Is the separation of powers undermined by the Constitutional Council?

• For the past few days, Internet users have been worried about a decision rendered by the Constitutional Council on the legal nature of orders. 
• And they are not alone. Indeed, after a decision of May 28, many jurists fear a weakening of the powers of Parliament in favor of the executive. 

There is little chance that this information, less sexy than a notarial report written in Aramaic, will make the front pages of the news or end up between pear and cheese during your next dinners with friends. And yet, for the past few days, some Facebook pages have been worried about an article published on Public Senate entitled "Orders: a decision of the Constitutional Council seen as" a time bomb "". On the "Yellow Vests Info" page, this article is for example accompanied by an alarmist comment: "Is Macron arrogating himself without saying full powers? It seems that yes… ”So let's go check all this.

This Facebook group worries about a decision of the Constitutional Council - Screenshot

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Everything started from a decision made by the Constitutional Council on May 28 at the bend of a case of installation of wind turbines in Finistère. What did the institution say? That an order which has not been ratified by Parliament could have retroactive force of law once the period of authorization has passed, provided that the bill ratifying the order has been tabled in time outsourced. To put it simply, the Constitutional Council states that once their deadline has passed, the ordinances "must be regarded as legislative provisions" in their own right, which was not the case until now. From there, it would, in the first place, be false to say that the President of the Republic has assumed full powers, as stated in the post on the page "Yellow Vests Info". 

To fully understand the scope of such a decision, it is necessary to go back to article 38 of our Constitution, which defines the legal nature of orders. These are a tool made available to the government to allow it to skip the “Parliament” box and take “measures which are normally in the domain of the law” - therefore voted by Parliament - “for a limited period ”, On the condition of obtaining its authorization beforehand (its“ habilitation ”in the lingo), in a particular context as may be that of the Covid-19 health crisis, for example.

But to guard against any abuse of power on the part of the government, Parliament must ratify the orders within a time limit set at the time of authorization. If it does not, the jurisprudence of the Council of State and the Constitutional Council was (until then) quite clear on the subject: after the period of authorization, the orders not ratified had regulatory value. Only here, by rendering its decision on May 28, the Constitutional Council may have created a precedent in the history of the separation of powers in France (enshrined in article 16 of the Declaration of the Rights of Man and of the Citizen of 1789), by devoting, once this period of authorization has passed, the legislative value of orders not ratified.

The Constitutional Council justifies its decision

Faced with the strong reactions aroused by this decision in the judicial microcosm,the Constitutional Council published a comment more quickly than expected, a sort of explanatory note supposed to explain the reasons for which it took such a decision. "The big question was whether the Constitutional Council would assume this reversal or if it would on the contrary minimize it," explains Paul Cassia, professor of public law at the Panthéon-Sorbonne University and author of a very detailed article on the subject. Upon arrival, he fully assumed it. It is now indisputable that the provisions of an order not ratified but for which the ratification bill has been tabled have legislative value, it has been established. And it is very serious. In a slightly more nuanced register, Julien Padovani, doctor of public law and teacher-researcher at the University of Aix-Marseille, is nevertheless "convinced that this decision can lead to a considerable weakening of the prerogatives of Parliament".

After the decree-laws of the Third Republic, here, by the effect of a decision of the @Conseil_constit of May 28, 2020, the ordinances-laws: under the Vth Republic, the @gouvernementFR can legislate, to the detriment of the prerogatives of the Parliament . https://t.co/IpzlSnbMXt

Drowned by the technical and technical terms served by our interlocutors - who themselves admit the complexity of the subject for laymen - and on the verge of falling into vape, we then ask Paul Cassia to give us a concrete example of the risks that can cause this decision. As it is almost summer, let's take the case of a strawberry prescription.

"It is the separation of powers that is under attack"

“Imagine that the legislator gives the government the power to adopt an act on strawberries. This one therefore takes a prescription for it, but at the same time it decides to addprovisionson apples. From there, how do you challenge the fact that the government has gone beyond empowerment? he wonders. It becomes complicated since the Constitutional Council said that these provisions are of legislative value, so they can only be challenged according to the mechanism of the QPC (Priority Question of Constitutionality), that is to say only with regard to fundamental rights and freedoms. However, the fact that the government exceeds legislative authority is not an attack on the right to constitutional freedoms. There is a blind spot which is nevertheless very dangerous since it allows the government to make, on the basis of authorizations, provisions on anything. "

"Until then, continues Paul Cassia, the Council of State verified that the provisions of the ordinances taken by the government entered well within the field of the authorization, that is to say that one could take an authorization on the strawberries and the Council of State verified that the ordinance was on strawberries. Tomorrow there will be no one to check on this. Imagine what it can be like if, tomorrow, we have a power that is more authoritarian than that we know today… ”.

If most lawyers seem to be worried together about the potential consequences of such a decision, what about Parliament, the first concerned in this case? “In general, it was experienced by parliamentarians as a formal attack by the Constitutional Council on Parliament. It is the separation of powers which is under attack, ”regrets the parliamentary attaché of a deputy LR to the Assembly.

The Constitutional Council, in a decision rendered on May 28, reviewed the legal nature of the orders. They no longer need to be ratified to have the force of the law. This decline in the powers of the French parliament, which already has few, is not acceptable.

"We have the impression that we are going back 60 years, at the start of the Fifth Republic, when we distrusted Parliament like the big bad wolf," he laments. There is a risk of seeing orders become law without even having been discussed or voted in the National Assembly, it is a dangerous door that has just opened. This is what Paul Cassia theorized under the name of ordinance-law, like the decree-laws dear to the Third Republic.

The ordinance, a favorite tool of the Macron presidency

To make matters worse, this decision of the wise men of the rue de Montpensier comes in the middle of the quinquennium of a government addicted to ordinances as never before has any other been in the history of the Fifth Republic. As journalist Pierre Januel revealed, "since the beginning of the year, we have counted 72, essentially linked to the Covid-19 crisis, and the interest of legislating in an emergency". To the point of going so far as to speak of abuse, as some parliamentarians denounce?

“Everyone agrees to say that yes, answers Julien Padovani.The problem is that it is not only during these times of crisis that the government uses prescriptions, far from it. "There were very few under Pompidou, Giscard or Mitterrand, and then suddenly we discovered that it was very practical and today Macron and his government are abusing it", abounds Paul Cassia. "Now, legally speaking, I want to say that there is nothing that prohibits it, it is the Parliament which accepts or not to do so", tempers Julien Padovani.

Nevertheless, this frenzy of the order well symbolizes the turn taken by our governments in the exercise of power in the age of social networks and news channels continuously. “It is a fundamental problem in reality: today we have to go fast, we have to stop asking questions, we have to legislate at all costs and the prescriptions correspond perfectly to that. Parliamentary time tries to follow media time, which suits the government well. But we are confusing speed and haste and it is neither good for the quality of the law nor for the confidence that citizens have in the National Assembly. "

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