Guillaume Leroy is a doctoral student, lecturer in constitutional law at the University and responsible for the public affairs department of the Cercle Droit et Liberté.
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On March 16, the National Assembly adopted the draft constitutional law supplementing Article 1 of the Constitution and relating to the preservation of the environment (without making the slightest modification). This adoption by the Palais Bourbon was highly predictable knowing that the President of the Republic has a majority there that is subservient to his will. It is therefore now up to the senators to decide in favor or against the addition to article 1 of our constitution of the following sentence: "
[France] guarantees the preservation of the environment and biological diversity and the fight against climate change
”.
Beyond this addition, the stake of this vote is also to allow the organization of a referendum so that the French can also give their approval to this constitutional revision. While it appears honorable at first glance to promote direct democracy and give citizens back decision-making power that was confiscated by the executive, this constitutional bill is nevertheless questionable in many respects.
Let us note to begin with that this legal text, by its more than imprecise wording, will bring more legal uncertainty than effective solutions to the environmental problem: how can France guarantee, on its own, the preservation of the environment ? Does this guarantee constitute an obligation of means or result? Will the state be sanctioned if it fails in its fight against global warming? So many questions that appear without clear and precise answers. Coming to the rescue of the executive, the Minister of Justice, in order to reassure the few skeptical deputies, explained that this guarantee would consist of "
a quasi-obligation of result
[1]", a term that the constitutionalist Bertrand Mathieu, heard in commission of laws, described as "
imprecise and unrealistic
[2] ”. While ordinary laws that are passed must be "clear, accessible and intelligible [3]", Senators cannot decently vote in favor of a constitutional law that does not meet these conditions. Without further clarification on these terms, it is up to the Constitutional Council to decide the question. What will remain then of this “democratic” decision after its passage between the caudine forks of the Sages?
Dominique Rousseau, another reference in constitutional law thus affirmed that
“whatever the wording chosen, the inclusion in article 1 of the Constitution of the protection of the environment, respect for biodiversity and the fight against global warming is legally unnecessary. These principles, in fact, already have a constitutional value, superior to the law ”
.
This bill is furthermore unnecessary! Provisions of our constitutionality bloc already fulfill the objectives it promotes: what is the point of inserting the concepts of "
biodiversity, the environment and the fight against global warming
" in the Constitution when, as Senator Bruno pointed out, Retailleau, the Environmental Charter of 2004 already fulfills the office of constitutional protector of the environment? As a reminder, this text affirms in particular "
that the preservation of the environment must be sought in the same way as the other fundamental interests of the Nation"
or that
"public policies must promote sustainable development"
. Integrated into the constitutionality block, the principles of this charter prevail over the law. The government's plan would therefore not bring any legal progress.
This finding of uselessness is also shared by all the jurists questioned by the Senate Law Commission: Dominique Rousseau, another reference in constitutional law, thus affirmed that “
whatever the wording chosen, registration in the he article 1 of the Constitution on the protection of the environment, respect for biodiversity and the fight against global warming is legally unnecessary. These principles, in fact, already have a constitutional value, superior to the law
[4]
”. The other academics interviewed admitted having difficulty finding arguments in favor of this constitutional bill.
We can therefore see it: the vast majority of constitutional experts are positioned against this constitutional revision.
Why then does President Macron want to see it through to its end?
The answer seems to be more electoral than legal: a large victory in a referendum would allow the President of the Republic to establish a not insignificant legitimacy with the approach of the next presidential elections.
This plebiscite use of the referendum, worthy of Napoleon III, is not acceptable in this case!
While it has been more than 15 years since the French people were consulted, democracy requires the French to vote on real subjects and not on a purely symbolic constitutional revision.
Montesquieu said that the modification of the Constitution should only be done with a trembling hand. For this reason, the 1958 Constitution entrusted the President of the Republic with the role of guardian of the founding text of the Fifth Republic. If he does not wish to preserve his integrity, the senators have the opportunity to remind him, on May 10 and 11, that they too ensure the balance of the French legal system. This vote can be a demonstration that there are real checks and balances in France against an omnipotent executive. So as Victor Hugo said: “
Senators, show that you are necessary
”.
[1] Statement by Mr. Éric Dupond-Moretti, Keeper of the Seals, Minister of Justice, on the draft constitutional law supplementing Article 1 of the Constitution and relating to the preservation of the environment, to the National Assembly March 9, 2021.
[2] Minutes of the work of the Senate Law Commission, March 24, 2021
[3] Decision n ° 2006-540 DC of July 27, 2006
[4] Minutes of the work of the Senate Law Commission, March 24, 2021
