs in law and in fact to the parliament and more precisely to an Assembly (3rd and 4th republic). à The presidential regime is the opposite of the Assembly regime. It is characterized by the importance of the powers given in law and in fact to a head of state elected by universal suerage. - The Fifth Republic established a rationalized parliamentary regime with signiﬁcant powers vested in the presidency. Key characteristic: - the government is politically accountable to the parliament (the national assembly) - mutual destruction powers - the head of state is not politically accountable to the parliament. The counter signature mechanism allows for the political responsibility to be transferred from the president to the government. Most of the president’s acts have to be cosigned. The establishment of the 5th rep was driven by several objectives: - To break with years of political stability - To put an end to parliamentary sovereignty - Restore a balance of power between the executive and the legislative. = reduce the power of legislative and increase the power of executive. - Rationalize the parliamentary resistance = limit the power of legislative. - Restoring the power of the state in general Articles in the Constitution provide the head of state with legitimacy and legal means to react effectively during crises, particularly Article 16, granting full powers to the president in such cases. The system is rationalized by giving significant powers to the government throughout the legislative process. Strict limitations are imposed on the National Assembly, restricting its scope to specific areas defined in Article 24. The Conseil Constitutionnel ensures that laws passed by Parliament are constitutional. Under the 3rd and 4th Republics, the right of dissolution theoretically existed but was almost never used, leading to the disappearance of mechanisms to dissolve the Assembly. The executive wields significant powers, with the text of 1958 laying the foundation for an imbalance that has grown over the years. The "fait majoritaire" emerged in 1962, ensuring that the president has a majority in the National Assembly. The government is politically accountable to the National Assembly, leading to a fusion of interests between the government and the legislative majority due to their shared party affiliation. The 5th Republic is a rationalized parliamentary system. In 1962, the method of electing the president was reformed, with the president now elected directly by the people rather than by 60,000 individuals, enhancing presidential legitimacy. The French regime can also be characterized as a semi-presidential regime based on two criteria defined by Duverger: A president elected by direct suffrage with significant powers. A government accountable to Parliament under Article 49 of the Constitution. The nature of the French regime varies depending on political circumstances, particularly the distinction between cohabitation and alignment of majorities: Cohabitation: The president and the head of the National Assembly are from different parties, though the prime minister must align with the National Assembly due to its power to dismiss the prime minister. Alignment of Majorities: The president, prime minister, and National Assembly are from the same party, leading to alignment of interests. In cases of alignment, the National Assembly's power increases, while the president's power is reduced. France experienced three periods of cohabitation: 1986–1988 1993–1995 1997–2002 III.The Content of the Constitution Elements of the C 1) The Constitution of 1958 - **Structure**: Contains a preamble and approximately 90 articles, focusing on institutional and normative aspects. - **Normative Functions**: It addresses the ratiﬁcation of treaties, adoption of laws, constitutional modiﬁcations, and referendum processes. - **Key Articles**: - **Article 1**: Principle of equality and secularism. - **Article 4**: Guarantees the expression of diverse opinions and equal participation of political parties. - **Article 66**: Ensures individual liberty and protection from arbitrary detention. - **Article 66.1**: Prohibits the death penalty. - **Article 3**: Asserts that the Republic is "government of the people, by the people, for the people." 2) The Declaration of the Rights of Man and of the Citizen (DDHC) of 1789 - **Signiﬁcance**: Although not directly mentioned in the Constitution, it is referenced in its preamble. - **Human Rights**: Proclaims the French people's attachment to human rights and the principles of national sovereignty as deﬁned by this declaration conﬁrmed and complimented by the preamble of the Constitution of 1946 and to the rights and duties has deﬁned in the charter for the environment of 2004. - **Constitutional Value**: Recognized by the Constitutional Council through decisions in july 16th 1971 and december 27th 1973. The state does not create rights; it merely recognizes inherent human rights. “Ignorance, forgetting human rights or content for human rights are the only clauses of public misfortunes and government corruption”. The key issue for all problems is not respecting those rights. “We must constantly remind all members of the social body of their rights and powers” 5 core elements of the declaration 1. Importance of Natural Law Natural law preexists society and the state, and its rights are inherent to human nature. Article 2 of the Declaration: “The aim of any political association is the conservation of the natural and imprescriptible rights of men. These rights are liberty, property, safety, and resistance to oppression.” Example of Antigone: Natural law grants her the right to bury her brother, overriding the positive law imposed by the state. 