Le droit public: « Que sais-je ? » n° 1327 (French Edition)

Another important modality of adaptation has been institutional practice. The French Constitution of strikes a good balance between rigidity and flexibility. Three constitutional amendments prior to the major revisions of July brought about significant changes in the structure and operation of French political institutions. The original Constitution provided for the indirect election of the president by an electoral college composed of about 80, elected officials—deputies and senators, members of departmental and municipal councils, and mayors.

In the Constitution was amended to provide for the direct election of the president by universal suffrage. The constitutional amendment of was approved by a presidentially initiated referendum, in apparent violation of article 89 of the Constitution. In the Constitution was amended to allow sixty deputies or sixty senators to refer a recently enacted law to the Constitutional Council for review of its constitutionality prior to its promulgation by the president of the Republic.

This amendment accorded considerably more influence to the minority opposition party in the legislature, as it could now challenge the constitutionality of laws before their promulgation. It also greatly enhanced the role of the Constitutional Council, since now it was able to review almost all important parliamentary enactments for their constitutionality. In the Constitution was amended to reduce the term of the president from seven years to five years. This near simultaneity of presidential and legislative elections greatly reduces the chance that different political parties would control the presidency and the National Assembly, and hence the possibility of cohabitation.

The power of the president has thus been significantly enhanced at the expense of Parliament. According to the Constitution, if the Constitutional Council decides that an international engagement would violate the Constitution, France cannot undertake that international engagement without a prior modification of the Constitution. In July the Constitution underwent major revisions, the purpose of which was to better define the relationship between the institutions of government, to enhance democracy by according more power to the Parliament, and to facilitate the vindication of rights by citizens through the judicial process.

One of the principal vices of the Fourth Republic in the eyes of General de Gaulle and his allies was the power of Parliament to interfere with the proper functioning of the executive branch, leading to incoherence in governmental policy and sapping the French state of the ability to effectively confront domestic and foreign challenges.

To remedy this defect, the Constitution of did several things. First, it accorded to the Government an autonomous regulatory sphere in which it had legislative-type power to enact rules and also the power to implement the rules established by Parliament. Finally, the Government possessed a powerful device to have its legislation enacted, by, in effect, challenging the National Assembly to either accept a Government bill or to overturn its own Government by a vote of no-confidence.

In spite of the original purposes for which the Constitutional Council was established, and which it fulfilled from on, [78] the Council soon undertook the more significant and controversial function of reviewing just-enacted legislation but before its promulgation by the president of the Republic for its conformity to the substantive provisions of the Constitution. In its most important decision to date, the Freedom of Association decision of July 16, , [79] the Council struck down a parliamentary enactment on the ground that it violated a substantive principle of constitutional status.

Since , the Constitutional Council has played a major role in the legislative process, [81] interpreting and applying the Constitution and other principles with constitutional status valeur constitutionnelle to just-enacted legislation. Now that minority deputies and senators can refer laws to the Council, almost all important legislative enactments receive its scrutiny for their constitutionality. In conducting this review, the Council, of necessity, interprets and develops the Constitution—both in its decisions that have separation of powers implications and those affecting matters of substantive law.

Here are some examples. Although originally established to assure that Parliament did not interfere with the executive power, the Council has often interpreted the Constitution to enlarge parliamentary competence. For example, in its R. According to the Constitution, however, fines for misdemeanors contraventions fall clearly within the domain of the regulatory power of the Government.

In deciding whether Parliament nevertheless had the competence to adopt this provision, the Constitutional Counsel had to settle a long-standing controversy: When the Council regarded legislative power as overreaching or inappropriately exercised, it interpreted the Constitution to impose significant limitations.

Also, the Council has not been hesitant to construe its jurisdiction broadly in order to preserve the constitutional separation of powers scheme. For example, in a decision, the Council held that it could review an ordinance for its constitutionality even through Parliament had not enacted a law to approve the ordinance. As such they are not subject to review by the Constitutional Council, but may be reviewed by the Council of State. Ordinances which have been ratified by Parliament may be reviewed by the Constitutional Council for their constitutionality if the ratifying statute is referred to the Council.

In its decision, the Constitutional Council extended its jurisdiction to review ordinances that had not been ratified by Parliament if a subsequent statute presupposing the validity of the ordinance is referred to the Council. But expansive, facilitative interpretation has its limits. Where the Constitution is clear, in spite of political consensus and contemporary needs and values to the contrary, the Council enforces the constitutional scheme. In its Gender Quotas I decision of and Gender Quotas II decision of , the Council also found laws to advance gender equality to violate the constitutional principle of equality.

