CONSTITUTION OF FRANCE

SALIENT FEATURES OF THE CONSTITUTION

The supporters of this constitution call it the best constitution which would give stability to France.
Features of the Constitution of the French Fifth Republic
The Constitution of the Fifth Republic has been in operation since October 4, 1958. It
has been successful in securing constitutional stability. In this way, it has acted as a
source of continuous development of France. It was framed by a Constituent
Assembly which drew inspiration from General De Gaulle.

All the members of the Constituent Assembly acted under the strong influence of
General De Gaulle and they made the Constitution in accordance with his views. It
has been because of this fact that this constitution came be described as De-Gaulle’s
contribution to the French system of government. In the words of De Gaulle himself:
“The new constitution provides for a government made to govern.”

One of the key objectives of the new Constitution was to eliminate the chances of
constitutional instability which had reigned menacingly during the period of the
Fourth Republic. It has been successful in achieving this objective.

The Constitution of Fifth Republic incorporates a mixed Presidential-Parliamentary

model of government. It reconciles the republican and democratic principles of
Enlightenment philosophy (liberalism) with the need for a strong and stable
executive.

Main Features of the Constitution of Fifth Republic France:

1. Written, Brief and Enacted Constitution:
The Constitution of the Fifth Republic is a written and enacted Constitution like the
Constitution of the United States of America. Initially it consisted of a Preamble and
92 Articles. However, after Algerian independence and dropping of the provision
regarding French Community, the total number of Articles came down to 89. These
now stand divided into XVII Titles (Chapters). Each title contains provisions
covering a particular institution/feature of the constitutional system.

The Constitution of the Fifth Republic is an adopted and enacted constitution. It was
made by the Constituent Assembly of France. It was also approved by the people of
France in a referendum. It has been a self-made constitution of the people of France
which has been successfully guiding their march towards progress and prosperity.
2. Preamble of the Constitution:
The Constitution opens with a Preamble which projects the objectives and ideals
underlying the enactment of the Constitution. It reads: “The French people solemnly
proclaim their attachment to the rights of man and to the principles of national
sovereignty as defined by the Declaration of1789 and confirmed and completed by
the Preamble to the Constitution of 1946.”

“By virtue of these principles and that of the free determination of people, the
Republic offers to those overseas territories which express a desire to accept
membership of the new institutions founded on the common ideal of liberty, equality
and fraternity and conceived with a view to their democratic evolution.”

Art 2 states that the motto of the Republic is Liberty, Equality and Fraternity.

3. Popular Sovereignty:
Like the constitutions of India and the U.S.A., the French Constitution of 1958
affirms belief in the sovereignty of the people. Article 3 declares: “National
Sovereignty belongs to the people, who exercise it through their representatives and
by way of referendum. No section of the people and no individual may claim to
exercise it….” Further, the Constitution in its Article 2 declares: “Its principle is
Government of the people by the people and for the people.”

4. Constitution is the Supreme Law:

The French Constitution is the supreme law of the land. Every organ of the
government derives its powers from the Constitution. Acts and Laws of all the
authorities are subject to the review of the Constitutional Council which can reject
anything that it finds to be unconstitutional.

5. France is a Secular State:

France, like India, is a secular polity. Article 2 declares: “France is an indivisible,
secular, democratic and social Republic. It ensures equality of all citizens before law
without distinction of origin, race or religion. It respects all beliefs…… The motto of
the Republic is liberty, equality and fraternity.”

France is now trying to eliminate distinctive religious symbols from the social life of
France. It has now banned the wearing of religious symbols as a part of the dress.
Some sections of the people are opposed to all this. Sikhs in France have been
asserting their right to wear turban and carry all sacred symbols of Sikh religion.
6. A Rigid Constitution:
Under Title XVI and Art. 89, the method of amendment of the French Constitution
has been laid down. The method of amendment that has been prescribed is a rigid
method. The power to propose an amendment is with the President cum the Prime
Minister, and with the members of the Parliament. The power of amendment is with
the Parliament.

Art. 89 reads: “The initiative for amending the constitution shall belong both to the
President of the Republic on the proposal of the Premier and to the members of the
Parliament. The Government or the Parliamentary Bill for amendment must be
passed by the two assemblies in identical terms. The amendment shall become
definite after approval by a referendum”.

“Nevertheless, the proposed amendment shall not be submitted to a referendum

when the President of the Republic decides to submit it to the Parliament convened
in Congress; in this case, the proposed amendment shall be approved only if it is
accepted by a three fifth majority of the votes cast… ”

In this way, we find that for amending the Constitution, it is essential that the
proposed amendment should be passed by the two houses of the Parliament in
identical terms and then it should be submitted to the people for approval in a
referendum. There is another method of amendment stipulated in this very Article.

According to it, if a Government Bill is proposed by the President in the joint bill
sitting of the two Houses and if it is passed by a 3/5th majority, then the proposed
bill becomes an amendment even without having been approved by the people in a
referendum.

