French government council, not part of the judicial branch, that examines proposed laws to ensure that they are constitutional, oversees certain elections, and certifies extraordinary actions in times of national emergency.
The Constitutional Council of France, while similar to the U.S. Supreme Court, is not its equivalent. Although both are charged with reviewing the constitutionality of government actions, they differ in many ways. The Constitutional Council is an innovation of the French constitution adopted in 1958, which established France’s Fifth Republic. Unlike the Supreme Court of the United States, the Constitutional Council does not hear appeals from criminals or from the average citizens of France. Before it was amended, the 1958 constitution gave only the president of France, the prime minister, the president of the Senate (the upper legislative house), and the president of the National Assembly (the lower legislative house) the right to appeal decrees, laws, or treaties to the Constitutional Council. However, under a 1982 amendment, the right to appeal was extended to members of the National Assembly and the Senate, although sixty members of one house must sign the appeal to initiate the process. Certain institutional acts must always be referred to the council before they can be applied, including rules of procedure for the legislature.
When an item is referred to the Constitutional Council, a reasoned decision as to its constitutionality has to be made within one month. However, for urgent items, the government can request that a decision be made within eight days. Only the decision of the majority is published; dissenting opinions are not made public. The decisions of the council cannot be appealed.
When deciding whether the issue before the Constitutional Council is constitutional, the council interprets the constitution broadly, unlike the U.S. Supreme Court, which must base its opinions more closely on what is contained within the articles of the U.S. Constitution. The council recognizes the preamble of the French constitution as an integral part of the document. The preamble to the constitution includes references to the 1946 French constitution (which established the Fourth Republic) and to the 1789 Declaration of Human and Civic Rights. Therefore, these two historic texts, as well as all parts of the 1958 constitution, are binding legal documents.
The U.S. Supreme Court is part of the judicial branch of government and is charged with judicial responsibilities in addition to interpreting the Constitution. The Constitutional Council of France is separate from the judicial branch of government and deals only with matters relating to the French constitution. The U.S. Supreme Court is viewed as an entity whose members are outside day-to-day politics. Its decisions are usually seen as reflections of the U.S. Constitution, laws enacted by the national government, and the legal institutions established to govern the country. Generally, respected jurists and legal scholars are appointed to the U.S. Supreme Court. Contrary to this tradition, the Constitutional Council of France was viewed as political from its inception. The majority of its members were politicians who had previously served in the upper levels of the government. Therefore, the decisions of the Constitutional Council are seen by most French citizens as political in nature, reflecting the need to check the actions of either the executive or legislative branches of government.
The nine members of the Constitutional Council are appointed for nine-year terms. Every three years, one new member is appointed by the president of France, another by the president of the Senate, and a third by the president of the National Assembly. However, in addition to these nine regular members, all former presidents of France may sit on the Constitutional Council, participate in its deliberations, and vote on the issue being decided. There are no age or professional requirements for the members. However, an individual cannot serve on the Constitutional Council and at the same time be an elected official or hold certain other governmental offices. The members of the council may not be reappointed. It takes a quorum of seven members for the council to conduct business.
In addition to its interpretive duties, the Constitutional Council has a role to play in the electoral process. The Constitutional Council oversees the election of the president of France, which takes place every seven years. This includes drawing up the lists of candidates, regulating the campaign, and certifying the results. If a dispute arises as to who won a seat in the National Assembly or the Senate, the Constitutional Council will decide the winner. From time to time, an issue is brought before the voters in the form of a referendum. When this occurs, the Constitutional Council administers the election.
The president of France has very strong powers in times of emergency. However, to legally use these powers, the president must first declare a state of emergency. Then the Constitutional Council confirms that the emergency exists and that the steps proposed by the president are appropriate for ending the emergency. One type of emergency act is the removal of elected officials from office. One step in the process of impeaching the president of France is to obtain agreement with the charges from a majority of the members of the Constitutional Council. If a member of the legislative branch is being removed from office, the specific charge must be recorded by the council. The council also decides if a conflict of interest exists when a member of the legislature also holds some other governmental position.
Banks, Arthur S., and Thomas C. Muller. Political Handbook of the World: 1998. Binghamton, England: CSA Publication, 1998. De Gaulle, Charles. Memoirs of Hope: Renewal and Endeavor. New York: Simon & Schuster, 1971. Pierce, Roy. French Politics and Political Institutions. New York: Harper & Row, 1968. Williams, Philip M., and Martin Harrison. Politics and Society in de Gaulle’s Republic. Garden City, N.Y.: Doubleday, 1972.
British Law Lords
Court of Justice of the European Communities
German Federal Constitutional Court
International perspectives on the Court
Rule of reason
Separation of powers
Supreme Court of Canada