The French Constitutional Council: Another Work-in-Progresss

Abstract

The French Constitutional Council (hereinafter the Council) is a creation of the 1958 Constitution of the Fifth Republic (hereinafter the Constitution). From inception, the Council was special. Established in a relative indifference, the institution originally fulfilled the role of watchdog of the executive by being entrusted with the task of preventing Parliament from encroaching on the prerogatives of the government which enjoyed a then new autonomous regulatory power. Such a circumscribed role meant that the Council was not set up as a proper constitutional court similar to those established after the Second World War in Germany or Italy, for example. Without rehashing, the reasons behind this choice lie in the particular context of the beginnings of the current Republic, including its approach to the separation of powers and the role the judiciary. Correlatively. This had also to do with the status of the loi (hereinafter law) as a norm which, from then on, could only be restrictively challenged within the confines of a limited form of review, namely the a priori review before its promulgation. The history of French constitutional law had resulted at this juncture in time into a double distrust: towards Parliament, on the one hand, and towards judges, on the other hand. Parliament could not be trusted to respect the prerogatives of the executive as attested by the failure of the previous Republics, which led under the Fifth Republic, to ‘rationalise’ the parliamentary system and which explains, to an extent, the way the ensuing Constitutional Council was established; as for judges, the centuries-old mistrust towards them dated back from before the Revolution when they would oppose the passing of important pieces of royal legislation – the upshot being an enduring aversion towards any form of judicial constitutional review.