The Fifth Republic is going through a period of crisis, after legislative elections which, at the end of the second round on Sunday, produced a National Assembly without an absolute majority.
“THE “The functioning of our institutions is somewhat destabilized.” The uncertainty persists, two days after the second round of the legislative elections with an unprecedented result. The New Popular Front (NFP), which came in first in the seats, has yet to agree on the name of a candidate for the post of Prime Minister. Emmanuel Macron, for his part, chose on Monday to refuse the resignation of the head of government, Gabriel Attal, while the political situation becomes clearer.
Is the president obliged to appoint a left-wing Prime Minister? Is the current situation provided for in the Constitution of the Fifth Republic? Can the National Assembly censure the government as much as it wants? Marie-Anne Cohendet, constitutionalist and professor of law at the University of Paris 1 Panthéon-Sorbonne, answered questions from franceinfo readers in a chat on Tuesday, July 9. Here are her answers.
On the appointment of a new Prime Minister
Zouzou_le_pou: Can the President choose a Prime Minister from a political group that does not have a majority in the National Assembly? And if so, what could be the consequences of this choice?
Marie-Anne Cohendet: This first requires defining the term majority: many people say that there is no majority in the Assembly at present, which is false. There are three types of majorities: the simple or relative majority, for the party or group that has obtained the greatest number of votes or seats, which is currently the case for the New Popular Front; the absolute majority, if a party or group obtains half the seats plus one; and the reinforced majority, with 2/3 or 3/5 of the seats.
The president may offer to govern a party or group that does not have a majority if he or she has first offered to govern the group of parties, or the party, that comes out on top, as is the Republican tradition. If that party or group of parties were unable to govern (because it would refuse to do so or the government would be quickly overthrown), the president may offer to govern a party or group with a smaller majority.
Renarin: CConstitutionally speaking, can the president refuse to appoint someone and continue with Gabriel Attal in an extended interim position?
Democratically, Emmanuel Macron could not keep Gabriel Attal forever. We must take the vote into account. Very concretely, as soon as the Assembly is convened, the deputies will be able to adopt a motion of censure. If the president wanted to maintain the same government at all costs, or entrust it with current affairs, he would not respect the will of the people, and we would therefore be in a political crisis.
According to the Constitution, the President has a “reasonable delay” to appoint a Prime Minister, but it is not precisely defined. In other countries, it is generally a few weeks, even months. The current situation, between the Olympic Games and the war in Ukraine, is particular, especially since the election did not produce a clear absolute majority. It is important to let the majority organize itself to come up with a clear candidate and program, but waiting six months or a year would not be acceptable either. If Gabriel Attal were to be overthrown, Emmanuel Macron could also appoint a technical government.
Walker: What is the legal value of the “republican tradition” ? It seems surprising to me that major rules on the allocation of power (appointment or resignation of the Prime Minister) are not set out differently…
Article 7 of the Constitution states that the President appoints the Prime Minister, a priori whoever he wants, and Article 49 provides for the government’s responsibility to Parliament. Indeed, the rules are very broad, but this is intentional, to leave room for politics, by saying that the majority of MPs has the power to overthrow the government. The law says “It’s a political question”and that’s why we don’t need more precise rules.
For example, in 1877, under the Third Republic, there was a very tough standoff between the monarchist president of the Republic and the majority of republican deputies. President Patrice de Mac-Mahon refused to appoint a republican government: for three years, governments were overthrown without stopping, until the president was forced to resign.
Hector Pitude: Who, or what institution, would have the power to force the President of the Republic to speed up his decision? The Constitutional Council, the Senate? No one?
He may be pressed to do so, but neither by the Constitutional Council nor by the Senate: by the deputies themselves, by overthrowing the government. In the event of a motion of censure being adopted, the president is obliged to accept the resignation of the prime minister.
On the risk of new dissolution
Sandra Yann: It seemed to me that the Assembly could not be dissolved for a year. So, what would be the effect of a motion of censure?
Be careful not to confuse dissolution, when the president ends the mandate of the deputies prematurely, and the motion of censure, which means that the deputies vote to overthrow the government. The principle of the parliamentary system in which we are is that the people elect their representatives, the deputies, who meet to form a majority. This appoints a head of government, who is controlled and monitored by our representatives.
If this government pursues a policy that is not in accordance with the will of the people, the deputies have the duty to overthrow it, and a new one must then be appointed. According to Articles 49 and 50 of the Constitution, if the deputies vote for a motion of censure, the Prime Minister must submit the government’s resignation to the President of the Republic.
