The referendum on the EU constitution that will take place on May 29 in France has become by far the main object of interest in this country. Every night, on television, promoters of the “Yes” debate with promoters of the “No”. Politicians, artists, academics, student and workers all participate in the debate. Retired politicians make their come back (L. Jospin, J. Delors) and recently, S. Veil, a constitutional council judge, temporarily left her functions in order to participate freely in the debate. In my university alone (Paris X-Nanterre), during the last month, M. Barnier, Minister of foreign affairs and R. Badinter, ex-Minister of Justice and ex-President of the constitutional council, have been scheduled to speak in front of the students. The students, themselves, are putting up stands at the entrance of the University inviting all interested in discussing the constitution to confront their arguments.
The last time, the French population was able to vote on a European Treaty in was in 1992 for the Maastricht Treaty. The debate then, was nothing like this one. A very large consensus inside the political world prevented any real opposition to the adoption of the Treaty and thus any reason for a passionate debate.
This time around things are different. There is strong left-wing opposition to the EU Constitution. In 1992, the nationalists (Front National) were against the adoption of the Treaty, as were the extreme left-wing parties (Parti Communiste Français, Ligue Communiste Révolutionnaire and Lutte Ouvrière), there was also an opposition to the treaty inside the two main political parties (J-P. Chevènement in the Parti Socialiste, C. Pasqua and P. Seguin in the RPR, now UMP) that drew a minority of voters from their parties but didn’t jeopardize the victory of the “Yes”. All these people are active in this year’s campaign, but if their victory seems more likely (the last poll shows a parity of the 2 positions in the public opinion) it is because they have been joined, in their opposition to the EU Constitution, by a much larger body of non-affiliated left-leaning members of the civil society.
From a national perspective one of the fundamental aspects of this campaign is the division of the French parliamentary left-wing into two camps that transcend the old distinctions between communists and social-democrats. Thus, the division exists even inside the moderate social-democrat parties (i.e. Parti Socialiste (Socialist Party) and Les Verts (the Greens)). The dilemma whether or not to accept a free-market capitalism alla americaine continues to cause rupture within these parties. This is mainly what the actual debate is about.
The arguments of the left-wing proponents of the No can be resumed in the 3 following points: 1/ The EU Constitution is not a proper constitution; 2/ the institutional arrangements that it determines are not democratic enough; 3/ it entrenches an economical liberal ideology; 4/ some fundamental rights provisions contradict typically French republican conception of the State.
1. The first point touches upon the way the text was elaborated (a), the types of provisions it contains (b) and the process for amending it (c). a) The constitution was elaborated by representatives of the Member States and European institutions that lacked a clear popular mandate. Furthermore the people, inside the Member States, were not sufficiently informed about the process of the drafting of the Constitution. While it was going on the media and the national politicians did not make an important issue of it. They ignored the dictum that elaboration and adoption of a constitution is an event in political life that requires massive involvement of the people, otherwise it risks lacking completely a required legitimacy. b) Part three of the EU constitution contains provisions that are not neutral in the sense that they stem from a precise ideology which is far from being shared unanimously. The constitution should be based on a consensus on certain institutional arrangements and some fundamental rights, the rest (i.e. all the controversial issues) should up for grabs. Hence, it should be left to legislative politics, not entrenched in constitutional provisions. c) In order to amend the EU Constitution, unanimity among the member states is required. This causes a stalemate of a normal constitutional amendment process that suggests that a constitutional change should occur whenever a large majority agrees on a change of the constitution. This requirement is especially important whenever a Court – such European Court of Justice – is empowered to strike down laws on the basis of constitutional provisions.
2: The second point criticises the institutional arrangements of the EU Constitution for not being democratic enough. The crux of this critique is that the EU Parliament is not invested with enough power (a), on the main political issues, unanimity of Member States is required (b), the executive branch will be inefficient (c). a) The only institution with a legislative initiative is the commission; it is still denied to the Parliament, which doesn’t determine the taxes either. b) In the main domains – foreign affairs, defence and fiscal issues – any policy requires unanimity among the member States. This will make it very hard to adopt any ambitious policy outside Europe or inside and allow a minority to rule by blocking initiatives of the majority. c) The executive branch will be separated in 4 distinct authorities: the Commission, the Council, the European Council and the European Central Bank. Furthermore the European Council and the Council will both have Presidents that could, depending on the circumstances, develop rivalry relationships with the President of the Commission. All of this will render difficult the adoption of any clear political position and thus contribute to making the European institutions politically weak.
3. The third point is insisted that economic liberal ideology holds a monopoly over the EU Constitution (a) the proclamation of liberal values, (b) the constitutionalisation of liberal policies (c) and the prohibition to adopt interventionist policies in important domains. a) Part I of the EU Constitution states as one of its objective “an internal market where competition is free and undistorted”; throughout the text many provisions that rest on liberal values clearly demonstrates that the majority of the founding fathers were economic right-wingers. A Constitution which establishes a set of consensual rules according to which the political game is supposed to evolve, should not proclaim its faith in a particular ideology. b) Part III of the constitution does the same, not with values, but with specific policies; this, as was pointed out before, should be left to legislative decisions. c) Any policy contrary to the proclaimed values of the Union is tacitly forbidden through several mechanisms and provisions: the impossibility of any volontarist fiscal policy, the total independence of the Central Bank, the incompetence of the European Union in the domain of labour law and salaries. This impossibility to have any social policies at the European level along with the liberalisation of the market constrains the States to abandon social rights or fiscal policies at their own level.
4. Finally, some people fear that the principle of laicité or the refusal to recognize cultural minorities which are cosubstantial with the French constitutional history will be compromised by some of the fundamental rights in part II of the Constitution. This fear, however, is not shared by all opponents of the Constitution.
I believe that most of these arguments are relevant. They would have to be formulated with more nuances to resist some serious attacks coming from the proponents of the Constitution but they are definitively not irrational and emotive as J. Habermas pretends in an article published recently in Le Monde. Still, after having defended a vote against the Constitution, I have changed my mind and will vote Yes on the 29th. Why ? For three simple reasons. Firstly, because the drafters of this controversial text had the courage to call it a Constitution. Symbolically it has great meaning and thus represents a formidable step forward in the construction of a European political community. Secondly because I believe that in the near future we can keep the good symbol while changing the bad content of the constitution in order to make it acceptable to those who resist it now on the basis of a left-wing ideology. The unanimity rule will make it difficult but not impossible. Thirdly, because, as many critics pointed out, no current political force is capable of proposing an ambitious alternative to this liberal project. If we must work at forging such a project in the coming years, then let’s do it together with the force, the creativity and the knowledge that is brought about by political mixing (métissage politique).
Raphael Paour, PhD researcher at the European University Institute in Florence and lecturer at the University of Evry, in France.