The Constitutional Council was seized, by more than sixty senators, of an appeal against the constitutional law relating to the decentralized organization of the Republic, voted in identical terms by the National Assembly on December 4, 2002 and by the Senate on December 11, 2002, and adopted by Congress on March 17, 2003, in accordance with article 89 of the Constitution.
This referral calls for the following observations on the part of the Government.
- The competence of the Constitutional Council is determined by the Constitution.It can only be specified and supplemented by means of an organic law in accordance with the principles laid down by the Constitution (decision n ° 62-20 DC of November 6, 1962; decision n ° 92-313 DC of September 23, 1992).As a result, the Constitutional Council cannot be called upon to rule outside the cases expressly provided for by the Constitution or ordinance n ° 58-1067 of November 7, 1958, as amended, on the organic law on the Constitutional Council.
However, no constitutional provision, and moreover no organic provision, gives jurisdiction to the Constitutional Council to hear a constitutional law adopted by the constituent power. Article 61 of the Constitution covers, in its first paragraph, the organic laws governed by Article 46 of the Constitution and, in its second paragraph, only ordinary laws (according to the actual terms of decisions n ° 62-20 DC of November 6, 1962 and n ° 92-313 DC of September 23, 1992), that is to say the laws adopted by the Parliament according to the legislative procedure exclusively determined by articles 39 to 45, 49 and 10 of the Constitution. The second paragraph of article 61 of the Constitution cannot be interpreted as empowering the Constitutional Council to hear referendum laws adopted by the French people under article 11 of the Constitution, as has already been expressly ruled. (decision n ° 62-20 DC of November 6, 1962; decision n ° 92-313 DC of September 23, 1992). Nor can it empower the Constitutional Council to hear constitutional laws adopted by the constituent power by virtue of article 89 of the Constitution.
The Constitutional Council can therefore only decline its competence to hear the appeal which has been addressed to it, as it did when it was seized of referendum laws (decision n ° 62-20 DC of 6 November 1962 ; decision n ° 92-313 DC of September 23, 1992).
- It is true that the Constitutional Council has been led to specify that the constituent power is sovereign “subject, on the one hand, to limitations relating to the periods during which a revision of the Constitution cannot be initiated or continued, which result from Articles 7, 16 and 89, paragraph 4, of the constitutional text and, on the other hand, from compliance with the requirements of the fifth paragraph of Article 89 by virtue of which “the republican form of government cannot be subject to of a review ”” (decision n ° 92-312 DC of September 2, 1992; decision n ° 99-410 DC of March 15, 1999; decision n ° 2000-429 DC of May 30, 2000).
But it should be noted that this was judged so when the Constitutional Council was seized within the framework of the competences attributed to it by the Constitution. The decision of September 2, 1992 was rendered in connection with a treaty, in application of article 54 of the Constitution in its wording resulting from the constitutional law of June 25, 1992; that of March 15, 1999 ruled on an organic law examined in application of article 46 and the first paragraph of article 61 of the Constitution; that of May 30, 2000 examined, on referral to parliamentarians made by virtue of the second paragraph of article 61, the conformity with the Constitution of an ordinary law adopted by the Parliament. These decisions in no way imply, contrary to what the referral maintains,
- In an infinitely subsidiary way, the Government notes, in any event, that the constitutional law relating to the decentralized organization of the Republic was adopted by Congress on March 17, 2003 without disregarding Articles 7, 16 and 89 of the Constitution.The constitutional revision has in fact not been initiated or continued during the periods referred to in Articles 7, 16 and in the fourth paragraph of Article 89 of the Constitution. The constitutional law was, moreover, adopted in accordance with the prescriptions of the first three paragraphs of article 89 of the Constitution. Finally, it cannot be regarded as disregarding the last paragraph of article 89 of the Constitution.
On this last point, the Government considers that the scope of the provisions of the last paragraph of Article 89 is narrowly circumscribed. He is firmly of the opinion that these provisions cannot be interpreted in a broad way in order to limit the assessment of the constituent power. As ruled by the Constitutional Council, and as the vast majority of the doctrine affirms moreover (see in particular G. Vedel, Souveraineté et overconstitutionnalité, Pouvoirs n ° 67, 1993; B. Genevois, Limits d ‘legal order with the intervention of the constituent power, RFD adm 1998 p.909), the constituent power is sovereign and it cannot be opposed to it, in our legal system, rules of law which would have a value superior to the Constitution.
Moreover, the last paragraph of Article 89, which provides that “the republican form of Government may not be the subject of a revision” is limited to reiterating, with a slightly different wording, the prescriptions appearing in Article 95 of the Constitution of October 27, 1946, according to which “the republican form of government cannot be the subject of a proposal for revision”, themselves taken again, in identical terms, from the provisions of the constitutional law of August 14, 1884 It is, in fact, article 2 of this constitutional law which inserted in article 8 of the constitutional law of February 25, 1875 the formula on the republican form of government, which has, since then, always figured in the republican constitutions (and moreover also in the draft constitutions – see on this point article 125 of the draft constitution of April 19, 1946).
This results first of all from the reconciliation of the provision on the republican form of government with the sentence which immediately followed it (and which subsequently appeared in article 44 of the Constitution of October 27, 1946), according to which “members of families having reigned over France are ineligible for the presidency of the Republic ”. The debates of the two chambers meeting in the National Assembly at Versailles then underline that the scope of the provision was to obstruct the restoration of the monarchy (intervention by M. Bocher and reply by J. Ferry, president of the council; V. Duvergier 1884 p.249).
For the Government, the provisions of the last paragraph of article 89 of the Constitution of October 4, 1958 cannot be recognized as having any significance other than that which has just been explained. This appears to him to be the interpretation called for at the same time by the letter of the Constitution, the intention of the constituent power and the republican constitutional tradition.
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These reasons lead the Government to consider that the Constitutional Council will not be able to accept the appeal referred to it.