As such, the French Constitution is a rigid Constitution. Both the methods of

amendments are rigid in nature and content. The method of amendment has an
inbuilt ambiguity. As Maurice Duverger puts it, “Article 89 has an inbuilt ambiguity.
It is ambiguous in that it does not make clear whether the President’s decision not to
submit a proposed revision to a referendum renders the first stage unnecessary or is
taken only when this has been completed.”

The Article is further inadequate as it does not specify as to how the proposal for
revision is to be passed by the Parliament. The term ‘identical terms’ also lacks clarity
as it fails to specify the method of resolving conflict between the two Houses over an
amendment proposal. Like the U.S. constitution, there are two limitations imposed
on the amendment of the French Constitution.

These are:
(i) The amendment cannot be initiated at a time when the integrity of the nation is
under attack, and

(ii) The republican form of the constitution cannot be changed.

7. Republican Constitution:
Like the Indian and American constitutions, the French Constitution too is a
Republican Constitution. The head of the State is the President of France who is
directly elected by the people of France. Article 6 declares: “The President of the
Republic is elected for seven years by direct universal suffrage.”

8. Democratic Constitution:
The Constitution of the Fifth Republic provides for a democratic state in its true
spirit. All the essential features which constitute a democratic state are present in the
French Constitution. These democratic features are: popular sovereignty, universal
adult franchise, periodic and free elections, right to form political associations,
regular elections, direct elections, secret voting, representativeness responsible and
accountable government, etc. Thus, the French Constitution is a liberal democratic
constitution.

9. Mixture of Parliamentary and Presidential Systems of Government:

The French Constitution provides for a mixed type of government in France. It
combines the features of both Parliamentary and Presidential forms. The President is
the head of the state but he is neither a purely nominal head of the state like the
Indian President nor an all powerful executive like the U.S. President.

In France, executive powers have been divided between the President and the Prime
Minister. The President exercises some real executive powers. The President has
been made an arbiter between the Parliament and the Government (Ministry).

In times of emergency, he becomes very powerful. Normally also, he appoints the

Prime Minister and presides over the meetings of the Council of Ministers. Along
with this, it has been stated in Art. 21 that, the Prime Minister is in-charge of the
work of Government. He directs the operation of Government. He is responsible for
the national defence. He ensures the execution of laws. He deputises for the
President of the Republic whenever necessary. He can delegate certain of his
functions to the ministers.

The Prime Minister and other Ministers are not members of the Parliament (Article
23). However Art. 49, makes it responsible before the Parliament. The Parliament
can pass a vote of no confidence or a censure motion against the Prime Minister or
the Government and can force the Prime Minister to resign forthwith (Art. 50). The
Prime Minister can also recommend to the President, the need for the dissolution of
the Parliament.

Moreover, ministers not members of the Parliament, but they can take part in its
work in every way except when the Parliament comes to vote on a measure. Thus, the
French executive represents a mixture of Parliamentary and Presidential executives.

Brogan has rightly stated, “The French Constitution is neither a Presidential

Constitution of American type nor a Parliamentary Constitution of English type, it is
a mixture of the two.” Analyzing the nature of the Parliamentary executive in the
Fifth Republic, C.F. Strong points out that it has two basic features of the
parliamentary form: “That the President should appoint the Prime Minster on whose
proposal, he should appoint the other members of the Government (Art. 8) ” and
“that the Government (Ministry) should be responsible to the Parliament (Art. 20)”.
To that extent, France under the Fifth Republic has a Parliamentary form.

However, there are several features which make the system a semi-Presidential
system based on the principle of separation of powers.

Firstly, the President is now directly elected by the people and enjoys some real
executive powers.

Secondly, the ministers are not members of the Parliament and thus are not subject
to the discipline of the parties and the pressure of the electors.

Thirdly, the President is “the chief executive and active head of state.

Fourthly, the President has the right to dissolve the Parliament and call for new
elections.

Finally, the Constitution gives to the President the authority to take drastic
emergency measures when there develops a threat to the institutions of the Republic,
independence of the nation, the integrity of its territory or the execution of its
international obligations. These features reflect the ‘Presidential nature’ of the
executive under the Fifth Republic.

All this brings out the fact that the French system is neither purely parliamentary nor
purely presidential.

10. Bi-cameral Parliament:

The Constitution establishes a Bi- Cameral legislature in France. Art. 24 declare:
“Parliament is composed of the National Assembly and the Senate.” The National
Assembly is the lower, popular, directly elected and more powerful House of the
Parliament. The Senate is the upper, less popular, quasi-permanent, indirectly
elected and less powerful House. In it, representation has been given to the territorial
entities of France and the French citizens residing abroad.

In the text of the Constitution, the membership of the two Houses, the tenure of the
two Houses, the qualifications and disqualifications of the members of the
Parliament, have been left to be decided by organic laws. Under Arts 26 and 27, the
members of the Parliament have been given certain privileges.

11. Rights of the French People:

In the body of the Constitution, a separate list of the rights and freedoms of the
people has not been included. But this does not mean that the French have no rights.
The Preamble to the Constitution declares that the French people continue to enjoy
all those rights and freedoms which they had been enjoying under the Constitution of
1946 and which had been mentioned in the Declaration of Rights. Moreover, Art. I
declares the objectives of the Republic as liberty, equality and fraternity and Articles
3 and 4 give them their political rights viz. the right to vote and right to form political
associations.

