The constitution of the Fifth Republic

Central to the foundation of the Fifth Republic was the drafting of a new constitution. This constitution, as with most other indigenous constitutions, represented, among other things, a critique of the previous system of government. In the case of the Constitution of the Fifth Republic, much of this criticism focused on the inability of the Fourth Republic to govern effectively. The men involved in the drafting of the new constitution were acutely aware of the importance of the new constitution in establishing a new system of government that would be able to address this problem.

De Gaulle, who was granted authority by the National Assembly to draw up the new constitution in the wake of the Algerian crisis, saw the exercise of strong effective government as the central goal of the new constitution, and he set about creating a constitutional structure that would, he believed, ensure the stability and strength of the Fifth republic. The background to the creation of the constitution of the Fifth Republic is important in understanding its prescriptive nature.

Although broad in nature, the establishment of a firm presidential role was de Gaulle's answer to the problem of weak government under the party parliamentary system of the Fourth republic. The vague nature of the precise powers of the President might lead one to surmise that the Constitution is too imprecise to allow us to ascribe it the status of a guide to the sources of power in France, but in fact this very imprecision is a useful indicator of the way in which the Constitution creates centres of power in the Fifth Republic.

The ill-defined powers of the President are deliberately thus, for it was de Gaulle's intention to establish the Presidency as the key office in France, and the broad ranging and imprecise powers given to the President are designed to allow him to interpret those powers to suit the situation. In France, previous constitutions had not been sufficiently stable or survivable to come to represent a 'fair description of the balance of power'1. Instead, constitutions had come to represent the programmes of the ruling party of the day.

This precedent spurred the authors of the constitution of the Fifth Republic to create a lasting entity that would provide an description of the principles of French government. Although de Gaulle was not beyond using his position as primary author of the constitution to draft a system favourable to his own ends, his belief in the propensity of the French to argue and fracture drove him to create a document that would be able to contain French divisions within the political party system rather than allowing them to fracture society as a whole.

With this consideration and motivation, the Constitution of the French Fifth Republic had, at least as its goal, the creation of structured and coherent guidelines for the exercise of power in France. The constitution of the Fifth republic has, in this primary goal, been successful. The major achievement of the constitutional arrangement of the Fifth Republic has been to shift political discussion away from the nature of the regime.

All major parties in France and the massive majority of the public, accept the constitutional framework as established by the constitution of 1958, and arguments surrounding a replacement do not feature of the French political agenda. It has, Stevens argues, been successful in accommodating the shifting balance of power between political forces within agreed 'ground rules'. Indeed, the success of the French constitution at doing so led the issue to fade from the national consciousness until the 1980s when sharp political changes had led various governments and Presidents to use the vague nature of the system to abuse their authority.

Ultimately, the government was forced to revert to the principles established in the constitution when it was written. Again, this demonstrates the centrality of the constitution to the nature of French politics. Those governments who began to act arguable out side of their conferred constitutional legitimacy were curtailed by the force of the constitution and reverted to operating within it without any suggestion of acting otherwise. Thus, although the constitution had indeed been infringed, its legitimacy and ultimately its power as the agreed framework for the exercise of power in France was unchallenged.

Those that had consciously or unconsciously attempted to deviate from its parameters were reminded that so long as the constitution continued to largely reflect the national consensus as to how power should be exercised and distributed, its force cannot be ignored or bypassed. Stevens points to the growing role of the Constitutional Council, the principle guardian of the constitution, as evidence of the centrality of the constitution in French politics. Such a powerful role for the constitution is derived from several factors.

The origins of the constitution and the circumstances in which it was written is not least of these. With a large majority of the National Assembly favouring a new or revised constitution, the mandate given to the drafters had few formal limitations. However, guidelines were given by Parliament about the nature of the constitution to which the drafters had to adhere. These principles2, although fairly typical foundations for a constitution, were significant in establishing, at least theoretically, the source of power in France.

The first principle, stating that all power must proceed from a system of direct suffrage, indicated the sovereign status of the people in confirming the legitimacy of the government. The referendum that was required to introduce the new constitution was also a demonstration of how the principles of the constitution gave a guideline for the principles of government in France. De Gaulle's involvement as a drafter of the constitution is significant, for he acted as president under the constitution which he had helped to write.

