“The benevolence of the Constitutional Council is the return of the repressed authoritarian from the origins of the Fifth Republic”

2023-04-18 06:00:01

En delivering its arbitration in favor of the executive in its decision rendered on April 14, the Constitutional Council put an end to the legal debate triggered by the pension reform, without allaying the frustration inspired by the pusillanimity from which it has just demonstrate in the exercise of its counter-power. The timid stroke of the penknife – the censorship of six “social horsemen” – whose constitutional judges marked the referred text, which they moreover validated as a whole, gives rise to two possible readings.

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A first reaction to this restraint would be to welcome the choice made by the Constitutional Council, with the greatest respect for the principles of the rule of law, to judge only in law and not in opportunity. No one expected constitutional judges, in fact, to decide to abolish the postponement to 64 of the legal retirement age on the grounds that it is unfair or inefficient. Nor did anyone expect them to condemn the use of section 49.3 on the pretext that it seriously undermines democracy while remaining legally valid. In a liberal democracy, the constitutional judge has no economic policy to assert or a lesson in political philosophy to give.

But there is another way of reading the decision of April 14, which consists in reproaching the Constitutional Council, precisely, for its excess of legalism. While it is indeed understandable that he considers the use by the government of each of the constitutional means intended to prevent parliamentary obstruction (articles 44-3, 47-1 and 49.3) to be in conformity with the Constitution, his indifference to the possibly harmful link between the accumulation of these procedures and the constitutionality of the law becomes, on the other hand, problematic.

Aristotle and the equity of situations

The Constitution is not just an addition of provisions taken in isolation, but a coherent system of norms whose concrete application can have effects on the balance of the institutions that cannot go unnoticed. Yet such is the blindness, characteristic of an excessively abstract outlook, of which the Constitutional Council was guilty by refusing to sanction this abuse in the repeated recourse, by the government of Elisabeth Borne, to the weapons of rationalized parliamentarism.

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The same distance taints its response to the grievance based on the misuse of procedure that the government allegedly committed, according to the authors of the referral, by taking the path of article 47-1 of the Constitution to submit the law to parliamentary debate. While admitting that this legislative process, the handling of which is more expeditious than that of an ordinary law, was designed for the Social Security financing laws, the Council refused to comment on the government’s choice to do so. serve for the important law on pensions, in the name of the concern that he regularly expresses “not to substitute its assessment for that of the legislator”. Commendable legal asceticism, it will be said, except that in this case it led the constitutional judge to neglect the difference between a law on pensions whose social and financial consequences go far beyond the year 2023 alone and the financing laws Social Security corrigenda, the impact of which on the current year alone justifies the specific use of Article 47-1.

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