The Elders are regularly singled out for their supposed lack of impartiality. However, its members have regularly partially censored very sensitive laws. But they rarely invalidated entire texts. It is however the hope of the left for the pension reform.
The future of the bill depends on them. If several elected representatives of Nupes base “great hopes” on the decision of the Constitutional Council to completely censure the pension reform and force the government to withdraw its reform, some are worried – more or less openly – about a possible lack of Impartiality of the Sages.
Guest of BFMTV-RMC this Wednesday, Marine Le Pen thus promised to “respect” the decision of the body, while calling for open “reflection” around its composition, to ensure that its members are “truly and totally detached, totally independent”.
What annoy the presidential majority who denounced for his part “a little fashionable music to discredit the institution in anticipation” through Minister Stanislas Guérini. The questions around the independence of the rue de Montpensier are however recurring criticisms.
“Not independent of politics”
In question: the profile of the personalities who sit there and who are responsible for saying whether the pension reform is in accordance with the Constitution or not. No particular knowledge of constitutional law is required and nine of its members are appointed by the Head of State or the Presidents of the Senate and the National Assembly.
Added to this are the former heads of state, ex-officio members of the Constitutional Council, but neither Nicolas Sarkozy nor François Hollande currently sit there.
“These members are not independent of politics. They have all had a political career in their own name or gravity for years in the political mysteries”, underlines Laureline Fontaine, professor of public law at Paris-3 with BFMTV. com.
“Often, in their activity, these figures thought that the Constitutional Council should not be a counter-power so as not to hinder political exercise. Once on the other side, they often continue to think the same thing”, adds again this specialist in constitutional law, author of The battered constitution.
A “duty of ingratitude”
Former Prime Minister Laurent Fabius, the number 1 of the institution, was thus appointed on the proposal of François Hollande, in 2016. Three of the nine members have been appointed by Emmanuel Macron since 2017, including Jacqueline Gourault and the former law professor Jacques Mézard, both former ministers of Édouard Philippe.
Alain Juppé, ex-Prime Minister who defended his own pension reform in 1995 before backing down, was appointed by the former President of the National Assembly, Richard Ferrand, who remained close to the Elysée tenant.
“Of course, we have paths directly linked to power. But the members of the Constitutional Council are appointed for 9 years for a single term. This is supposed to facilitate their independence”, nuance Paul Cassia, professor of public law at Paris-1.
This is what Robert Badinter, then Keeper of the Seals, called “the duty of ingratitude”, once in office. Proof of a certain independence: despite a method of appointment that has never changed since the creation of the institution in 1958, more than 350 texts have been partially censored.
Very sensitive texts partially censored
Among the most recent: we can cite the law on the state of health emergency during the first confinement. In the midst of the Covid-19 epidemic, the Constitutional Council validates the text, while censoring elements related to the isolation of patients and the “tracing” of their relatives.
Same case with the global security law ardently defended by the Minister of the Interior Gérald Darmanin. In the spring of 2021, the wise men censor an article which planned to punish “the provocation to the identification of the forces of order”. This provision had been the subject of strong protest in the streets.
“The political experience of the Elders is put to the benefit of the examination of the constitutionality of the law. They are no longer politicized, we no longer see them intervening in the media, they are no longer invested in political parties”, advances again the constitutionalist Jean-Philippe Derosier.
The rarity of total censorship
But the total censorship of the texts on which the Nupes relies to force the government to withdraw its text is much rarer. This possibility has only happened about twenty times out of 1,800 laws examined since 1958.
“Total censorship is very rare because the Constitutional Council tends to say that it does not have the same power of appreciation as Parliament. It wants to leave a political margin to elected officials”, further deciphers constitutionalist Paul Cassia .
“To say that retirement should be increased from 62 to 64 is a very political consideration, which may seem far removed from the idea that the members of the Council have of their mission”, underlines the academic.
The rare cases of total censorship often stem from flagrant failures to respect the legislative procedure. In 2012, the Constitutional Council thus censured the entire Duflot law on social housing.
An unprecedented constitutional tool for pensions
The Elders had considered that “the constitutional requirement of clarity and sincerity of parliamentary debates” had not been respected. They felt that the text had not been sufficiently studied by the senators in the Economic Affairs Committee before arriving in the hemicycle. The parliamentarians had only had one morning to study a bill of several dozen pages.
In the context of the pension reform which was debated for several days in committee and led to 175 hours of discussions in Parliament, it is rather the multiplication of procedures that challenges. A 49.3 in the National Assembly at second reading, a blocked vote in the Senate with article 44.3, all against a background of recourse to article 47.1 of the Constitution to limit the time of debates to a maximum of 50 days.
“The procedure followed by the pension reform bill is unprecedented. 47.1 had never been used in the entire history of our Constitution. It could give the Council the opportunity to say something special”, deciphers public law professor Laureline Fontaine.
The answer of the Elders will arrive this Friday.
