(Paris) Ballet of parliamentarians, media pressure and serial speculation: the Constitutional Council holds the fate of the pension reform in its hands, and finds itself in the middle of an unprecedented whirlwind, before its long-awaited decision on Friday.
Censor, not censor? The Council will announce on April 14 “at the end of the day” if it validates the government’s decried project, or if it censors it in part or in full. He will also judge whether the left’s request for a shared initiative referendum (RIP) is admissible or not.
“Such a spotlight on the Council is quite unprecedented,” notes public law professor Mathilde Philip-Gay. “Even on the biggest decisions, there weren’t as many debates or hopes.”
Nestled in the Palais Royal, at the foot of the Comédie Française, the institution cultivates discretion. Its nine members are bound by a duty of reserve.
Can the reputedly distant relationship between the President of the Republic Emmanuel Macron and the President of the Council Laurent Fabius weigh? What about the political color of the former head of the socialist government or his colleagues? From the past of Alain Juppé, the prime minister of the right-wing RPR party of 1995 who had to bury his pension reform under pressure from the street?
To hear a former President of the Council, however, this is not at all how the questions arise: the institution does not “render any service” and “does not judge the advisability of a law”. It simply checks “whether the Constitution has been upheld. It’s a collective deliberation, it’s been working for 65 years, “insists Jean-Louis Debré, former Sage therefore, and son of Michel Debré, editor of the Constitution of the Fifth Republic.
In their appeals, parliamentarians from the left or far right have therefore attacked the “legislative vehicle” chosen by the government: an amending budget for Social Security, which imposes time constraints on Parliament and which they consider ” unsuited” to a reform of the magnitude of pensions.
They pointed to the many tools mobilized by the government to “muzzle” Parliament: blocked vote in the Senate, application of article 49.3 in the Assembly to pass the text without a vote…
On Tuesday and Thursday, delegations of deputies and then left-wing senators followed one another before the Elders to demand “total censorship”.
“The nine members of the Constitutional Council were present, which shows the importance attached to the seriousness of our approach”, wanted to believe the communist Sébastien Jumel.
A few days earlier, ecologist Sandrine Rousseau was less optimistic. “I expect nothing from this Constitutional Council. I don’t think Alain Juppé is on a position that joins the demonstrators and the Nupes”, she swept away, mocking the “average age”, almost 72, of the “Avengers” of the Council.
Among the Elders, three rapporteurs have been appointed to work more specifically on these appeals. Around them, the Council’s legal department had already worked upstream.
On 14 April, the rapporteurs will present their colleagues with a proposal for decisions. Their report will be put to a vote, with a casting vote for President Fabius in the event of a tie.
In the meantime, the most eminent constitutionalists engage in a contest of forecasts, sometimes not without political ulterior motives.
For the most part, the most likely option remains partial censorship of the text: the main lines would be validated, but cavalier articles rejected because they have no direct link with this budgetary text, for example the index on the employment of seniors in companies .
For some, the coup de theater of total censorship would however allow the Council to take its “flight”: to evolve its doctrine while “it is reluctant to intervene on the most political questions”, according to Mathilde Philip-Gay.
The Elders are appointed for nine non-renewable years (by thirds every three years), by the Presidents of the Assembly and the Senate and by the Head of State, which fuels criticism.
The presence of former politicians strangles many lawyers. The relative means of the institution (13.3 million euros for 2023, 70 employees) and its altogether modest influence are also deplored. Very far from its distant cousin: the American Supreme Court, with the far superior strike force.
A major innovation of the 1958 Constitution, the Constitutional Council’s main mission is to control the conformity of laws with the Constitution.
Its first session was held on March 13, 1959, and its role initially consisted mainly of ensuring that Parliament did not exceed its powers. But in 1971, by censuring a law restricting freedom of association, he widened his field of action to the conformity of laws with the main principles of the Republic.
The Council also has the task of ensuring the regularity of elections, as well as referendums.
Since a constitutional reform of 1974 at the initiative of Valéry Giscard d’Estaing, 60 deputies or senators can seize it of a law that Parliament has just voted, a power reserved until then to the Head of State, the Prime Minister or to the presidents of the National Assembly and the Senate. The reform thus gives the possibility to the opposition to challenge the validity of a law, which will increase the activity of the Council.
This movement continues with the constitutional revision of 2008 initiated by Nicolas Sarkozy: any citizen can then seize the Constitutional Council, through the filter of the Council of State and the Court of Cassation, of an existing law on which the supreme judge never spoke. This is the priority question of constitutionality (QPC).
Since 2008, one out of eight ordinary or organic laws adopted has been subject to total or partial censure by the Council.
It also verifies the admissibility of a request for a shared initiative referendum (RIP).
Currently chaired by former Prime Minister Laurent Fabius, the Council is made up of nine members, often referred to as “Sages”, to which are added the former Heads of State, members by right for life.
Since the death of Valéry Giscard d’Estaing in 2020, however, no former President of the Republic has sat there. Nicolas Sarkozy only attended it for a few months in 2012-2013 and François Hollande never sat there. Emmanuel Macron does not intend to do so after his presidential term either.
The mandate of the judges, non-renewable and incompatible with any other political mandate, is for a period of nine years. The Board is renewed by thirds every three years.
Three members, including the president, are appointed by the President of the Republic, three by the President of the National Assembly and the three others by the President of the Senate. These appointments are only valid if a majority of 3/5ths of the competent committees of the Assembly or the Senate do not oppose them.
Referral (art. 61) to the Council suspends the time limit for the promulgation of a voted law.
To render its decisions, the Council has a period of one month from its referral, a period reduced to 8 days if the government declares an emergency.
In the case of a Priority Question of Constitutionality, the time limit is three months.
All laws, except those adopted by referendum, can be submitted to it.
In case of non-compliance, a law can be totally or partially censured. Of the 744 constitutionality decisions (CDs) concerning ordinary and organic laws, about half were subject to Council censure, 352 partially and 17 totally.
Its decisions cannot be appealed.
Among its recent decisions, the injunction made to the law of July 17, 2020 on the abolition of the housing tax not to be limited as initially planned to the 80% of the least well-off households. It will be extended to all households.
