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Sunday, October 7, 2018

The French Constitution at age 60: Sadly, increasingly undemocratic

The scary situation where 30% of the people's
will has been cancelled by politicians
French presidents have only three objectives they relentless pursue from the moment they are sworn in, to the moment they leave office :

- Leave at least an imposing monument for generations to come to remind them by;
- Have a celebrity be (re)buried in the Pantheon (even if against their wishes);
- Change the Constitution.

Current President Macron wasted no time to have a Pantheon burial (Simone Veil) and is busy leaving his mark on the Constitution (I cringe at the thought of what architectural eyesore he will bequeath us when he lives office in 2022 - I hereby  predict that like his two direct predecessors he will fail to be reelected.)*

Of course, the preferred way for politicians to change the Constitution is to do it themselves - and among themselves -  feeling that the nation's basic law is too important to be left to citizens to make a decision. And yet it was those same citizens (or at least their parents and grandparents) who approved it when the 5th Republic was introduced exactly 60 years ago. A basic democratic principle is that what the people have decided can only be changed by the people. Not in undemocratic France (and other mock democracies, by the way) where politicians confiscate the people's right to decide on the law of laws.

One thing I learned when I went to law school is referred to as the hierarchy of norms whereby a decision at a lower level must comply with a decision from a higher rung in the legal hierarchy. The rationale being that the farther away a decision-maker is from the sovereign people the lower in the legal hierarchy the decision is. Thus, from the lowest rungs to the highest we'll have the following:

- a cabinet minister's decision (usually known as a decree) has to comply with the law, because a minister is appointed whereas a law is made by Parliament which is elected (in other words, lawmakers are just one degree removed from the people whereas government ministers are two degrees away from the people.)

- Members of Parliament can only pass laws that comply with the Constitution, because lawmakers (known as deputies in France) are only the representatives of the people (of course most politicians believe and behave as if they were the people's masters, not their servants.) 

- The Constitution is therefore the highest law in the land since it has been voted on directly by the people themselves. Sadly, the basic democratic tenet that what the people have decided can only be changed by them directly in a referendum has been slowly but steadily eroded in the last 60 years with politicians deciding on BOTH laws and the Constitution.

It is therefore a travesty of democracy that those who pass laws are supposed to comply with the Constitution when they can change the latter at will. What's the point in having a Constitution then? Just say that politicians are all powerful and can decide on what they want when they want. Not markedly different from the Ancien Régime.

The shrinking democratic credentials of the French Constitution

In the 1960s there were only two changes to the Constitution: one was made in a referendum (it dealt with the way the president should be elected), but for the other one, Parliament decided they would handle it. The 1970s and 1990s saw more than 10% of the Constitution articles amended: not a single one with the people's vote. The 2000s saw this democratic deficit reach new heights: 9 changes, only 1 referendum. Particularly scandalous was the EU-inspired Lisbon Treaty which was rejected by French citizens in a  referendum. What was the President's reaction? Sarkozy ignored the people's will and had the shamefully supine French Parliament rubber-stamp his decision in a 2008 Constitutional amendment. **

If Macron has his way, another 10% of the Constitution will be changed and considering his low approval ratings he is not going to risk a referendum. We will then reach the worrying situation where  30% of the people's vote has been cancelled by politicians.

Let us hope that either opposition politicians (in the case of a Parliamentary vote) or the people (in the case of a referendum) defeat Macron and stop this undemocratic spiral. A Constitution is the paramount social contract, it is the basic pact that binds society together. As such it cannot be amended on a regular basis (the way laws are) and can only be done by the people themselves.

French presidents should heed other countries with similar political systems, such as Spain and the US. The former celebrates this year the 40th anniversary of its Constitution which has been left largely unchanged since 1978. As for the US, it has amended its 250-year-old Constitution fewer times than France has in only 60 years. That tells you that there is something deeply wrong with the French political system.

LEAVE LADY CONSTITUTION ALONE! She is a respectable lady who doesn't need to have more scars inflicted on her by shameless, self-serving politicians

*It is noteworthy that the last two presidents left in disgrace failing to get a second term. The last but one, Nicolas Sarkozy, failed to get reelected, and the last one, François Hollande, having to live the  unprecedented ignominy of not even being able to run due to his abysmal approval ratings, themselves due to his disastrous record.

**I have more respect for British politicians who, although they were against Brexit, once British voters made their decision in a non-binding referendum, they decided to abide by what the people have decided. In France, politicians despise voters and don't even hide it.

The blogger has written several posts on the French political system: 

-April 2017: "The French presidential election: Going  blank"
-May 2012: "Good riddance, Sarkozy!"
-Dec. 2011: "Real crime, fake justice: Chirac gets 2-year suspended jail sentence"
-June 2010: "Sarkozy, la France c'est moi!"
-March 2010: " Obama and Sarkozy: A Tale of Two Presidencies"

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