In the months before this spring’s Presidential and Legislative elections, the Constitutional Council struck down some of the key provisions of three laws adopted by the legislative plurality that supported Prime Minister Lionel Jospin’s government. Specifically, they invalidated an article of the law funding the social security system relating to financing the 35-hour work in hospitals, an amendment to the law on social modernization proposed by the communist party that would have made it very difficult for enterprises to layoff workers, and an article of the law on devolving power to Corsica that would have given that region special powers not accorded to other regions. Although these decisions were made with care and although the judges accepted other controversial provisions in these laws, the judges’ actions nonetheless spawned Parliamentary denunciations, not only of the prospect of “government of the judges” but also of the excessive “right-wing” influence within the Council.
In fact, however, these decisions represent only the latest steps in what has been a long but constant evolution of the Council. Ten years ago, similar complaints emanated from the right-wing backbenchers who could not abide the decisions of a council supposed to be under socialist control. From my personal experience as a judge who served for the first half of his term within a “leftist” Council and the second half within a “rightist” one, I know that both claims are without merit. The French Constitutional Council, created by de Gaulle as an institution devoted to the Executive in 1958, has progressively become a true court, clearly independent from other powers and political parties.
The critical element in this evolution has probably been the process of appointment to the court. The nine members are selected for terms of nine years, with three members replaced every three years by the President of the Republic, the President of the Senate and the President of the National Assembly. In theory, this process is a purely personal and political one without any requisite as to previous training or experience of the nominees. In practice, however, the actual choice made by the appointing authorities has heavily favoured members with distinguished careers. Often and deservedly called “wisemen,” nominees have typically had vast experience either in the legal field (judges, lawyers and professors) or in the political one (former ministers or former members of the Parliament). Indeed, such has been their stature that one may wonder whether a formal requirement of any professional specifications would actually improve rather than impoverish the recruitment of the Council.