It is time to put at the top of the bill a subject that will undoubtedly occupy French public opinion in the run-up to the next presidential election, and which is already occupying American public opinion and that of many other countries: in a democracy, can the people and their elected representatives decide everything? Or are they constrained by rules that are beyond them, which the judges must enforce?
For many, it seems obvious that, in a democracy, the people are always right and that those they elect can decide everything. Thus, the American president claims that he has all the powers and that no one can oppose him; not even the judges, whom he calls “rebels”. In France, the extreme parties think the same and say it almost as clearly.
This is to forget that, even in a democracy, the people cannot do everything, and their leaders even less.
There are several barriers to the action of a people and a leader: the law and the constitution, which are binding on them until they are amended; the general principles of law which, in some countries, supplement the Constitution and are intangible; international treaties which take precedence over national law, as long as they have not been legally denounced, as stipulated, for example, in Article 55 of the French Constitution. This is known as the hierarchy of norms, and the role of judges is to ensure that this hierarchy is respected. In this respect, judges are the guardians of democracy against the dictatorship of elected representatives.
In Europe, respect for treaties takes a particular form: the executive and legislative powers of a European country cannot violate the treaties establishing the European Union (which brings together 27 countries) and those establishing the Council of Europe (which brings together 46 countries). European law (which brings together the law of the European Union and that of the Council of Europe) takes precedence over national laws. Its observance is protected by the case law of the Court of Justice of the European Union (CJEU) and that of the European Court of Human Rights (ECHR).
In France, Ms. Le Pen has announced that, if elected, she will hold a referendum on a reform declaring the superiority of national law over European law. She is silent on the fact that at least three judicial bodies will be able to oppose it: the French Constitutional Council, which will verify the conformity of this referendum with the constitution, the Court of Justice of the European Union and the European Court of Human Rights.
Firstly, the Constitutional Council could declare such a referendum unconstitutional, explaining that Article 11 of the Constitution, which allows a referendum to be held on public policy issues (for example, on a reform of nationality), cannot be used to reform the Constitution. Even if General de Gaulle did it. And what’s more, a referendum could not call into question the main fundamentals of the Constitution, such as France’s participation in international institutions, including the European Union, or the republican form of government or respect for the general principles of law (for example, the equality of all before the law). The Constitutional Council could therefore require that the reform of the Constitution be carried out according to the rules laid down in Article 89 of the Constitution, which provides for a separate adoption by the two Houses followed by an adoption by the two Houses together or by a referendum. An impossible route for Ms. Le Pen as long as she does not control the Senate.
Then there are the European authorities: a constitutional revision that asserts the superiority of national law over European law would open up an institutional crisis. And even Germany, which is very sensitive about this, has seen its own Constitutional Council admit the superiority of European law over national law (subject to the protection of fundamental rights granted by the German constitution). The CJEU and the ECHR would condemn France to financial sanctions and the loss of access to the single market. It would be a de facto Frexit. Poland, and Hungary, which tentatively tried, failed; Great Britain could only do it at the cost of Brexit. A constitutional reform that only concerned immigration could not call into question the European directives on asylum rights, residence conditions and the free movement of workers; and the ECHR limits the capacity of States to unjustly expel foreigners. Similarly, a law amending the conditions for granting nationality, which remains a national competence, should respect the general principles of European law; the ECHR would, for example, oppose the setting of a condition for access to nationality on a religious basis, and the expulsion of foreigners without individual examination.
Ms. Le Pen could then threaten to get her majority to vote, if not for a Frexit, then at least for France to leave the European Convention on Human Rights, which she constantly criticizes, which would deprive French citizens of the right to appeal to this court in the event of human rights violations by the French State, opening the door to a thousand disputes and prohibiting France from calling itself ” the country of human rights’.
The role of the judges will be to ensure that these principles are respected. Will they have the strength? The competence? The credibility? Where will we end up with a dictatorship of elected representatives, contrary to the founding principles of democracy and European integration? It would be good to open this debate now.