The jurisprudence of the Council demonstrates that the Constitution can be adapted to changing needs and values, but only up to a point. Then, constitutional change must occur through the political process, i. Thus, in , then-article 3, now the second paragraph of article 1, of the Constitution was amended to add the words: Perhaps it is the vagueness of the Constitution regarding the relationship between president and prime minister that has allowed successive presidents and prime ministers to tailor their relationship to suit the political environment of the time. The Constitution as applied by the Constitutional Council has had little relevance in defining the relationship between president and prime minister during periods of cohabitation.

The president is elected by the people and is responsible to them. One thing is certain, however: The legislative elections of March resulted in a small majority for the parties of the Right in the National Assembly. This was the first time since the inception of the Fifth Republic in that the president and the prime minister were from opposing parties. This cohabitation was particularly tense and difficult for two principal reasons: A potential constitutional crisis arose early in the Mitterrand-Chirac cohabitation.

On March 20, , Prime Minister Chirac announced that he intended to submit two laws to Parliament authorizing the Government to legislate by ordinances. In particular, in order to accomplish with the least delay the recovery of the country and to make our institutions more effective, two authorization laws will be submitted to Parliament authorizing the Government to legislate by ordinances So I think that ordinances, which The Constitutional Council approved both laws, subject to certain interpretive reservations.

Or may he exercise his discretion in deciding whether to sign the ordinance or not? President Mitterrand was reelected in , and his party emerged with a few more seats in the National Assembly than the parties of the center Right, but not enough for a majority. Nevertheless, President Mitterrand was able to select a prime minister from his own party and to control the legislative agenda.

The legislative elections of March , however, resulted in a substantial majority for the parties of the center Right in the National Assembly. The political context of this cohabitation was very different from that of the first cohabitation, as President Mitterrand, old and ill, and Prime Minister Balladur, who disclaimed presidential ambitions, were not competitors for the presidency in the upcoming election of Effective power passed to the prime minister.

In President Jacques Chirac dissolved the National Assembly and called for legislative elections, which he had the power to do pursuant to article 12 of the Constitution. He did so because he thought that the electoral position of his party, although deteriorating, was still strong, and he wanted to assure a continuing parliamentary majority for the last five years of his seven year term of office.

To his great chagrin, however, the parties of the Left won seats in the National Assembly and the parties supporting President Chirac won only seats. Because of the radically altered political environment, Prime Minister Jospin was able to exercise considerably more power than the prime ministers during the first two cohabitations. Although comprehensive constitutional reform had been considered during the s, and a report had been prepared in recommending numerous revisions, [] reform did not occur at that time.

In a letter to Chairman Balladur, [] the president charged the Commission with several tasks: President Sarkozy also asked the Commission to advise him on the desirability of introducing some degree of proportionality into parliamentary elections. The Balladur Report is divided into three sections: Each section contains detailed recommendations which deal with most of the matters raised by President Sarkozy in his charge to the Commission.

Parliament and later Parliament in Congress approved most of the recommendations of the Balladur Commission, but did reject four significant proposals: The Commission did recommend, however, that the functions of president and prime minister be better defined and divided. Thus, it proposed that article 5 be amended to include the words: This major initiative to better define the role of president and prime minister and Government, to make clear that the president sets policy and the prime minister and his Government implement it, was in the final analysis simply too far removed from the republican tradition to be acceptable to Parliament.

The Commission had more success with its recommendations to better define the prerogatives of the president. An amendment to article 13 limits the nominating powers of the president. Giving this unencumbered power to the president, in conjunction with adoption of an ordinance containing an extensive list of positions subject to the presidential appointment power, [] accorded with the spirit of the Constitution, which was to enlarge the powers of the president and to diminish those of Parliament.

The President of the Republic may not make an appointment when the sum of the negative votes in each committee represents at least three-fifths of the votes cast by the two committees. He no longer possesses the power to grant collective or group pardons. The Vedel Report of recommended that the emergency powers provision be retained, but that additional safeguards be added to prevent its abuse. The primary goal of the Constitution was to empower the president and Government to act promptly, efficiently, and firmly to determine and effectuate the national interest.

This necessarily involved the expansion of the sphere of executive responsibility and the facilitation of executive action, as well as the curtailment of parliamentary power, all of which the Constitution duly accomplished. The critical inflexion points were the constitutional amendment of on the direct election of the president and the presidential election of , the first presidential election after the resignation of General de Gaulle and his withdrawal from political life.

