With its strong showing in the recent European and legislative elections, the French far right is in a strong position to gain power in France. A possibility that is worrying given certain measures in the National Rally’s programme and past statements by some of its members.
In 2022, the number 2 of the National Rally already affirmed that the will of the “ people ” should take precedence over the Constitutional Council. The RN vice-president of the National Assembly, for his part, complained of “ never be able to do anything ” because of the latter.
RN candidate in the legislative elections on Sunday, lawyer Pierre Gentillet was even more explicit and said: “ If tomorrow we want to free ourselves (…) from certain standards that are poisoning us, on condition that we bring the Constitutional Council into line, we can do anything ». “ The only sovereign in Franceit’s the people “, also reacted the head of the deputies and figure of the party Marine Le Pen, on France Inter. This after having been questioned on the dead ends of her constitutional projects.
And more recently, it was during the censorship of part of the immigration law by the Constitutional Council, in January 2024that the French extreme right had multiplied attacks against the Sages (nickname given to the members of the institution). The two heads of the alliance between the National Rally and a part of the Republicans, Jordan Bardella And Eric Ciotti, had stepped up to the plate: respectively, they had denounced ” a coup by the judges ” and denounced that the Council judged ” in politics and not in law “.
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Such statements, already described as illiberal at the time, are worrying today as the National Rally is on the verge of power in France. This is because some measures in its program risk not passing the filters of the Constitutional Council: for example, one of the flagship measures of the RN, giving ” priority ” to the French in accessing certain rights.
” It is not my role to comment on the programme of any political movement. I will limit myself to saying, since it is a given, that national preference – applied systematically – is contrary to the Constitution “, estimated in May the former socialist minister and current president of the jurisdiction Laurent Fabius.
” Political forces against the form of liberal democracy »
Thus, many actors in the judicial and political institutions draw a parallel with Europe, where other nationalist and illiberal right-wing parties have attacked judges and reduced the prerogatives of constitutional powers, insidiously impacting the achievements of the rule of law.
In Poland, in 2015, the nationalist Law and Justice (PiS) party had replaced constitutional judges with magistrates who supported its cause and had reformed the functioning of the Constitutional Court, causing a serious crisis with Brussels. At the end of 2021, the Polish high court had gone so far as to declare part of the European treaties incompatible with the country’s Constitution, raising fears of a ” Polexit » judicial.
After returning to power in Hungary in 2010, nationalist Prime Minister Viktor Orban drastically limited the possibilities of appeal to the constitutional court in order to control the actions of the executive.
In Slovakia, just came to powerRobert Fico dismantled the anti-corruption prosecutor’s office that was investigating his relatives. Today, it is a law on the independence of public media that worries the European Commission and the opposition in the country. And in Italy, it is also by attacking NGOs helping migrants or by modifying certain electoral procedures that the extreme right is establishing its project.
Wherever the extreme right and nationalists pass through Europe, the law takes a hit. This is quite inherent because quite simply these are political forces which define themselves as being against the form of liberal democracy which has developed in the West and notably in Europe since 1945, having in particular a problem, I would say fundamental, with a certain number of counter-powers. “, analyses Lukas Macek, head of the Greater Europe center at the Jacques Delors Institute.
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A program ” within the limits of the Constitution »
But can we envisage such a reining in of institutions in France following the rise to power of the extreme right? Countervailing powers exist, experts remind us. A far-right government could implement its programme ” within the limits of the Constitution “, recalls Paul Cassia, professor of public law at the Panthéon-Sorbonne University.
” For example, it would not be possible to create discrimination between French people, just as it would not be possible to abolish the right of the soil. The latter would require a constitutional revision. ” he specifies. However, in the current state of French political forces, the procedure for revising the Constitution, which in theory should only be initiated by the head of state, must obtain the assent of three-fifths of parliamentarians. Which seems unthinkable for the extreme right for the moment.
What would happen if a government ignored a decision of the Constitutional Council, a hypothesis ” fortunately theoretical for now » ? « It would be a coup d’état of law. An unprecedented coup. It would be going beyond the republican framework not to apply a decision of the Constitutional Council. We would be in something else, a State where coups are permitted and where ultimately, the Constitution is no longer the framework that, including public authorities, must respect. So it would no longer be the Republic in fact. ” notes Paul Cassia.
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” Stop before the breaking point »
Finally, such an attack on the rule of law of a country would also come up against European institutions. This is particularly the case in Europe where nationalist parties are eroding public freedoms. Thus, Warsaw was sentenced at the end of 2021 to pay a daily penalty of one million euros for having tried to bring its justice system into line.
” A European sanction against France would be symbolically all the stronger, because France is a driving force in the European Union. “, says Thibaud Mulier, lecturer in public law at the University of Paris-Nanterre.
However, the application of these European safeguards would be a challenge given the length of the procedures. All national avenues must be exhausted so that the European Court of Human Rights can act as a countervailing force. It takes years. Look at the Polish and Hungarian cases, it took years before justice began to impose sanctions. The Poles of the PiS, before [l’actuel Premier ministre pro-européen] Donald Tusk did not return to power, tried to change the composition of their Constitutional Court. It also took several years before there was a beginning of sanctions. “, sums up the expert.
Also, the far right could also ” as other political forces, even those on the left, have done in the past “: pushing the arm wrestling with the European institutions far enough.” The real question is that if the RN comes to power, it will either have to clearly show whether it remains consistent with its discourse, which will lead to a serious conflict that is potentially harmful to the EU. Or it will accept the constraints that it will try to relax as much as possible,” Mr Macek believes. And to add : “ This is where the boundary between constructive and destructive forces in Europe lies, it is this ability to stop before the breaking point. “.
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