2023-06-14 16:02:52
It’s a blow for the french government. The Council of Europe, watchdog of human rights on the continent, considered on Wednesday that Article 49.3 of the Constitution “raises questions with regard to the separation of powers”.
The article in question, which allows the adoption of a text of law without a vote of the Parliament, appears since 1958 in the Constitution, and was used 100 times by the governments which succeeded one another since this date. Of which no less than 28 times by the government of Michel Rocard (1988-1991), and 11 times by the current Prime MinisterÉlisabeth Borne, since her appointment in May 2022.
Since 2008, this article can only be activated for finance or social security financing bills, and for only one other text per parliamentary session. It constitutes a “ significant executive interference in the powers and role of the legislative power”, observes the Venice Commission, a Council of Europe advisory group providing States with legal opinions on draft laws or texts already in force.
“No real discussion”
49.3 “does not represent a form of delegation, but rather autonomous legislative power in the hands of the executive”. The Commission concludes that this article “reverses the burden of initiative, in a way apparently unmatched by other European countries”.
Because it provides, for the adoption of a text, “that the members of the National Assembly must vote by an absolute majority a motion of censure in order to reject the law”. It thus allows, “in certain cases”, the adoption of a law “without a real and in-depth discussion of its content”.
The Constitutional Council criticized
The authors of the opinion also criticize the control of the use of 49.3 by the Constitutional Council. This control, restricted to “strict compliance with the activation procedure”, “limits the guarantee of the supremacy of the legislative power”.
The Venice Commission announces, however, that it will carry out a “comparative analysis” of the mechanisms which allow governments “to intervene in the legislative powers of the parliaments” of other European countries, before publishing its final conclusions.
Article 49.3, drawn up as a response to the situations of parliamentary deadlock observed under the Fourth Republic, is regularly the subject of criticism from political leaders, including those who have had recourse to it.
“Denial of democracy”
In 2006, François Hollande, then deputy of Corrèze and first secretary of the PS, had castigated the use of this device to have the CPE adopted (contract first hiring), speaking of a “denial of democracy”.
“49.3 is brutality, 49.3 is a denial of democracy, 49.3 is a way of slowing down or preventing parliamentary debate,” he assured. A few years later, during his presidential term (2012-2017), Prime Minister Manuel Valls had yet used it six times…
Along the same lines, a group of 60 deputies from the Nupes tabled a constitutional bill in March “for an article 49 respectful of national representation”, aimed at removing article 49.3 from the Constitution.
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