Discours

Democracy Today : A French judge’s perspective

Par Jean-Marc Sauvé, Vice-président du Conseil d'Etat

Presentation by Jean-Marc Sauvé, Vice-président du Conseil d’État, London, Inner Temple, Saturday 19 June 2010.

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Presentation by Jean-Marc Sauvé,

Vice-président du Conseil d’État

London, Inner Temple

Saturday 19 June 2010

 

Let me first tell you how happy and honoured I feel to have the opportunity to address your distinguished audience. I see at least two good reasons for this.

The first reason is that taking part to your colloquium is a way for me to pay tribute to the very fruitful cooperation that has developed for many years between British and French legal professions as a whole, and between Britain’s most senior judges and the Conseil d’Etat. In a globalized world, there is a strong need for a fruitful dialogue between the common law model and the civil law model. At the level of our continent, the expanding scope of European law makes this experience-sharing in my view all the more necessary day after day.

The second reason refers to the agenda, and more precisely to an important event which is celebrated on June 18th and which was mentioned yesterday. Dear British friends, I may disappoint you, but allow me not to refer to the anniversary of the battle of Waterloo on June 18th 1815…We are very thankful that you no longer oblige your visitors from France travelling on the Eurostar to reach London through Waterloo Station.

As we met last evening at the opening of this meeting, Lord Justice Aikens recalled the 70th anniversary of the “Appel du 18 juin” on the BBC by which General de Gaulle launched the “Résistance” after the military defeat that France suffered in May and June 1940.   Being in London on June 18th 2010 is from a Frenchman’s perspective a meaningful experience. De Gaulle was at that time a very isolated man, but his call lit a spark of hope in the darkness of disaster. On the short term, it did not prevent the Vichy authorities from setting up a regime that was 180 degrees away from democracy and violated the most basic human rights. However from that moment on people gradually opened their eyes and got together in order to help de Gaulle re-establish at the end of the war a regime fulfilling the standards of democracy.

This of course leads us to our topic. I am particularly glad to be able to share some thoughts with you thanks to this round table. When I considered the approach to take in this presentation, I thought it might be interesting to describe briefly how French judges in charge of legal review of administrative decisions helped promote democracy and the rule of law. Bearing this in mind, I will refer mainly to what was done in the Conseil d’Etat.

I can imagine that some of you may find it difficult to grasp the exact nature of the Conseil d’Etat. The institution I have the privilege to chair has little equivalent on this side of the Channel. Let me simply recall that France, as most continental countries in Europe, has a dual jurisdictional system. Civil and criminal courts are distinct from administrative courts. At the top of this network of 50 tribunals and courts of appeal stands the Conseil d’Etat. The Conseil d’Etat serves both as a legal adviser of the Executive – and also the Parliament in some cases – and as a supreme court in the field of legal review of administrative decisions. It must be kept in mind that we exercise these two missions while respecting a strict separation between them: in other words, to avoid any form of conflict of interest, any member who has played a role in delivering an opinion on a draft decree for instance will never be able to sit on the bench whenever the same piece of regulation is challenged in front of the Conseil d’Etat acting in its jurisdictional capacity. In fact the Conseil d’Etat in our system is so to speak both an essential actor of the rule of law and a good watch tower from which to scrutinize the regulation process of our democratic system.

 

The evolution of our system with respect to the role of judges in the regulation of the democratic process is interesting and I would like to sum it up for you.

Their role has changed a lot since the French Revolution. Important basic legal concepts were set out during the Revolution, and these concepts were influenced by the ideas developed by various authors, notably Jean-Jacques Rousseau in his “Social Contract” in 1762. These ideas were reflected in the 1789 Declaration of the Rights of Man and of the Citizen. This fundamental constitutional reference is based on popular sovereignty. It implies that the key to freedom is for the people to be bound by rules that the citizens, acting as the sovereign, have agreed upon themselves. Rousseau’s system is based on the concept of “general will”. As part of a collective body, the individual citizen constitutes a fraction of the general will, which is popular sovereignty itself. Popular sovereignty thus defines what is good for the society as a whole and the individual must adhere to it. As Rousseau wrote : “Each of us puts his person and all his power in common under the supreme direction of the general will, and in a body we receive each member as an indivisible part of the whole”.

The question is how constitutional review fits into this? I will limit myself to countries that have adopted written Constitutions, the British situation being in this matter very specific.

In fact two different approaches developed. Let us consider first the United States and then France.

At a very early stage, in 1803, the United States Supreme Court opened the way to constitutional review through its Marbury vs Madison case. The result is that ever since, any judge in the US has the authority to consider whether an act passed in Congress is or is not true in accordance with the Constitution. US judges have occupied for more than 200 years a key position in the regulation of the democratic system, allowing them to go as far as refusing to implement an act voted by Congress on the grounds that it infringes the Constitution.

Performing the same form of review was, and remained for a long time, unthinkable in France simply because judges had a quite different idea of their constitutional mission. Both the Conseil d’Etat and the Cour de cassation stated respectively many times that neither the civil judge nor the administrative judge could challenge the constitutionality of an act voted by Parliament. One may identify behind this refusal the traditional principle according to which Parliament, acting in the name of the sovereign - that is to say the people – “can do no wrong” just as it had been said a long time ago in France that the King could do no wrong.

The outcome was that the judges’ basic role was to identify which statute had to be implemented in a given case and also to deliver the appropriate interpretation of such a statute. In fact this gave a pretty big margin to both the civil and the administrative judges. Traditionally the French Parliament did not go into too many details and only defined by statute certain basic principles: this meant that going into details was left mainly to case law.

