Category Archives: Conseil Constitutionnel

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.