File n° 1 

I. – The Constitution of the Fifth Republic

1. –   The fifth republic – a reaction to the difficulties encountered by the fourth republic

The final years of the Fourth Republic were marked by the paralysis of the system and by its inability to deal with the major challenge posed by decolonization.

Faced with a rising in Algeria, which was demanding its independence and the threat of an insurrectional takeover of power by French military leaders in Algiers (May 13, 1958), René Coty, the President of the Republic, called upon General de Gaulle, who had, at that stage, withdrawn from political life, to form a new Government.

The Government was set up on June 1, 1958. On the basis of the Constitutional law of June 3, it established a Consultative Constitutional Committee which, during the summer of 1958, examined the draft Constitution drawn up by the Minister of Justice, Michel Debré.

The draft, which was voted on by referendum and was passed on September 28 by 79% of the votes cast, was promulgated on October 4, 1958.

2. –   Revisions to the Constitution since 1958

Article 89 of the Constitution lays down the mechanisms for its revision. Bills concerning constitutional revision, be they Government bills introduced by the President of the Republic upon a proposal of the Prime Minister or Members’ bills, must, first of all, be passed by the two Chambers separately but in identical terms. However the usual right of the National Assembly to have the “final say” if the Senate disagrees, does not apply to constitutional bills. The bill may then, depending on the wishes of the President of the Republic, be submitted to the two Chambers assembled in “Congress” (the bill is passed if accepted by three-fifths of the votes cast) or put to a referendum if it is a Government sponsored constitutional bill. 

The Constitution has, so far, been changed twenty times following this procedure. Some of these revisions have significantly changed the general working of the system and its institutions. This was certainly the case for:

―       The extension of the right of referral to the Constitutional Council to sixty M.P.s or sixty Senators (1974);

―       The introduction of a single session (1995);

―       The reduction of the Presidential term from 7 to 5 years (2000).

Other changes were of a more “technical” nature. This was the case for those modifications changing the dates of parliamentary sessions (1963), creating the Court of Justice of the Republic (1993) or changing the legal status of the Head of State regarding criminal law (2007). Many revisions have been linked to the closer integration of France within the European Union (1992, 1999, 2003 and 2005). Other amendments, although not fundamentally changing the nature of the system, have promoted equal rights between men and women (1999) or enshrined in the Constitution the banning of the death penalty (2007).

However the fundamental reform - the election of the President of the Republic by direct universal suffrage (1962) - was not carried out by means of article 89 but directly by referendum in application of article 11 of the Constitution.

II. – General caracteristics of the institutions
of the Fifth Republic

1. –   A mixed system

The institutions of the Fifth Republic borrow classic elements both from parliamentary and presidential systems. This has led certain constitutional specialists to class the Fifth Republic as a “semi-presidential” system.

The parliamentary nature of the system is clearly displayed through the existence of a Government led by a Prime Minister who is accountable for his actions before the Chamber elected by direct universal suffrage. To counterbalance this accountability, the Prime Minister may call upon the President of the Republic to dissolve the National Assembly.

On the other hand, the election of the President of the Republic by direct, universal suffrage, his major role in foreign policy and his pre-eminence in the conduct of national policy, outside of periods of cohabitation, have no equivalent in such parliamentary systems as those of the United Kingdom or the Federal Republic of Germany where the role of the Head of State is in fact only a matter of protocol. These elements make the French system closer to the American model.

2. –   The Constitution – supreme law

The French legal tradition, deeply marked by the writings of Jean-Jacques Rousseau (The Social Contract, 1762), for a long time granted absolute primacy to the law, passed by the representatives of the people and the expression of the general will.

Nonetheless the Constitution of the Fifth Republic grants the Constitutional Council, a collegial body of nine members appointed by the highest authorities of the State, the task of checking the conformity of the law with the Constitution. The Constitutional Council was thus able to assert that from now on, the law “expresses the general will only insofar as it respects the Constitution” (decision n° 85-197 DC of August 23, 1985 New Caledonia).

In addition, for reasons of broad jurisprudence, the Constitutional Council has decided to include in its “constitutionality base” i.e. the laws and texts to be used as references for constitutional monitoring, such fundamental documents as the “Declaration of the Rights of Man and the Citizen” (August 26, 1789). According to the Constitutional Council, the action of the lawmaker must be in accordance with the respect of all “principles with a constitutional value”.

III. – The executive

1. –   The President of the Republic – keystone of the institutions

The Constitution of the Fifth Republic places the President of the Republic in the highest position and makes him, in the words of Michel Debré, the “keystone” of the system. Article 5 of the Constitution provides that “the President of the Republic shall see that the Constitution is observed. He shall assure, by his arbitration, the proper functioning of the public authorities and the continuity of the State. He shall be the guarantor of national independence, territorial integrity and observance of treaties”.

Since the constitutional revision of 2000, the President of the Republic is elected by direct universal suffrage for five years.

He is provided with individual powers which require no counter-signature. These powers place him at the very centre of French political and institutional life:

―     He appoints the Prime Minister and may terminate his period of office.

―     He may submit to referendum any bill dealing with the organization of public authorities, with reforms concerning national economic or social policy or with public services associated with such policies.

―     He may, after consulting the Prime Minister and the Presidents of the two assemblies, declare the National Assembly dissolved.

―     “Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted”, he shall take the measures required by these circumstances.

