To prepare for battle is to look together in the same direction. President, government, political opponents, unions, all have their eyes riveted on the nine members of the Constitutional Council, who announced on Wednesday that they will vote on Friday April 14 on the amending Social Security financing bill for 2023, and therefore on the government’s pension reform, and also on the referendum initiative around the bill, presented pursuant to Article 11 of the Constitution, aimed at affirming that the legal retirement age does not can be fixed beyond the age of 62.
The Sages provoke many fantasies, memories, fears, hopes – criticisms too. Emmanuel Macron has not forgotten that 17 of the 308 articles of his own law had been challenged in 2015 by the Constitutional Council, including that relating to the cap on compensation for dismissal without real and serious cause. And what about Nicolas Sarkozy, cursing the institution that had censored his carbon tax, what about François Hollande, one of whose campaign promises, the 75% tax on income above 1 million euros, did not stand up to scrutiny?
If no one can anticipate the decision of the Palais-Royal institute, everyone is thinking about the day after. An article of the Constitution, not the best known so far, is becoming downright trendy; it has never been modified since 1958, but it can be used. Article 10 obliges the President of the Republic to “promulgate the laws within fifteen days following the transmission to the government of the definitively adopted law” – François Mitterrand had explained that his role at this precise moment was reduced to that of a “notary”, we see it in a period of cohabitation – but grants him, in paragraph 2, the possibility within this two-week period of “requesting Parliament for a new deliberation of the law or certain of its articles”.
A new deliberation of the law? These three previous
Laurent Berger on the one hand, relatives of Emmanuel Macron on the other have rushed into the breach: it would be a question of taking the Council’s decision as a pretext to reweave a compromise – at the risk of serializing, point in the presidential entourage the skeptics. “The principle of the cannonball, remarks a minister, is that you should not drag it out as long as possible.” The secretary general of the CFDT asked on March 27 on France Inter “a break”. Pause ? “We do not see a constitutional translation”, answers Matignon. Already the Elysée was offended that Laurent Berger joined the camp of those who asked the president not to promulgate – since, as we have seen, he has no other choice but to do so.
Matignon and the general secretariat of the government consulted at the start of the week and for the time being, Elisabeth Borne is calming the heat. Article 10, specifies a relative, “is not a new deliberation or the possibility of adding new articles, it makes it possible to return and specify points on which the Constitutional Council would have expressed reservations, even censures” . In other words, at this stage, it does not constitute a political path.
The past pleads for this restrictive reading of article 10. On three occasions, the president asked for a new deliberation of the law. In 1983, François Mitterrand had to adapt a text on the establishment of a Universal Exhibition adopted… at the time when France withdrew its candidacy for the organization of this event. He did so again a little later with regard to a law relating to New Caledonia, certain articles of which had been declared unconstitutional. The request for new deliberation therefore made it possible to replace the missing articles and not to promulgate the law thus “truncated”. The Constitutional Council, still him, had been seized of the process and had validated it. In 2003, Jacques Chirac had requested a new deliberation on a law relating to the election of regional councilors and European parliamentarians, an article of which had, again, been declared contrary to the Constitution.
On the other hand, in the episode of the CPE which is so often discussed these days, Jacques Chirac was careful not to use this procedure: he had promulgated the law on equal opportunities (and its article on the first hiring), but then asked, in an unprecedented exercise in acrobatics, for his suspension. Will Emmanuel Macron be able, will he want to invent another interpretation of article 10 without the Constitutional Council finding anything wrong?
As times are crazy, it happens that ministers walk on their heads. Don’t repeat it, but some of them, who don’t like the CDI senior version written by the Senate too much, for example – wouldn’t take a dim view of it being revoked.
A vast political offensive in preparation at LFI
Ally, trustee, enemy: the Constitutional Council has an interest in having solid shoulders (and distracted ears) in the coming days. “The next step is the delegitimization of the Constitutional Council”, warned Emmanuel Macron Monday during a meeting with leaders of the majority. Difficult this time to prove him wrong. Some jurists regularly challenge its attitude or composition – law professor Lauréline Fontaine in The world of March 28 – but this time a vast political offensive is in preparation.
The president of the LFI group in the National Assembly, Mathilde Panot, would like to do it again. At the beginning of March, she pulled it off: she cast opprobrium on the mixed parity commission, once the place par excellence of parliamentary discussion in the best sense of the term – the search for a consensus –, now denounced as the pinnacle of opacity. Tuesday, on BFM, she began to attack the Elders: “The Constitutional Council is both former presidents and close to the government.” The main thing is to recite its elements of language, not to bother with the truth. She was called to order on the air, since no president sits, the expression “close to the government” being by definition more subjective.
Jean-Luc Mélenchon’s young guard looked very closely at the political CV of the Elders and, for several days, we have seen the emergence on anonymous accounts sympathizing with LFI on social networks of the official photograph of the members of the Constitutional Council, in recalling their political affiliation. If by chance the decision was to validate the government text, LFI plans to publish the names and political profiles of the Elders on social networks, in the manner of the “name and shame” who had ulcerated the majority last February when the deputy LFI Louis Boyard had published the list of elected officials who had opposed meals at 1 euro.
In the viewfinder of the Insoumis, there is obviously Alain Juppé, the mentor of Edouard Philippe, but also two former ministers of Emmanuel Macron, Jacques Mézard and Jacqueline Gourault. They will ask the latter in particular, minister in the previous five-year term, close to François Bayrou and appointed to the Council by Emmanuel Macron in 2022, to “step aside” from the constitutional examination of the text. “She was a member of an executive favorable to the reform of pensions by point”, justifies Antoine Léaument, LFI deputy for Essonne, who will not be moved by the legitimacy of the decision of a legal body of course, ” but also political”, he insists. “You know, there are a lot of constitutional things we disagree with, starting with the Constitution itself.” This has the merit of being clear.
Whatever his decision, the pressure of the rebels on the executive will not change. In 2018, Jean-Luc Mélenchon launched at the National Assembly: “Since when do we have to fall on our knees because the Council has spoken?” He has also insisted on reminding his troops of this in recent days. “If the Elders take a censorship decision, which I do not believe, it is also because he is under major popular pressure, assumes Manuel Bompard. We have no victory without the mobilization of the street. We would continue if necessary.” Heads, I win, tails, you lose.