24 March 2023

La Foule, le Peuple et la Societé

Across the Rhine, it is often said, no one cares much about the constitution. They don’t share the Grundgesetz infatuation of us legalistic Germans who, for good reason, don’t really trust our comparatively new state of somewhat questionable nascency for the most part, and therefore prefer to idolize the law that constitutes it instead. France, on the other hand: constitutions come and go, but France endures! Administration and politics, that’s much more solid and interesting than all that legal stuff, and whoever does research on these matters can hope to achieve fame and status and write bestsellers and be invited to appear on television, as opposed to the humble public law professor who mostly researches and teaches rather quietly somewhere in the provinces at their fac du droit. The constitution is supposed to empower politics, not hinder it. And if it gets in the way, it will more often than not be changed without much ado, and that’s the end of the matter.

But is that still true? It is easy to overlook this in view of the horrific images of burning city hall portals and towering rubbish heaps and bludgeon-wielding police that currently dominate media coverage. But could that aloofness towards the constitution be changing? Quarante-neuf troi! Anti démocratie! That’s what they shout at the demonstrations. Everyone is talking about constitutional articles all of a sudden! Article 49(3), Article 47(1), Article 11, the Constitutional Council and the référendum d’initiative partagée. Just as during the COVID pandemic virology expertise suddenly seemed to sprout up everywhere like spring weeds, France, in the current crisis, seems to be mutating into a nation of constitutional lawyers.1)

Emmanuel Macron himself, it seems, is invoking the legitimising power of constitutional procedures and institutions to defend his pension reform: “La foule n’a pas de légitimité face au peuple qui s’exprime à travers ses elus,” the President said in parliament on Tuesday. La foule, that is the mob, the crowd, the rioting masses in the streets, and they, according to the head of state, “have no legitimacy vis-à-vis the people who express themselves through their elected representatives”. On the opposite side of la foule, and thus on his side, stands the constitution: “Using the constitution to push through a reform is always a good thing if you want to respect our institutions.”

The next day, Macron doubled down. In a television interview, he compared the protests to the storming of the Capitol in Washington and of the government buildings in Brasilia. Legitimacy, so the argument goes, is not for the people who shout “We are the people” the loudest. It is for the people that is formed as an entity capable of action and accountability by the constitution. The people, as the German Grundgesetz puts it, exercises the state power derived from it “through elections and other votes and through specific legislative, executive and judicial bodies”. These organs, unlike the foule that merely asserts its identity with the people, have a solid reason to consider themselves legitimised by the people, to exercise power over the people. This is the great strength of the democratic constitutional state: In it, and only in it, power is founded on reason.

So, what about Macron’s power? In fact, it’s not the case that he had his pension reform legitimised by the two chambers of parliament in an ordinary legislative procedure. His government had pulled all the tricks in constitutional book to minimise the possibilities of the opponents of the reform pour s’exprimer à travers ses elus. Most importantly, the National Assembly, where Macron has no majority, never approved this law. This is the quarante-neuf troi mentioned above: Article 49.3 of the French Constitution provides for a special procedure that allows the government to enact financial or social security laws even without the approval of the National Assembly, unless the latter passes a motion of censure within 24 hours, i.e. brings down the government. This has a certain similarity to the linking of a law with a vote of confidence, which is not unknown in Germany either, whereby pressure is exerted on MPs to fall into line or risk the dissolution of parliament and thus the loss of their mandate. But there is one important difference: under Article 49.3, parliament does not actually approve the law. Rather, its contribution to the legislation is a failed motion of censure. This is not just a matter of names: in the vote on the law, abstentions and votes not cast are to the detriment of the government; in the motion of censure, they are in its favour.

The National Assembly has never approved the law. There was and is no majority in the people’s representation for this law. This makes it difficult to prop up the constitutionally elus as an argument against the alleged foule. This also applies to Macron’s own legitimacy as a directly elected president: he had indeed campaigned with his plan for this pension reform – but he was ultimately elected for not being Marine Le Pen and for no other reason. J’ai conscience que ce vote m’oblige, he had humbly promised after his re-election to all those who had not voted for him but against Le Pen: Your vote obliges me. To do what? To push through his programme as if he had won a majority for it when he actually hadn’t?

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In terms of policy, it is at first sight not at all easy to understand why it makes the French population so angry. A retirement age of 64 is something most non-French people can only dream of, after all. It starts to make sense only when you look at the procedure. People don’t want to be treated like that. It is precisely this self-important, technocratic, fundamentally apolitical attitude of knowing what’s best for the country, regardless of procedure and legitimacy, simply because you are in possession of an ENA degree and have been told all your life what a terribly clever guy you are, that the vast majority of French people no longer want to put up with. Macron is not the only one. The whole hermetically sealed political-administrative-business elite of the country is like that. But he is the President and Chef d’État and apparently neither able nor willing to even recognise what the problem is. He is resented for this, and rightly so. He and the constitution that makes it possible for him. It is not la foule nor le peuple that articulates this anger, but la societé.

How will this end? There are several possibilities. One is that the Constitutional Council will stop the law. That is not inconceivable, but not very likely either, and if it does, it will probably not find more to complain about than a few marginal procedural errors at most. Another would be for Macron to follow the example of his predecessor Jacques Chirac, who in 2006 decided to not implement the hardly less controversial labour law reform CPE after it had been enacted, in order to protect social cohesion. (The constitutional powers of the President of the Republic apparently allow for this, too.) A third option would be for the opposition to bring down the reform by means of a so-called référendum d’initiative partagée. Such a referendum under Article 11 of the Constitution can be initiated by 25% of the MPs with the blessing of the Constitutional Council. Then, within 9 months, they have to gather the signatures of 10% of the eligible voters, i.e. some 4.5 million citizens. That’s a huge number and has never been achieved in the history of the republic, and even if it is, that only obliges the government to put the law to the vote in parliament. But the sheer existence of the campaign can keep the pressure on the government up for months. And if you look at the level of anger in French society, who knows: maybe even 4.5 million signatures are doable, especially since a successful campaign can develop a dynamic of its own.