―     He may refer a law or a treaty to the Constitutional Council and appoints one third of its members.

He is also provided with a certain number of shared powers. To use such powers he must obtain the counter-signature of the Prime Minister and, in specific cases, the minister concerned:

―    Upon the proposal of the Prime Minister, he appoints the other members of the Government.

―    He presides over the Council of Ministers.

―    He promulgates laws within fifteen days of their transmission to Government after their final passing and he may, before the expiry of this time limit, ask Parliament to reconsider the law or sections of the law.

―    He signs the ordinances and decrees deliberated upon in the Council of Ministers and makes appointments to the civil and military posts of the State.

―    He is the Commander-in-Chief of the armed forces.

The constitutional reform of 1962, which introduced the election of the President of the Republic by direct universal suffrage, has substantially increased his legitimacy. From being a simple “referee” above party politics, he has become the real leader of a governing majority when the governing majority in the National Assembly coincides with that which elected him. He thus has the final say when a decision must be taken jointly with the Prime Minister and he determines the main direction of the policies to be pursued by the Government

In the case of cohabitation, i.e. when the presidential majority and the parliamentary majority do not coincide, the President of the Republic loses such powers which are only available to him with the agreement of the governing majority.

2. –  The role of Government – to determine and conduct the policy of the nation

The Constitution provides the Government with many powers which are not carried out in the same way depending on whether or not the President of the Republic and the Prime Minister belong to the same governing majority or if they are forced into a cohabitation situation.

It is the responsibility of the Government to determine and to conduct the policy of the Nation. Thus the Government has a great variety of means available to direct, speed up or slow down the discussion of bills during the legislative procedure before the assemblies. The Prime Minister heads the state civil service and is responsible for national defence. He has the power to make regulations, i.e. to take either general measures outside matters for statute, or specific measures setting down the exact mechanisms for the application of the law (implementation decrees).

The Government and its leader rely upon the majority which supports them in the National Assembly and, perhaps, in the Senate. Thus the Prime Minister could be seen as the natural leader of the parliamentary majority.

Each member of the Government takes on a double role, both political and administrative. From an administrative point of view, each minister is placed at the head of a group of units which makes up his ministerial department and over which he has hierarchical control by means of ministerial orders and circulars. In this way, he has the power to organize his administration. This allows him to play a pivotal role between the Government’s action and the administrative management in charge of implementing such action.

IV. –  Parliament

1. –  A bicameral Parliament dominated by the National Assembly

The institutions of the Fifth Republic set up a Parliament consisting of two Chambers, the National Assembly and the Senate.

The National Assembly is made up of 577 M.P.s[1], elected for five years (except in the case of dissolution) by direct universal suffrage within constituencies.

The Senate is made up of 331 Senators (348 in 2011) elected for six years by indirect universal suffrage by a college of around 150,000 grand electors (95% of whom are the delegates of municipal councils). As opposed to the National Assembly, which is totally re-elected each election, half the Senate is renewed every three years.

Thus the institutions provide an unequal bicameralism which gives an advantage to the Chamber elected by direct suffrage. Although the two Chambers have identical rights during the course of the legislative procedure, if a disagreement arises with the Senate, the Prime Minister may ask the National Assembly to have the final say. In addition, only the National Assembly can overturn the Government.

2. –   Rationalized Parliamentarianism

The Constitution of the Fifth Republic was intended to break with the assembly system, to avoid ministerial instability and to shield the Government from an increase in the prerogatives of Parliament to its detriment. It thus laid down very specifically the prerogatives for legislation and monitoring of the two Chambers:

―  Matters for statute, i.e. laws passed by Parliament, are limited:

• Only matters which are laid down by the Constitution (article 34), are considered matters for statute (laws). This concomitantly broadens the remit of the regulatory power. This measure represents a very important development since, until its enactment, laws could deal with all questions.

• The Government has a series of means at its disposal to have this division between law and regulation respected. Thus it can declare inadmissible any amendments which encroach on the ambit of statute (article 41) or may use the procedure of the delegalization of provisions which appear matters for statute but which are in fact matters for regulation (article 37, paragraph 2).

• The Government may ask Parliament to provide it with the right to legislate by ordinance, in very precise areas and for a limited period (article 38).

―   The Government has specific rights during the course of the legislative procedure:

•  It sets down the priority agenda of the two Chambers, i.e. the bills to which it wishes the two Chambers to give priority.

•  It can speed up the examination procedure for a bill by granting it “urgent status” (this leads to the holding of a joint committee after only one reading of the bill before each Chamber).

•  It may request a block vote on all or some of the provisions being discussed before the National Assembly and may make its accountability on a bill an issue of confidence. This procedure allows the bill to pass without vote if no motion of censure is adopted.

In addition, the incompatibility between holding ministerial and parliamentary office aims at creating a clear separation between ministers and M.P.s. This is totally different from the previous systems where executive office was systematically held by M.P.s and ministers had a right to vote in whichever Chamber they were elected to.

Thus when compared to the previous system, the institutions of the Fifth Republic are characterized by a strengthening of the power of the executive and a limiting of parliamentary activity.

The stability of the executive has meant that various crises, both external (decolonization) and internal (May 1968) could be overcome without the continuity of the state being undermined. The Fifth Republic has thus become, along with the Third Republic, one of the most stable systems in French constitutional history.