Law, Politics, Constitutional Law, legicentrism, advisory competence, jurisdictional competence, Constitutional Council, members of the Constitutional Council, Fifth Republic, judicial review, constitutional review, article 56-1 of the Constitution, article 56-2 of the Constitution, article 56-3 of the Constitution, ex officio member, President of the Republic, constitutional arbitration, defense of rights, Institutional Acts, priority preliminary ruling, American Supreme Court
The Constitutional Council is defined by the articles of Title VII of the 1958 Constitution. Its arrival in seventh position in the order is indicative of the lack of importance that the constitution grants it. The introduction of a jurisdiction in charge of priority preliminary rulings was debated during the drafting of the Constitution because it was new in French constitutional history. The French habit, and to a certain extent the European one, was to consider the place of judges inferior to that of legislators because the latter were representative of the popular will and invested with the sacred electoral mandate. Montesquieu already spoke in 1748 of judges "as the mouth of the law, inanimate beings who can moderate neither their force nor their severity." Thus, when in 1958 the introduction of an entity capable of judging the constitutionality of a law was adopted, a small revolution was carried out, reversing centuries of legicentrism and mistrust of the power of judges. This revolution occurred in a context that was conducive to this, as France was one of the last European states not to have such a provision. Indeed, after the Second World War, constitutional courts multiplied in Eastern Europe under the growing influence of the United States, as in Germany and Italy, for example. It is understandable, therefore, that the introduction of the constitutional review in France was tumultuous, as was its evolution.
[...] In fact, the Constitutional Council has very rarely had legal personalities as members, being composed mostly of political personalities. This is due to the fact that one part of the members of the Council is appointed, and the other part is a full member of the Council (i.e., the former President of the Republic). The composition of the members of the Constitutional Council is explained in the article 56-1 of the Constitution: "The Constitutional Council shall comprise nine members, each of whom shall hold office for a non-renewable term of nine years." The members of the Constitutional Council are appointed in thirds by the President of the Republic, by the President of the National Assembly and by the President of the Senate. [...]
[...] It is the Constitutional Council that verifies the proper conduct of elections. It also proclaims the results of elections and is responsible for the inauguration ceremony of the President of the Republic. The Constitutional Council has also competences known as consultative, that is to say that they emit an opinion on certain precise subjects such as the vacancy or the impeachment of the presidency of the Republic, the prolongation of the exceptional powers granted by the article Between Counter-Power, Defender of Rights and Constitutional Judge The French constitutional tradition has been and is still evolving. [...]
[...] This regime of impossibility has become stricter over time, and they are now prohibited from holding any electoral mandate, public employment or certain private professional activities. Moreover, like all politicians, constitutional judges must declare their possible conflict of interest to the High Authority for the Transparency of Public Life. Finally, the members of the Constitutional Council are subject to a duty of confidentiality. Therefore, they cannot communicate their public opinions on certain subjects during their mandate. They must also guarantee the secrecy of the proceedings, i.e. [...]
[...] Moreover, any law, before its promulgation, may be subject to a constitutional review if the Constitutional Council is seized by the President of the Republic, the President of the Senate, the President of the National Assembly, sixty senators or sixty deputies. In these two cases, the law is judged by the Council, which may decide that it is in conformity or not with the Constitution or with one of the texts of the block of constitutionality. This ex post control of laws is the traditional control of a Constitutional Court. It is important to underline that the Council cannot refer a law to itself. [...]
[...] It is in accordance with the principle of specialization of judges that the Constitutional Council is the only one competent to judge the constitutionality of a law. Nevertheless, it is not part of the desire to appear as a power in its own right, like the American Supreme Court. In this respect, it does not constitute itself as a counter-power in its own right, although it does have checks and balances that allow it to constrain government action. Moreover, the 1970s marked a major turning point in the French jurisdictional order. [...]
APA Style reference
For your bibliographyOnline reading
with our online readerContent validated
by our reading committee