12. Constitutional Council-the Institution for Judicial Review:

Under the French Constitution, a special institution has been formed to determine
the validity of laws and orders made by the Parliament and the Government. This
power, which in other countries like India and the U.S.A. has been given to the
courts, has been given in France to the Constitutional Council. It consists of 9
members, each having a tenure of 9 years. One third of the members retire after
every three years.

The President of France, the Presidents of both the National Assembly and the
Senate nominate 3 members each to the Constitutional Council. In addition to these
nine members all former Presidents of the Republic are ex- officio life members of
the Constitutional Council. The President of the Constitutional Council is appointed
by the President of the Republic.

This Council has been given the power to judge the constitutionality or
unconstitutionality of organic laws before their promulgation and the ordinary laws
and the rules of procedure of the parliamentary assemblies before their application.

This Council also acts as the Election Commission and the Election Tribunal in
parliamentary elections.

This is a unique French institution. It has been copied by the Constitution of Russia.

13. Economic and Social Council:

Under Title XI and Articles 69, 70 and 71, a new council—the Economic and Social
Council has been created. The Government can seek its advice on any law. Any plan
or any bill of economic and social character can be submitted to it for its opinion. The
members of this Council can present their opinions on any bill which is under
discussion in the Parliament.

14. Provisions Regarding Territorial Units of French Republic:

The territorial units of the French Republic are: the communes, the departments and
the overseas territories. These are self-governing units and each has an elected
council. The delegates of the Government of France, have the responsibility to secure
national interests and to mountain administrative supervision over the departments
and territories. The overseas territories have their own particular organisations. For
each such territory an Act of the Government of France lays down the organisation
and functions of its administrative organisation.

15. Provisions regarding European Communities and European Union:

Title XV (Articles 88-1 to 88-4) contains provisions relating to the French
membership of the European Communities and the European Union. (EU) France is
a member of the European Union and its three communities. It actively participates
in the formulation and execution of the policies and decisions of these communities
and the EU.

After becoming party to the Treaty on European Union on 7th February 1992, France
has transferred some of its powers for establishing the European economic and
monetary union as well as for the formulation of rules relating to crossing of external
borders of the member states of the European Union.
Citizens of the members states of the European Union, who are residing in France
have been given the right to vote and contest elections to the municipal councils of
the local areas. However, they are not eligible to become Mayors or Deputy Mayors
or to get elected as senators. All resolutions of the European Union come before the
French Parliament for its approval.

16. System of Administrative Law and Administrative Courts:

Art.2 of the Constitution declares equality of all citizens before law. However, as
Dicey puts it, a distinction is made between ordinary citizens and civil servants in
respect of treatment before law. In France, the civil servants are under
Administrative Law and can be sued only in Administrative Courts whereas ordinary
citizens are under ordinary laws and are sued in ordinary courts.

This feature is in sharp contrast to the system prevailing in Britain and India. In both
these countries there is a single system of law enforced by one type of courts. No
difference is made between ordinary citizens and civil servants. Taking into account
this difference, Dicey declares that the rule of law does not exist in France. However,
Dicey’s observation is not really valid.

17. Unitary Constitution:

Like Britain, France is also a unitary state. All powers of administration of France
have been vested in the Central Government which exercises them for all the people
and over whole of the French territory. Local Governments derive their powers not
from the Constitution but from the Government of France.

18. Multi-Party System:

Like our own country, in France also a Multi-party System is in operation. The
French enjoy the constitutional right to form political associations. Unlike the Indian
Constitution which presupposes the existence of political parties but never mentions
it, the Constitution of France makes a mention of political parties.

Art. 4 declares: “Parties and political groups play a part in the exercise of the right to
vote. The right to form parties and their freedom of action are unrestricted. They
must respect the principles of national sovereignty and of democracy.” The last
sentence constitutes two democratic limitations upon the organisation and activities
of political parties. Several political parties are actively present in the French Political
System.
From the study of these features of the Constitution of the Fifth Republic France we
can say that a bold and constructive attempt has been made by the French acting
through their constitution to wipe out the evil of political instability that had
previously plagued their political life. The present constitution decidedly constitutes
an improvement over all the previous constitutions.

In this Constitution, the framers have tried to put together the experiences of the
past. Although it has been labelled by some of the French writers, as: ‘Tailor-made
for General De Gaulle’, ‘Quasi-Monarchical’, ‘Quasi-Presidential’, ‘A Parliamentary
Empire’, ‘Unworkable’, “the worst drafted in French Constitutional history”, yet it
must be admitted on the basis of its working, that it has been successful in giving
France a consistently stable republican government.

The Constitution of the Fifth Republic contains a good synthesis of the features of
Parliamentary and Presidential forms of government. It has already been in
operation for about six decades and its practicability has been amply proved.

Initially its biggest defect used to its incomplete nature because in it a number of
questions were left to be decided by organic laws. That defect is no longer there. A
network of organic laws has already supplemented it. It appears quite certain that
this Constitution of France is going to live a very long life.