French Constitutional Council

Discuss the origins, composition and functions of the French Constitutional Council. How has the Council become a "guardian of rights and civil liberties" in the French Fifth Republic? INTRODUCTION The following essay will, in accordance with the task posed, give a brief over-view of what the Conseil Constitutionnel (from now on referred to as the "CC") is, before explaining why it was created and how it actually works in a modern day and age. Finally, a picture will be provided, high-lighting how it has evolved into a guardian of fundamental rights.

The CC is the highest of all French "ordinary courts" (as opposed to administrative courts, which, very generally speaking, deal with public rather than private law) and hence its judgement is final and must be followed by all branches, legislative, executive and judicial1 – there is no recours en cassation or appel. 1. 1 Task Its two-fold task, again broadly speaking, is to decide on whether a law is in line with the French constitution or not and to limit the power of the legislative, so that the proper functioning of the executive is not inhibited and the latter's powers are not encroached upon2 (cfPart 2).

Before deciding on such a question of law, however, a special procedure, a saisine3, is required, namely it has to be "asked" to do so by either the Prisident of a). the French Republic / b). the Senate / c). the Assembli Nationale, or by the Prime Minister, or by 604 a).This saisine means, in practice, that neither an individual, nor a public body, nor a court, nobody other than those referred to in the 1958 Constitution, possesses locus standi and can even question the validity of a law.

A further (yet less vital) limiting factor, is the point of time at which a law can be challenged, for this can only occur prior to a law's promulgation by the Prisident of the French Republic5.

Field of Competence / Jurisdiction The first condition with reference to the CC's jurisdiction is that the enactment in question is either a proposition or a projet de loi, ie. that it is a law which Parliament intends to pass, as opposed to a lorendaire, namely a law chosen by the people exercising their free will and hence one based on inviolable national sovereignty6. There are four main areas the CC has been allotted to. Firstly, it acts as a referee in drawing a clear border line between the respective domains of the legislative and executive arms of the state's body7. This function is rather similar to that of the Tribunal des Conflits which divides litigation between the 'ordinary' and the judicial courts when there is a 'conflict of competence'.

The CC is moreover the organ which decides whether or not a supra-national agreement such as a certain European / international treaty is constitutional8 and the constitution therefore requires amendment so that the former is in line with the latter, (all in accordance with the circular argument of the hii?? rearchie des lois). Thirdly, the CC monitors presidential and parliamentary elections, as well as referenda, responsibilities it has been apportioned via art. 58, 59 and 60. Last but not least, the Pri??

sident is obliged to consult the CC should she consider a crisis grave enough to justify the exercise of emergency powers has occurred9 and its opinion on whether the circumstances justify the President's decision is made public. Though it can, in theory, fire a Minister deemed unfit for office, the occasions have been so rare – be it due to the severely limiting factors considered requisites for exercising this power, or due to cautious restraint by the CC itself – that this field of competence will not be discussed further.

Instead, the essay now turn to the composition of the CC. 1. 3 Composition10 Concerning the composition of the CC, its members are all political appointees, a situation which has, on occasion, given rise to some concern as this causes doubt to be cast on the members' independence. Thus there are nine judges (and the quorum for meetings held is seven11), a third of whom are appointed by each of the three presidents respectively. The mandate is non-renewable in order to prevent merely popular judgements and one third of the judges is appointed every year (much like the US Senators).

The president of the CC is appointed by the President of the French Republic12. Members of the legislative or executive, can obviously not also have a judicial function (and hence can't sit in the CC13), as this would undermine the doctrine of paration des pouvoirs. Furthermore, membership of the Economic and Social Council14, or of a political party15, as well as any other elective office16, is deemed illegal whilst serving the CC. Another guarantee of independence is the prohibition on possessing an advisory function in any organisation whatsoever, that was not exercised prior to appointment17.

The list is not, however, exhaustive, and the CC is capable of judging on a here and now basis whether one of its members has transgressed the frontiers of compatibility. Nevertheless, former Presidents are usually accorded the right to ex-officio membership although so far R. Coty and V. Auriol are the only ones to have accepted the privilege. Interestingly enough, these ex-officio members, unlike their colleagues, are not compelled to take an oath which binds them to carrying out their functions dutifully as well as secretly, should it be considered necessary18.

Finally, it remains to be said that, "In the event of a member dying or resigning, the appointing authority designates a new member for the remainder of his or her term of office. However, anyone appointed to replace a member who has died or resigned for an un-expired term of less than three years may be re-appointed to a full nine-year term. "19 Part 2: ORIGIN The CC was created on the 4 October 1958 by Gi?? ni?? ral Charles de Gaulle via the Constitution of the 5th French Republic. 2. 1 Historical / Cultural / Socio-Political Context

The 1st Republic (1792) was a brute product of the revolution in 1789, whilst the second one came almost as a consequence of the necessity of dealing with the earlier 'rush-job'. The latter did however, also enlarge its democratic base structure, notably by establishing universal suffrage, abolishing the death penalty and re-affirming freedom of assembly and press. And yet opposition to the 2nd Republic (1848) remained unyielding, mainly because it did not seem capable of putting an end to internal strife, much less guaranteeing "the natural and inalienable rights of man", the stated purpose of a state as propounded by Montesquieu20.

Thus in the French tradition, security – a condition for the ability to express political thought – is valued not merely in diametrical opposition to the state's power, but moreover as a political right which la soc is responsible for providing. Until 1905, the 3rd Republic (1875) appeared capable of fulfilling the requisite security. The most long-lived of all French Republics so far, it aspired to the merits of education, a firm belief in democracy and strong patriotism.

Although this idyllic picture was shaken by the emergence of political parties in the early 20th century (with the obvious consequence that government majorities were artificially created by frequently short-term coalitions), it was only during the post-war period that political parties augmented their power to an extent comparable with other modern, Western democracies. The sense of political instability was heightened after World War II: the 4th Republic (1946-1958) was exposed to countless changes of government, which eventually culminated in a completely collapse of government, caused mainly by the Algerian War of Independence.

The details of this era which constituted a 'beginning of the end' of open colonialism are not quite relevant with reference to the question at hand, suffice to say that the exploitation of its colonies was not seen as such by all contemporaries, so that the horrors of the war recounted in the press came as a shock to many French people who saw their patrie as something of a bastion of culture, almost a missionary of civilisation.

This element of sudden insecurity, combined with disillusion at the failures of the 4th Republic – despite the Grande Libration (D-Day), despite the newly found right of female suffrage, despite the realisation that internal squabbles among various political fractions had invaded and permeated the 3rd Republic and the hope to learn from past mistakes – all contributed to a weary public. The scene was set for de Gaulle's return to political life in that the political actors were tired of fighting among each other and afraid the audience might just ask them to leave… they were on the look out for a new director, one of the "plus illustre des Franiais"21.

Aims of de Gaulle In de Gaulle's eyes, the blame lay clearly on the shoulders of the old Constitution which had accorded Parliament with too much power. A simplified version of his double remedy follows: in a Hobbesian manner, the President was to be accorded greater powers so that he could act as arbitrator of the fractions; he was to be the 'glue', directly elected by universal suffrage, he alone was capable of binding the parties into a coherent form of government.

Moreover, and this is the point at which the CC enters the stage, the Constitution was to clearly set out the domains of Parliament and Government respectively. Should it fail to do so, a decision from the CC would be binding on all parties (as aforementioned). Thus de Gaulle believed he could provide France with the stability it needed so badly and ensure an environment productive to Montesquieu's concept of civil, political freedom.