Decision Right of association

The Décision Right of association (name given to the Decision n° 71-44 cd. of July 16th, 1971 of the French Constitutional council, relative to a law “supplementing the provisions of articles 5 and 7 of the law of July 1st, 1901 relating to the contract of association”) is one of large the Décision S of the Constitutional council, in whom it starts a “constitutional revolution”. It also positions as a guard of the Fundamental freedoms.

Political history

Context

The Association S are placed under the mode of the Loi of 1901. Associations can be formed freely, without control of the administration, but can be recognized by the State with a simple declaration in Préfecture, under the terms of the principle of the Right of association.

In 1971, certain artists decide to create the associations inspired by the communist ideology. The administration is thus opposed to the declaration of association “ the friends of the cause of the people ”, in particular constant by Simone de Beauvoir in their refusing the receipt of their declaration, (the Minister of Interior Department Raymond Marcellin suspected it of being an organization gauchist proposing to reconstitute a dissolved association which was called " the cause of the people " ) without any legal base. The Gouvernement then decides to make vote a Loi to institute an administrative control of the declaration of associations (legislative Validation).

The law

The Minister of Interior Department of the time, Raymond Marcellin presents a law creating a control of the declarations of associations law 1901. This control would be thus exerted by the prefecture or the sub-prefecture, before the declaration, and would thus make it possible the administration to restrict considerably the right of association wanted by the law of 1901.

However, a minority of the gaullist parliamentary majority, opposed to this law, requires of Alain Poher to seize the Constitutional council, to check the conformity of this law, under the terms of article 61 subparagraph 2 of the Constitution of 1958.

Censure

The President of the Sénat Alain Poher seizes the Constitutional council, which declares not conforms to the Constitution the substantial articles of this law.

Consequences

They are double. On the one hand, the Décision Right of association gives a constitutional value to declarations of recognitions of principles, and thus refuses to be confined with the simple regulation of the conflicts between Gouvernement and Parliament. Then, the Constitutional council takes a new place of defender of the basic rights of the citizens, and is not reducible any more with a “weapon pointed against the Parliament”, or a “watchdog of the executive”.

The emergence of the Block of constitutionality

In French constitutional law, the block of constitutionality indicates the whole of the standards of constitutional value. Those are thus protected by the Constitutional council.

With his creation in 1958, the Constitutional council controlled the conformity of the laws only to the Constitution in his strict direction, i.e. only the Constitution of October 4th, 1958 starting from his article 1st. But with this Decision, the Constitutional council devoted the constitutional value of the preamble to the Constitution of 1958, the preamble to the Constitution of October 27th, 1946, and particularly of the Basic principles recognized by the laws of the Republic.

Such principles comprise 4 restrictions:

they are principles having a true character of universality;
they are principles having generated a tradition, not having never been contradicted;
they are principles resulting from a republican legislation;
they are principles necessarily former to 1946.

It is about a dedication of the legislative work of the Third Republic, and particularly thus of the right of association created by the legislator in 1901, and devoted de facto to a constitutional value by the Council in 1971.

A jurisprudential evolution of the Constitutional council

Of a weapon against the Parliament…

The component of 1958 wished to find a solution with the problems arising in 1958, of which in particular a permanent encroachment of the Parliament on fields of competence which would have being those of the Government, thus paralyzing the action of the State.

To mitigate this gap, Michel Debré and Charles de Gaulle wished to set up a Parlementarisme rationalized, allowing the coexistence of a legislative power and an executive power autonomous.

Thus, the Constitutional council was invested of a mission of regulation of the conflicts between the Government and the Parliament, in order to make respect the fields of competence of each one (and in particular articles 34 and 37 of the Constitution of 1958). This role, taking into account the existence of coherent parliamentary majorities and in agreement with a Government and a President of the Republic, is made obsolete.

… out of instrument of a minority

By this Decision, the mission of the Constitutional council evolves/moves. It is not placed any more out of regulator of the executive powers and legislative, but well as a defender of the basic rights of the citizens, in which appear the right of association. Indeed, the conflicts of competences between Government and Parliament, if they exist, are regulated because of existence of majority members of Parliament and governmental identical. This stability can thus encourage the legislator to exceed the Constitution, which must however be higher than any legal standard. The evolution of its mission as a defender of the basic rights thus requires an evolution of its place within the institutions.

The Constitutional council thus becomes a weapon of the minority against the majority. In 1971, it is a minority of the parliamentary majority which asks the President of the Senate to seize the Constitutional council. This political behavior changes also the nature of the Council, which is placed from now on in " judge appel" Decision S of the Parliament.

A reform of the Constitutional council

This jurisprudential evolution of the Constitutional council will be seen devoted by the constitutional revision of 1974, which will widen the sasine of the Constitutional council, directly, with the members of Parliament. However, the problem of sasine remains always posed, taking into account the always existing possibility to see a contrary law with the Constitution coming into effect. Does one need an initiative of the Constitutional council in the presence of an apparently contrary law for the Constitution? Does one need a sasine citizen, a priori or a posteriori? The question remains posed for those which still wish a constitutional reform, in order to always the best implemented of the Principe of constitutionality.

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