the steps to be taken before its inclusion in the Constitution


Friday, June 24, the shock wave caused by the American Supreme Court made the woodwork of the Palais-Bourbon tremble. After the decision was made to no longer guarantee the right to abortion at the federal level in the United Statesthe French deputies adopted, on Thursday 24 November, a bill from La France insoumise (LFI) aimed at enshrining this right in the Constitution.

Until then, LFI – supported by the entire left – and Renaissance defended two competing proposals, that of LFI also aimed at guaranteeing the right to contraception. In the end, the wording negotiated Thursday between the left and the majority aims to enshrine in the Constitution that “the law guarantees the effectiveness and equal access to the right to voluntary termination of pregnancy”.

Macronist Sacha Houlié, chairman of the law commission, welcomed a ” big step “but which is not “just a first step”. He is not wrong, because the fundamental text of the Republic cannot be reworked at the snap of a finger.

What are the applicable texts?

The Constitution sets the conditions for its own revision in article 89, the last one. Two cases prohibit it, if the reform undermines the integrity of the territory or the “republican form of government”. The formula dates back to 1884 and aims to “to prevent the Republic from returning to a monarchy or an empire”explains Emmanuel Cartier, professor of constitutional law at the University of Lille.

These limits respected, the revisions can modify the Constitution in depth. Since 1958, it has included, for example, European construction, so as to allow the ratification of the Maastricht Treaty (in 1992), equality between women and men (in 1999) and the prohibition of the died (in 2007).

To have a constitutional revision adopted, Charles de Gaulle had recourse, in 1962, not to article 89, but to article 11, which gives the president the power to call a referendum. At the time, it was a question of registering the election of the Head of State by direct universal suffrage in the Constitution. The general’s critics had then shouted at the diversion of text, and the trick, disputed, has not been used since.

In the adoption process, the weight of the Senate

The general resorted to article 11 to guard against any opposition coming from Parliament. In the classic procedure provided for by Article 89, the two chambers have their say in any modification of the Constitution, whether the text of the revision has been presented by the President of the Republic on a proposal from the Prime Minister (i.e. is a bill) or by Parliament (it is a bill). In both cases, it must be voted on by the deputies and by the senators. This differs from the ordinary legislative procedure, after which, in the event of disagreement, the Assembly has the last word.

For the Luxembourg Palace, the constitutional revision is therefore an opportunity to weigh heavily. It is also in the hope of passing the bar of the Senate that the presidential majority does not propose, unlike La France insoumise, to sanctuarize contraception at the same time as abortion in its text. Despite everything, the support of the Senate, where the right has the majority, is far from certain.

Referendum or parliamentary vote?

If, however, the text were adopted by each chamber, by a simple majority, it would still have to be ratified. In the case where, as for abortion, the proposal comes from Parliament, ratification can only be done by referendum. Gold since 1958, no review undertaken by Parliament has been successfulmost of the time due to a lack of political convergence between the two chambers.

The twenty-two revisions introduced under Section 89 since 1958 have come from the executive. In this case, the text can be ratified either by referendum, or by a vote of the Parliament meeting in congress, in Versailles, with a required majority of three fifths of its members. Apart from the five-year presidential term in 2000, all revisions so far have been passed by Congress and not by referendum.

This solution is however “supposed to be the exception”, according to Emmanuel Cartier; and the referendum “basic way”. Politically, Congress has the advantage of being more predictable than a electorate of 48 million people. The law professor thus recalls that “Since the referendum on the five-year term, marked by a record abstention rate, no president has especially wanted to get wet” in a popular consultation, which voters can use to decide not on the question asked but on the person who asks it.

After constitutionalization, a better protected right

Neither carved in stone nor iron law, the Constitution remains the founding text of the French legal system, and it is in this respect that the defenders of the right to abortion want to register it there. Today, notes Emmanuel Cartier, many rights and freedoms, including abortion, are guaranteed only by the case law of the Constitutional Council, the Constitution not being by itself “not so verbose” About them.

However, the Constitutional Council, whose nine members are appointed for nine years, may not always have the same reading of old texts – for example, the Declaration of the Rights of Man and of the Citizen – by which it enshrined modern rights . In the eyes of the defenders of abortion, its inclusion in the Constitution would therefore prevent any deleterious effect of exegesis. In the United States, it is precisely because the Supreme Court, dominated by conservatives, adopted a literal reading of the Constitutionthat it ended the federal guarantee of the right to abortion.



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