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Home > English > The National Assembly in the French Institutions > Synthetic file 2
File n° 2
I. – The status of the President of the Republic 1. – The election of the President of the Republic The President of the Republic is elected for five years by direct, universal suffrage. This rule, which is provided for in the first paragraph of article 6 of the Constitution, is the result of two essential institutional reforms: ― The 1962 revision of the Constitution carried out by referendum according to article 11, which by introducing the election of the President of the Republic by direct, universal suffrage, provided the office of President with a legitimacy in keeping with the breadth of its powers (prior to this reform, the President was elected by a college made up of local elected representatives) ; ― The 2000 revision of the Constitution carried out through Parliament according to article 89 but approved by referendum, which reduced the presidential term from 7 to 5 years. This reform brought an end to the French Republican tradition of seven-year terms by opting for a solution close to the average length of presidential terms in other countries. The election takes place between twenty and thirty-five days before the expiry of the term of the President of the Republic in office. The end of the term may be brought forward in the case of the death, resignation or dismissal of the President of the Republic (the vacancy is so declared by the Constitutional Council) or in the case of permanent incapacity of the President (the matter is referred to the Constitutional Council by the Government and the former must declare the incapacity permanent by an absolute majority of its members). In such cases the interim is carried out by the President of the Senate who takes on all the powers of the President of the Republic with the exception of the right to dissolve the National Assembly, the right to call a referendum and the right to initiate a revision of the Constitution. Every French citizen having reached the age of twenty-three may be a candidate in the presidential election provided he has obtained the sponsorship of five hundred national or local elected officials. Additional provisions impose a geographical distribution of the sponsors (they must come from at least thirty different departments or overseas territorial units without more than one tenth coming from the same department or the same overseas territorial unit). The Constitutional Council must check the validity of the candidacies. In addition, each candidate who is officially announced must provide the Constitutional Council with a detailed declaration of his estate. The official election campaign lasts one month. It opens two weeks before the first round and continues during the two weeks which separate the two rounds. In practice, the debates begin well before the official opening of the campaign. Each candidate must have a campaign account which is checked by the Constitutional Council (which checks in particular that the expenses of the official campaign do not exceed the legal limits currently set at around sixteen million euros for the first round and twenty-one million for the two rounds). The State refunds each candidate 5% of the expenditure limit and 50% of the limit for each candidate who gains more than 5% of the votes cast. The election is held according to a two-round majority system. Only the first two candidates after the first round go forward to compete in the second round. This second round is held two weeks after the first. The Constitutional Council is the sole judge of the election. It is in charge of the election litigation procedure and thus examines all disputes concerning operations both prior to the election as well as those dealing with the ballot itself. There is no limit to the number of times the President of the Republic may be re-elected.
2. – The question of the liability of the president of the republic The definition of the liability of the President of the Republic given in 1958 in articles 67 and 68 of the Constitution has seemed over the years uncertain and ambiguous. Along with the uncertainty of the idea of “high treason”, there is also an ambiguity regarding the scope of the provisions of article 68 concerning acts performed by the President outside the exercise of his duties. In 1999, the Constitutional Council ruled that the President of the Republic was criminally liable but that during his term of office his criminal liability could only be brought up before the High Court of Justice. For its part, the Court of Cassation decided that the High Court of Justice was only competent in the case of high treason and that the President of the Republic was granted temporary “inviolabilité” (immunity) during the length and only the length of his term of office. The constitutional revision of February 19, 2007 confirmed the traditional immunity granted to the President of the Republic concerning acts performed in the exercise of his duties and introduced a temporary immunity concerning all his other acts, which comes to an end at the same time as the presidential term of office.
a) The Confirmation of the Principle of the Non-liability of the President of the Republic Concerning Acts Performed in the Exercise of His Duties This is a republican principle which has only two exceptions: the first concerning matters within the competence of the International Criminal Court and the second regarding a breach of duties by the President of the Republic patently incompatible with his continuing in office (with the constitutional revision of February 19, 2007 this notion has replaced the previous idea of “high treason”). The requirement of a ministerial counter-signature for many of the acts carried out by the President of the Republic is the corollary of this principle as it allows ministers to shoulder the political responsibility for the acts of the President of the Republic.
b) The New Temporary Immunity of the President of the Republic for Acts Performed Outside the Exercise of His Duties Article 67 of the Constitution introduces total temporary immunity for the length of the presidential term of office, thus suspending in civil and criminal matters both all proceedings against the President of the Republic as well as the statute of limitations. This total temporary immunity comes to end one month after the end of the term of office. During the term of office, this protection may only be removed by Parliament sitting as the High Court dismissing the President for a breach of his duties patently incompatible with his continuing in office and thus rendering him once more subject to trial by courts of ordinary law.
