On BFMTV, National Rally MP Marine Le Pen denounced the participation of minister-MPs in the election of the president of the National Assembly, considering this to be contrary to the spirit of the Constitution.
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Bruno Retailleau had already expressed his concern just after the legislative elections. The president of the Les Républicains group in the Senate had questioned on Thursday, July 11, on Cnews, the possibility for the 17 ministers, elected deputies at the beginning of the month, to participate in the election of the president of the National Assembly on Thursday, July 18. At that time, it was only a possibility. Since then, things have been confirmed: the resigning ministers will vote.
Which displeases Marine Le Pen. “Whatever one may say, this is called a violation of the spirit of the Constitution since there is, unquestionably, a confusion of powers.denounced the president of the National Rally group in the Assembly on BFMTV on the eve of the vote. However, the separation of powers is one of the basic principles of our democracy.” Is this true or false?
Indeed, the fact that ministers are also deputies goes against the spirit of the Constitution, which is very clear on this point. Its article 23 stipulates that: “The functions of member of the government are incompatible with the exercise of any parliamentary mandate.”
However, if we dig a little deeper, we realize that the situation is still made possible by the founding texts of the Fifth Republic. Article 23 of the Constitution provides that an organic law will set the conditions of this incompatibility. This organic law, which came into force in 1958, the same year as the Constitution, has since been included in the electoral code (article LO153), and specifies several things.
First, that “the incompatibility established by the said article 23 between the mandate of deputy and the functions of member of the government takes effect at the end of a period of one month from the appointment as member of the government”that “during this period, the member of the government cannot take part in any vote”but that “the incompatibility does not take effect if the government resigns before the expiry of the said period”In other words, being a minister and a member of parliament is not incompatible if the government resigns within one month of the start of the accumulation of the two functions.
The 17 ministers that Marine Le Pen is talking about were elected as deputies on July 7. Gabriel Attal’s government resigned on July 16. About ten days have passed between the two events, well under a month, so the incompatibility does not take effect. Legally, the 17 minister-deputies are therefore allowed to vote to participate in the election to the perch on Thursday, July 18.
This does not prevent several constitutionalists, including Benjamin Morel in Releaseto consider that it is a “a way of torturing the law because the Constitution of the Fifth Republic is really written and designed to prevent the accumulation of the function of minister and parliamentary mandate. This is something that Charles de Gaulle held very dear because he considered that it represented a risk of instability”.
Especially since, according to Anne Charlène Bezzina, lecturer in public law, and Jean-Pierre Camby, associate professor at the University of Versailles Saint-Quentin, interviewed by Public Sénat, there is no real control possible over this incompatibility since the Constitutional Council has already declared itself incompetent on the subject in the past. Ultimately, it was up to the outgoing presidency of the Assembly to decide to prevent them from doing so by setting voting rules.
This situation is unusual, but it is not the first time in the history of the Fifth Republic that a government has resigned before the opening of the legal session in the hemicycle. It already happened once in 1967, in the third government of Georges Pompidou, under the presidency of General de Gaulle, recall the jurist Pierre Avril and Jean-Pierre Camby in the Political and parliamentary review.
And a second time in 1988, with many similarities to the current situation. The socialist president François Mitterrand had dissolved the Assembly and new legislative elections had been held, electing some ministers as deputies. Michel Rocard’s government had then presented its resignation, the president had accepted it ten days later, and Michel Rocard and his resigning ministers elected as deputies had thus been able to participate in the election to the perch. This is how Laurent Fabius had become president of the National Assembly for the first time.