Never has the appointment of a new president and two new members of the Constitutional Council been more essential. The mandate of Laurent Fabius, Corinne Luquiens and Michel Pinault ends in mid-February. But what would be needed to best replace them?
There are hardly any legal conditions to be met in order to sit on the Constitutional Council, except that of not displeasing the parliamentary bodies responsible for “confirming” the nominations or, more precisely, of not rejecting them by a majority of the three fifths after having cooked the applicants a little under the eye of the cameras. The Law Commission of the National Assembly will decide on the choice of its president. That of the Senate on that of his. As for the head of state’s candidate to chair the institution, he will suffer the torture of both.
Gérard Larcher has good support in the Senate. No three-fifths bloc will form to oppose him. The operation will be painless. Lacking a majority, things are less fluid on the Assembly side. Yaël Braun-Pivet will have to use subtlety to avoid the pitfall. As for Emmanuel Macron, he is surrounded on all sides since his champion must not bristle at the same time the NFP, the RN, LIOT and LR, it being understood that the results of the votes within the two assemblies will be added to determine whether the we have reached the fatal three-fifths. The five-legged sheep must present traits of political acceptability in principle but also, where appropriate, a coefficient of sympathy capable of authorizing some individual departures from partisan logic. It will be prudent to count as accurately as possible.
If the rule had been to require a vote favorable with a three-fifths majority (or even a simple majority), we would be reduced to atrocious solutions. We would have to haggle like ragpickers and/or look for the lowest common denominator, that is to say agree on the most insignificant character. The horror… We’re not quite there, but nothing is going well all the same. Given the parliamentary landscape, we are going to have to get into trouble, speculate, assess the media impact… In short, play politics and even do it twice: the first to nominate in the interest of one’s own camp; the second to achieve this result without having the door slammed in your face.
Courage remains the only key
A Constitutional Court should not be built like that. Its members must be (and appear as) true judges: disinterested and impartial third parties; agents removed from the partisan game and thus made capable of resolving as objectively as possible the disputes caused by this same game. Their work is only politically acceptable if it is perceived as neutral and legitimized by its intrinsic qualities: that of a legal discussion worried about itself, but above all loyal, convincing, profound, explanatory… The survival of our rule of law is partly at stake here.
We therefore need great judges, capable of imposing themselves by their very greatness. You need height of vision, experience, strength, competence, independence of mind. None of this is made with parliamentary confirmation procedures. The (political) constraint they call for complicates the task instead of facilitating it. We undoubtedly made a mistake in creating these caudine forks during the 2008 constitutional revision.
Courage remains the only key: the courage needed for the authorities to refrain from appointing anyone for essentially political reasons. Basically, the only valid criterion is quite simple to formulate even if it is difficult to fulfill: choose only the people most capable of allowing the Constitutional Council to legitimize itself, by the sole indisputable quality of its work and its decisions. A vast and improbable conversion of minds is therefore required. Obviously, the need to come under the rule of parliamentarians rendered incapable of thinking in this way by the ambient hysteria further complicates the game. We still have to hope without believing in it. This is a big deal (and more).
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