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TRIBUNE in L'Opinion: "The Constitutional Council is not a legislative chamber for 'catching up'" by Noëlle Lenoir
"No more today than in the past, do its members make decisions according to their political or partisan sensibilities".
One can legitimately wonder about the purpose of the strike organized this Thursday, April 13, on the eve of the Constitutional Council's deliberation on the pension reform provided for in the amended Social Security Financing Act for 2023. If the aim is to put pressure on the institution and, to use the expression of its detractors, get it to give precedence to "social democracy" over "political democracy", this initiative stems from an erroneous interpretation of the nature and function of the Constitutional Council.
The Conseil constitutionnel, to which I belonged between 1992 and 2001 and which also had to rule on controversial texts, is not and must not be a politicized institution. No more today than in the past, do its members make decisions according to their political or partisan sensibilities. Those tempted to do so are marginalized. Parliamentarians, as elected representatives of the Nation, strive to promote their political vision and, as legislators, to build a legal framework in line with this vision and, if possible, adapted to the challenges of the present day. The Constitutional Council, for its part, "says" the Constitution, ensuring that the laws of the Republic respect the values and procedural rules it lays down. Despite the hopes of some that it might play the role of a "catch-up" legislative chamber, the Conseil Constitutionnel ritually reminds us that the Constitution does not confer on it "a general power of assessment and decision identical to that of Parliament, but only gives it competence to rule on the conformity with the Constitution of the laws referred to it for examination".
For want of knowing what the Constitutional Council's decision on the two-year extension of the retirement age will be, ad personam criticisms are appearing, aimed at undermining the institution's credibility, the better to challenge its decision should it prove displeasing. For example, some columnists refer to French constitutional judges as "the objective accomplices of those who own the country"; others lament the fact that the Conseil does not set itself up as a legislative counterweight; and still others, even though they have done everything in their power to block the debate, argue that the sincerity of debates in Parliament is undermined by the use of Article 49.3 of the Constitution - the very purpose of which is to overcome these blockages.
Last but not least, the method of appointing members is contested, even though everyone knows that, as with any magistrate on any court, it is the guarantees of independence that count. There is no court that is not appointed by the political authorities. At constitutional level, the members of the German Court of Karlsruhe are appointed by the Federal President on the proposal of the two assemblies, the Bundestag and the Bundesrat, according to the political parties represented in Parliament. This does not prevent them from expressing their differences where appropriate. Do we really want to reproduce, as in the United States, the adventures experienced by the Supreme Court with the appointments promoted by former President Donald Trump? What benefits would France derive from the creation of a constitutional counterweight that, in the United States, does so much to jeopardize the nation's cohesion?
In a democracy, criticism is free, including of judicial decisions. But beware of populist tendencies to undermine citizens' confidence in institutions!
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