2. Notion of Individualism Individualism, protected by the Constitution, represents a break from the Ancient Regime, which was based on orders and bodies. Rights protected by the Constitution are exercised individually, while the idea of community is not protected. 3. Liberalism The Constitution reflects classical liberalism, as theorized by Locke. The 1789 Declaration limits the power of the state to protect individual rights. The rights protected are negative rights, requiring the state to abstain from interference rather than act. Contrasts with the 1793 Constitution, which protected social rights, reflecting a moment of utopia. 4. Legicentrism The law is central to the legal order. Article 6 of the Declaration: “The law is the expression of the general will.” (Influence of Rousseau). 5. Universalism The rights protected are universal, meaning everyone is entitled to them. The French Declaration is abstract and universal, whereas English Declarations are technical, procedural, and pragmatic. Rights in the French Declaration are proclaimed without consideration of concrete effectiveness or specific guarantees, differing from the English approach. Referenced critique by Joseph de Maistre. 3) Preamble of the Constitution of 1946 (October 27th 1946) - **Contribution**: Enriches the principles of 1789 by including political, economic, and social rights absent in the earlier declaration. - **Key Protections**: Rights related to education, employment, and housing. - **Judicial Use**: First invoked in the Constitutional Council's decision regarding abortion law on January 15, 1975. Conseil constitutionnel: “Having seen the constitution and particularly its preamble” => the preamble is not just symbolic it is signiﬁcant. 4) Fundamental Principles Recognized by the Laws of the Republic - **Criteria for Principles**: The Constitutional Council established ﬁve criteria to recognize these principles: 1. Must emerge from laws adopted under a republic. 2. Must be enacted before the Constitution of 1946. 3. Continuous application over time without interruption. 4. Sueiciently general. 5. Related to fundamental rights, national sovereignty, or the organization of public powers. The ﬁrst use of that category was in an important decision: July 16th, 1971, freedom of association Elements: 1. Freedom of association: fundamental decision that created the block. 2. Respect of the rights of the defense 3. Individual liberty: prohibition of arbitrary detention 4. Freedom of education 5. Freedom of conscience 6. Independence of the administrative judge 7. Independence of university professors 8. Speciﬁc competence for the administrative judge 9. The judicial judge has a protector of private property 10. Obligation to apply speciﬁc rules for juveniles in criminal law 11. Speciﬁc rules in Alsace-Moselle because it has a speciﬁc history. These principles are all part of the constitutional block, so they have constitutional value. Some of those principles are protected by older elements of the block. Individual liberty is also protected by article 66 of the constitution of 1958. Liberty of conscience is protected in Article 16 in the declaration of 1789. Approach of the CC: whenever I can rely on a textual source, I will use that textual source”. They did not create the rights; it is safer to rely on a text than on a principle created by the judge. Some rights are protected by 2 elements: the constitution and the declaration of 1789 par example. 5) Charter for the Environment - **Adoption**: Adopted in 2004 and added to the preamble, then added to the Constitution through a revision in 2005. - **Focus**: Protects environmental rights, establishing a new 3rd generation of rights alongside civil and political rights: Examples of 1st generation rights: freedom of expression 2nd generation: social and economic rights. Asking the state to intervene to help with these rights. It is the CC who by its decision added preamble 46 to the block. Here it is the amending power that added the charter for the environment. The charter protects rights and duties. Not only do we have rights to the environment, but we also have duties. This charter is important because it protects rights related to the environment at the constitutional level, the highest level in French law. Statutes passed by the parliament have to respect the charter for the environment - **Key Articles**: - **Article 1**: Right to live in a balanced environment that respects health. - **Article 2**: Duty to participate in preserving and improving the environment. - Art3: everyone must prevent or limit the consequences of the damages that may be caused to the env - Art4: everyone must contribute to the repair and putting things back in order - **Article 6**: Sustainable development as an objective of public policies. That charter has cons value; it is part of the C. however, not all of the provisions of the charter can be invoked in the new procedure created in 2008 for initial review. 