Its verdict is eagerly awaited by the executive and the opposition. The Constitutional Council will decide this Friday, April 14 on the pension reform, the day after a new day of mobilization. The left hopes that the nine wise men will bring down the text, the government wants to believe that its validation “will be the culmination of the democratic journey”. Will she censor the reform? Only a part? And will it give the green light to the procedure of a referendum of shared initiative (RIP), dear to the left? Political life depends on the choices of the institution, responsible for controlling the compliance of the text with our fundamental law.
Law, nothing but law: the Constitutional Council defends itself from any political judgment on the texts it examines. But the line between law and politics is fine. MEP Emmanuel Maurel (Republican and Socialist Left) talks about the future choice of wise men. “The law is never objective or politically neutral”, assures the elected official, who believes that the Constitutional Council has a “reading grid of society”. Interview.
L’Express: The executive and the opposition have their eyes riveted on the Constitutional Council, which must render its decision this Friday. Has this institution become the arbiter of this political debate?
Emmanuel Maurel: We feel that for the main actors, the deadline is important, not to say decisive. And we also see that this is of great interest to the French, especially those who participated in the twelve days of mobilization. But we must be clear: on Friday, even if it will be based on legal arguments, the Constitutional Council will make a political choice. His decision will have a profound effect on the lives of millions of people. There is a strong expectation and indecision because the text and its procedure are legally questionable, and not only politically.
Still, the Constitutional Council is not used to blows. Its jurisprudence is rather cautious, despite its famous decision of 1971 which includes in its control the preamble of the Constitution of 1946 and the Declaration of the Rights of Man and of the Citizen of 1789. It is not a revolutionary institution – which would be an oxymoron. This caution has a simple reason: the Constitutional Council cannot replace political decision-makers and must base its decisions on law, even if it happens to introduce innovative principles.
Opponents of the reform believe that the government’s legislative vehicle – the social security financing bill – is not suited to a pension reform. They dispute the use of a series of articles limiting the debates and believe that the government’s mistakes on the minimum pension of 1200 euros contravene the principle of sincerity of the debates. Aren’t these arguments on the edge of law and politics?
Yes, but that’s normal because there is no watertight separation between the legal and the political. The way of interpreting the law often contains presuppositions or even political opinions. We resorted to an amending social security financing law to pass this reform, via article 47-1 of the Constitution. In my opinion, it should produce effects for the year 2023 alone, but retirement at age 64 does not fit into this framework since it is planned to go from 62 to 64 by adding one quarter per year until 2030.
Other parliamentary procedures used by the government are also subject to caution, given the requirement of clarity and sincerity of the debates. The government lied about the number of beneficiaries of the minimum pension at 1200 euros, which misled parliamentarians. Above all, it accelerated the debates by abusing the tools at its disposal. The legislator could not make a decision with full knowledge of the facts – and the Assembly was not even able to vote on the text…
Relying on this sole principle of clarity and sincerity to censor the text would create a major precedent…
Yes. Sticking to this single argument would be interesting but would have implications whose consequences cannot be measured today. However, this would contribute to a rebalancing between the executive and the legislative, in our very “rationalized” system of parliamentarism.
Will the Constitutional Council have this audacity? I’m not sure of it. Imagine that he censures the law in the name of the lack of sincerity and clarity of parliamentary debates. This would then call into question the presidential character of our regime and would force the executive to respect Parliament more. I doubt that he feels legitimate to make this choice, even if it would delight me!
This decision of the Constitutional Council brings out the debate around the method of appointing its members. It is the work of the Head of State and the presidents of the two assemblies. Doesn’t this system affect the legitimacy of the institution and the authority and its decisions?
It’s an old debate, especially on the left. At the start of the Fifth Republic, the Communists and certain Socialists contested this mode of appointment. The opponents of the Gaullists themselves spoke of an “executive watchdog”. Paradox: it was the Constitutional Council appointed by the Gaullists that produced the 1971 decision, which neither de Gaulle nor Debré (the drafter of the 1958 Constitution) had considered. Judges appointed by a political authority, whose ideological line one can guess, sometimes emancipate themselves from those who chose them.
The mode of appointment of judges can pose a problem, but any method of appointment gives rise to dispute. Over the years, this institution has nevertheless proved to be a protector of fundamental rights! This is all the more observable since the introduction in 2008 of the Priority Question of Constitutionality (QPC).
There is the method of designating members, but also their profile. Some regret the excessive weight of political personalities, to the detriment of lawyers. Isn’t that a problem?
Some countries restrict the appointment to legal professionals. But that doesn’t change anything! 100% legal decisions do not exist. Law is never objective or politically neutral. This vision of law above politics is wrong. The members of the Constitutional Council are not in the ether, detached from political contingencies. There is no ideal appointment system.
We saw it with the validation of Jacques Chirac’s campaign accounts after the 1995 presidential election…
Jacques Chirac had been elected by the French people. The conflict of legitimacy was very strong. Could we ask a judge to cancel a presidential election on the pretext that the campaign accounts were not in conformity? The political consequences would have been colossal and we would have returned to the “government of judges”.
You recall that the law is never “neutral”. On the left, the case law of the Constitutional Council is often considered too favorable to “freedom of enterprise” and tinged with economic liberalism. Economist Thomas Piketty states in a column at the World that he is sometimes “objective accomplice of the owners”. Do you share this review?
She is legit. The case law of the Constitutional Council is economically liberal and strongly emphasizes the right to property. Its former president Jean-Louis Debré believes that a certain level of tax is “spoliation”. This is part of a conception of the world which, in my opinion, is not legally founded. But we can go back further: as early as 1982, with the law on nationalizations. The Council had forced the Mauroy government to review the method of calculating the prior compensation for shareholders of nationalized companies in the name of the right to property (article 17 of the DDHC).
Conversely, there is a right-wing criticism of the Constitutional Council. She considers the institution too protective of individual rights in the face of public order. This criticism was expressed in 2018, on the occasion of the discovery of the principle of fraternity. The judges had identified this principle to justify the legality of providing humanitarian aid to a foreigner in an irregular situation. The “crime of solidarity” had been partially censored.
In this light, do you consider that the Constitutional Council has an overall ideological hue?
Its decisions bear witness to a reading grid of society. Initially, the Constitutional Council was only to arbitrate between the competences of the legislative and executive powers. It is now much more than that, because the constitutional judge has given himself a power of appreciation and interpretation. Does this disqualify this jurisdiction? I’m not sure of it. Let’s not forget that the American Supreme Court is much more politicized. Evidenced by its debates on societal issues, such as abortion.
And then, the Constitution allows the people to decide on certain orientations, via the referendum. It is not used enough, the people are always more far-sighted than the leaders imagine. The sages will also decide on Friday on a shared initiative referendum (RIP) on pensions. All the conditions are met for this referendum proposal to be submitted for the signature of the citizens.
In the name of popular sovereignty, the very principle of constitutional review is today challenged on the right. Do you understand it?
This was also the case on the left. Under the Revolution, constitutional review was not desired. Since the law is the expression of the general will, it cannot be contested. The revolutionaries, however, were neither “right-wing” nor conservative.
This argument holds in theory. But the legislator can vote texts which question principles above the law, and which are also the expression of the general will. This is for example the case of freedom of association. The legislator cannot do everything. It was not understandable two centuries ago, at the time of the Great Revolution. But it turns out to be quite effective today.