Tribune. The exacerbated politicization of the appointments of members of the Constitutional Council is gradually distancing France from the provisions of article 16 of the Declaration of the Rights of Man and of the Citizen of 1789: “Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution. »
It runs counter to the evolution of the functions of the Constitutional Council: apart from its role of electoral judge (legislative and presidential elections), the Constitutional Council, initially intended mainly to tame parliament vis-à-vis the executive, has become, with the creation of the priority question of constitutionality (QPC) in 2008, the guardian of the rights and freedoms that the Constitution guarantees (article 61-1).
For example, according to statistics on the website of the Constitutional Council, between 1is January 2010 and June 30, 2021, out of 1,034 decisions to review the constitutionality of the law, 817 are QPC decisions; for the first half of 2021, out of 49 decisions to review the constitutionality of the law, 41 are QPC decisions.
Public trust
The adoption by the Constitutional Council, on March 11, of rules of procedure on the procedure followed for declarations of conformity with the Constitution does not change much in the practice which remains below the level of jurisdictionalization in comparative law. . The new rules of procedure even strengthen the discretionary power of the Constitutional Council in the functioning of the procedure.
Perceived by the political class since its origin and until today as a political body, the Constitutional Council “has taken root in the jurisdictional landscape and in the minds of our fellow citizens as a real jurisdiction”, in the words of the President of the Republic, Emmanuel Macron.
On paper, such a shift honors the French constitutional system by giving its full measure to constitutionalism, namely the limitation of power by the rights and freedoms of individuals. In practice, this honor implies a Constitutional Council whose composition and functioning guarantee public confidence in this jurisdiction.
Public confidence, a principle that derives from those of the rule of law and the rule of law, wants the guardian of the Constitution to be, according to the great comparatist Mauro Cappelletti (1927-2004), “an organ or (…) a group of organs, sufficiently independent of the “political” powers – legislative and executive – to protect a superior and relatively permanent rule of law against the temptations which are inherent in power”.
You have 68.99% of this article left to read. The following is for subscribers only.