Former Councilor of State, Bertrand Mathieu is a professor at the Law School of the Sorbonne-University of Paris 1 and a member of the Venice Commission of the Council of Europe.
Opening the debate on the revision of the Constitution can lead to the "Lépine competition" of technical adjustments or adjustments, likely to unbalance the overall architecture.
The question of why must precede the question of how.
The crisis of our liberal democracies is the subject of an almost unanimous observation.
Admittedly, it is not the constitutional revision which will constitute the miracle remedy for this situation, the fact remains that constituting the social pact of the Nation while fixing, the mechanisms of government of the State, the tool constitutional may be relevant.
This crisis of democracy has various causes, but some can be easily identified.
The first is due to the fact that citizens are becoming aware that those whom they elect have largely lost the reality of power.
Thus political power, whose legitimacy is democratic, is very largely dispossessed of its competences by bodies of all kinds: judges;
supranational organizations, particularly European ones;
independent authorities, particularly in financial and economic matters… These institutions are not illegitimate, but their legitimacy is not of a democratic nature, it is based, in particular, on impartiality or competence.
They tend to be part of an oligarchic logic competing with democratic logic.
In reality, control tends to prevail over decision.
The image of the tied up Gulliver is then often, and rightly, invoked.
The link between citizens' votes and political decision-making is, if not broken, at least considerably stretched, which leads to a loss of confidence.
Moreover, the political responsibility of elected officials tends to be replaced by responsibility before the judge, who has become the receptacle of citizens' expectations and the arbiter of political “elegance”.
Strengthening political power also means loosening supranational constraints.
Bertrand Mathieu
If we accept this observation, a possible constitutional reform must be organized around two ideas: giving citizens and political power the place they should occupy in a democracy and developing mechanisms for political accountability.
To do this, some axes can be drawn.
Reinforcing the methods of citizen intervention leads to giving back to the referendum the place it occupies in the logic of the institutions of the Fifth Republic
.
“National sovereignty belongs to the people who exercise it through their representatives and by way of referendum”
, proclaims article 3 of the Constitution.
In this sense, it is necessary to facilitate recourse to popular initiative referendum -or one shared between parliamentarians and citizens-;
to consider that the referendum decided by the President of the Republic may, in certain cases, lead him to engage his responsibility before the People;
to make recourse to referendum compulsory for certain constitutional revisions, excluding the intervention of the Constitutional Council, which does not
Strengthening political power also means loosening supranational constraints.
It is in no way a question of questioning the construction of Europe but of rebalancing it.
Thus, it could be provided that, at the request of parliamentarians, the President of the Republic is required to refer to the European Council, a political body, a question specific to national interests.
It is also necessary to give back to the States the last word on sovereign issues such as those of the control of migratory flows by enshrining the principle in the Constitution.
It is a question of strengthening the political dialogue, and not only jurisdictional, between the European Union and the States.
Consideration should be given to mechanisms for the individual political accountability of ministers before the National Assembly in order to avoid the intervention, often abusive, of judges in matters relating to political decision-making.
Bertrand Mathieu
It is also necessary to fight against the confiscation of decision-making power by the judge.
Thus, in cases deemed particularly important, the parliament, by a qualified majority, could ask the Constitutional Council to re-examine one of its decisions and, in the event that the conflict could not be resolved, the question could be decided by the political power according to the procedures provided for the revision of the Constitution.
This exceptional procedure could in any case have a moderating effect on the Council's case law and would reflect the principle that in a democracy it is the political power that has the last word.
In this sense, the project to create a Supreme Court placed at the top of
Other measures should be aimed specifically at strengthening the accountability of political leaders.
In this sense, the lengthening of the duration of the presidential mandate with legislative elections during the mandate unquestionably represents an instrument of democratic breathing.
Consideration should be given to mechanisms for the individual political accountability of ministers before the National Assembly in order to avoid the intervention, often abusive, of judges in matters relating to political decision-making.
Finally, the control function of the Parliament must be reinforced, in particular by a more demanding recourse to studies of the impact of laws.
The role played by the Senate must be strengthened in this regard.
These few proposals are not intended to constitute a catalog of reforms, the decision in this matter being eminently political, but to emphasize the objective of any reform which must be the strengthening of an effective democratic political power and responsible.
