Amber Talaski
Besso argues that if the amendment procedure in place in a
country is more difficult to overcome, there will then be fewer constitutional
amendments (2005: 74). Since its
enactment in 1958, France’s constitution has been amended 24 times. Given this logic, and compared with world
statistics, France would appear to pose less difficulty in amending its
constitutions as opposed to many other countries such as the United States.
The amendment
procedure of the constitution first begins at the initiation by the president,
at the proposition of the prime minister, or members of parliament. If the amendment is initiated by the
government or a member of parliament, a referendum is required to pass it. If the president decides to submit it to
Parliament, the bill must be passed by three fifths of Congress (both Senate
and National Assembly together). The
original constitution in 1958 was ratified by public referendum. In this case, the method of ratification of
the constitution did essentially follow one of the paths that has been laid out
in the constitution.
Since the implementation of Napoleonic Code in 1804, France
has maintained a system of civil law, and has in fact served as one of the
poster children for it. Napoleonic Code,
and its resulting legacy of civil law, came about as a necessity for rationally
coded laws based on principles from the Enlightenment and French Revolution (Lyons). While codification was not new, this code focused
more on creating a legal system in which a judge would find the law rather than
make it. Obviously, this civil code first
introduced by Napoleon has seen many changes over the past two centuries, but
its spirit remains. France embodies a
system in which laws are much more explicitly stated and clear, so as to
require little interpretation.
A notable change in the Fifth Republic’s drafting of its new
constitution was the creation of a Constitutional Council as a forum for
informal amendments. France’s
constitution definitely outlines an active role for members of the
Constitutional Council in terms of judicial review. Article 46 explicitly states that “Institutional
Acts may not be promulgated until the Constitutional Council has declared their
conformity with the Constitution”. The
Constitutional Council is composed of 9 members, 3 each being chosen by the president,
the leader of the National Assembly and the leader of the Senate, in addition
to all surviving heads of state. Their
role is to deem constitutionality of laws in a priori fashion. In this way, informal amendments are not needed
as much because this process is usually cut short by determining
constitutionality before the law can
take effect.
I tried to touch on all points brought up by the question
and also the subsidiary points Professor McElwain brought up. Obviously, this question and also this post
can be expanded a lot further and I’m very interested in seeing what you guys
have to write about particular aspects of this topic!
References:
Besso, Michael. 2005. “Constitutional Amendment Procedures
and the Informal Political Construction of Constitutions.” The Journal of Politics 67 (1):69-87.
Lyons, Martyn. Napoleon
Bonaparte and the Legacy of the French Revolution. 1994.
This comment has been removed by the author.
ReplyDeleteI agree with the leader post that the French constitution provides more room for amendment compared with other democracies. Yet, instead of focusing on the history of the French constitutional change, I would rather like to supplement the decisive role of the Constitutional Council in the amendment process of French constitutional history by 1980’s and the role of referendum in French constitution.
ReplyDeleteAs the leader post stated that the Constitutional Council serves as a forum for informal amendments, the Constitutional Council was established mainly due to the fear of “government by judges,” in order to prevent a quasi-judicial body (1). By 1980, the formation of Constitutional Council was undeniably based on political ground. For example, when the ring-wings dominated the Constitutional Council in 1980, the council made a number of ruling in constraining the Socialist government action. In other words, unlike other western countries, this informal institution for deeming constitutionality of law, was actually springing from political instead of solely legal consideration. In this sense, it is apparent that the staunch tradition of France, with the Napoleonic Code in 1894, has only preserved little power for judicial review for the process of constitutional amendment but for the Constitutional Council. More importantly, by 2008, the latest constitutional change of France, enables the Constitutional Council to exercise the power of judicial review, further empower this institution in the amendment process (1).
Another important point should be remarked is that most French constitutional amendments were gone through by referendum while some have been proposed by parliament (2). In Art 11, the France government and parliament were allowed to put important bills and reform proposal into referendum (3). For example, the most important amendment to France in 1962, introducing the 2 round running off system of the French presidential election, was made by referendum.
By and large, it is essential to point out that the importance of the Constitutional Council on the change of the French Constitution and the essence of referendum in the French Constitution.
References:
(1) Gallagher, M. Laver, M. & Mair, P. (2011) Representative Government in Modern Europe p. 106
(2) Gallagher, M. Laver, M. & Mair, P. (2011) Representative Government in Modern Europe p.90
(3) Constitution of France 1958 (rev, 2008). https://www.constituteproject.org/search#? q=France&cons_id=France_2008 (ALL French Constitution Article)
Response #4
ReplyDeleteSimon Kaufman
Amber, I think you do a great job laying out the history of amending the French constitution and a strong foundation for the process of amending it. I wanted to focus on France’s most recent amendment in order to provide an example of exactly how the amending process works. Although I agree with you that France has not made the amending process too difficult, I think analyzing the passage of an amendment shows that it still requires much consideration and time to amend the constitution.
On July 23, 2008 the constitution was amended to limit the French president to two terms (France Constitution, 2008). President Nicolas Sarkozy originally proposed the idea in 2007. Following this, a committee was assembled to formally propose the amendment. The committee reported back to Sarkozy in October of 2007. From here, a bill was created and had to get the approval of the National Assembly and the Senate (French National Assembly, 2014). The bill proposed a two-term presidential limit as well as other executive changes such as proportional representation in the National Assembly. The bill was approved on July 8, 2008, but not entirely. Proportional representation was not ratified, however the two-term limit was. Congress finally voted on it on July 21, 2008 and it was passed by the slimmest margin possible — only one more than the required three-fifths (France Constitution, 2008).