c) The Sitting of Parliament as the High Court to Dismiss, and No Longer Try, the President of the Republic The new drafting of article 68 of the Constitution dating from February 2007 now gives to the entire Parliament sitting as the High Court the power to dismiss (and no longer to try) the President of the Republic for a “a breach of his duties patently incompatible with his continuing in office”. After the passing of a motion for the convening of Parliament as the High Court, by both the National Assembly and the Senate in identical terms, the High Court must give its ruling on the dismissal by secret ballot within one month. Rulings given require a majority of two-thirds of the members of the House involved, and of the High Court. No proxy voting is allowed. Only votes in favour of the convening of the High Court and of the dismissal from office are counted. The decision of the High Court takes immediate effect.
II. – The powers of the President of the Republic 1. – Personal powers These are powers the President of the Republic may exercise without counter-signature. ― Powers of Guaranteeing and arbitration
Article 5 of the Constitution, in stating that “the President of the Republic shall see that the Constitution is observed”, grants him in practice the power of interpretation of the Constitution (a power which Presidents have used on several occasions: e.g. the use of referendum for constitutional revision or the refusal to sign ordinances). The right of referral to the Constitutional Council provided to the President of the Republic is also an example of his role as the guarantor of the institutions.
The President of the Republic is the guarantor of the independence of the judicial authority (article 64 of the Constitution). Based on this principle, he presides over the High Council of the Judiciary. ― Powers during crisis
This provision, which grants the President of the Republic emergency powers of public safety, has its historic justification in the events of 1940 when the President of the Republic of the time, Albert Lebrun, although personally hostile to the armistice, had to give way and allow power to pass to Marshall Pétain. The crisis which France was crossing at the moment of the adoption of the 1958 Constitution (the Algerian War) also helps explain this provision. In fact, article 16 has only been applied once. This was in 1961 following the attempted military putsch in Algiers. Its provisions have always represented one of the most controversial points of the Constitution even if the subject has lost much of its topicality. For the President of the Republic to have recourse to the emergency powers of article 16, two basic conditions must be fulfilled at the same time: – There must be “a serious and immediate threat to institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments”. This particularly refers to war or to movements of insurrection; – The proper functioning of the constitutional public authorities must be interrupted. The President of the Republic must decide if these two conditions have been fulfilled. If he were to go beyond his rights, the Parliament could convene itself as the High Court and dismiss him for a breach of his duties patently incompatible with his continuing in office. The formal conditions are not very restrictive and are limited to the consultation of the Prime Minister, the Presidents of the two assemblies and of the Constitutional Council (whose reasoned advice must be published in the Journal Officiel). In the case of the implementation of article 16, the distribution of powers provided for by the Constitution is no longer applicable and the President of the Republic assumes full power. He “takes the measures required by the circumstances”. However the Constitution makes it clear that such measures “must stem from the desire to provide the constitutional public authorities…the means to carry out their duties”. The decisions taken by the President of the Republic are submitted for opinion to the Constitutional Council. During the period of the implementation of the emergency powers, Parliament convenes as of right and the National Assembly may not be dissolved.
The right of dissolution belongs to the President of the Republic who must only, before carrying it out, consult the Presidents of the assemblies and the Prime Minister. The Constitution sets three limits. Dissolution may thus not be declared: – During an interim presidency; – During the implementation of emergency powers (article 16 of the Constitution); – During the twelve months following a previous dissolution. Although it was originally foreseen either as a means to solve a serious crisis by asking the opinion of the people or as a way of deciding or preventing a disagreement with the National Assembly, dissolution has only been used twice for such reasons (1962 and 1968). In the three other cases, it was declared by the President of the Republic either at the beginning of a term to gain a majority in the National Assembly which would support his policies (1981 and 1988) or to bring forward an election to a moment considered more advantageous (1997). ― Recourse to referendum The decision to have recourse to a referendum is not submitted to counter-signature but requires the prior intervention of the Parliament or the Government. There are three types of national referendum:
In addition, since 2003, the President of the Republic may consult the voters of an overseas territorial unit on a question “relating to its organisation, its powers or its legislative system” or on its change of status (article 72-4 of the Constitution). The procedure is the same as that used for article 11. This provision has been used once in Martinique, in Guadeloupe, in Saint Martin and in Saint Barthélemy in 2003. ― Prerogatives linked to relations with the other institutions
– the President of the Republic appoints the Prime Minister and terminates his appointment ; – He convenes, approves the agenda of and presides over the Council of Ministers.
