On A French Constitutional Irony

I don’t usually blog about French news, but I had to share the irony of what is going on in the current trial of former President Jacques Chirac. As you might not know, he is on trial for having given fake jobs, paid by the Paris municipality, to people who were actually working for his Party, the RPR (which is now the UMP, the party of current President Nicolas Sarkozy).

This situation had already given rise, 10 years ago, to an interesting discussion on the immunity of an acting head of State, which had been affirmed at the time. The immunity fell when Chirac left power, and the investigation led to the trial which started this week.

On the first day of the trial, the lawyer for one of the other plaintiffs raised a constitutional challenge against the statute of limitations for this kind of crime, which starts running, according to the case-law of the Cour de Cassation, on the day they are discovered, not on the day they are committed.
Such a constitutional challenge is possible since a recent reform of the procedure in France. Before that, laws could be sent to the Constitutional Court before their promulgation, but they were untouchable after that. Now, anybody can raise a challenge in a lower court, and, if the question seems to be well grounded, the proceedings are suspended until the Constitutional Court. It is this procedure which allowed the Court to declare the current system of preventive police incarceration to be unconstitutional.

And now for the irony. The Constitutional Court was set up in the French Constitution of 1958, under the influence of both De Gaulle, and his minister, Michel Debré. And it just happens that De Gaulle’s grandson and Debré’s son are plaintiffs in the current case. More strikingly, the Court is currently presided by Jean Louis Debré, the brother of the plaintiff, and Jacques Chirac, as a former president, actually sits on the Court…
Although there is apparently a procedure to remove a member of the Court in a particular case, this example more generally shows that the reform put in place was not thought through. Indeed, with the Court essentially involved in the pre-promulgation phase, it wasn’t so much of a problem that it had such a political composition. However, now that it has such a strong judicial function, its composition should be changed. If the function changes, so does the institution. The current French Conseil Constitutionnel is a vestige from the past, and must be reformed to face the new legal reality.

3 responses to “On A French Constitutional Irony

  1. Indeed.Although I entirely agree with you, I cannot help but note that the Conseil Constitutionnel works a lot better in reality than the theory would lead us to believe.And to be honest, concerning the case of Mr. Chirac, I am more concern about the presence of Former Presidents in the Council, including Mr. Chirac himself, than Mr. Debré.But yes, the composition should consist only of experienced magistrates (both publicist and privatists) and Constitutional law professors. And just a quick thought/question: maybe merge the Conseil Constitutionnel and the Tribunal des Conflits ?

  2. You are certainly right that the CC did work reasonably fine. I'm generally not a person of principle that changes things just for the sake of changing things (for example, I liked the way the House of Lords functioned in the UK, irrespective of whether hereditary peers are anti-democratic or not). But in the current situation, a mixture of this weird composition, but most importantly, the poorness of the decisions rendered under the new procedure (the garde à vue decision and the burqa decision were terrible), makes me think that things should definitely change and that the current composition of the Court is outdated.As for the fusion with the Tribunal des Conflits, I don't really have a clear-cut opinion, but I would think it's really two different functions.

  3. The Tribunal des Conflits is an entirely different function, but I still think it would make some sense to have it work within the CC institution, especially if the latter's composition is changed.I'd love to start a discussion on the niqab (my apologies, but I staunchly refuse to use the word 'burka' in the context of that debate) and the garde à vue, but I feel this isn't the place.Next time you're in Paris, perhaps… Around a good Médoc bottle.

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