ABSTRACT
The second foundation of the Constitutional Council’s greater activism was a constitutional reform. In 1974, the newly elected President of the Republic, Giscard d’Estaing, sensitive to the need to provide a limited counterweight to the executive’s dominance of the régime (a sensitivity inspired in part by his own inside experiences of executive power – but also by the awareness of how narrow his own victory had been, and of how helpful safeguards might be against a future government of the Left), pushed through a constitutional amendment which allowed any sixty Deputies or sixty Senators to refer a bill to the Council. Left-wing opposition leaders, who had dismissed the change as a ‘réformette’ (François Mitterrand had earlier called the Council ‘de Gaulle’s errand-boy’), soon found it to be one of the most useful weapons in their fight against the governments of the Giscard presidency. The number of referrals in the seven years after the reform was five times greater than in the preceding fifteen years: nine laws were referred between 1959 and 1974, but fortyseven (forty-five of them on the initiative of parliament) between 1974 and 1981. The rhythm was especially intense in the 1980s: ninety-two laws were referred during the first Mitterrand presidency and forty-nine of them were wholly or partly annulled (sixty-six referrals and thirty-four annulments under the left-wing governments of 1981-86, twenty-six referrals and fifteen annulments under the 1986-88 Chirac government). Not surprisingly, this was the period of some of the Constitutional Council’s most controversial decisions, including the total annulment of the Socialists’ 1981 nationalisation bill on grounds of insufficient compensation to shareholders (the government was forced to reintroduce the bill after arranging for a larger payment). Today, most legislation of a seriously controversial character (between a tenth and a fifth of the total) and sections of all annual budgets are referred to the Council. Not surprisingly, therefore, the content and implications of the Council’s rulings have been wide-ranging. It has continued, as before 1974, to monitor the executive-legislative boundary (but in a more balanced way) as well as exercising its function as electoral referee. Its jurisprudence has provided a framework for other branches of law – administrative, electoral (including the specification of guidelines for redrawing constituency boundaries), penal, fiscal and budgetary. Some of the Council’s most visible rulings have confirmed its role as a key actor in protecting public freedoms. It has limited police powers to search cars (12 January 1977) and to detain suspects (9 January 1980 and 3 September 1986) as well as protecting the freedom of association (16 July 1971), the inviolability of domicile against the tax authorities (29 December 1983), the freedom of education (23 November 1977), the independence of university professors (20 January 1984), the right to strike (25 July 1979), the independence of magistrates (9 July 1978) and the freedom of press and communications (29 July and 18 September 1986). Its key decisions on asylum and immigration issues have strengthened the rights of immigrants and have ensured that magistrates (and not just policemen) are involved in expulsion proceedings.