2 ways to exercise judicial review: - Traditional way: this review happens after the statute has been voted but before its promulgation. “a priori” review. The law is voted by parliament. 5 authorities can dieer the law to the “conseil constitutionnel”. The 5 authorities are: -president -prime minister -president of the national assembly -president of the senate -60 senators or 60 members of the NA This intervention was authorized by a constitutional amendment in 1994. If those 5 authorities don’t act, if they refer the law to the conseil, it means that the law cannot be challenged anymore. It means that laws that can maybe be unconstitutional can avoid the review and can we active even though they might be unconstitutional. -> risk - Another form of review: “a posteriori” review. The review is after the law is promulgated. A revision in 2008, which entered into force in 2010. It is a very important modiﬁcation of the Constitution: Priority preliminary ruling on constitutionality. Anyone can challenge a statute and say that the statute being applied in a procedure in unconstitutional. That charter has constitutional value, but not all of the provisions of the charter can be invoked in a “a posteriori” review (Priority preliminary ruling on constitutionality). This is a weakness of the charter. 6) Certain Constitutional Principles - The principle of continuity in public service is recognized as constitutional but is not classiﬁed as a fundamental law of the Republic. It exists within a dieerent category. A. **Constitutional Block** - All elements discussed are part of the constitutional block, which encompasses the entirety of the Constitution while excluding certain statutes - Notably, international treaties, although superior to statutes (as per Article 55), are not included in the constitutional block. This means that the Constitutional Council (CC) cannot declare a law unconstitutional solely based on its contradiction with a treaty. B. **elements not included in the Constitutional Block** The block includes the whole C and nothing but the C. In other words, elements which might be superior to statutes might still not be included in the block. International Treaties and Human Rights International treaties are superior to statutes (Art 55). They are not part of the block; Treaties are not in the C so the CC cannot declare a law unconstitutional just because it is contrary to a treaty. We need to distinguish whether a statute respects a treaty or the C. In a very important decision in 1975, the CC said “I am competent to do Constitutional review (whether the statute respects the C/the block) but I am not competent to do conventional review (whether the statutes respect the treaties)”. The fact that the law violates the treaty is not enough to make that law unconstitutional. If the CC isn’t competent to do conventional review, who is? All judges except for those of the CC. If the law violates the C, only the CC is allowed to review - Approximately 7,000 international treaties address human and fundamental rights. - The **European Convention on Human Rights**, adopted in Rome in 1950 and ratiﬁed in 1953, serves as a protector of fundamental rights through the European Court of Human Rights located in Strasbourg. - The TEU and TFUE are the two core treaties concerning the EU and are not part of the constitutional block. The court of justice of the EU declares those treaties superior to national Constitutions. French courts have ruled the opposite: the C is superior. In the hierarchy, the C is the highest law. è Tension between the national C and the EU treaties **Types of Review** - **Conventional Review**: Examines if a law adheres to international conventions. - **Constitutional Review**: Examines if a law adheres to the Constitution. The CC does not review whether a statute complies with the European Convention; that responsibility lies with ordinary judges. **Organic Laws and Legislative Procedure** - **Organic laws** serve a speciﬁc purpose: to implement certain constitutional provisions. Following the 2008 constitutional amendment, an organic law was enacted in 2010 to clarify details regarding legislative procedures. Another element not included in the block: the rules governing the functioning the Senate and the NA. C) The unity of the block The block is composed of 6 elements that have been adopted at dieerent times. There is a huge variety in the substance of the block. Are certain parts of the block superior to other parts? In