Thierry Lentz is Director General of the Fondation Napoléon and Associate Professor at the Institut catholique d'Études Supérieures de la Roche-sur-Yon (ICES). His latest book is Les Mythes de la Grande Armée (Perrin, 448 p., 2022).
In 1976, State Councillor Francis de Baecque published a book with the Presses universitaires de France whose title delighted law students: Who governs the France?. At that time, the author only wanted to untangle the respective relations and powers of the President of the Republic and his Prime Minister, complicated then by the differences between Valéry Giscard d'Estaing and Jacques Chirac. If such a work were to be rewritten today, a few chapters would have to be added.
" READ ALSO "The Constitutional Council is anything but a counter-power"
It would no longer concern only the famous "dyarchy at the top" (the expression is from De Gaulle, who did not want to hear about it), but should be extended to a phenomenon that our compatriots are not worried about: the place of judges and independent administrative authorities in the act of governing. It is nothing more and nothing less than a creeping, evolutionary and pernicious constitutional reform, because it calls into question article 3 of our Constitution, which states that "power belongs to the people who exercise it through their representatives and by referendum", and adds "No section of the people or any individual can claim to exercise it".
Trained on the benches of a school that no longer hides its ideological and societal preferences, judges draw absolute protection from their "independence" or "irremovability".
Thierry Lentz
Indeed, not a week goes by without a French or European court decision, a magistrate's statement or even a report by a body deemed independent (without being told what), i.e. so many non-elected agents, intervening directly in the course of public affairs or private life, until this astonishing report by the Court of Auditors which goes so far as to suggest limiting meat consumption to 500 grams per year. head and per week.
Read alsoHervé Lehman: "Some judges have for objective a society without borders and without prison"
Sheltered from adages that "slam" like commands to citizens to go elsewhere ("One does not criticize a court decision", "I would not comment on ongoing cases" or, the most beautifully, "I have confidence in the Justice of my country"), the interventions of magistrates in the public life of the nation and in the private life of citizens are multiplying. Big questions and detailed topics, nothing escapes their sagacity. Trained on the benches of a school that no longer hides its ideological and societal preferences, they draw from their "independence" or "irremovability" absolute protection, embodied in the silence of all, including the President of the Republic, responsible for ensuring respect for the Constitution and the continuity of the State (Article 5 of the Constitution). In particular, when they distort the 2017 presidential election, when investigative acts appear in newspapers even before they have been communicated to the parties, when they settle accounts with a barely appointed Minister of Justice, when they condemn a former president on suspicion of intent and more generally when they apply civil or criminal law in an ideological vision, without taking into account case law (by force, they hope for a turnaround that will prove them right) or national or social needs.
These privileges of judicial magistrates and their tendency to want to compete with the people and the executive have given wings to all bodies that enjoy the possibility of "judging" or intervening in a parcel of power.
Thierry Lentz
To top it all off, these magistrates judge "in the name of the French people" who have delegated to them the power to "say the law". It should be added that they sometimes seem to add to the principles mentioned above that of "impunity" either by covering each other, if necessary by means of appalled press releases, or by extensibly applying a 2019 law on the publication of court decisions that allows them to remain anonymous. From judicial authority, as the Constitution says, they have passed unopposed to politico-judicial "super-power".
These privileges of judicial magistrates and their tendency to want to compete with the people and the executive have given wings to all bodies that enjoy the possibility of "judging" or intervening in a parcel of power. A few examples among many. One day, the Constitutional Council seeks a concrete application of the principle of fraternity of the republican motto to meddle in migration policy, in favor of foreigners in an irregular situation. Another, the Council of State evaluates the government's environmental policy and sanctions the state with penalties if it does not improve it. Thirdly, the administrative courts apply to wet law and in the light of the moods of the rapporteurs (they treat this practice to the term "opportunity", it is more acceptable) this or that dispute, constituting themselves as a source of legal uncertainty. And what about the supranational judges of Luxembourg (Court of Justice of the European Union) and Strasbourg (ECHR) who oversee everything by limiting the power of our legislature and, always, apply vague legislation whose interpretation is binding on States that are in principle independent?
We could be pleased at the same time that the judges have taken off, if this official or unofficial multiplication of powers competing with constitutional powers were not a source of paralysis of the executive.
Thierry Lentz
Cream on this jurisdictional mille-feuille, the famous independent "administrative" or "public" authorities have multiplied. The rulers (and citizens) are now subject to the ideological whims of no less than twenty-four "volapüks", many of whom duplicate the inspections of the ministries, except that they receive instructions from anyone, are accountable to no one and impose their decisions on all. Some are known, such as the Regulatory Authority for Audiovisual and Digital Communication (Arcom), the Commission for Access to Administrative Documents, the Regulatory Authority for Electronic Communications, Posts and Press Distribution, the High Authority for Transparency in Public Life, the National Commission for Informatics and Liberties or the Defender of Rights (whose recent position against what he calls "violence"). police", regardless of the thousand wounded of the police leaves us perplexed to say the least). Others are less so, without their ability to impose their views on the State being less: High Council for the Evaluation of Research and Higher Education, Airport Noise Control Authority, Transport Regulatory Authority, Committee for the Compensation of Victims of Nuclear Tests, etc.
Read alsoLaurence de Charette: "Immigration, when judges take power"
It could be welcomed at the same time that judges have taken off, that courts are no longer afraid to assert themselves, that major subjects are dealt with independently of political pressures, if this official or unofficial multiplication of powers competing with constitutional powers were not a source of paralysis of the executive, marginalization of the legislature and, finally, the exclusion of the people from decisions that fall within their competence. This last aspect is probably the one that should worry us. It used to be joked (half-joking) that "if the people do not please, all you have to do is change the people". It is no longer even necessary: today it is enough to dilute it, to leave it only a portion of sovereignty and the impression that it continues to exercise it.