In his famous press conference of January 31, , President de Gaulle clearly expressed his view that the president was the supreme power in the nation. Over time, the president has become more and more involved and dominant in party politics. Strange as it may seem to the American observer, the Constitution as originally adopted accords to the Government the dominant position in organizing the work of the houses of Parliament. During two weeks of sittings out of four, priority shall be given, in the order determined by the Government, to the consideration of texts and to debates which it requests to be included on the agenda.

In addition, the consideration of Finance Bills, Social Security Financing Bills and, subject to the provisions of the following paragraph, texts transmitted by the other House at least six weeks previously, as well as bills concerning a state of emergency and requests for authorization referred to in article 35, shall, upon Government request, be included on the agenda with priority.

During one week of sittings out of four, priority shall be given, in the order determined by each House, to the monitoring of Government action and to the assessment of public policies. One day of sitting per month shall be given to an agenda determined by each House upon the initiative of the opposition groups in the relevant House, as well as upon that of the minority groups. During at least one sitting per week, including during the extraordinary sittings provided for in article 29, priority shall be given to questions from Members of Parliament and to answers from the Government.

Another significant amendment enhancing the power of Parliament is the change made to article 49 3. As adopted in , article 49 3 allowed the Government to enact legislation by the devious route of turning the vote on its bill into a vote of confidence. According to that article before its amendment in The article 49 3 procedure can now be used only for finance bills and social security financing bills and one other bill per session. Article 45 2 now reads:. The Balladur Commission made a number of proposals for constitutional amendments to improve the legislative process: It shall assess public policies.

New article provides for the assistance of the Cour des comptes to Parliament: The accounts of public administrations shall be lawful and faithful. They shall provide a true and fair view of the result of the management, assets and financial situation of the said public administrations. Thanks to new article , Parliament may now adopt resolutions. Its ability to do so had previously been limited by a decision of the Constitutional Council holding that the responsibility of the Government could only be raised pursuant to the conditions and procedures of articles 49 and 50, and that resolutions calling for the implementation or disapproval of certain policies were in effect challenges to the government.

The Houses of Parliament may adopt resolutions according to the conditions determined by the Institutional Act.

Any draft resolution, whose adoption or rejection would be considered by the Government as an issue of confidence, or which contained an injunction to the Government, shall be inadmissible and may not be included on the agenda. The amendments also significantly increase the involvement of Parliament in European policy and in foreign and defense policy. Article , as amended, now provides:. In the manner laid down by the rules of procedure of each House, European resolutions may be passed, even if Parliament is not in session, on the drafts or proposals referred to in the preceding paragraph, as well as on any document issuing from a European Union Institution.

The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed by a vote. Where the said intervention shall exceed four months, the Government shall submit the extension to Parliament for authorization. It may ask the National Assembly to make the final decision. If Parliament is not sitting at the end of the four-month period, it shall express its decision at the opening of the following session.

Fifty years of constitutional evolution in France: The amendments and beyond

Since the Government and the National Assembly are controlled by the same political party or a coalition of parties with the same basic political orientation, the opposition party in Parliament must be able to play a significant role in the work of the Parliament if Parliament itself is to be much more than a mere rubberstamp for the Government and to play a significant political role, especially in overseeing the operation of the Government.

According to the Balladur Report:. All of the preceding proposals pursue the same objective: That will be attained only if the prerogatives accorded to it benefit all parliamentarians, and not solely those who support the action of the Government. The thinking of the Commission on this question has been guided by one constant concern: The amendments add a paragraph to article 4 of the Constitution which deals with political parties: The amendments also add a new article, They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights.

Parliament should better reflect the views of the people. To this end, the Balladur Report proposed adding an element of proportionality about seats to elections for the National Assembly. In April , the appellant sent the respondent a letter denying any liability. On June 2, , the respondent brought an action against the appellant seeking damages for bodily injury. He based this conclusion on the wording of art.

He added that art. He noted that this is how the Minister of Justice interpreted the article in his commentaries Commentaires du ministre de la Justice: He based this conclusion on art. It is the jus commune applicable to everyone, even legal persons established in the public interest. In the case before the Court, even a narrow, literal interpretation of article C. Moreover, this article was enacted after section of the Cities and Towns Act.

Because of my conclusion on the main issue, I will not deal with that alternative issue. The absence of notice or its irregularity because late, insufficient or otherwise defective, must be set up by exception to dismiss action or by dilatory exception, as the case may be, and not by a plea to the merits. Failure to invoke such means within the delays and according to the rules established by the Code of Civil Procedure , constitutes a waiver of such irregularity.