a very important decision in January 1982, the CC aeirmed that all elements of the block are of equal value. This means that they all have constitutional value. This decision is called “nationalization”. The declaration of 1789 does not prevail over the C of 1946, no hierarchy. BUT in that decision there was a contradiction between the right of property of 1789 (art 17 DDHC) and the possibility of having nationalisation mentioned in the preamble of 1946. In theory no hierarchy but 1789 can prevail. The CC refused to say that one element is superior to the other. They are all equal. The CC will try to balance those elements. When there is a tension between a right protected in 1946 and another protected in 1789, the CC has to ﬁnd a solution to balance both rights. Certain rights are more protected than others and certain texts seem to be more important than others. For example, the rights protected in 1789 seem to be more important than the ones in the preamble of the C of 1946. -> negative rights more protected than positive rights The provisions for the charter of the env, even though they have C value, they cannot all be invoked in the new procedure created in 2008 for initial review. a posteriori review, certain elements are less protected than others. D)Modiﬁcation of the Constitution How do we change the C? Flexible C vs. rigid C This notion is very important. For instance, the C of 1793 (2nd C in French history, that was never fully applied, moment of utopia) said that the people always have the right to review, to reform and to change the C. Art 28: “One generation cannot subject future generations to its laws” “Each generation should be able to modify the C” – Thomas Jeeerson. “The earth belongs to the living not to the dead” – Jeeerson Every 19 years you should be able to change the C. If not, then we’d be governed byt the dead. In France, article 89 describes the Normal procedure to modify the C. CDG introduced another way in 1962: Art 11 of the C. -> you can organize legislative referendums concerning the functioning of public powers. è CDG changed the way the president in elected: universal suerage. He gave a public speech: “if I tell you that I can use art 11 to change the way the president is elected, then I will use it because I wrote the C” (not exactly but that’s the message) Art 89: normal way to modify In 1962: the C was changed using the art11. This caused a C crisis because there was a censor motion against CDG. Art 89: - 1st phase: initiative that belongs to the President of the Republic or members of the Parliament. - 2nd phase: voting. proposal to change the C must be voted by the 2 assemblies in identical terms. This means that each assembly has the veto power. Back and forth between the Senate and the NA - 3rd phase: ratiﬁcation, either through a referendum or through Congress (speciﬁc meeting of the Parliament: reunion of the NA and the Senate). When the modiﬁcation of the C has been proposed by a member of Parliament, the ratiﬁcation must be done by referendum. When the initiative is from the president, the ratiﬁcation can either be done by a referendum or by Congress (3/5 majority). If the modiﬁcation was proposed by a member of parliament, it can’t be voted by the parliament (congress). There needs to be an external POV. The C has been modiﬁed 25 times. One time using Art 11 (1962) and 24 times using Art 89. From the 24 times: 1 time in 2000 the referendum was used, and that was to reduce the presidential mandate (from 7 years to 5) IVG: proposal from the president, ratiﬁed by Congress. Limits to the modiﬁcations? There are certain procedural limits to the modiﬁcations of the C by Art 89. - In other words, Art 89 says that you can’t change the C when the integrity of the territory is challenged. - You can’t change the C when there is vacancy of the President (Art7). - You can’t change the C when the President uses Art16 (that gives him special powers) Substantial limits Art 89.4 of the French C: it mentions that the Republican form of the government cannot be modiﬁed. This has 2 approaches: - The narrow approach: this provision concerns the form of the regime ó you need to have a Republic; you cannot have a monarchy. If I really want to establish a monarchy according to the C, I can change article 89.4 - A more substantial approach: the Republican values are extra protected, which means that we can’t modify them even with a constitutional amendment. Normally, when you change the C you can do whatever you want. That’s an element of sovereignty. So if we can’t modify a speciﬁc part of the C, the value is just that important and protected. Who can be competent to say that a modiﬁcation of the C is unconstitutional? In a very important decision in 2003, the CC aeirmed that it is not competent to examine constitutional modiﬁcation. Its job is to review statutes and see if they respect the C but cannot review if a modiﬁcation is unconstitutional.

FCL CHP 1 FIXED PDF - Summary of the Constitution of the Fifth Republic

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