ER Editor: Aside from pointing out the obvious democratic and constitutional failings on the French side here, can we actually say that some body WITHIN EUROPEAN GOVERNANCE is actually promoting constitutionality within a member country?
Separation of powers: The Council of Europe takes a dislike to 49.3
DISPATCH — On Wednesday June 14, the Council of Europe took a dislike to article 49.3 of the French Constitution, stressing that it “raises questions with regard to the separation of powers”. The institution plans to study the possible alternatives, particularly with our European neighbours, before issuing its conclusion.
It’s hard not to have heard of it, so much ink has he flowed. It is both joker for a tottering government, and “denial of democracy” for the opposition. In short, article 49.3 allows the government to fly over the usual parliamentary shuttle to pass a bill or a proposal of law without a vote. Only a motion of censure, tabled within 24 hours and signed by at least one tenth of the members of the National Assembly, can counter this procedure.
Used a hundred times since its creation in 1958, this article has been drawn no less than eleven times by the current Prime Minister Élisabeth Borne. This score places her in second position in the ranking of heads of government who have used the 49.3 the most, behind the unbeatable Michel Rocard (28 times in three years). Before her, Édouard Philippe had only used it once.
In total, Elisabeth Borne used it ten times for the finance bill, in particular relating to social security, and once to pass the decried pension reform. It was this last occurrence of March 2023 that made deputies and citizens jump, and set Paris on fire.
Today, the Venice Commission, a consultative group of the Council of Europe that provides States with legal advice on draft laws or texts already in force, considers that this provision “raises questions with regard to the principles of pluralism, separation of powers and the sovereignty of the legislator”.
In its view, this article constitutes “significant interference by the executive in the powers and role of the legislature”, and “does not represent a form of delegation, but rather an autonomous legislative power in the hands of the executive”. The Commission also points out that this inversion of roles is taking place “in a manner apparently unmatched by any other European country”. Finally, the authors of the report criticize the control exercised by the Constitutional Council, which verifies only “strict compliance with procedure”, rather than guaranteeing the “supremacy of legislative power”. (ER: brilliant!)
For all these reasons, as AFP reports, the working group will carry out a “comparative analysis” of the mechanisms that enable governments “to intervene in the legislative powers of parliaments” in other European countries, before publishing its final conclusions.
Always quick to follow European directives, will Emmanuel Macron and his government change their tune if Article 49.3 is denounced?
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