Ian Lee - In France, a quiet revolution on rights

France amended its constitution last week with the goal of "modernizing its institutions." Much of the media coverage has focused on the changes that affect the balance of power between the president and the Parliament, but an even more important change has received little notice: a new provision will allow individuals, for the first time, to assert their constitutional rights before French courts, and authorize courts to invalidate unconstitutional laws (New Art. 61-1  and amended Art. 62).

Written constitutionalism is not new in France. Neither is a constitutional court: in 1958, France established a “constitutional council” with the power to review bills. However, review by the constitutional council could only occur before the bill came into force, and only at the request of the president, prime minister or speaker of the Senate or National Assembly. The procedure could be compared with the Governor-in-Council References sometimes used in Canada to obtain the Supreme Court’s opinion on a proposed law, as for example in connection with proposed same-sex marriage legislation.

The standing requirements in France were relaxed in 1974 to allow any group of sixty Senators or MPs to refer bills --- in practice, the change meant that opposition parties (not only the government) also had access to the reference procedure. It was following this change that the French council began to be confronted with more controversial cases of the type that, since 1982, have also become familiar to Canadian courts. The French council has had to rule, for instance, on the constitutionality of abortion legislation, special status for Corsica, and restrictions on the use of languages other than French in advertising.

But even after 1974, a case still had to be brought before the bill was signed into law and, therefore, before its implications could be fully appreciated. Once a bill had become a law, it became unassailable — even if it violated the constitution!

Now, that’s changed. French citizens join Canadians, Americans and the citizens of other countries with written constitutions in being able to challenge a law in court if it violates their rights under the national constitution.

Why has France made the change? It may have been to relieve a paradox created by the rise of powerful transnational courts in Europe. For instance, in the 1970s, the European Court of Justice persuaded courts in the various member countries, including France, that they must refuse to apply national laws that violated European Community laws, because the latter were supreme. Since then, French citizens could invoke the European Community treaties in a French court, but they couldn’t invoke their own constitution!

In Canada we take citizen standing for granted, but, as with many things there’s a trade-off involved. On the one hand, citizen standing is good for ensuring that the constitution is respected. The protection of rights doesn’t depend on lawmakers foreseeing all the ways in which a proposed law could violate rights, and it doesn’t depend on potential victims of a rights violation finding a sympathetic opposition party to bring the case.

On the other hand, the previous system was designed to ensure legal certainty — citizens and officials alike could rely on a law “on the books” without fear that it might be later declared invalid — while providing an avenue for preventing unconstitutional bills from becoming laws in the first place.

Comments

[Adrien Matt]

I am always the first one to defend my home country France, but I think the efforts by the French government to prevent the use of any other language in avertising or broadcasting is an exagerated reaction. The French language is growing in use all over the world. Yes new English words are being adopted all the time, but I think it has always been the case. Just like it is true that the English language adopted a lot of French words.

[Tempus Thea]

An invitation to judicial meddling in the machinery of democracy I'd say. In Canada and the US one could present a factum to twenty lawyers and have twenty one opinions on the legality of the issue by the time it's all done.

This makes the law interesting in a positive sense for lawyers but makes the law interesting in the 'interesting times' sense for a citizen trying to figure out what is legal or not.

In Canada especially, one would do better to know the positions on social issues of the judge's social circle than to read the text of the law in order to find out the constitutional validity of a specific act.