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At a glance: The French presidential elections and the rule of law

This Sunday, the French presidential elections are heading into the second and final round, with a face-off between Emmanuel Macron and Marine Le Pen. We talked to Xavier Philippe, Professor of Public Law at the Sorbonne, and Sébastien Platon, Professor of Public Law at the University of Bordeaux, about what lies ahead for the rule of law in France if Macron or Le Pen wins the run-off and why the parliamentary elections in June are so important.

How would you assess Macron’s performance on the rule of law so far?

Platon: His first term as president was very hectic because of covid-19. His rule of law record during the pandemic is debatable. He pushed state of emergency acts giving a lot of powers to the government. It was very lopsided towards the executive and parliamentary control was lacking.

Philippe: It is true that the excessive use of emergency provisions became a subject of concern during the pandemic. Macron also tried to transform the way in which the president is involved in decision-making. He attempted to amend the constitution in his first term to give himself free hand to act. For instance, he wanted to preclude MPs from amending legislative bills. This was not well-received, and the National Assembly and Senate rejected these changes. Having said this, the rule of law is still the rule of the game in France.

What can we expect if Macron is re-elected?

Platon: It is hard to say what he would do based on his programme. He was very silent during the campaign and only started campaigning very late. His strategy as a candidate was precisely not to be a candidate, but to be a president. We know very little regarding his plans. There are a lot of blind spots in his programme.

Philippe: Rule of law issues could have been more prominently featured in the campaign, but they were overshadowed by the war in Ukraine. In any case, I do not think that the election result will significantly affect the state of the rule of law in France if Macron wins. Media is and will remain free. While judges get criticised occasionally, I do not think that there will be major reforms undermining judicial independence. There were some tensions between Macron’s Minister of Justice, Éric Dupond-Moretti, and judges. However, these confrontations are mostly due to the Minister’s personality, not some major institutional flaws. 

How would the rule of law be affected if Le Pen wins?

Platon: Some of Le Pen’s plans, such as reserving access to jobs and benefits for French citizens, are not compatible with EU law. My understanding is that she wants to hold a referendum to amend the constitution to implement these reforms and set aside the primacy of EU law at the same time.

There are two ways to hold referendums under the French constitution. Article 89 allows for constitutional revisions by referendum but requires the approval of both chambers of the parliament, the National Assembly and the Senate, which is difficult to secure. For the other provision, Article 11, only government support is needed. However, the referendums organised under this provision were not meant to revise the constitution. This would be an improper use of Article 11, although not unprecedented. De Gaulle also used the same provision to amend the constitution and introduce the direct election of presidents.

Philippe: Indeed, Le Pen mentioned several times that if elected, she would call for a referendum against immigration without any prior intervention from the parliament.  She also said that she would “govern” by using referendums.

It is also not news that Le Pen is not so keen on liberal democracy. She has been criticizing the lack of firm decision-making on issues such as immigration, similar to Viktor Orbán’s rhetoric, even though she changed her tone a little after the war broke out in Ukraine. This was tricky because, during the previous campaign, Russia lent her some money. I am sure that in terms of immigration and rights and freedoms, there will be discrimination based on the distinction between citizens and non-citizens. They will try to send back a number of people: legally speaking, they will not renew permits. They are clever enough not to do it in one day like Orbán did but one step at a time.

Would Le Pen be able to sidestep or control the Constitutional Council – the French constitutional court?

Platon: The Constitutional Council is hard to control – you have nine ordinary members and former presidents as ex officio members. Three of the ordinary members are renewed every three years – one by the President of the Republic, one by the President of the National Assembly, and one by the President of the Senate. Since the Senate, which represents local authorities, is usually not controlled by the governing majority, it is difficult for one party to secure a majority in the Constitutional Council. So far, no party has ever been able to appoint all members of the Constitutional Council.

The bigger concern is that laws adopted by referendum are not within the Constitutional Council’s jurisdiction. Hence, there might be a way to bypass the two chambers of parliament as well as the Constitutional Council and Le Pen wants to make use of this. Since the Council can rule on the presidential decree organising the referendum, it could potentially still sanction abuse of Article 11. But this is not 100% certain because there is no specific precedent.

Philippe: This is difficult to predict. There is still some unclarity on whether it is possible for the new president to amend the constitution via referendum without respecting the existing procedure set up under Article 89. Will the Constitutional Council oppose such an attitude? Logically, yes. But there is no certainty. This could be the first confrontation between Le Pen and the Constitutional Council if she is elected.

Besides, there is no mystery about Le Pen and her party Rassemblement National’s aversion to the French Constitutional Council and constitutional review in general. Le Pen favours parliamentary sovereignty. To her, reviewing acts of Parliament seems at odds with popular democracy. This does not mean that she would immediately dismiss or eliminate the Constitutional Council. Still, she would not accept her reforms being set aside or tempered by the court. I rather believe in a kind of Hungarian scenario where she would transform the Constitutional Council into a different kind of court.

What difference will the results of the National Assembly elections in June make?

Platon: For Le Pen to push through her xenophobic programme, severely curtail the rights of immigrants and Muslims, and maybe even curb checks and balances or attack journalists, she needs a majority in the National Assembly. Most presidential powers either require the passing of a law in parliament or the assent of the government.

If she does not manage to secure a majority, she would not be too powerful, but she would still be able to slow down the work of the government and parliament. She could also use the emergency powers under Article 16. These powers do not require approval by the government or the parliament, and we do not know exactly whether they are subject to judicial review.

If the president belongs to one party and the parliamentary majority to another, we call this cohabitation. In this scenario, Macron could end up being Le Pen’s prime minister – or vice-versa. Given his result in the first round, we also cannot rule out that Jean-Luc Mélenchon ends up being prime minister for one of the two. So far, cohabitations only happened prior to 2002, when parliamentary and presidential terms were desynchronized. So, this scenario is unlikely, but not impossible.

However, the president can dissolve the National Assembly and call for new elections. One of Le Pen’s advisors recently suggested that, if the majority in the National Assembly is hostile, she might dissolve the National Assembly and then try to amend the electoral legislation in her favour via referendum.

Philippe: It is true that since 2002, the president’s party has always managed to get a majority in the National Assembly. But with the changing political landscape and classical parties losing their ground, I believe it is hard to predict if this is going to happen this time. Things could be different.

If Le Pen were to win the election and secure a majority in the National Assembly, she would resort to a reading of the constitution that says: “I am the elected president and I do what I want.” The expectation would be that the prime minister and parliament are under the supervision of the president.

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For the most important information on the French elections and the rule of law, make sure to check out our at-a-glance overview. You can download it below.

We thank Théo Fournier, re:constitution Fellow 2021/22, for his contributions.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Photo credit: International Monetary Fund / CC BY-NC-ND 2.0 (cover image)
Photo credit: Rogi Lensing / CC BY 3.0

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