The Evolution of Constitutional Control by the Judge in France
Download
Read an extract
Themes
Constitutional control, Judge, France, Rule of law, Constitutional norms, A posteriori control, A priori control, Constitutional Council, Rights and freedoms
Reader
Abstract
Extract
of 4
Abstract
This document provides an in-depth analysis of the gradual establishment of constitutional control by the judge in France, from its initial reluctance to its current significance in the country's legal system. Written in the context of a law course, this paper explores the modalities of constitutional control, the a posteriori and a priori controls, and the role of the Constitutional Council in ensuring the supremacy of constitutional norms. The author argues that the concept of the rule of law implies the guarantee of constitutional norms of origin, and that the judge has a crucial role in defending rights and promoting rights and freedoms.
Extract
[...] Historically, the control of the constitutionality of laws was indeed consecrated in the United States of America by the Supreme Court in its famous Marbury v. Madison decision in 1803. In France, the idea that the law is the expression of the general will has founded a traditional mistrust towards the admission of a control of the constitutionality of laws by the judge. Furthermore, the theory of the separation of powers has been the origin of a refusal to recognize to the judge the possibility of pronouncing on the conformity of laws to the Constitution, considered as an interference in the legislative power. [...]
[...] II) The modalities of the constitutional control by the judge The intervention of the judge in the context of the review of the constitutionality of laws has undergone significant evolution in France. We currently have two types of review; the first is said to be a priori the second a posteriori The a priori control: a guarantee against unconstitutional laws This control intervenes before the promulgation of the law. It is organized by Article 61, paragraph 1 of the Constitution which makes its seizure a mandatory procedure for organic laws and parliamentary assembly regulations. [...]
[...] Its decision on the freedom of association of 16 July 1971 constitutes the starting point in this context. Using principles consecrated by the spirit of the Constitution and its block of constitutional legitimacy, the judge declared a certain number of draft laws unconstitutional, censoring, for example, in the name of the principle of equality, a provision that limits recourse against compulsory taxation to only taxpayers with limited incomes, (73)-51 DC). It is the same for the right to bring a case before the judge for asylum seekers (93-325 DC, cons. [...]
[...] These affirmations assert the privileged place of the Constitution in the internal legal order. It follows that these norms impose themselves on all powers and on all other norms that are inferior to it. In its decision of 16 July 1971, the Constitutional Council clarified that this conformity extends, not only to the Constitution in its version of 4 October 1958, but also to its preamble, including the principles it enshrines, to the Declaration of the Rights of Man and of the Citizen, and to the Environment Charter, designated by the block of constitutional consistency. [...]
[...] It is now translated into the right recognized to the litigant to support that a legislative provision is contrary to the rights and freedoms enshrined in the Constitution. Thus, the fact that the law has already been promulgated is no longer an obstacle to contesting it. When the QPC is deemed admissible by the judge in charge of the case, it is transmitted to the Constitutional Council, if the latter judges that the law in question contradicts the Constitution, its application is then set aside but only in the case that gave rise to the referral to the constitutional judge. [...]
