The formula is attributed to a law professor and former justice minister, Jean Foyer, who was not considered a very great Liberal. It highlights the cumulative effects of the two provisions of Article 38 and Article 49.3 of the French constitution, which, like section 16, but without being provided for, give a political authority the power to concentrate normally separate powers. A 16a therefore.
The origin of Article 16 is historical. Convinced that if such an article had existed in 1940 the then President of the Republic, Albert Lebrun, would not have had to rely on the new head of government, Marshal Pétain, General de Gaulle in 1958 made a clause included in the constitution allowing the President, only in the event that the integrity of the territory is threatened « in a serious and immediate manner and that the regular functioning of the constitutional public authorities is interrupted », to « save » the Republic.
In the spirit as in the letter of the constitution, the government does not therefore have the vocation to concentrate all the powers since only the President of the Republic can do so, in accordance with his figure of « guardian of the institutions » which is inscribed in Article 5. But the constitution does give the government many possibilities, especially if they are skillfully combined by the institutions in place. Article 38, first, is the one that allows Parliament to authorize, for a specified time and for a specified purpose, to make laws in place of Parliament, laws that are called « ordinances ». Of course, Article 38 was designed in the spirit that Parliament gives the government proper authorization, which is discussed, considered and controlled. This need for discussion, reflection and control is the consequence of the fact that only parliament is composed of representatives elected by universal suffrage, unlike the government, whose members are all appointed by the President of the Republic.
Article 49.3 then, which allows the government to obtain the adoption of its text without a vote, on the text that it alone determines (by choosing, in particular, the amendments it accepts and those it rejects). The possibility of resorting to this procedure must be considered as an exception since it applies only before the National Assembly (and not before the Senate) and, apart from the Finance Act and the Social Security Financing Act, it may concern only one text per session (even if it has to be used each time the text returns before the National Assembly during the same parliamentary session). Because the Government puts its resignation in the balance (the vote of a motion of censure to which it exposes itself by triggering Article 49.3 obliges it to resign), it sends a message to its majority: “to continue to govern, I need this text, otherwise I resign”. But Article 49.3 also makes it possible, as the current situation shows, to exempt everyone from the requirements of the legislative procedure, which are then clearly conceived as « brakes » on government activity. There is something surprising about this formula here, since, normally, the law is the work of Parliament – with the exception of Article 38 – and not that of the government, which must above all accompany it by preparing it and then implementing it through various measures (orders and regulations).
In a regime considered democratic, the collegial and non-homogeneous composition in terms of politics and interests, in principle in connection with the national landscape from which the almost 1,000 parliamentarians (deputies and senators) are drawn by universal suffrage, explains the role of parliament in the making of law. It is a matter of properly asserting interests and stakes on all aspects of the envisaged law, especially if it is complex and socially declared as fundamental, as in the case of the bill instituting a universal pension system. Already the implementation by the government of the « accelerated procedure » (procedure known as « emergency » until the revision of 2008) allows this: no obligation to respect the rule of six weeks between the tabling of the bill in the National Assembly and its deliberation in session, no identical obligation before the Senate (extended to a period of 4 weeks). Emmanuel Macron had warned, as his platform as a candidate in the 2017 presidential election clearly stated: « We will make the emergency procedure the default procedure for examining legislative texts in order to speed up parliamentary work » (p. 27).
The use of section 49.3 is therefore here a further means of speeding up the adoption of a law, in a spirit contrary to the fundamental conception of law as a deliberate act by different and possibly conflicting interests. But it is the combination with Article 38 that makes its use even more exceptional.
It so happens that the bill instituting a universal pension system tabled by the government on 24 January last at the office of the National Assembly, in respect of which the government decided to invoke Article 49.3, contains 29 cases of authorisation given by parliament to the government to make laws in its place. The bill was already made very complex by these very important references to ordinances, often giving little visibility to the whole. This « gaping » text, as has been said, was thus contested in its very value as a presentable text to be deliberated on by parliamentarians in order to make law. But the use of Article 49.3 means that the references, which are as many requests for empowerment, i.e. 29 times, are therefore granted without proper discussion, reflection or even control. A general debate based only on motions of censure, to which must be added the 13 working days of the Assembly, which, in relation to a particularly complex text of 168 pages, turns out to be very little about the future of pensions on French territory.
The government has brought out « nuclear weapons », as Article 49.3 has so often been called, and it has not had to ask for the codes: the parliamentary majority seems to project itself with certain delight into this governmental « dictatorship », as the Romans called it when they decided to entrust all the powers, that of commanding, making the law and executing it, to a single person, « the dictator », to resolve a crisis linked to invasions or attempted coups d’état. In the Roman Empire, the dictator surrendered his powers when he had fulfilled his mission of restoring order. Unfortunately, Article 49.3 cannot be not surrendered.
By Lauréline Fontaine, March 3, 2020