In France, the first opposition party, the National Rally, has included in its programme the organisation of a referendum on immigration. Marine Le Pen wants to enshrine in the Constitution a “national priority” for access to social housing, employment, and welfare benefits. These are proposals that have been on the table for years and are regularly the subject of fierce criticism from legal experts and politicians who are more or less openly hostile to this party.
On April 22, Laurent Fabius, the president of the French Constitutional Council, declared that the referendum on immigration promised by Marine Le Pen would run into a problem of conformity with the Constitution. According to him, most legal experts agree on this issue. Fabius addressed the fact that this referendum would be held within the framework of Article 11 of the Constitution (i.e., organised by the president of the Republic on a proposal from the government on “reforms relating to the nation’s economic, social, or environmental policy”). In his view, and that of the legal experts behind him, immigration is not an economic issue. Nevertheless, he pointed out that the Constitution could be amended beforehand under Article 89, with the agreement of both chambers, the Senate and the National Assembly—which is unlikely to succeed in the case of a possible Marine Le Pen presidency.
But Fabius also confirmed that General De Gaulle chose to amend the Constitution by using Article 11 for a purpose not provided for in the text. At the time, De Gaulle wanted to amend the Constitution to make the election of the president by direct universal suffrage. Fabius argues, however, that the president of the Constitutional Council at that time, Léon Noël, had informed General De Gaulle that he could not use Article 11 to modify the Constitution.
This is factually incorrect, and Laurent Fabius probably knows it. In his memoirs, Léon Noël wrote that he had chosen not to censure De Gaulle, not because he did not have the courage to do so, but because the Constitution did not give the Constitutional Council the power to cancel a referendum proposal. In its decision of 6 November 1962 (decision no. 62-20 DC), the Constitutional Council explained that it refused to review the constitutionality of a referendum because it constituted “the direct expression of national sovereignty.” De Gaulle’s choice therefore led to a broadening of the scope of Article 11, in order to establish something absolutely central, if not the most decisive, to the French political game: the election of the president by direct universal suffrage.
As the lawyer Pierre Gentillet observes, it is true that in its so-called Hauchemaille decision of 14 March 2001, the Constitutional Council, interpreting the Constitution and its organic law very broadly as always, decided that it was its responsibility to review a decree triggering the referendum. However, this review has never taken place. At no time does Article 11 of the Constitution allow the Constitutional Council to carry out such a review. In fact, this control is only provided for in the case of a referendum triggered by Parliament, and not in the case of a call to the electorate by the executive. Moreover, the control under the Hauchemaille case seems to be limited to the proper conduct and regularity of the operations.
More generally, Fabius’ comments are rather comical when you consider that supporters of immigration never miss a chance to explain that immigration is necessary precisely for economic reasons. If we follow this logic, then it really is an economic issue. Supporters of immigration shy away from the term ‘identity,’ almost seeing it as a sign of crypto-fascism. They systematically take the debate into economic and social territory. In fact, for them, all the problems are primarily due to economic and social factors.
Laurent Fabius’ objection is obviously political, and has very little to do with legal issues. Fabius is part of a major trend in the Fifth Republic, which originally placed popular approval at the forefront, and then gradually abandoned the referendum tool. Its last use was in 2005, when the French voted against the Treaty establishing a Constitution for Europe, before it was passed by the National Assembly in 2007 in the form of the Lisbon Treaty. This was a betrayal and an abrogation of direct democracy that Ghislain Benhessa analyses perfectly in his book Le Référendum impossible.
The controversy ignited by the president of the French Constitutional Council is symptomatic of an institutional evolution and of its relationship with democracy. It is now the judges who set the pace. Their exaltation counts for more than the will of the people. They are experts in everything but elected by no-one. Law takes precedence over politics. It evolves with the times, never ceasing to find new values and minorities to protect, to the detriment of the popular majority. It is pseudo-expertocracy versus democracy.
The essayist Max-Erwann Gastineau has rightly pointed out that the problem of the power of judges has been well known for a long time. He quotes Pierre-Henri Tavoillot, who argues that, although our democracies made it their motto to combat the abuse of power by means of checks and balances, there is now an abuse of checks and balances themselves. Gastineau also draws on the thesis of Israeli political scientist Ran Hirschl, who in 2004 spoke of a ‘juristocracy’ when referring to the process of transferring power from representative institutions to judicial systems.
According to Hirschl, in Western countries, this trend is the result of “a strategic interaction between hegemonic yet threatened political elites, influential economic actors and judicial leaders” forming a “coalition of self-interested legal innovators.” This, in turn, is part of a wider process in which “political and economic elites, while claiming to support democracy … attempt to insulate political decision-makers from the vicissitudes of democratic politics.”
In the case of France, these observations are still more pertinent when you consider the composition of the French Constitutional Council, whose members are appointed by the president of the Republic and the presidents of the National Assembly and the Senate. Its current chairman, Laurent Fabius, is well known to the French, having been a socialist for over half a century and having held such prestigious positions as prime minister, finance minister, and foreign minister. He was one of the most important stars of François Mitterrand’s two seven-year terms (1981-1995). Mitterrand himself is credited with saying something timeless: “Beware of judges. They killed the monarchy. They will kill the Republic.” That may have been a strong statement, but there is no doubt today that judges are in many opposed to democracy.
