Tribune. Questioned on France Inter on April 5 to find out if the referendum she would like to establish on the restriction of immigration and the national priority was in conformity with the Constitution, Marine Le Pen embarked on a short course in constitutional law, just after arguing about her status as a lawyer on the issue of war crimes, and then invoking her concern for compliance with formalities.
To justify recourse to a referendum in order to impose the principle of national priority, which would apply not only to access to employment, but also to the allocation of housing and the granting of social rights, it mainly based on the precedent of 1962, which had allowed General de Gaulle to modify the Constitution to have the President of the Republic elected by direct universal suffrage. She also relied on the argument that such a practice constituted a “case law”.
Bypass the Senate
But it forgets to point out the fact that the vast majority of jurists considered at the time the use of Article 11 to revise the Constitution as clearly unconstitutional: the only procedure provided for this purpose is that of Article 89 It first supposes the adoption of the text by each of the two chambers by absolute majority. It was to circumvent a Senate that he knew was hostile to his projects that Charles de Gaulle requested Article 11. His success in 1962 should not hide the fact that the theories put forward in 1969 to justify the repetition of this practice, this time rebuffed by the electorate, such as the idea of a constitutional custom that would have suddenly appeared in 1962 to authorize the use of Article 11, were more opportunistic than convincing.
The Council of State, which had opposed the circumvention of Article 89 since 1962, clearly summarized the state of the law in its “Sarran and Levacher” decision., rendered in its most solemn formation on October 30, 1998, with reference to the “referendums by which the French people exercise their sovereignty, either in legislative matters in the cases provided for by article 11 of the Constitution, or in constitutional matters as provided for in article 89”. The cause is thus heard: only article 89 can be used to revise the Constitution. The Constitutional Council also modified its electoral jurisprudence in 2000 to prepare a review of the decree summoning voters to a referendum. This is the Hauchemaille case law, which Marine Le Pen did not want to hear about during her second interview with France Inter, on Tuesday April 12.
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