Mar1: Hello, in the event of the resignation of the president, could the new one, once elected, dissolve the Assembly immediately?
No: normally there is no “reset” of the dissolution counter in the event of the resignation of the President of the Republic and the election of a new head of state. Article 12 could not be clearer: “No new dissolution may be carried out within one year following these elections.” The reason for this text is to prevent parliamentary instability.
On the risk of an institutional blockage
Ginette des Faubourgs: Could it be that all the formulas of governance are exhausted or impossible and that we are therefore arriving at a blockage of institutions?
It is indeed possible that there will be governments that are overthrown one after the other. [si les partis qui les composent ne disposent pas de majorité absolue à l’Assemblée]. This was the situation of the Italians a few years ago, before they opted for a government of technicians. In France, it is particularly in October, at the time of the budget vote, that it will be important to have a constituted majority.
Regarding a “blocking of institutions”I don’t remember ever seeing this situation. We can find solutions, find a technical government, and there could be a new dissolution in a year.
“The Constitution of the Fifth Republic was written specifically with the idea that we would never have an absolute majority.”
Marie-Anne Cohendet, constitutionalist and professor of law at the University of Paris 1to franceinfo
When Charles de Gaulle and Michel Debré wrote it, they put in place several mechanisms to allow governing even in the absence of this majority, such as article 49.3 which allows a law to be adopted without a vote when an important law needs to be adopted. If the majority of deputies are hostile to it, the government can always be overthrown. So don’t panic, our Constitution is designed for that.
Bibilasouris35: QWhat will happen if the budget is not voted on at the start of the school year?
The budget can be voted on by 49.3: it will therefore be adopted unless there is an absolute majority of deputies against it. [qui s’allieraient pour adopter une motion de censure]. For the adoption of finance laws, Articles 47 and 47-1 provide mechanisms which facilitate the adoption of budgets. And we must not forget that the deputies are responsible to the people. If the deputies put the state in a serious crisis situation, the people would not re-elect them. All votes are public, so that citizens can control their actions.
On possible ways out of the crisis
Ginette des Faubourgs: In the case of a technical government, is it obliged to go before the Assembly for a vote of confidence?
There is a recurring controversy over the mandatory nature, for the government, of engaging its responsibility before the deputies on its program. If we make a strict interpretation of the Constitution, this commitment is mandatory. But under the Fifth Republic, very often, governments have been satisfied with a declaration of general policy, and some have not engaged their responsibility at all. But we consider that this is not dramatic, since we know that the majority of the deputies always has the possibility of overthrowing the government.
Lucas: Does this period call for an evolution of institutions? In what direction could they evolve?
This period actually shows that the functioning of our institutions is somewhat destabilized. Experts are divided: some will say that the situation shows that our institutions are adapted and that they will function despite everything. Others are taking advantage of it to call into question the rule of law and the Constitution, like the National Rally which wants to revise the Constitution to be able to bypass the Constitutional Council. Others, finally, believe that we could learn lessons from this crisis to create a more democratic regime. Some reforms can be made without constitutional revision, such as for example the change in the voting method to adopt a proportional vote.
Yanae: QWhat is a constituent Assembly and can this be a way out of the current impasse?
A Constituent Assembly is tasked with drafting a new Constitution. Changing the Constitution can help to break a deadlock, but it is a great adventure that should be undertaken with great caution. This is why Article 89 of our Constitution provides for a revision in several stages.
The Fifth Republic does not provide for a Constituent Assembly, but a revision at the initiative of the legislative or the executive, then an adoption in the same terms by the two chambers. And in the end, it is in principle the people who validate this revision by referendum, or, if the president decides and if the initiative comes from the executive, the revision can be adopted by the two chambers meeting in Congress by 3/5 of the votes. The Constituent Assembly exists in other countries, or can be imagined in the event of a revolution, for example.
Chris30: Could the President, who considers the situation inextricable or risky for the country, invoke Article 16 of the Constitution?
Article 16 of the Constitution [qui confère des pouvoirs exceptionnels au président] is indeed quite exceptional. Its use seems very highly unlikely at present. It can be activated “when the institutions of the Republic, the independence of the nation, the integrity of its territory or the execution of its international commitments are seriously and immediately threatened”.
So these are extremely serious circumstances: if the country were totally paralyzed, for example, he could use it. But to deal with governmental instability, it would be totally inappropriate, scandalous, and he certainly would not do it. And if the president were to commit a “failure to fulfil his duties manifestly incompatible with the exercise of his mandate”Article 68 could be used to demand his dismissal. But we must rest assured: this is not at all reasonably conceivable at present.