Possible side effects of recent “constitutionalization”

2024-03-12 17:17:45

TRIBUNE – The political class has just, in the name of women’s freedom to enjoy their bodies, constitutionalized abortion. Which, in current legislation, can be practiced in certain cases on “that” which is not a child from a legal point of view, but “that” which is a completed and viable child from the point of view of reality .

The protection of a rule – new or old – (whatever it may be) derived from its “constitutionalization” is in reality quite illusory. Because it actually depends on the position of the judges at the time. Who agree or not to paralyze the implementation of said rule (1) (4).

In the past, the rules decreed by those in power could not be “touched” by judges. To which the bourgeois of 1989 – who took away the power of decision from the landowners – informed of the behavior of the judges of the moment, forbade (law of August 16-24, 1790), and after having modified the method of recruitment, to suspend the application laws, and even interpret them. (2)

But it was quickly provided (law of October 7-14, 1790) that administrative decisions could be brought before the king, head of the general administration, who could cancel them in the event of incompetence (2). Work done by advisors, who took their independence and who one day constituted the Council of State that we know today. Thus, the decisions of the executive power were, except for the exceptions decided by the judge, possibly voidable.

For a long time, the decisions which had been the subject of a vote by the assemblies (the “laws”) – essentially votes of approval of the decisions of the head of state or the president of the council of ministers – escaped this jurisdictional censorship. .

Consequently, when the rulers wanted to violate a principle, they had the violation approved by a vote of their parliamentary friends (3).

Then the judicial bodies began to decide that from now on, the laws, although acts having been the subject of a vote by parliamentarians, would not escape their control.

This is what the Constitutional Council did (which was not intended to do this) in 1971 (case of the law on associations). This is what the Court of Cassation did in 1975 (Jacques Vabres case) and the Council of State in 1989 (Nicolo case), when a French law ignored a rule appearing in a treaty. (2) (3)

In 2008, Nicolas Sarkozy and his thinkers had the idea of ​​extending the scope of control over laws by allowing citizens to invoke the violation of a principle. Not immediately before the ordinary courts (as above), but according to a complicated procedure giving hand to the Constitutional Council (“priority question of constitutionality”).

The fact remains that the judges have not yet decided to take an interest in the rules to which the rulers have given constitutional “value”. Rules which may “pose a problem” with regard to freedoms, equality, the general interest, the undistorted functioning of democracy or the safeguarding of the future of society

But, on closer inspection, this violation of a principle is done using the same technique. Formerly, the violation was voted on once by each assembly. Which, in doing so, gave the violation legislative “value”. And the judges used to no longer mention the violation even though they previously censored it. That is over, at least for the most part (see above).

But today we “can” technically still violate a principle, by confirming the first violation accepted by each assembly, by a second violation by the same people who are brought together to do this (in “Congress”).

It is likely that the judges, one day, will say: “enough is enough!” “. And that they will control, as they ended up doing with “ordinary laws”, the texts that the individuals occupying power will have put in place. By mechanically playing simple procedures at the end of which only the vocabulary will have changed.

It is one thing that we do not systematically repress abortion. But for abortion to be seen as the right to have control over one’s body is still “big”. How big it was, not long ago, to undermine (thanks to “laws” generating decrees) the freedom to prescribe by city doctors, to make the population march in lockstep, to sanction members of certain professions who resisted political decisions whose basis was clearly problematic.

Thus, the “constitutionalization” of abortion will perhaps be an element which, added to the precedents, will inspire the judges (of tomorrow) with the idea of ​​a reversal of jurisprudence.

Marcel-M. MANY

honorary university lecturer

Concretely: The effects attached to the “constitutionalization” of women’s right to enjoy their bodies, guaranteed by abortion, are referred to cascading conditions: 1/ Parliamentary majorities must not restrict, for example, the reasons and the period during which the abortion can be performed. 2/ The judge must also agree to say, where appropriate, that the new restrictive legislative provision ignores the scope of the constitutionalized principle.

Cited in our “practical administrative law” (course published by Erasmus). Decisions reproduced in the case law report: “Fundamental decisions of administrative law”. Ed. Ellipses.

On these questions, see our: “Constitutional texts and documents since 1958. Analyzes and comments”. Dalloz – Armand Colin.

An example to make it clear: mayors reserved parking spaces for municipal vehicles. The Council of State annulled these municipal decrees on the grounds that these texts disregarded the principle of equality of users of public roads. The government passed a law in 1957 which authorized mayors to do so. Since a law authorized the violation, the Council of State began to refuse to rescind the bans which were re-signed. On these questions, see also our analyses: “Reflections on the occasion of an anniversary: ​​thirty years of hierarchy of norms” (collection Dalloz 1990, p. 27); “The hierarchy of standards does not exist” (Dalloz collection. September 2, 1999, no. 30, p. 1)