The Constitutional Council has decided to introduce more transparency and contradiction in the a priori control of the constitutionality of laws. It published, on Friday March 11, internal regulations framing the procedure by which it exercises this control before the promulgation of a law, when it is seized by sixty deputies, sixty senators, the president of one of the two assemblies, the Prime Minister or the President of the Republic.
The institution is taking an important step on the road to jurisdictionalization, which its president, Laurent Fabius, is working on. This, at a time when some parliamentarians or candidates for the presidential election contest the prerogatives of the institution capable of censoring a law, yet an expression of the sovereignty of the people since voted by its elected representatives.
These rules of procedure, the result of a decision by the nine members of the Board, formalize certain practices already in force within it. But it is also innovating, by planning, for example, to put the referral of which it is the subject online. Until now, it was necessary to wait for its decision to know which articles of law it was seized of and the problems of constitutionality invoked.
Sometimes criticized as a black box with unpredictable decisions, the Constitutional Council sets in stone its desire to work with respect for the contradictory
Sometimes criticized as a black box with unpredictable decisions, the Constitutional Council sets in stone its desire to work with respect for the contradictory. He had happened to hear during the procedure the parliamentarians who made the referral, as in 2021 regarding the Global Security Act. But this practice was occasional and rare. From now on, such a hearing can take place at the request of parliamentarians. Their written observations will become procedural elements, sent to the other parties, to which the decision on whether or not to comply with the Constitution will have to respond.
A major innovation, the rapporteur of the Constitutional Council will be able to receive written observations from other deputies or senators than those who signed the referral. A way to give voice to parliamentary groups that do not have sixty members, or to the defenders of a text attacked by the opposition. These written arguments will be in the procedure.
This responds to a demand for equality of arms before the Constitutional Council. Indeed, the general secretariat of the government, in other words the executive through Matignon, was a legal participant in this procedure, but not the legislator, apart from the elected officials at the origin of the referral. However, the government was sometimes suspected of weakly defending articles resulting from parliamentary amendments. The presidents of the two assemblies certainly had the right to intervene, but did not do so. This right is therefore strongly reaffirmed.
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