can we trust the Constitutional Council?

What is the Constitutional Council? It is an institution made up of nine members, appointed for nine years by three people: the President of the Republic, the President of the National Assembly, and the President of the Senate. The main mission of these “Sages”, as they are called, is to control the constitutionality of laws. That is to say, to verify that the laws voted by Parliament are indeed in conformity with our Constitution. And there you may begin to see the problem: nine people, named, have the power to censor the laws voted by the representatives of the people, elected by universal suffrage.

The fate of the pension reform, a law which will have consequences for millions of French people, is currently in the hands of these nine advisers. Can we trust them? This is a question that should never cease to torment us! Because any legal decision always has an element of interpretation. The pension reform offers us, moreover, a good example. The government has chosen to have it examined within the framework of article 47-1 of our Constitution, which is reserved for finance laws for the year. However, this text does not only include financial provisions. And it far exceeds the framework of the year. But is this enough to consider that the Constitution has been hijacked? This is a difficult question, it is subject to interpretation!

Moreover, remember that this reform was adopted using all the weapons to limit the debates in Parliament: 47-1, therefore, but also 44-2, 44-3 and, of course, 49-3. All these procedures are legal. But can we consider that, used together, they violate the principle of clarity and sincerity of parliamentary debates? Again, it’s a matter of interpretation! The Council will make a decision, but there will be nothing mathematical or automatic about it: it will be contestable by nature.

Why accept that the interpretation given by an appointed Council can censure an elected assembly?

You see that it is not simple, this question! So, already, the obvious answer: we really need, in one way or another, to control the constitutionality of the laws passed by Parliament. It is the cornerstone of what is called a “state of law”: that is to say a state subject to the rules that it enacts. Then, it should be added that, precisely because the advisers are aware that their legitimacy is questionable, they try in theory to disregard their political preferences. As Robert Badinter, who was President of the Council, said: the Elders have a “duty of ingratitude” towards those who named them. But, of course, we have no guarantee that they actually respect it!

Hence a third reason, the most important: what ensures the legitimacy of the Council is that it does not content itself with examining the laws on form. He can also control them on the merits. To understand all this, you have to go back to July 16, 1971. On that day, the Constitutional Council took one of the most important decisions of the Fifth Republic. He censured a law on the grounds that it called into question… freedom of association. That day, the Elders decided that their role was not only to monitor compliance with democratic procedures: they also set themselves up as guarantors of the fundamental rights of individuals, as referred to in the preamble to the Constitution. . So, of course, it’s a Pandora’s box. Because the problem with fundamental freedoms is that they encroach on each other. Take, for example, video surveillance: it increases our right to be protected, but it eats away at our right to privacy. In other words: by accepting to control the laws on the merits, the Constitutional Council exposed itself to even more dilemmas of interpretation.

Guarantor of freedoms

But the fact is that, over the long period, lawyers and citizens seem to believe that it has played its role of protector of freedoms rather well. It is enough, moreover, to be convinced of this, to look at the results of the first five-year term of Emmanuel Macron! The Online Hate Law: Censored for Infringing on Free Speech. The global security law: censored for undermining freedom of information. The anti-breakers law: censored for undermining the freedom to demonstrate. This is, in reality, what makes the control of the Constitutional Council acceptable: it protects us, de facto, against draconian laws. Maybe not perfectly, maybe not enough, but he protects us, despite everything.

This is why I believe that we must trust the Constitutional Council. But this confidence can only go hand in hand with the greatest citizen vigilance. And, moreover, it does not solve everything. We should not expect more from the Council than what it is mandated to do. Friday, April 14, we will know if the pension reform can be considered legally legal. But is it politically legitimate? Socially acceptable? Economically based? This, it is not for the Sages to decree.