The Venice Commission published its opinion on article 49 of the French constitution and its established practice on the 13th of June 2023. The Commission emphasizes several worries it has concerning this article which allow a bill to be adopted without vote of the lower house of the French Parliament and by engaging the government’s responsibility.
The ASSEDEL wishes to share its own analysis of the issues concerning this mechanism and it submitted a report enlightening four main issues : the combination of this article with other mechanism of rationalized parliamentarism, its inconsistency with the article 6 of the Déclaration des Droits de l’Homme of 1789, the importance to notice the distinction between “constitutionality” of a procedure and its democratic legitimacy, and finally, the weakness of the motion of censure.
We invite our readers to consult our report here.
The Commission has confirmed in its opinion that it receives our observations. We notice several points where our opinion converges with the Commission.
Thus, it appears necessary to draw a review of the Commission’s opinion in order to identify out common worries concerning this constitutional provision.
ASSEDEL’s observations on the Commission’s opinion about article 49.
First of all, the Commission is aware of the importance of the primary purpose of this article, which is to enable the government to retain a high degree of stability and the ability to conduct the country’s policy. It understands the desire and the need to counter the instability of the Fourth Republic by means of rationalized parliamentary methods and underlines the effectiveness of such a procedure of passage by force for this very purpose (§9).
Nevertheless, like ASSEDEL, the Venice Commission expresses its concerns and identifies three main issues : pluralism, the separation of powers and the sovereignty of the legislator.
Article 49 of the Constitution is identified by the Commission as a “freestanding law-making power in the hands of the executive”1 and not as a delegation (§25). This definition poses an obvious problem for the separation of powers and raises the question of the excessive interference permitted by this article on the part of the executive in the prerogatives of the legislative power.
As guardian of the rule of law, the Venice Commission recalls that pluralism is one of the indispensable elements of a democratic state such as France. A constitutional mechanism such as the 49 paragraph 3, which makes it possible to bypass any parliamentary debate and, consequently, to invisibilize a whole range of opposition opinions, is worrying in a democratic state. It is with a view to mitigating the risks of degrading democratic debate and safeguarding the diversity of opinion that the Commission recommends that the practice of activating Article 49 paragraph 3 only after the general debate (§47) be made compulsory, providing a space of visibility for the diversity of opinion of opposition parties.
In our report, we underlined the danger represented by Article 49 in the balance of power between Parliament and the Executive, already initially unbalanced by the introduction of the mechanisms of rationalized parliamentarism. In a similar vein, the Commission highlights the singularity of the French mechanism, which “does not provide for the Prime Minister to seek the confidence of the National Assembly in order to encourage approval of the law”2 (§41). We believe that such a procedure would make it possible to mitigate the violence of a “passage en force” procedure such as Article 49, while providing the executive with a tool enabling it to pursue its policy. Article 49 provides for the opposite mechanism, placing the legislator in the role of initiator of the motion of censure. Confidence is not sought by the executive, and once again, the role of the legislator is weakened.
The Commission raises the same fears as ASSEDEL regarding the motion of censure, arguing that this tool does not offer a sufficiently contentious forum for MPs, with its “very high cost” 3(bringing down the government) and its overly limited scope, preventing parliamentarians from amending the bill. Like ASSEDEL in its report, the Commission relies on Eleanora Bottini’s observations to assert that by voting on the motion of censure, the National Assembly is not voting for or against the law in question, but for or against maintaining the government in office.4 There is therefore no way for the National Assembly to express its opinion on the bill in question (§43).
ASSEDEL would like to add to this analysis that the procedure for adopting a motion of censure is highly conducive to its failure, as we demonstrated in our report. This mechanism, which represents the National Assembly’s only means of action in the event of activation of 49 paragraph 3, favors executive maneuvering and, moreover, has only succeeded once in the course of the Fifth Republic.
Like ASSEDEL, the Commission is concerned that the combination of article 49.3 with other tools of rationalized parliamentarism, such as article 47, risks further damaging parliamentary debate. It stresses the need to allow time for parliamentary debate (§49). Nevertheless, it sees the Constitutional Council’s control over “the clarity and sincerity of parliamentary debates”5 as a guarantee.
ASSEDEL does not agree with this last analysis, as we explain in our report: we do not consider the control of the Constitutional Council, notably through the purely positivist approach adopted in its decision 2023-848 DC, to be an effective means of guaranteeing the safeguarding of a qualitative democratic debate.6
However, we agree with the Commission, when it states that the Constitutional Council, through its simple control of compliance with procedure, does not offer a sufficient guarantee of the supremacy of legislative power.
1 Venice Commission, ‘‘France – interim opinion on the Article 49.3 of the Constitution’, para 25 “Article 49.3 of the French Constitution is not a form of delegation but is best viewed as a freestanding law-making power in the hands of the executive”.
2 Venice Commission, ‘‘France – interim opinion on the Article 49.3 of the Constitution’ para 41, “Article 41 does not provide for the possibility for the Prime Minister to request the confidence of the National Assembly in order to incite the approval of the law”.
3 ASSEDEL, ‘Lettre pour la commission de venise concernant l’usage de l’article 49 de la constitution française’, « En réalité, les députés, à travers le vote de la motion, ne se prononcent pas « pour » ou « contre » le texte proposé, mais « pour » ou « contre » le maintien du gouvernement en place. L’objet de ce vote ne reflète donc pas l’avis du législateur sur le texte en question ».
4 Eleonora Bottini, ‘Constitutional? Perhaps. Democratic? Not so much’ (27 march 2023), Verfassungsblog: On Matters Constitutional, <https://verfassungsblog.de/constitutional-perhaps-democratic-not-so-much/>
5 Venice Commission, ‘France – interim opinion on the Article 49.3 of the Constitution’ para 49 “The control of the Constitutional Council of the « clarity and sincerity » of the parliamentary debates, however, may represent a guarantee against excess”.
6 ASSEDEL, ‘‘Lettre pour la commission de venise concernant l’usage de l’article 49 de la constitution française’, « Le conseil constitutionnel, dans sa décision numéro 2023-849 DC, adopte une approche purement positiviste de la constitution qui ne lui permet pas d’ « endosser les habits du garant des droits » […] ni d’aboutir à une réflexion sur les risques de dégradation du débat démocratique et de l’Etat de droit. »