By analyzing this specific example, it goes to show that although France has made it possible to amend the constitution, it is by no means easy and does require a long process. In the case of its most recent amendment, the process took upwards of a year and a half from proposal to ratification.
Works Cited
ICL - France Constitution. (n.d.). Retrieved November 16, 2014, from http://www.servat.unibe.ch/icl/fr00000_.html
Welcome to the english webpage of the French National Assembly. (n.d.). Retrieved November 16, 2014, from http://www.assemblee-nationale.fr/english/
Sara Lilley
ReplyDeleteThe French constitution is very interesting, as noted by the previous posters. In the French constitution there is an important aspect called the “eternity clause” (1) that prohibits the amendments of certain provisions in the constitution that do not involve the intervention even by constitutional courts. This raises the notion that their involvement is questioned. Of course there is always the question of whether constitutional courts are allowed to meddle with constituent power or not. If the constitution is the highest law of the land, and judicial players play such an important role, then it is fairly sound to address that they play a paramount role in defining constitutional substance. As the previous posters mentioned, the French Constitutional Court is a main decider of constitutional amendments and their justicable rule. According to Baranger (1), Article 54 of the constitution is to allow for check on the compatibility between treaties and the constitution before anything gets ratified. If the constutional council, on a referral from the president, Prime Minister, any member of the National Assembly, or Senator, believes that a clause has a contradiction to the constitution, then authorization to ratify or approve the undertaking must be given after amending the constitution.
It is interesting because nowhere in the constitution does any clause clearly state that the Constitutional Council has the ability to review constitutional amendments, but it doesn’t prohibit such review either. I was confused a bit on the Constitutional Court’s jurisdiction exactly for s the articles and amendments. Articles 56 to 63 in the constitution go over what exactly is the Constitutional Council’s role, which takes into account judicial review, control of parliamentary acts (such as submitting referendum to the Council which rules on their constitutionality) and determining whether laws are unconstitutional and void. Finally, Article 89 of the constitution states that, “No amendment procedure shall be commenced or continued where the integrity of national territory is placed in jeopardy.” (2) Interestingly, to decide whether France’s integrity is jeopardized obviously involves a judgment that goes beyond legal forms. I was hoping that maybe another poster can get into greater detail regarding Article 89 and its meanings in regard to amending the constitution.
1. Baranger, Denis--http://law.huji.ac.il/upload/44Baranger.pdf
2. Copy of Constitution--http://www.servat.unibe.ch/icl/fr00000_.html
Charlene Zhang
ReplyDeleteThanks for Amber’s post on the amendment procedure on the constitution of France Fifth Republic! In the first paragraph of the leader post, Amber suggests that the amendment hurdle in France is lower than many other countries. In the comment post, Simon argues that, agreeing with Amber though amendment process is not too difficult, it is not easy as well. Here, I want to respond to both posts by offering the contrast between the amendment procedure of the Fourth Republic constitution and that of the Fifth Republic constitution. I want to argue that even though France’s current constitution still requires much time to amend as it is shown in Simon’s post, the Fifth Republic constitution has actually lowered its amendment hurdle by overcoming several amendment difficulties that were present in the Fourth Republic.
According to Pierce’s article “Constitutional Revision in France” published in 1955, he offers three main reasons for the difficulty of revising of France’s 1946 constitution. First, the unbalanced power of certain political group between two chambers: the upper chamber—the Council of the Republic and the lower chamber—the National Assembly, posed difficulty to pass amending resolutions (223). Second, Pierce maintains that there posed divergent desires to alter the relations between the National Assembly and the executive (234). Parliament’s intention to interfere with the functionality of the executive branch finally led to the incoherence of governmental policy and undermined French Republic’s ability to face challenges domestically and internationally. Third, there was the desire of all the non-communist groups to make technical changes and to curb the obstructive powers of the Communist (255). Pierce argues that the largely contrasted views of different parties within each house and between two houses account for the constitutional instability. He wrote this paper in 1955 and the ratification of the new constitution in 1958 affirmed his observation of the unstable features in the previous political entity.
Responding to those unstable features in the Fourth Republic constitution, the Fifth Republic tries to stabilize and elongate its new constitution using following measures. For example, it remedies the potential interference of Parliament by building up the legislative power of the government. In Article 89 of the constitution in 1958, “the President of the Republic…shall have the right to initiate amendments to the Constitution.” With this rising legislative power in the government, either imbalances of powers or divergent views of political groups in two chambers of the parliament did not matter much. Furthermore, the establishment of the Constitutional Council, which is not present in the Fourth Republic, plays a significant role of reviewing of newly-enacted legislation. The changes in the procedures of the parliamentary chambers subjected to the mandatory review of the Constitutional Council. Therefore, I think the Fifth Republic constitution has actually lowered its amendment hurdle by overcoming several amendment difficulties that were present in the Fourth Republic constitution.
Works Cited
Pierce, Roy. “Constitutional Revision in France.” The Journal of Politics, Published by: The University of Chicago Press. Vol. 17, No. 2 (May, 1955), pp. 221-247. JSTOR. Web. 15 Nov. 2014.
Constitution of France 1958 (rev, 2008). https://www.constituteproject.org/search#?q=France&cons_id=France_2008