Guest of France Inter, Tuesday April 12, Marine Le Pen detailed her project, based on a referendum, to revise the Constitution to apply a new migration policy, modify access to French nationality and the right of asylum. , and introduce the use of “national priority”.
According to the far-right candidate, qualified for the second round of the presidential election, the Constitution can be directly modified by referendum. In particular thanks to its article 11. “In 1962, the conditions for the election of the president were changed by referendum”, she argues. “Since that date, it has been established that the Constitution could be modified directly by referendum”. Marine Le Pen stresses that the Constitutional Council would not stand in her way, because it has no “not the ability to watch the content of a referendum” but only leans on “the conditions for the organization of the ballot”.
In his eyes, therefore, his bill would be fully applicable, without restriction. But can it really rely on this article, and free itself from the Constitutional Council to set up such a referendum? Explanations by three constitutional experts.
.@lofejoma questions @MLP_officiel on the question of a potential referendum to revise the Constitution… https://t.co/R5eIzCPVvA
What does Marine Le Pen say in her program?
In the six months following his presidential election, she intends to ask the French “to adopt by referendum a certain number of essential provisions”. The candidate of the National Rally (RN) proposes to modify several articles of the Constitution to “integrating the migration issue”and “to prevent supranational courts from forcing France to follow policies contrary to the will of the French people”.
Also, the bill she has drafted must make it possible to include in the founding text of the Ve Republic “the rules governing French nationality, the manner of acquiring it, or the serious cases which may lead to its withdrawal”as well as “the possibility of resorting to national priority”. The registration of this “national priority” in the Constitution should allow “to reserve a certain number of social benefits only for French people, or even to grant them priority access to social housing” . The president of the RN also intends to reform the right of asylum, and ” facilitate “ the expulsion of illegal aliens.
On what texts can it rely to revise the Constitution?
If she is elected President of the Republic on the evening of April 24, Marine Le Pen can initiate a constitutional revision procedure with article 89, “the one and only article that allows the Constitution to be revised”, says Jean-Philippe Derosier, constitutionalist and professor of public law at the University of Lille. But before submitting this project to the population, several steps are necessary:
– The text must be voted on in identical terms by the National Assembly and the Senate. Any revision is thus blocked if the two chambers oppose it. “When Emmanuel Macron and François Hollande wanted to revise the Constitution, they came up against hostility from Parliament”, recalls Jean-Philippe Derosier, and “had to abandon their project because the Senate did not want the revision” ;
– Marine Le Pen can then either decide to have her project approved by referendum, or submit it to Congress by obtaining a three-fifths majority.
Aware of the difficulty of obtaining a parliamentary majority, the RN candidate actually intends to circumvent the obstacle by going through Article 11 of the Constitution. The text stipulates that any bill relating to limited subjects such as ” the organization of the public authorities, on reforms relating to the economic, social or environmental policy of the Nation and to the public services which contribute to it, or tending to authorize the ratification of a treaty which, without being contrary to the Constitution, would have impact on the functioning of institutions. »
For the constitutionalist Dominique Rousseau, “What Marine Le Pen is proposing is a kind of coup d’etat! » But Mrs. Le Pen does not fail to recall that she is following in the footsteps of General de Gaulle who, on two occasions, had mobilized this article to establish direct universal suffrage in the presidential election in 1962, and for his plan to revise in 1969 on the creation of regions and the transformation of the Senate.
Why this revision project is difficult to achieve
- A restricted scope of Article 11
First difficulty: bring migration and security policy into the scope of Article 11, which does not seem obvious. Not to mention that the establishment of “national priority” takes the form of institutionalized discrimination and directly undermines the principle of equality and republican tradition expressed in the Constitution.
But one of the arguments put forward by Marine Le Pen consists in saying that, as was the case for de Gaulle, the use of article 11 is perfectly justified. However, the general’s coup de force had provoked the ire of a large majority of jurists who considered the use of Article 11 to be “abusive”. The President of the Senate, Gaston Monnerville, described this forced passage as “forfeiture”. However, the Constitutional Council considered “that he did not go back on the laws adopted by referendum, because it is the direct expression of the sovereign French people”, recalls Jean-Pierre Camby, associate professor at the University of Versailles-Saint-Quentin and specialist in electoral law. A thesis renewed until today: the Constitutional Council does not declare itself competent to examine, after the fact, the constitutionality of a referendum text.
But the conflict around Article 11 has not ceased among jurists, nor even within the Council of State, which had opposed the circumvention of Article 89 operated by de Gaulle. In the judgment known as “Sarran and Levacher” of October 30, 1998, the Council of State took a position. He indicates that Article 11 “deals only with legislative matters and therefore cannot implicitly revise the Constitution”summarizes Mr. Camby. “The Council of State said that there is, on the one hand, article 89 to revise the Constitution, and, on the other hand, article 11 for ordinary bills”, adds Patrick Wachsmann, emeritus professor of public law at the University of Strasbourg for whom “Things are clear from a legal point of view”. Thus, the vast majority of jurists agree that the only possible way to revise the Constitution is through Article 89, and not Article 11.
- Jurisprudence from 2000 strengthens the control of the Constitutional Council
Marine Le Pen is not wrong in asserting that the Constitutional Council has ” as the only capacity the conditions for organizing the referendum ballot”. But it fails to specify that the Council can exercise upstream control. With the judgment known as “Hauchemaille” of July 20, 2000, the Constitutional Council can rule on the conditions for summoning the electorate. “The Constitutional Council is responsible for ensuring the smooth running of the referendums, the results of which it announces. », explains Patrick Wachsmann. What Jean-Philippe Derosier confirms:
“The “wise men” control what are called the preparatory acts, that is to say the legal norms which allow the referendum to take place, and in particular the decree which summons the voters for a referendum. »
Thus, the Constitutional Council can rule on the constitutionality of the bill appended to this decree. Given the Hauchemaille judgment, if Marine Le Pen invokes Article 11 for her referendum“we would undoubtedly have a problem, because someone would not fail to seize the Council on the basis of Article 11 to find out whether the procedure complies with this article”, says Mr. Camby. And to add:
“Legally, the balance weighs against it: in 1962, the Constitutional Council refused to decide, now it can express itself on the conditions for calling the referendum. »
The jurists interviewed agree that the far-right candidate is mistaken on this subject. “It is clear that Marine Le Pen does not approach the question with great skill”, juge M. Wachsmann. She uses “desperately” the precedent of de Gaulle in 1962 to pass “something that violates the Constitution as almost everyone interprets it today”, summarizes the constitutionalist.