–Alyssa S. King, PhD Candidate in Law, Yale University; Resident Fellow at the Yale Law School Information Society Project
Jean-Louis Debré’s term as President of the French Constitutional Council is now coming to a close. The son of former Prime Minister Michel Debré, who drafted most of the Fifth Republic’s current constitution, was a successor to his father, both in his broad vision of institutional reform and in his pragmatic approach. Debré fils was one of the architects of the Council’s a posteriori review power through the “priority constitutional question” (abbreviated by French jurists as QPC), which took effect in 2010. Litigants may raise the QPC at any stage in their proceedings to challenge a law as unconstitutional, but they must give it this challenge priority over claims that the law violates rights protected internationally—notably by the ECHR and the EU Charter of Human Rights. QPCs are filtered through the Cour de Cassation, France’s supreme general court, and the Council of State, the supreme adminstrative court. Prior to the institution of the QPC, the Council could only review legislation a priori, after it was passed, but before it took effect, at the behest of the Parliament or the President. As I argue elsewhere, Debré and others pushed this change as a way to keep rights adjudication in the domestic sphere in the face of increasing Europeanization. However, the QPC also entails a profound reevaluation of the Council’s role—one the recent antiterror legislation is testing. Despite France’s historical fear that a posteriori review would abrogate Parliament’s power, the dynamics of the QPC may explain the Council’s recent deference on this and other issues.
The QPC has significantly expanded the Council’s caseload and its visibility.
Since the QPC’s inception, the Council’s answers to constitutional questions have outnumbered its a priori decisions by roughly three to one. And the Council is increasingly intervening at an earlier stage in proceedings. Most early constitutional question came from the other apex courts, the Cour de Cassation and the Council of State, or from Paris. Although Paris is still overrepresented, QPCs are increasingly coming from first instance courts on both the general and administrative sides. QPC also opened the doors of the Council’s corner of the Palais Royale, requiring public audiences where once the Council had only engaged in closed-door deliberations on written submissions. (Video of the Council’s hearings is even readily accessible online). President Debré now seeks a further expansion of the Council’s powers to include review of laws for their compatibility with France’s international commitments, the so-called review for “conventionality” as opposed to constitutionality. The Council explicitly disclaimed this power in a 1975 decision.
At the same time as this expansion has occurred, the Council has taken care to be explicitly deferential to Parliament—insisting that the legislature also has a role in interpreting the constitution. Alec Stone Sweet has argued that the Council’s a priori review powers give it quasi-legislative status, limiting Parliament’s responsibility for contentious decisions. In recent a priori decisions, the Council has explicitly disclaimed such a notion. When the Council upheld a law liberalizing access to abortion in 2014, accompanying official commentary stated that Parliament had a large “margin of maneuver” in deciding how and when to protect abortion rights. The Council made a similar statement in commentary when it reviewed legislation expanding surveillance powers in the wake of the Charlie Hebdo attacks. This a priori case was the first in which the President sent a new law to the Council for review. The Council upheld some provisions and limited others, so Parliament revised the law. The Council approved the revisions, but also cautioned that it did not examine provisions of which it was not specifically seised.
This judicial prudence may reflect in part a desire to preserve issues for later review. The QPC is not available to an applicant who seeks to challenge legislation that has already been declared constitutional, unless the applicant can demonstrate “changed circumstances”—a proviso whose meaning is not yet fixed. Limiting the Council’s a priori review, or stating that a certain piece of legislation reflects Parliament’s judgment of constitutionality and not the Council’s, may give it a freer hand if it decides that the legislation is unconstitutional upon seeing it put into practice. Desire to limit access to the QPC might be one reason why the President sent the security legislation to the Council for review, and why his saisine sought broad review of its most controversial positions.
Deference to Parliament also fits the Council’s role as court. French constitutional law scholars have long debated whether the Council is a court or a council. Long before the QPC, the Council gained prominence by ruling, a priori, on many major controversies. The Council condemned a law aimed at Communist publications and upheld the liberalization of abortion. It has weighed in on bioethics and security issues, and almost without fail, members of Parliament seek its opinion on constitutionality of the national budget. Yet members would still insist that it was a “council” and its work was fundamentally different from that of the courts. Part of this reluctance to call themselves a court might have stemmed from France’s resistance to judicial review of legislation. Although academics briefly flirted with the idea during the Third Republic, the excesses of the American Lochner Court soon convinced them that it was a bad idea—they did not want their judges to be able to prevent Parliament from responding to citizen demands for reform. This historical resistance helps explain why France did not adopt a posteriori constitutional review until 2010. With the QPC in place, and the Council’s status as a “judicial” body seemingly assured, its members have to contend squarely with the countermajoritarian difficulty.
This concern may be behind the Council’s cautious approach to the current state of emergency. The Council declined to censure emergency legislation that allows numerous restrictions on an individual’s freedom of movement, including curfews, police checks several times a day, or temporary detention. In doing so, it explicitly cited Parliament’s role in implementing the constitution and determining the scope of rights and liberties in France. It stated that a QPC was not the proper place to challenge Parliament’s understanding of its constitutional role—an issue that presumably goes beyond rights and would be reviewable a priori only. In the midst of a national state of emergency, the Council was not eager to test the bounds of its powers in a conflict with Parliament, choosing instead to present itself as Parliament’s partner. Its citation to the European Court of Human Rights’ jurisprudence in the accompanying case dossier even takes the extra step of defending the law against European-level censure. Such citations are unusual for the Council, but have appeared more than once in recent security legislation dossiers.
The legislation that the Council reviewed was from 1955, passed during France’s Algerian conflict and predating the 1958 Fifth Republic constitution. French President François Hollande seems to hope new emergency powers will also avoid constitutional censure. At a recent New Year’s meeting with the Council—an occasion for vague speeches of praise on all sides—the President made a point of saying that he is happy that the Council has not become a “government of judges,” using the phrase French academics first applied to the Lochner Court. Perhaps he is, but the Government isn’t taking any chances. It passed a law extending the current state of emergency quickly, and convinced members of Parliament not to seize the Council. Further changes to emergency rules and nationality law are being debated as constitutional amendments, outside the Council’s current reach. Debré senior’s constitution included no bill of rights, but the Constitutional Council subsequently read multiple bills of rights in. The junior Debré may yet find that the QPC becomes an avenue for more frontal challenges to the Government and Parliament than he now imagines.
Suggested Citation: Alyssa S. King, As Jean-Louis Debré’s Term as President Comes to a Close—Whither the French Constitutional Council?, Int’l J. Const. L. Blog, Jan. 20, 2015, at: http://www.iconnectblog.com/2016/01/as-jean-louis-debres-term-as-president-comes-to-a-close-whither-the-french-constitutional-council
 See Alec Stone, The Birth of Judicial Politics in France (1992).