Emmanuel Macron plans to use it for his pension reform, Marine Le Pen to modify the constitution. The two candidates scrap on the democratic ground for the second round of the presidential election and shoot down the referendum card to seduce voters. But what is it really possible to do? What do the texts say? Two types of referendums must be distinguished. Those concerning the laws, and those concerning the constitution.
The classic referendum
It is the President of the Republic who takes the initiative. It is based on article 11 of the Constitution. Citizens are called upon to answer a yes or no question during a vote. The referendum may relate to:
- the organization of public powers, for example reducing the number of deputies and senators.
- a reform in the economic, social or environmental field (The pension reform envisaged by Emmanuel Macron falls within this framework)
- The ratification of an international treaty (the “yes” to the Maastricht Treaty in 1992, the “no” to the European Constitution during the referendum of May 29, 2005)
Since 2008, the referendum can be initiated by parliamentarians. The procedure was used to oppose the privatization of Paris airports but it did not succeed due to a lack of sufficient signatures. It is indeed necessary that at least 20% of the parliamentarians sign but also the support of 10% of the voters in a second time.
If the use of the referendum is regularly mentioned in the political debate (François Hollande considered it for the forfeiture of nationality, Emmanuel Macron for the climate), it is in reality very little used: 8 times only since 1958, mainly by General deGaulle. The referendum can quickly turn into a plebiscite for or against the President of the Republic. A risk that politicians do not want to take.
Amendment of the Constitution
The referendum can also be used to modify the Constitution. The President of the Republic then relies on Article 89 of the Constitution. The procedure then involves three steps:
- the president submits a draft revision of the Constitution
- The text must be approved in identical terms by the deputies and the senators
- the president then has the choice between submitting his reform to a referendum (in this case, the citizens are called upon to vote for or against) and bringing together the parliamentarians in Congress (the deputies and senators vote together).
Of the 24 reforms to the Constitution, all were made through Congress, with two exceptions. In 2000, Jacques Chirac thus submits to a referendum the lowering of the duration of the presidential mandate from seven to five years. A second, under de Gaulle in 1962, followed a different procedure.
A more complex procedure
The revision of the Constitution is a more complex procedure, more difficult than that of a simple law. All political institutions are associated. It takes a broad consensus to change the Constitution. “The President of the Republic does not do what he wants. No one has succeeded in imposing his reform, even with a large majority… He always has to negotiate”summarizes Philippe Blacher, professor of public law at the University of Lyon 3.
It is impossible to change the Constitution without going through Parliament. So why does Marine Le Pen assure that she can do it? Because of a precedent that goes back to 1962. That year. General de Gaulle used Article 11 to ask the French to say yes or no to universal suffrage to elect the President of the Republic.
The Council of State had given a negative opinion, the Constitutional Council was very embarrassed… but it was not the same context, it was de Gaulle”. Since then, things have changed a lot. The Council of State established that Article 11 could no longer be used to amend the Constitution and no other president has tried since.The Constitutional Council could declare the referendum illegal. “The Constitution is the rule of the game”believes Philippe Blacher, “the President of the Republic must respect it”.