France’s Constitutional Council: a rubber stamp for the Executive?
Five days ago, thing were looking grim for Emmanuel Macron. The French were in uproar over the President’s plan to increase the retirement age from very low to a little higher, and in the National Assembly – transformed almost overnight into a bear-pit – it was impossible to get anything done.
But then in stepped the Constitutional Council, a body made up of political and legal worthies known collectively as Les Sages. Macron was betting that the sages would declare his reforms to be legal, and they did not disappoint. Not only did its nine members rule that the Government had acted lawfully, in spite of the fact that the legislation had not been approved by the Assembly, it also rejected a demand by the Left for a referendum on the issue that the President would almost certainly have lost.
Within hours of the ruling, announced at 6pm on Friday, the law, making 64, rather than 62 the age at which most of the French could down tools and pick up their pensions was formally promulgated.
What happens next is hard to say. The trade unions have called for another slew of protests, culminating in a mass turnout on the first of May – international Labour Day. One possibility is that millions will take to the streets, resulting in violent confrontations between the so-called Black Blocks and the police. The other is that the people, having made their position plain, will, for the most part, accept defeat and look to the 2027 national elections as their preferred means of redress. By then, of course, Macron will have stood down as President and the fight will be between what remains of the Centre and the extremes of Right and Left.
There is no equivalent of the Constitutional Council in most countries. It is a very French institution, nominated by the President and the leaders of the Assembly and Senate. In the US, the Supreme Court performs a similar role, but, like its British equivalent, is made up entirely of top judges. The same is true of the German constitutional court, the Bundesverfassungsgericht, whose 16 members must come either from the ranks of the judiciary or academia and can serve a maximum of 12 years.
The French Council – sometimes unfairly viewed as a rubber stamp for the Executive – is not even, strictly speaking, a court. It is more of a deliberative body that conducts hearings, sifts through evidence and makes up its mind as much over lunch as across the conference table.
The current president of the council is Laurent Fabius, aged 76, a former prime minister, appointed in 2016 by the Socialist François Hollande. He took over from Jean-Louis Debré, a one-time judge and minister for the interior, nominated by Jacques Chirac, who now, as he moves towards his 79th birthday, serves as head of the Superior Council of Archives, whatever that may be.
Sitting next to Fabius is another ex-PM, Alain Juppé, whose attempt to introduce welfare reforms back in the 1990s led to nationwide strikes that paralysed the country. In 2004, Juppé was convicted of corruption in office and sentenced to prison. Needless to say, he did not have to spend any time in chokey and was subsequently appointed to the role of constitutional arbiter by none other than Emmanuel Macron.
Of the remaining seven members of the Council (four men, three women), all were either high-ranking civil servants or specialist jurists of one kind or another. All but a couple were closely connected over many years to the Élysée or the Assembly. None had served at the top level of the judiciary.
The Council meets when necessary in an annex of the Palais-Royal, sharing its headquarters with the ministry of culture. A near-neighbour is the Council of State, yet another arcane body, traditionally dominated by graduates of the École National d’Administration, that, while presided over the head of state, exercises the powers of a surpeme court in respect of administrative practise.
The Council meets on an ad hoc basis. There must be a quorum of at least seven members present, with a tied vote broken by the casting vote of the President. Interestingly, if a decision is sought on the mental capacity of the head of state to carry out his duties, a majority of all nine members is required. It is not thought that this was an issue in the most recent case.
When Laurent Fabius announced on Friday evening that he and his colleagues had come down 90 per cent in favour of Macron’s pension reform Bill, it was thought prudent to erect metal screens in front of the Palais Royal, manned by police brandishing batons and riot shields. In the event, a number of demonstrators turned up to shout insults, but there was no serious trouble. Whether that remains the case more generally in the run-up to May Day remains to be seen.
The Council, meanwhile, had done its duty.
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