In France, the judicial review of legislation takes place on demand of the President of Republic, the Presidents of the Parliament or 60 members of one of the Houses of Parliament. It has to be activated before a bill is promulgated by the President. And once it has become enforceable, a bill cannot be struck down by a Court, even in cases of patent unconstitutionality. This system of judicial review of legislation is therefore said to be strictly a priori.
This type of institutional design makes it easier for members the political class to protect a piece a legislation they fear would be found unconstitutional by the judges. In order to keep a bill out of reach of the Constitutional Court, a very large majority of the parliamentarians is however required as 60 of them are enough to start the procedure. It is now very rare that, on controversial issues, this number isn’t reached and thus the Constitutional Court is able to check the important bills. It has happened in latter years that a popular bill was promulgated without being reviewed because the opposition didn’t want to take the responsibility of starting the procedure that would end with the invalidation of key provisions. In those rare occasions, constitutional scholars and journalists denounced a secret pact between majority and opposition to do away with fundamental rights. In other terms the strategy was never reviled by the political actors themselves.
Three days ago, the Minister of Justice, out of all Ministers, publicly advocated this strategy. In fact he tried to force the pact on the left wing opposition more than he proposed it. The Parliament is about to adopt a bill on recidivist sexual-delinquents which will impose them to ware an electronic bracelet. In apparent contradiction with the constitutional principle of non retroactivity of legislation, this new rule would be applicable to delinquents who have already committed these types of facts. Acknowledging that there was “a risk of contradiction with the constitution” he explained that he was willing to run it and that “all members of Parliament could run the risk with him by not asking the Constitutional Council to review this piece of legislation and that those who would demand it would be taking the political and human responsibility of impeding the application of the new bill to the stock of imprisoned sexual delinquents.”
Now the President of the Constitutional Council it self has spoken up arguing that respecting the constitution is not a risk but a duty. The oppositions had to claim that this is an unacceptable unconstitutional behaviour etc. And now it has really no choice but to send the bill before the Constitutional Council.
What conclusions can be drawn from this amusing episode? If the opposition intended not to demand the review of the bill, then the comments of the Minister of Justice were not the smartest things to say. If on the contrary it had its mind set on demanding the review, then the Minister’s comments makes it easier as it is now possible for members of the opposition do it proudly without risking to put off the voters even if the bill is popular (which I don’t know that it is) because they will appear to be heroes who will stop at nothing to protect the constitution against the barbaric members of Government.
In all cases then, Monsieur Clément miscalculated his move. He is one of Sarkozy’s buddies and I hope that he will make many more mistakes of the kind before the presidential elections.