Bottini, Eleonora

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Constitutional? Perhaps. Democratic?Not so muchEleonora Bottini 2023-03-27T18:12:27On the morning of Thursday 16 March, French President Emmanuel Macron metwith his Prime Minister Elisabeth Borne and the other members of the cabinet inan emergency government meeting about the ongoing reform of retirement, which,amongst many other provisions, raises the minimum retirement age from 62 to64. This provision has been met with fierce opposition by the unions, the politicalopposition in Parliament and a large part of the population. After a procedure ofconciliation by a Joint Parliamentary Committee composed of 7 senators and 7deputies, which was reunited Wednesday to agree on a common version of the bill,the two heads of the executive power have counted their votes. If the Senate hasadopted the text without much surprise and a comfortable majority (193 yes and114 no) on Thursday morning, the National Assembly presented more of a risk.The Government, which initiated the bill at the behest of President Macron, couldonly count on a tiny majority of a few votes in favor of the text, which seemed notto be enough to take the risk of a rebuke. Instead, the President decided togetherwith the Prime Minister to activate article 49 paragraph 3 of the French Constitution,allowing the Government to engage its responsibility in front of the lower chamberof Parliament on the vote of the bill. With this procedure, on the Prime Minister’srequest, all debates are interrupted for 24 hours. Once this delay has passed, eitherthe opposition manages to adopt a motion of no-confidence, and the Governmentmust resign (which also means the bill is abandoned), or the bill is “considered asadopted” without a vote by the National Assembly. In this case, the result is that thebill has passed as such, because the compromise text cannot be further amendedunless the Government accepts it (as per article 45 paragraph 3 of the Constitution).After Borne’s activation of “the 49.3” on Thursday afternoon, different parties havestarted organizing their no-confidence motions, including one across party lines, filedby a centrist deputy. It has been the most popular motion out of the two, supportedby 278 members, 9 votes short of what would have been needed for it to pass withan absolute majority. Other than the closeness of this vote, the most notable figureis the one third of the Republican parliamentary group, a center-right political partythat is supposed to be in a coalition with the government’s majority, who also votedin favor of the motion (19 deputies out of 61).A tricky combinationArticle 49 paragraph 3 has existed in the French Constitution since its adoption in1958. Charles De Gaulle had wanted it in the text to avoid the kind of parliamentaryblockage he had witnessed during the previous regimes of the 3rd and 4thRepublics.1) The provision is meant to force the adoption of a legislative text- 1 -initiated by the Government unless the opposition to it becomes an opposition tothe Government itself. Until now, the article has worked in favor of governments:out of the 100 times it has been used in 65 years, every single time the motions ofno-confidence, which have been systematically filed 24 hours later, have failed tobe adopted by an absolute majority of the members of the National Assembly. Thisis due in part to the constitutional mechanism for the vote of those motions: only ifthe absolute majority of the 577 members of the National Assembly approves themotion, the resignation of government by the Prime Minister will ensue. This meansthat absents and abstentions are counted as votes in favor of the Government.This does not mean, like in Germany or Spain, that the oppositions must agree on analternative majority to govern: France does not have the same constructive vote ofno-confidence as those two European countries. Still, the adoption of a motion of no-confidence is not more frequent in France, rather the opposite: only once since 1958such a motion has passed, and never as a result of article 49 paragraph 3. In 1962,De Gaulle as President had organized a referendum to change the electoral systemfor his own election, from an indirect vote to a direct suffrage of the people: a changeof the Constitution that avoided the proper procedure for constitutional amendments.Members of both the National Assembly and the Senate were largely opposed tothis initiative, mostly because they had not been included in the procedure. Becauseof the impossibility to sanction the President himself (who is politically irresponsibleaccording to article 67 of the Constitution), a majority of members of the NationalAssembly passed a motion of no-confidence and forced the Government to resign;as a response, De Gaulle dissolved the lower house and new elections were held.After a comfortable victory of the President’s supporters, who gained 269 seats outof 482 in the renewed National Assembly, the constitutional amendment that initiatedthe crisis was considered democratically approved by the people, and that was thatfor no-confidence motions for the rest of the 5th Republic.Since then, article 49 paragraph 3 has been used and also abused by governmentsin lack of majority. Socialist Prime Minister Michel Rocard used it 28 times between1988 and 1991. To avoid such misuses, the constitutional reform of 2008 reducedthe number and type of bills that can be subjected to such an executive passageen force: only financial laws (including the social security budget) and one other billchosen by the government can pass through this mechanism every year. ElisabethBorne’s Government has already