If it is possible to trick, as Jacques Chirac had done with the CPE, article 10 of the Constitution obliges however to promulgate a text adopted in Parliament within 15 days.
Could the pension reform not see the light of day? The hopes of the text’s opponents were dashed by the Constitutional Council, which largely validated the government’s text on Friday, April 14. But they nevertheless hope for a political gesture from Emmanuel Macron, to whom they ask, in an attempt to get out of the political crisis, not to promulgate the law providing for the postponement of the legal age of departure to 64 years. “Promulgation is the act by which a law definitively adopted by Parliament, or approved by the people through a referendum, becomes enforceable”details the site Vie-publique.fr.
“Mr. President of the Republic, do not promulgate this law this weekend”, pleaded Laurent Berger, the general secretary of the CFDT, on TF1. In a press release, the intersyndicale also asked “solemnly” to the Head of State of “not enacting the law”nor of “apply it”while it is due to come into force on 1 September.
But is this scenario even possible? Article 10 of the Constitution provides that “the President of the Republic promulgates the laws within fifteen days following the transmission to the government of the law which has been definitively adopted”, except in the event of referral to the Constitutional Council. In this case, it is necessary to wait until the Elders have spoken, as was the case on Friday evening. “Since 2017, the president systematically enacts all laws the next day or the day after” of their adoption, reminds the entourage of the Head of State to franceinfo.
“The president is bound to enact the law no matter what”
“The dominant interpretation is that the word ‘promulgate’ of article 10 of the Constitution, combined with the present of the indicative, is worth imperative and obliges the President of the Republic to promulgate the law”details the constitutionalist Thibaud Mulier, lecturer at the University of Paris-Nanterre, interviewed by franceinfo. “He is bound to enact the law, no matter what”, confirms his colleague Benjamin Morel, lecturer in public law at the University of Paris-Panthéon-Assas. The Vie-publique.fr website ensures that “the president cannot refuse this promulgation”.
Nevertheless, “one could consider that the wording in the present does not impose the promulgation on the president”advance Thibaud Muller. Socialist President François Mitterrand had thus refused to sign, during the first cohabitation in 1986, the ordinances of his Prime Minister Jacques Chirac, providing for the privatization of 65 industrial groups. And this while article 13 of the Constitution provides, in a statement similar to that of article 10, that “the President of the Republic signs the ordinances and decrees deliberated in the Council of Ministers”. This measure had therefore finally been submitted to the parliamentary procedure.
If such a refusal were claimed by Emmanuel Macron, “it would therefore be a decision that could be criticized, but no body could sanction it”relieves Thibaud Muller. In effect, “the guardian of the Constitution is not the Constitutional Council, but the President of the Republicnotes Benjamin Morel. If the president does not enact the law, then it would be up to the president to pull him up.”
A new law to demand the repeal of the reform?
According to the texts, Emmanuel Macron can also suspend the promulgation of the law by requesting, according to article 10 of the Constitution, a new reading in Parliament on the entire text, or some of its articles. This is what Laurent Berger and Nupes are demanding, who want a parliamentary debate “serene” can take place on this law adopted via the recourse of the executive to 49.3, which engages the responsibility of the government on a text, without submitting it to a vote.
Emmanuel Macron could also promulgate the law… while refusing to apply it, in particular by asking Prime Minister Elisabeth Borne not to issue the decrees implementing the law. Again, this would be a decision “legally questionable”, according to Thibaud Mulier. But which also has a precedent. In 2006, President Jacques Chirac had thus promulgated the law on the first employment contract “(CPE), before giving up applying it, ten days later, in the face of student mobilization.
Finally, even if the law were promulgated and the implementing decrees were issued, the law could still not come into force if a bill, the purpose of which would be to repeal the pension reform, were adopted before September 1, the date on which the latter must come into force, notes Benjamin Morel. The Socialist parliamentarians also announced on Friday their intention to table a legislative text asking for the repeal of the reform if it were to be promulgated.