Doré v. Verdun (City), [1997] 2 SCR 862, 1997 CanLII 315 (SCC)

No contestation of the facts may be inscribed until judgment is rendered on the said exception to dismiss action or on the said dilatory exception and such judgment must dispose thereof and not reserve them for the merits. Article of the Code provides as follows:. Notwithstanding any stipulation to the contrary, where an action is founded on the obligation to make reparation for bodily injury caused to another, the requirement that notice be given prior to the bringing of the action or that proceedings be instituted within a period not exceeding three years does not hinder a prescriptive period provided for by this Book.

An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established. The former argue that art. Baudouin, Les obligations 4th ed. II, , at p. It is now up to this Court to resolve that debate. Commentaries of the Minister of Justice. The appellant, relying mainly on common law authorities, argued in this Court that the commentaries should not be considered in interpreting the Civil Code Hilder v.

Strictly speaking, therefore, they are not part of the parliamentary history surrounding the enactment of the Civil Code , unlike the Report of the Commissioners for the Codification of the Laws of Lower Canada relating to Civil Matters , which has been used by this Court to support its interpretation of provisions of the Civil Code of Lower Canada see: They were issued by the Department of Justice and were generally based on the parliamentary history.

These commentaries will be general but based, inter alia , on the work of the C. The rich parliamentary history will therefore not be lost, and these commentaries can serve as theoretical writings.

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These commentaries attest to that and will be an invaluable reference in interpreting the Code in the context of the necessary changes to one of the most fundamental laws of our legal system. Of course, the interpretation of the Civil Code must be based first and foremost on the wording of its provisions. That said, however, and as noted by Baudouin J. The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune , expressly or by implication.

In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it. This provision explicitly states that the Civil Code is the jus commune of Quebec. Thus, unlike statute law in the common law, the Civil Code is not a law of exception, and this must be taken into account in interpreting it.

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It must be interpreted broadly so as to favour its spirit over its letter and enable the purpose of its provisions to be achieved. In this regard, see: According to the preliminary provision, the Code is also the foundation of all other laws dealing with matters to which the Code relates, although such laws may complement the Code or make exceptions to it. It is therefore the foundation of all statutes that draw mainly or incidentally on civil law concepts. It is also applicable to the aspects of legal persons established in the public interest that come under the Civil Code.

Legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type. Both kinds of legal persons are also governed by this Code where the provisions of such Acts require to be complemented, particularly with regard to their status as legal persons, their property or their relations with other persons.

This article clearly states two principles: On the latter point, notary J. Clearly, this is intended to be approximately equivalent to the portion of article [ C. The latter provision, which this Court considered in detail in Laurentide Motels Ltd. Beauport City , supra , provided as follows:. Secular corporations are further divided into political and civil; those that are political are governed by the public law, and only fall within the control of the civil law in their relations, in certain respects, to individual members of society.

It can be seen that the wording of art. I, in which the following is stated about art. This article makes it possible to apply general private law rules to legal persons established in the public interest. Where it was appropriate to set out specific rules, inter alia with respect to property and liability, those rules were included in the relevant books.

The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them. This provision complements art. See in this regard: I, on this provision note the following at p. For example, as regards prescription, to which this case relates, art. Prescription takes effect in favour of or against all persons, including the State, subject to express provision of law.

However, as I noted in analysing art. The legislature has clearly expressed its intention through the wording of the article. With respect, although what he stated is unfortunately true, it cannot be used to reject the argument made by the appellant. Section 7 of the Charter of the French language , R. This is in accordance with s. Attorney General of Quebec v. At the time the decision was rendered, s. O-2, was in force, and para.

The rule of s. In my view therefore the narrower meaning of one of the two versions should not be preferred where such meaning would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects.

A detailed examination of these provisions has convinced me that. Such a narrow meaning cannot however be held to control the much broader meaning of the English expressions, especially when it is apparent that such was not the intent, quite the contrary. However, it is interesting to note that there is just one other provision, art.

Fifty years of constitutional evolution in France: The 2008 amendments and beyond

In that article, the context makes it clear that the legislature intended to give these terms a contractual connotation. It is therefore legitimate to ask why, in art. No prescriptive period other than that provided by law may be agreed upon. This article already provides that prescriptive periods are of public order and cannot be altered by agreement.

If the legislature had intended art. The answer must be yes, because, in my view, art. With the passing of the new Civil Code , the legislature enacted a specific provision on prescription in respect of bodily injury, art. This is a mandatory provision of public order. I therefore agree with Baudouin J. This interpretation is also consistent with the values of the Charter of human rights and freedoms , R.

In that version, the commentary on art.