used article 49 paragraph 3 ten times in the fall2022 to pass the state budget. This more recent use relies on another article of theConstitution: Government decided to insert the pension reform in the bill rectifyingthe 2022 social security budget. The result is that the parliamentary debate fallsinto the scope of article 47-1 of the Constitution, stating that the National Assemblyhas 20 days and the Senate 15 days maximum to examine the bill. If the overalldiscussion exceeds 50 days, the Government has the right to pass the samemeasures through executive orders, bypassing Parliament altogether. Such stricttimeframes are typical of financial laws as they are meant to ensure that both theState budget and the budget of social security are approved in time for the beginningof the fiscal year. The use of this article for this controversial reform had beencriticized already as being potentially unconstitutional.2) Combining it with article 49paragraph 3 is unprecedented and calls for a real reflection on the constitutionality- 2 -of the entire operation. This assessment is now in the hands of the ConstitutionalCouncil, the closest France has to a constitutional court. The Council is known asbeing generally deferential towards the executive power, being composed not byjudges but by former politicians appointed by the three highest functions of theRepublic (President of the Republic, President of the Senate, President of theNational Assembly).Democratically flawed?The use by the executive of an article or two of the Constitution, as well as thecombination thereof, is deemed constitutional until a competent organ saysotherwise. And the only one who could, the Constitutional Council, will probablynot say otherwise. But even if something is constitutional, that does not make itdemocratic.A look into the justifications for this procedure given by the head of State and thehead of Government stirs reflection on the relationship between the constitutionaland democratic character of the proceedings described above.The executive power justified the use of article 49 paragraph 3 with two mainarguments.First, as President Macron announced, a vote on the reform of retirement was infact going to happen on Monday, it can therefore not be said that the bill wouldpass without a vote. Second, the Prime Minister affirmed she could not risk thecompromise bill to be put aside by the lack of a majority in favor of the reform.For both arguments, a democratic counterpoint can be raised: the vote on Mondaywas not on the reform but on the survival of the Government, and it is not the samething for members of Parliament to oppose a bill and to topple the Government,with all the potential consequences (including early legislative elections). Also,arguably, to find a compromise on a bill and then to undertake the risk of Parliamentrejecting it, can be easily described as the essence of parliamentary democracy.Such a system requires an appetite for political compromise that the institutions ofthe French 5th Republic do not seem to have. This hybrid regime, parliamentarywith presidential features such as an elected head of State, has rarely seen minoritygovernments. Today’s political situation combines a president elected by an absolutemajority of the people (with all the limits of the 2022 election, marked by the rejectionof the far-right candidate Marine Le Pen rather than an actual approval of EmmanuelMacron) and a relative majority of seats in Parliament for his political party.The French Constitution includes mechanisms to overcome this difficult situation.That does not mean that following it to the letter by using all its possibilities togethercorresponds to all and every definition of democracy.Constitutionalism and democracy have a complex relationship and the twoconcepts do not always imply one another. Examples of constitutional populism andilliberalism in Europe have largely shown that following (or using) the constitution is- 3 -not a guarantee of democratic behavior. Constitutions have been instrumentalized,distorted or changed to please political leaders in the pursuit of their policy. Thecurrent crisis in France might not have yet resorted to this level of democraticbacksliding (even if the increasingly violent police reaction to street protests isworrisome), but to conclude that all constitutional action is automatically one thatfulfills the democratic promise is inaccurate. Especially within the current crisis ofrepresentative democracy, undermining the people’s representation in Parliament byforcing their hand while referring to the people in the streets as a “mob” might not bethe best way of solving the political situation.References• In fact, the idea of a confidence question on the vote of a bill appearedtowards the end of the 4th Republic, but it was never adopted, and resurfacedduring the constituent debate of the 5th Republic when it was approvedby De Gaulle and his legal advisor Michel Debré:  see Silvano Aromatario,“La genèse du 49 al. 3”, Revue générale du droit on line, 2019, n° 43719(www.revuegeneraledudroit.eu/?p=43719).• Also, the use of a financial law to pass a political reform such as the one onretirement renders the recent announcement of the Prime Minister to onlyuse the “49.3” for financial law potentially a potentially moot point: https://www.tf1info.fr/politique/video-la-premiere-ministre-elisabeth-borne-ne-recourra-plus-au-49-3-en-dehors-des-textes-budgetaires-2252166.html.- 4 -

Constitutional? Perhaps. Democratic? Not so much

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Constitutional? Perhaps. Democratic? Not so much

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