The French elections will be a massively symbolic event. Not only will the French people who will be their legislators and their next President, the result will either embolden far-right populists across Europe or the those parties opposed to this tide of authoritarian feeling. I have previously argued that the structural barriers in the Dutch and German political systems make the election of far-right parties much more difficult, and I remain convinced of this view. However, the same cannot be said of France. The following few articles shall be exploring the French political system and the election because if France falls to the same far-right forces as have prevailed elsewhere, the ramifications will be numerous. This piece shall analyse the constitutional ambiguity that has given me cause for concern.
The constitution of the Fifth French Republic was adopted in 1958 and markedly changed the French political system. The constitution moved the country away from parliamentarism and transformed the state into more presidential. However, the wording in the 1958 constitution is deliberately vague and as such it is more accurate to describe the French executive as a partnership between the Prime Minister and the President, each reliant on the other to a certain degree. In my view an apt description would be that of the political scientist Robert Elgie who, in his book Political Institutions in Contemporary France , argues that France has a “dual executive”. The President has certain responsibilities as proscribed in the French constitution, but in some areas these overlap with those of the Prime Minister and in some areas decisions have to be made jointly.
An example of this is in the area of defence. Just as in the United States, the President of the Republic is the Commander-in-Chief of the armed forces, as Article 15 of the constitution specifies, however in Article 21 the Prime Minister is described as “responsible for national defence”. Although there haven’t been any actual instances where the will of the Prime Minister and the President have been directly contradictory, the language of the constitution makes it distinctly possible in the future. A counter point could be that if the decision to go to war requires agreement between the Prime Minister and the President, this acts as a form of check on the power of the President. This point would be superficially correct, but unfortunately there are other aspects of France’s constitution that mean that this is not really a check at all.
There are provisions in the constitution that allow for the President to accumulate far-reaching powers, and this is why I believe France is the most vulnerable to the rise of authoritarianism. Under Article 16, the President can declare themselves emergency powers “where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat” . There are some stipulations to this declaration, for example the National Assembly cannot be dissolved during this time, and the circumstances around the President’s declaration must be renewed by the Constitutional Council after 30 days, but I find these caveats decidedly unsatisfactory.
The reason for this suspicion is because of the actions of President de Gaulle. In 1961 some French military officers staged a coup in Algeria because they wished for France to retain control of the territory. De Gaulle invoked Article 16 and assumed emergency powers for five months from April to the end of September. This doesn’t seem too bad as these emergency powers didn’t last for that long, but this was still an abuse of executive power. Why do I say this? The rebellion in Algeria was quashed within a few days, but de Gaulle’s emergency powers lasted for five months. Although there isn’t a massive move for the decolonization of other territories currently run by France, this cavalier attitude towards the power of the President sets an unsettling precedent.
The other reason that the poor division of powers could be problematic is in reference to the ability of the President to dismiss those who disagree with them. The Prime Minister of France is usually the leader of the largest party in the National Assembly, but technically it is whoever can command the confidence of a parliamentary majority. Further, the President officially appoints the Prime Minister. As a result of these two facts, the President has the constitutional authority to dismiss the Prime Minister. This in and of itself wouldn’t be much of a problem. For instance, if a left-wing President dismissed a right-wing Prime Minister, as long as there was a right-wing parliamentary majority, the replacement would most likely be another right-winger. In this hypothetical, a left-winger could be appointed by the President but they would lose a vote of no-confidence and then we’d be back to square one. But, the President can act to alter the parliamentary dynamics of the situation.
Article 12 of the constitution states: “the President of the Republic may, after consulting the Prime Minister and the Presidents of the Houses of Parliament, declare the National Assembly dissolved”. The purpose of this provision is to facilitate a new general election, but again the ambiguous wording of this section makes it possible for the President to unilaterally dissolve the National Assembly. What does “consulting the Prime Minister and the Presidents of the Houses of Parliament” mean? If the President consults these people and they all oppose the President’s desire to dissolve the National Assembly, the President can still act because, to the best of my knowledge, there is no constitutional mechanism that prevents the President acting without the consent of the other actors.
The power of the executive, therefore, is not clearly defined and has the capability to be drastically increased. The President can give themselves emergency powers, they can dissolve the National Assembly, and can dismiss a Prime Minister that they don’t get on with. In addition to these points about the scope of Presidential power, there is no mechanism to allow for judicial review. France does have a Constitutional Court that discusses disputes between different arms of the government, but these decisions stem from interpretations of the constitution deriving from the Constitutional Council.
Again, on the surface nothing appears too controversial, but the Constitutional Council’s members are selected by the Prime Minister, the President, and the President of the Senate. The members of the Council aren’t supposed to be partisan, but there is no check on the actions of the Council, and the idea that people can act in a way that is not partisan is clearly laughable. Broad political concepts are defined by one’s ideological and philosophical world-view and so this attitude towards the Council, although of the best intentions, in flawed.
So, to quote Lenin, what is to be done? For me there are four things that need to happen. The first is largely symbolic but still needs to occur: a new constitution should be adopted and a Sixth Republic should be declared. This new constitution would clearly define the remit of each actor in the executive so that overreach can be easily identified and checked. Although one could argue that the current constitution could be significantly amended, I think that by rewriting the constitution from scratch and declaring the Sixth French Republic would significantly change the political culture of the country. By refocussing the French political system on the ideas I will outline in a moment, France can make a clean break from these ambiguities and chart a new course.
The other three suggestions are eminently practical. Firstly, the Constitutional Council should be abolished. To argue that the Council acts apolitically is, in my view, clearly foolish. The Council makes decisions that are informed by the members’ ideological positions and cannot be truly objective. Of course no person can be truly objective, but having a politicised body deciding the realms of constitutionality cannot be justified.
This leads onto my second point: the establishment of a Supreme Court with ultimate authority to check the power of the executive. I don’t often argue in favour of something found in the United States, because there are many problems with the structure of the US government, but one of the things that I believe is necessary is the ability of a judicial branch to limit the ability of the executive to act. Further, if a new constitution had a provision like Article 16, this Supreme Court would be able to decide how emergency powers should be defined, and when they should be withdrawn. The current half-way house approach is not acceptable and should be radically changed.
Finally, France should reject the centralisation of political power in Paris. This approach is a Jacobin hangover that puts arbitrary distance between the people and the levers of power. Not only should legislative power be devolved to departmental assemblies, as much power as possible should be sent to cantons and communes. By diffusing power throughout France, the rise of authoritarians becomes less dangerous as they will be unable to monopolise decision-making. The people will have the ability to check the power of both the National Assembly and the President. The Enlightenment, which largely came from France, emphasised the importance of popular sovereignty, and this should be put into practice in a direct way.
We live in nervous times and the messy language as found in the 1958 constitution will not protect the people from a far-right presidency. The prospect of a neo-fascist like Marine Le Pen in the Élyéee Palace should be a wake up call when it comes to these constitutional problems. The French people need to demand a constitutional convention to transform their political system as failure to do so will leave the door open to future authoritarianism. France is not afraid of revolutionary change and now is the time to rekindle that spirit. The constitution needs a page-1 rewrite and power should be in the hands of the people. The current presidential election should force us to guard against abuses of state power, and this necessarily requires a new political system.