“The method of appointing members is one of the sources of the institution’s weaknesses”

Ihe Constitutional Council’s decision of 14 April rejecting most of the requests directed against the pension reform law has raised waves, both in political and trade union circles and in public opinion and among lawyers. Despite some voices approving this decision – such as that of Didier Maus in his column “The Constitutional Council’s lesson in applied parliamentary law on pension reform should serve as a model », The world of April 19 – it was criticized by the quasi-unanimity of its commentators. With reason.

Because, as Dominique Rousseau wrote in his column (The worldApril 16): “The decision of the Constitutional Council is binding, but, because it is ill-founded and poorly reasoned in law, it cannot close the dispute », this decision which is both therefore “ill-founded and ill-motivated”, is, in other words, neither done nor to be done. But, alas, one could hardly expect anything else from an institution as wobbly as our supreme body for the control of the constitutionality of laws.

Contrary to some of my colleagues, who seem to attach little importance to the mode of designation of the nine “wise men” (what a usurped designation!), I think that this aspect of its status is one of the sources of the institution’s weaknesses. . These weaknesses are due to three factors.

Not politically neutral

First, the fact that the authorities endowed with the power of appointment are all political. Admittedly, it is not a question of anyone since it is the presidents of the Republic, of the Senate and of the National embly. But these authorities are not politically neutral. And, like the members of the Supreme Court of the United States, appointed by the president on the ent of the Senate, the members of our Constitutional Council are necessarily “marked” politically.

Especially since, among the appointing authorities, two – the President of the National embly and that of the Senate – participate directly in the making of the laws that the Council is called upon to control. As for the President of the Republic, everyone knows that he is, if not the author, at least the inspiration of the vast majority of bills. There is thus a mixture of genres and, even, a source of conflicts of interest.

But, as the British saying goes, “it is not enough that justice be done, it must also appear to have been done”. With a Constitutional Council composed as it is, this “theory of appearances” is not satisfied. Then, the members of the Constitutional Council do not have to prove any particular professional competence. The only condition for their appointment is that they “enjoy their civil and political rights” – this is, in fact, the least that can be expected of them – but it is understood – because no text expressly states this – that they must also be of legal age and of French nationality.

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