Can the President Overrule the People?: France and the EU Reform Treaty
French President Nicolas Sarkozy has announced that he will submit the EU "Reform" Treaty agreed upon in Lisbon last week to the French parliament for ratification. In so doing, is he proposing to ratify a treaty that is essentially identical to the "Constitutional" Treaty that French voters rejected in a referendum in 2005? French constitutional law scholar Anne-Marie Le Pourhiet says yes -- and outlines the drastic consequences of such an action.
On Oct. 5, the proposed European "Amending Treaty" -- commonly known as the "Reform" Treaty -- was made public. Upon reading the text, one understands why its authors declined to use the expressions "mini-treaty" or "simplified treaty" that had earlier been used to refer to it: since, along with its 12 protocols and 25 declarations, it runs to no less than 256 pages. As concerns the structure of the document, moreover, it would have been difficult to come up with something more complex.
Inasmuch as the text limits itself in fact to reproducing three-quarters of the provisions of the proposed Treaty Establishing a Constitution for Europe, it would undoubtedly have been simpler just to take the original text and erase just those symbolic aspects that have been abandoned. It is not hard to understand, however, why this option was rejected, since it would have made the contempt shown for the will of the French and Dutch peoples -- who rejected the latter treaty in referendums in the summer of 2005 -- too flagrantly obvious.
The authors have thus preferred to concoct a more complicated formula, whereby, on the one hand, the Treaty on the European Union (EU Treaty) and, on the other, the Treaty founding the European Community (EC Treaty) would both get modified, with the latter being known henceforth as the "Treaty on the Functioning of the Union."
The trick involved appears particularly clearly with regards to the Charter of Fundamental Rights, which, unlike in the case of the Constitutional Treaty, is no longer included as an integral part, but appears instead in Article 6 of the new text as follows: "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, which shall have the same legal value as the Treaties."
We have here, then, an "amending" treaty that thus affirms that a charter that is not part of it has the same legal force as the very treaties that it serves to modify! A more contorted legal procedure has never been seen.
Nonetheless, Protocol No. 7 lays down that the charter permits neither the European Court of Justice nor British or Polish national jurisdictions to annul the application of national legislation judged incompatible with the said charter. Reading this protocol is painful for the French observer. It is as if the French "no" has served the interests of others, but not of the French themselves. What a humiliation!
The "Amending Treaty" does indeed amend the Constitutional Treaty rejected in 2005, since it removes a certain number of explicit provisions from it and dispenses Poland and the United Kingdom of the obligation of respecting certain engagements. The modification involved is thus a matter of simple subtraction.
But this gives rise to a fundamental question: Inasmuch as the French people have rejected the whole treaty in a legally binding act, how can the President of the Republic alone decide to have the majority of its provisions ratified by the Parliament? President Sarkozy has defended this decision on the grounds that the provisions in question "were not the object of contestation."
As anyone who followed the 2005 French referendum campaign can recall, during the campaign all the provisions of the treaty were criticized. Some of the critics focused on the Charter of Fundamental Rights and on the common policies; others on the transfer of powers to the European level, the shift from unanimity to majority voting, and the democracy deficit; and still others took offense at the federal symbols and principles.
It is perhaps possible to perceive that the "no" of the Left was more concerned by the threat to the welfare state and the "no" of the Right by the loss of the state's sovereign powers. But it is surely impossible and inconceivable to probe the brain of each French citizen and thereby make out exactly the provisions of the treaty that each individual rejected and those that he or she approved.
The procedure of the President of the Republic in claiming to be able to interpret by himself the will of the French people is completely arbitrary and borders on dictatorship. The constitution of the state of California lays down that a norm that has been adopted by referendum cannot be abrogated or modified except by another referendum. The Italian Constitutional Court has recognized the same principle. In light of such examples, one cannot help but be distressed by the sort of coup d'état that is occurring in France. If the President is convinced that the provisions that remain in the Amending Treaty have been implicitly approved by the French, then he has only to confirm this by organizing a new referendum in order to obtain their explicit agreement.
How is one, then, to characterize and to sanction such a coup d'état? The text of the highly popular French constitution of 1793 hardly showed a light hand in such matters. Its Article 27 lays down that "any individual who usurps sovereignty should be immediately put to death by free men." But we should undoubtedly respect the provisions of our current French constitution, which prohibits capital punishment, and turn instead to Article 35 of the 1793 text. The latter solemnly affirms that "when government violates the rights of the people, insurrection is for the people and all its parts the most sacred right and the most indispensable obligation." The Declaration of the Rights of Man of 1789, which is integrated into the preamble of the current French constitution, likewise includes the resistance to oppression among the natural and inalienable rights of man.
The text of the current French constitution affirms, moreover, that the principle of the Republic is "government of the people by the people and for the people" and that the President is elected by universal direct suffrage in order to assure the respect of the constitution, to secure the regular functioning of the public authorities and the continuity of the state, and to guaranty national independence.
The expression that comes to mind to designate presidential contempt for the popular will is obviously that of "high treason." Unfortunately, a February 2007 revision of the provisions of the law on the criminal responsibility of the head of state replaces this ancient and lovely expression with the bland and banal "failure to fulfill his obligations manifestly incompatible with the exercise of his office." This formula is singularly lacking in appeal and vigor. But one will have to make do with it, nonetheless, in proposing to the members of parliament that rather than themselves violating the public trust by ratifying a treaty that has already been rejected by their constituents, they form a High Court to punish the guilty party.
In the absence of either an insurrection or impeachment, we will be left with nothing more to do than to shed tears over our voluntary servitude, realizing that our elected representatives represent very well what we have in fact ourselves become: doormats.
Anne-Marie Le Pourhiet is a Professor of Law at the University of Rennes, where she teaches constitutional law. She is Vice-President of the French Association for Constitutional Law. The above article first appeared in French in the weekly Marianne. The French version is available here. The English translation is by John Rosenthal.