We can assume, quite safely I believe, that de Gaulle wrote the constitution with his own preferred style of government in mind. After World War II de Gaulle had been exasperated by the continuing weakness of the position of President, and his resignation as from the position, motivated though it was by an inaccurate belief that he would be recalled to power and given more powers, allows us to see his motives in creating a constitution that would give the office of the President, an office he likely expected to occupy, great powers.

With such foresight to his own term of office, the French constitution was thus inevitably written with an grounding inn what de Gaulle saw as the future reality. That is to say, the constitution of the French fifth republic was created with a deliberate intention that it define the new nature of the exercise of power in France. De Gaulle was not writing a constitution with the sole aim of aiding his rise to power, and his emphasis on the powers of the President was balanced by a similar emphasis of a call for a clear separation of legislature, executive and judicial powers, as well as arguments for a bi-cameral legislature.

Rather, de Gaulle influenced the constitution so that it would be able to define clearly the source of power, that is, the electorate, and where that power should primarily be focused; with the president. The constitution was left open on many matters of presidential power so that it might adapt to circumstances. This open-ended definition of presidential power was also a result of the extreme speed with which the constitution had been formulated3.

Even if one disregards the motives for such a definition, the primary importance of this aspect of the constitution is in the fact that it makes it a particularly good guide for gauging the nature of the exercise of power in France. On a broader level, the constitution of the Fifth Republic represents, largely through the rights it guarantees, the sources of power within the French nation. The constitution gives the right to participate in collective bargaining and the right to belong to a trade union.

The power of the trade unions in France is great, and the constitution reflects this accordingly. Similarly, the constitution also accommodates the old ideological foundations of the French nation. The preamble to the constitution includes the Declaration of the Rights of Man and the Citizen, taken from the 1789 French Revolution. Though the constitutional entrenchment of such rights may seem to be rather broad and generalised, and the lack of specific constitutional mechanisms for enforcing them seems somewhat vague, the force of them cannot be denied.

In 1982 the constitutional Council forced the government to substantially revise the levels of compensation it proposed to offer shareholders in companies that were to be nationalised, on the grounds that by providing inadequate compensation the government had infringed upon the shareholder's right to property as embodied in the Declaration of the Rights of Man4. Again, this serves to illustrate that although the constitution is not specific about many matters, this does not necessarily inhibit its ability to be an effective safeguard of the rights it enshrines.

Equally, the vague nature of the constitution relating to specific levels of, for example, presidential power, does not invalidate the constitution as an effective guide to the exercise of power in the Fifth Republic. The constitution, despite its many slightly ephemeral statements, is not imprecise to such a degree as to make government a complex and hazy process. On many matters the constitution is clear.

For example, the sovereignty of the people is clearly defined, and the constitution manages to avoid the complexity of the British system relating to the interaction if the principle of the sovereignty of Parliament with the provisions of Treaties, by providing that treaties which have been duly approved take precedence over domestic laws so long as they are observed by the other contracting parties. Parliament, and the representative sin parliament are not ascribed sovereignty as they are in Britain, allowing greater flexibility and avoidance of many constitutional questions (that often occur in Britain).

In this way, the constitution allows for general issues, such as the example of foreign treaty described, that may bring up concerns of constitutional difficulty (as is often the case in Britain, usually in relation to the infringement of Parliamentary sovereignty) otherwise, to be avoided by a careful and useful definition of the source of power in France. In conclusion, the French constitution is a guide that functions well in France for the purpose of defining the source and exercising of power. Not only has it been created in such a way that is practical ideologically, but also it functions demonstrably well in practice.

However, the constitution by itself may not be considered as a particularly reliable guide to the exercise of power in France. This is so because, given its written form, the constitution can only be considered in isolation if we view it as a document. This is largely meaningless for the purposes of assessing the exercise of power in France, for the lack of specificity in the constitution regarding the constitutionally possible actions of many aspects of government mean that without interpretation of the constitution in action we cannot see the true relevance of the constitution to French politics.

On the other hand, when we observe the conception from an historical context, we can see that as an organisational and ideological framework for France, the constitution has been successful in providing the necessary parameters for guiding the exercise of power. The lack of any proposed alternative to the constitutional system and the absence of any serious challenge to its legitimacy are clear indicators of the success of the constitution as an prescription of the exercise of power.

This is to say an outside observer who takes the constitution as a simple document will not be able to use it as a guide for understanding the exercise of power in France. However, given an historical context and an understanding of the French political system, it is possible to see the constitution as framework for government that has provided its people with a workable and useful guide to the source and exercise of power in France.