Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 16 FRENCH CONSTITUTIONAL LAW Feb. 15, 2002

2. WRAP UP: Fundamental Structural Principles of the French Republic • France is an indivisible, secular, democratic and social republic • Rule of Law • French is a semi-presidential parliamentary democracy: there is a directly elected president and a prime minister who is responsible to parliament. In France, the role of parliament is somewhat reduced and the role of the executive is strengthened compared to standard parliamentary system • Other semi-presidential parliamentary systems? • France has a bicameral parliamentary system – the upper house is the Sénat and the lower house is the National Assembly. Voter turnout in 1997 – 68%

3. Legislation • How is an Act of Parliament enacted in France? • See C. 1958 Arts. 39-45, Art. 11

4. Proposing Legislation • Prime Minister (on approval of Conseil d’Etat and Cabinet) and MPs can propose bills; most are government bills. Private members bills don’t usually gain necessary support for enactment. • Bills must be approved by both Houses of Parliament. Most bills can begin in either House (except e.g. finance bills that must begin in National Assembly) • Usually simple majority vote is enough • Some laws, like Finance Acts, have a special procedure – See Art. 47

5. Disputed Billls • Senat can delay but can’t block legislation; if a bill is not adopted by both houses, PM can set up a commission (7 members nominated from each House) to propose a compromise but if draft not approved, government can submit either original or modified bill to National Assembly which has the final say. See C. 1958 Art. 45l

6. Legislation Voted Directly By the People • Art. 11 – President has the power to call for a referendum of the people if bill relates to certain subjects – organization of public powers, reforming national economic or social policy, or ratification of treaty affecting constitutional institutions (e.g. Maastricht, admission of UK to EEC) • Has been used by DeGaulle to amend constitution. Is this constitutional?

7. Promulgation of Legislation • After a bill is approved by Parliament, it must be promulgated and published to become law • President promulgates bill (C. 1958 Art. 10) Can require legislation to be debated again by Parliament (rare) or refer to Conseil constitutionnel to check constitutionality (never) • Publication – in Official Journal. Becomes binding one day after publication unless otherwise specified in Act in question.

8. Executive Branch • DeGaulle believed in a strong executive branch • Fear of excessive parliamentary power • But was DeGaulle an elected dictator? • Executive power is shared between President, PM and other government ministers

9. President • De Gaulle believed a strong need for a strong head of state • President elected for 7 years by direct universal suffrage (since 1962) and on an absolute majority. If no one gets majority in the first round, there is a second vote where there are only 2 candidates (C. 1958 Art. 6, 7) • Next election: April 21 and May 5, 2002 • Who is the current French president? • What does the president do?

10. President of France: “Guardian of the Constitution” (Art. 5) • Jacques Chirac • Art 5: “By arbitration, the President ensures the proper operation of public authorities and the continuity of the State.”

11. President • No clear duties; head of state • Appoints prime minister and, on advice of PM appoints/dismisses other members of government (C. 1958 Art. 8). Presides over Cabinet (C. 1958 A. 9) • President has power to dissolve National Assembly and force general election - Art 12 why does the President have this power? • Commander in chief of armed forces. Has pardon power – Arts. 15 & 17 • Can submit proposal (on govt request or request of parliament) for legislation to referendum – Art. 11 • Has emergency powers – Art. 16 –ever used? If so, when”?

12. Cohabitation • What is cohabitation? • Are we currently in a period of cohabitation? • What are the disadvantages and advantages of cohabitation

13. Prime Minister • Who is the current Prime Minister of France?

14. Prime Minister • Who is the current Prime Minister of France? • Lionel Jospin • What is the role of the Prime Minister?

15. Prime Minister • What is the role of the Prime Minister? • Leads the government (C. 1958 Art. 21) • Ultimate responsibility for national defense (Art. 21) • Represent government in Parliament • Can make primary and secondary legislation (govt. decrees – Art. 37, delegated legislation – Art. 38) • Present bills to Parliament • Advise President • Who is stronger – the president or the PM?

16. Conseil des Ministres (Cabinet) • Can a minister be a member of Parliament? (See C. 1958 Art. 23) • Can they hold local or regional appointments? • Attend weekly meetings at Elysée Palace (President’s Official Residence)

17. Judicial Branch • We will study this later in the course

18. Differences between French and German Political Systems • What are the differences? • What are the similarities?

19. French Sources of Law • France, like other civil law countries, has written and unwritten sources of law.

20. Written Sources • Constitutional Block • Constitutional Statutes • Statutes (referendum/parliamentary) • Ordonnances and regulations

21. Unwritten Sources • Judicial Decisions • Custom • Academic Writing

22. The French Constitution • The present French constitution, which established the Fifth Republic, is at the top of the hierarchy of French sources of law • Passed in 1958, masterminded by General de Gaulle • This is the 15th Constitution of France

23. The “Constitutional Block” (le bloc de constitutionnalité) • In law, the Constitution is more than just the 1958 text (deals primarily with powers of government institutions), but also: • The Declaration of Human and Civil Rights of 1789 • The Preamble to the 1946 Constitution • The fundamental principles recognized by the laws of the Republic and referred to by the 1946 preamble

24. Fundamental Principles • Vague concept • Allow Conseil constitutionnel to look at Acts passed before 1946 and extract from them their underlying fundamental principals • This gives Conseil constitutionnel a very free hand • No definition as to what these fundamental principles are

25. Declaration of Human and Civil Rights of Aug. 10, 1789 • La Declaration des droits de l’homme et du citoyen • Incorporates basic principles of equality, freedom of conscience, belief, association and expression, and the presumption of innocence, until convicted by due process of law

26. Conseil Constitutionnel • This is the French constitutional court, which can review laws passed by the parliamentary body prior to the laws entering into force. The Conseil constitutionnel also ensures proper conduct of and reviews all disputed elections. There is no appeal from the Conseil constitutionnel • See http://www.conseil-constitutionnel.fr/anglais/ang4.htm

27. Constitutional Statutes - lois organiques • Flesh out details of the constitution • Special procedures must be followed for such statutes to be made • National Assembly can only pass statute without Senate support if voted with absolute majority of mebers • Must be submitted to Conseil constitutionnel to make sure they don’t conflict with Constitution

28. Statutes • Much lower in the legal hierarchy than in U.S. • 2 types: • A. Voted by people directly in referendum • B. Voted by people’s representatives in Parliament - can amend and repeal A

29. Codes • It is well known that a lot of French law has been codified since the days of Napoleon Bonaparte in the 18th century • Codes are essentially statutes since they are just the product of a single or several long parliamentary acts

30. Codes 5 original codes were: • Code civil • Code de la procédure civile (as of 1976, Le nouveau code de a procédure civile) • Code de commerce • Code pénal • Code de procédure pénal • Many other codes now exist - seehttp://www.legifrance.gouv.fr/html/frame_codes1.htm (in French)

31. New Program of Codification • French government is undertaking a new program of codification to improve access to the law • Legislative powers to carry out this program of codification were contained in an Act of July 16, 1999