That leaves the fourth possibility: the pension reform stands. It is Macron’s reform, he alone is responsible for it, but he can no longer be held politically responsible, neither by parliament nor by the electorate; that is one of the great weaknesses of French semi-presidential democracy. Jupiter has hurled his thunderbolt. The damage is done, streets and cities are ablaze. Marine Le Pen, meanwhile, just needs to put on a demure smile and wait for power to fall to her all by itself. The brighter the conflagration, the more convincingly she can offer herself to the terrified bourgeoisie as the right person to restore security and order. Macron still has four years ahead of him. What can he do now? His legitimacy is gone. Also at the European level. At the moment he can’t even receive the British King for a state visit. It’s going to be a very bleak four years up there on Mount Olympus. In that case, this president will not be remembered for saving the French pension system. He will be remembered for paving the way for Mme la Présidente Marine Le Pen.

Many thanks to Aurore Gaillet, Thomas Perroud and Sébastien Platon for valuable input.

The week on Verfassungsblog

… summarised by PAULA SCHMIETA:

In fact, the pension reform is not the only matter in France to be worried about. SOPHIE DUROY scrutinizes a law that is passing through the National Assembly, allegedly about the 2024 Olympic and Paralympic Games, but in fact a concealed attempt to create a legal basis for algorithmic video surveillance which would be in violation of France’s human rights obligations and set a dangerous precedent in the EU by normalising biometric mass surveillance.

Speaking of the upcoming 2024 Olympic Games, PATRICIA WIATER inquires whether the current exclusion of Russian and Belarusian athletes from international competitions is justified. She argues that, from a human rights point of view, there are legitimate reasons for an unequal treatment of Russian athletes such as protecting the rights of Ukrainian athletes and preventing sporting events from being instrumentalised for war propaganda.

The International Criminal Court has issued an arrest warrant against Russian President Vladimir Putin and Russian Children’s Rights Commissioner Mariya Lvova-Belova. ROBERT FRAU draws attention to remarkable but hitherto little-noticed aspects of the warrants.

The debate on the electoral law reform in Germany continues under full steam. CHRISTOPH SCHÖNBERGER as well as JOACHIM WIELAND defend the abolition of the Grundmandatsklausel against the criticism of some of their colleagues articulated last week. While Schönberger recalls that the clause has always been questionable, Wieland finds little merit in the CSU’s announcement that it will take legal action against the reform before the BVerfG. THORSTEN KINGREEN argues that this move now brings the 5% threshold into the spotlight and calls for a political solution: to lower it to 3.5%. FRANK SCHORKOPF, on the other hand, foresees “serious constitutional problems” in the wake of the reform, as it possibly violates the principles of clarity of norms and comprehensibility and, on top of that, also the principle of political neutrality of electoral legislation.

Political parties trying to get rid of prominent members with scandalous opinions have been in the news a lot in recent years in Germany, mostly with little success, ex-Chancellor and estranged SPD member Gerhard Schröder being only the latest example. SIMON FRANZMANN explores why these cases abound and supposes that they “reflect struggles for party identity”.

Does the German railway company Deutsche Bahn need to be privatized? The Federal Audit Office has published a damning report that, according to some, suggests that it does. GEORG FREIß & TIMO LAVEN agree in many points with the fundamental criticism, but the conclusion that a privatisation is necessary exceeds the auditors’ mandate.

Two years after the much-celebrated climate decision of the BVerfG, THOMAS GROß finds little to celebrate: it has become apparent that the decision is virtually inconsequential, since neither the federal government nor the administration nor the courts nor even the BVerfG itself seem to feel normatively bound by it.

Can the recent UN agreement on the conservation of the oceans be described as the ‚New York Moment‘ for the oceans, to join the ‚Paris Moment‘ for the climate? MORITZ VINKEN thinks it can.

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In the wake of the takeover of Credit Suisse by the other Swiss banking behemoth UBS, JOHANN-JAKOB CHERVET analyses the Swiss Federal Council’s “CS Emergency Ordinance”. According to him, this constitutes emergency law contra legem, entailing a “profound shift of power” between the executive and the legislature.

DANIEL HOLZNAGEL‘s article on the EU Draft Regulation on Political Advertising is now available also in English.

Should citizenship status be conferred upon an unborn child? TPS HARSHA sheds light on the Pranav Srinivasan v Union of India case. Harsha explores the case’s “decisively inclusionary conception of citizenship” – which he considers to be an “important step forward in addressing statelessness among children in India” –, but also its possible negative influences on the, so far, progressive approach to abortion rights in India.

Half a century ago, the UK and Ireland acceded the European Union. 50 years later, with Ireland still in and the UK not, we explore in a blog symposium the constitutional evolution brought about by EU membership and Brexit. 50 Years On: Ireland and the UK In and Out of the EU is its title, organised by the peerless Joelle Grogan, and it started this week with contributions from JOELLE GROGAN & IMELDA MAHER, GRÁINNE DE BÚRCA & KENNETH ARMSTRONG, DAMIAN CHALMERS, GAVIN BARRETT und MARK BELL.

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This editorial is the last before the Easter break. I will be back on 14 April, God willing! In the meantime, take care, enjoy the holidays, and gobble up as much chocolate eggs, or whatever you treat yourself to on this seasonal occasion, as you possibly can!

And, of course, please don’t forget to donate!

Max Steinbeis

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References

References
1 I owe this observation to Aurore Gaillet.