2. – Shared Powers These are powers which the President of the Republic may only exercise with the counter-signature of the Prime Minister or, if need be, of one or more ministers concerned. ― The power of appointment
― The signature of ordinances and decrees The President of the Republic signs ordinances (measures which, although they fall within the ambit of statute, have been taken by the Government, empowered beforehand by Parliament, to act during a limited time). It has happened, during a period of cohabitation, that the President of the Republic has refused to sign ordinances. It may therefore be concluded that the President of the Republic does not, in such matters, have a binding competence. The President of the Republic also signs decrees which have been discussed in the Council of Ministers. ― The power to convene parliament in extraordinary session The President of the Republic may convene Parliament by decree to consider a specific agenda, in an extraordinary session, upon the request of the Prime Minister or of a majority of the members making up the National Assembly (article 29 of the Constitution). Institutional practice does not make this a binding competence, as the decision to convene Parliament is taken under the sole responsibility and the sole assessment of the President of the Republic. ― Powers in matters of diplomacy and defence The Constitution establishes shared competence in these areas: the President of the Republic is the Commander-in-chief of the armed forces (article 15), he “negotiates and ratifies treaties” (article 52). On the other hand, the Government, which “determines and conducts the policy of the Nation…has at its disposal the armed forces” (article 20). Institutional practice has made these matters the “reserved domain” of the President of the Republic when he has a governing parliamentary majority and a shared domain during periods of cohabitation. It can be considered that the “reserved domain” has been broadened since the decree of May 15, 2002 which granted the President of the Republic the presidency of the Council of Internal Security. ― The power to promulgate laws The President of the Republic, by decree countersigned by the Prime Minister, promulgates laws within the fifteen days following the transmission of their definitive texts to the Government. During this period, he may request a new discussion of the law passed (also with the counter-signature of the Prime Minister). ― The right to grant pardon This is a traditional prerogative of heads of state which has been inherited from the monarchy and which allows the President of the Republic to grant pardon to a convicted prisoner and thus not carry out all or part of his punishment.
III. – Institutional practice Above and beyond the constitutional distribution of powers between the two heads of the executive, the main element which grants pre-eminence to the President of the Republic over the Prime Minister is, of course, his election by direct, universal suffrage. The role of the Head of State can not be reduced, as it was in the previous Republics, to that of a simple figurehead. His action cannot be limited, in the words of General de Gaulle, “to the inauguration of chrysanthemums”. In practice however, the breadth of the powers of the President of the Republic varies according to whether or not the governing majority in the National Assembly coincides with the popular majority which elected him. – In the first case, the Head of State freely chooses his Prime Minister who is then subordinate to him. In practice the President of the Republic can even ask for the Prime Minister’s resignation. Thus, although the provisions of article 20 of the Constitution state that it is the Government which determines and conducts the policy of the Nation, it is clear that the President of the Republic sets at least the general directions of such policy. – During periods of “cohabitation”, i.e. when a governing majority hostile to the policy of the President of the Republic is elected to the National Assembly, the situation is altogether different. The President of the Republic must choose the Prime Minister from within that hostile governing majority so that the Government maintains the support of the National Assembly. As for the appointment of ministers in such a situation, practice has shown that the President of the Republic has, at the very most, a right of veto for certain so-called ‘sovereign’ portfolios such as the Minister of Foreign Affairs, the Minister of Defence or the Minister of Justice. In addition, in the field of home affairs, the influence of the Head of State is considerably reduced. At the very most, he has the power to obstruct or at least to delay. Thus, the President of the Republic has been able to refuse to sign ordinances, so obliging the Government to have a law with the same content passed. He has also refused to include a bill to which he was hostile on the agenda of an extraordinary session. On the other hand, not only has he never opposed the promulgation of a law but he has never required Parliament to carry out a second consideration of a law, as article 10 of the Constitution allows him to do. He, of course, continues to preside over the Council of Ministers but this appears to be mainly formal. It is only, in fact, in the field of foreign policy, an area in which the Constitution expressly recognizes his personal powers, that the President of the Republic keeps most of his prerogatives, although he must exercise them in collaboration with the Prime Minister. Thus the two heads of the executive jointly attend certain international summit meetings at which only the Head of State would be present outside periods of cohabitation. The breadth of the powers of the President of the Republic and the nature of the system depend, in fact, on the political situation. It is to the credit of the 1958 Constitution that it was able to adapt smoothly not only to alternation but also to the coexistence of a President from one political wing and a National Assembly from the other.
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