ABSTRACT
The Constitutional Council was one of the most significant innovations of the Fifth Republic, even though its full significance was unintended and unsuspected, and in its early practice unpromising. Indeed, the intention of the framers of the constitution was to create not a real judge but a consultative body and a protector of the prerogatives of a reinforced executive against a seriously weakened parliament. It comprises nine members (and the ex-presidents of the Republic who have never, in practice, availed themselves of the right), three each appointed by the president of the Republic (who also appoints the the Council’s president), the president of the Senate, and the president of the National Assembly. Members of the Constitutional Council hold their posts for nine years on a non-renewable basis. The powers of the Constitutional Council are threefold. In the first place, it has certain formal competences: it must be consulted if the president of the Republic decides, under Article 16 of the constitution, to exercise emergency powers; in the event of the president of the Republic being incapable of carrying out his functions, the Constitutional Council declares the office vacant (Article 7). Second, the Constitutional Council oversees the regularity of referenda and of elections to the presidency, and to the two houses of parliament, and rules on contested cases arising out of parliamentary elections (Articles 58 to 60). Finally, the Constitutional Council is a constitutional referee. Thus, it polices the executive-legislative boundary, with the initial intention that the latter did not impinge upon the former: it delimits the areas within which parliament is entitled to legislate, leaving all other matters to be governed by administrative enactments. Furthermore, any proposed law of a constitutional character (loi organique) and any new parliamentary standing order require the assent of the Constitutional Council. Most importantly, the constitution (Article 61-2) provided that the conformity to the constitution of any treaty or government act may, before its promulgation, be tested before the Constitutional Council. Once petitioned, the Council possesses the power to invalidate, in part or in its entirety, any law on the grounds of unconstitutionality. A law, once referred, can be promulgated only after the Council has given its assent. Its decisions are not subject to appeal.
