Article 89 of the Constitution of the fifth French Republic
It is carried out in 3 specific phases: initiative, discussion and adoption, ratification. The constitutional law is then promulgated by the President of the Republic.
It belongs jointly with the President of the Republic (project) on a proposal from the Prime Minister and with the members of the Parliament (proposal) .
Initiative thus shared between the members of Parliament and the executive, but especially with the center even of the executive: neither the President nor the Prime Minister can initiate only a procedure of revision; the President must await - or solicit - the proposal of the Prime Minister, and, in return, the Prime Minister must await - or cause - the answer of the President with his proposal.
When the initiative of the revision comes from the executive, the agreement of the President and the Prime Minister is thus necessary; requirement relatively easy to satisfy if one and the other belongs to the same political family, much less on the assumption of a Cohabitation at the top of the State.
Discussion and adoptionThat it comes from the executive - project - or of the members of Parliament - proposal - the text must be voted by each of both Chambre S in identical terms . With the difference of the ordinary legislative procedure where the Prime Minister can, in the event of persistent dissension between the two rooms, to call the meeting of a joint industrial commission to try to lead to a common text - and to even ask the National Assembly to rule definitively - the procedure of revision does not envisage any means of forcing the agreement between deputies and senators.
Here, the two assemblies have an equal capacity; by maintaining its drafting, while refusing to take into account the modifications of the other, each one can make last the debates indefinitely and, in fact, block the revision. Several projects thus failed at this stage, by obstruction of the Senate: extension of the field of the referendum (1984), extension to the people of the right to cause the control of the conformity of a law to the basic rights (1990, 1993)…
Two situations must be distinguished: or the members of Parliament are at the origin of the revision, and the ratification is done obligatorily by referendum; or the executive is in the beginning, and the President of the Republic has the choice between the ratification by referendum or the ratification by the Congrès.
The Congress is the meeting, in the same room and with the Château of Versailles, deputies and senators who must vote the project in the majority of the three fifths of the votes cast so that it is ratified.
The reason of this treatment difference between project and proposal is, obviously, policy: the Général de Gaulle feared that the parliamentary initiatives of revision have the aim of destroying its work; also, knowing the very great reserve of the deputies and senators with regard to the practice chief clerk, he hoped to limit their " envies" of revision by obligatorily subjecting them to the referendum. The facts gave him reason, the constitutional revisions are made more on the initiative it Executive power than of the Legislative power.
The constitutional revision cannot take place in obviously serious circumstances, in particular:
- under the pressure of the occupant, at the time of a conflict ( when it is undermined the integrity of the territory );
- in the presence of a President of the Republic by interim or between the change of President ( He can be made application neither of articles 49 and 50 nor of article 89 of the Constitution during the vacancy of the Presidency of the Republic or during the period which is passed between the declaration of the final character of the prevention of the President of the Republic and the election of its successor. );
- when it is made application of article 16 of the Constitution, which gives considerably wide capacities to the President of the Republic in extremely serious circumstances (by the decision of the Constitutional council of September 2nd, 1992).
The last sentence of article 89, specifying that The republican shape of the Government cannot be the subject of a revision. was prone to interpretation concerning the significance of republican form. If the obligation to respect this form means prohibition to restore the Monarchie or the Empire, the limit imposed on the capacity of revision is weak because the risk of such a re-establishment is itself weak. If, on the other hand, the expression means obligation to respect the values and principles which give to a mode its republican form - for example, the Secularity, the Public service, the equality, the Fraternity;. - the freedom of the constituting capacity would be strongly reduced, as it is it for example in Germany, where certain articles of the constitution cannot be the revision object. One sometimes spoke about “supra-constitutionality”.
This question of interpretation remains outstanding, the Constitutional council recalled, in his decision of September 2nd, 1992, the whole of these limits, but the March 26th 2003, it was stated inefficient to rule on a recourse against a constitutional revision (it was about the decentralized organization of the Republic). One can thus see no supra-constitutionality in France.
In any event, article 89 not prohibiting a revision of the limits which it poses, the constituting capacity could remove them perfectly and thus find a total freedom of decision, including modifying the republican shape of the government.
Also, the normal form of revision, by the referendum, remains very little used (only once for the five-year period in 2000). One can then note the fear of a vulgarizing of the constitutional reforms thanks to the Congress. That could lead to a destabilization of the Constitution, a dysfunction due to the theoretical rigidity of the latter subjected to the political changes.
Article 89 is not the only one to relate to the constitutional reforms. The De Gaulle General was used for by a diversion of procedure of article 11 on the legislative referendum to modify the Constitution and to make elect the President of the Republic to the Vote for all direct in 1962. There was also an attempt at constitutional reform thanks to this article in 1969, bearing on the suppression of the Senate and the reform of the areas, rejetté by the people and leading the General to his resignation.
The ratification of the Treated of Maastricht, leading to the inclusion of a title XV in the article 88 of the Constitution, was adopted by the members of Parliament assembled in congress on June 23rd 1992, then voted by referendum on September 20th 1992. This mixed procedure is unusual.
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