This is true as far as civil liability is concerned. The civil code of 1804 (which you call code Napoléon) includes just a few articles that define fundamental principles: developing the “droit de la responsabilité civile” was left to the Cour de cassation and its case law.

This is all the more true as far as administrative law is concerned. For a long time, very few statutes were adopted in this field and one could say that France’s administrative law was built mainly on the basis of case law developed by the Conseil d’Etat.

Therefore judges were not deprived of any role in regards to the regulation of the democratic system: through their case law they gave the relevant interpretation of statutes and in many cases filled legal vacuums when Parliament had not specified what rule should apply. However they could not go as far as performing a constitutional review of statutes, and could not go against the explicit will of Parliament, as defined by statute. This was viewed, even by outstanding academics, as part of our Republican tradition.

Things started to change after World War II. Judges gradually changed their mind. This was in relation to the crisis that the French parliamentary model experienced and also to the experience of the Vichy regime: a statute voted by Parliament may deny human rights. This crisis became more and more severe during the Fourth Republic, between 1946 and 1958, and a fairly new idea developed within the French society as a whole. This idea was that the unlimited authority of statutes had to be limited one way or the other, when it jeopardized fundamental rights and liberties. Soon after 1945 the Conseil d’Etat delivered two major rulings in cases where the right to an effective remedy had simply been abolished by statute. Here what was at stake was clearly one of the fundamental guarantees of a democratic system.

In the d’Aillières case in 1947 Parliament had passed a bill excluding a given type of judgment from any form of effective remedy: the Conseil d’Etat decided that, in spite of such wording, the plaintiff could not be deprived from the right to submit a “pourvoi en cassation” to it.

Three years later, in the Dame Lamotte case in 1950, we had to settle a case in which the right to exercise any kind of effective remedy was excluded by statute. The Conseil d’Etat interpreted such statute as not excluding the right to submit a “recours pour excès de pouvoir” which can lead the administrative judge to quash any unlawful administrative decision.

Thus we can see that in both cases the Conseil d’Etat deliberately set aside an explicit provision of a statute, because such provision was viewed as violating the citizen’s fundamental rights in a democratic society. The judge was clearly changing his approach with respect to the regulation of the democratic system.

Things changed even more with the 1958 Fifth Republic Constitution. This Constitution includes two provisions that, if not immediately but on the long run, changed deeply the nature and level of control exercised by judges on statutes.

 

On the one hand and for the first time in French history, this Constitution introduced a very specific constitutional review system. Reviewing statutes became possible but under various conditions :

-             The power to review statutes was given not to the average judge but to a special body called the Constitutional Council.

-             Authority to submit a piece of legislation to this body was given not to the average citizen but to public officials such as the President, the Prime minister, the speakers of both Houses of Parliament and, later on, 60 deputies or 60 senators.

-             Constitutional review had to take place at a particular moment, after the bill was adopted by Parliament but before it came into effect. After that, no form of constitutional review was possible.

The same Constitution included a provision (Article 55) according to which, under certain conditions, treaty law should prevail on statute. France had signed the Rome treaty a year before and the issue of implementing European law had to be tackled.

These two constitutional innovations were at the beginning of a momentum which gradually shaped a system in which judges play a much more active role in the regulation of the democratic process.

As far as treaty law is concerned and after a few years, this new constitutional framework brought us to the situation where any judge in any court at any level can check if a statute is compatible with a treaty to which France is a State party. This is particularly important when a given treaty law provision has to be interpreted according to case law developed by an international court, such as the Court of Justice of the European Union or the European Court of Human Rights.

At the end of the day, Parliament has much less leeway. Whatever Parliament votes, the statute can be successfully challenged when it is not compatible with treaty law. The limitation of the sovereignty of Parliament, depending of the interpretation of treaty law by courts, has become quite effective. It is important to keep in mind that this evolution has been well accepted by French academics and by our legal profession as a whole. Lawyers happen to be particularly happy with this situation which opens new avenues to them when they have to submit a case. This became all the more obvious when every citizen in France was granted individual access to the European Court of Human Rights in 1981. Even though the public opinion in France is usually not familiar with legal debates, very few people in the country expressed any concern about it.

Another change relating to constitutional review brought similar consequences. The Constitutional Council experienced an evolution in which it moved toward becoming a constitutional court in the usual fashion. More and more cases were submitted to the Council which developed an ambitious case law in the field of protecting rights and liberties of the citizen. The Council summed up its new approach in 1985 in the New Caledonia Act case by writing that “an Act voted by Parliament reflects the general will insofar as it respects the Constitution” (Cons. Const. 23 August 1985 n°85-197 DC §27).

This statement points out that the original concept of the sovereignty of Parliament adopting statutes has come to a limit: it is submitted to a constitutional review undertaken by the constitutional judge.

An essential step was taken recently in our constitutional review system. This change took place in 2008 and became effective this year on March 1st. Prior to the reform as I pointed out, it was impossible to challenge the constitutionality of a statute which had already come into force. Now a new right is extended to every citizen. The provision on the “application for a priority preliminary ruling on the issue of constitutionality” gives the right to any person who is involved in legal proceedings before a court to argue that a statutory provision infringes rights and freedoms guaranteed by the Constitution. Once conditions of admissibility have been met, the Constitutional Council, to whom the application will have been referred by the Conseil d’Etat or the Cour de cassation, will give its ruling and, if need be, repeal the challenged statutory provision.

This new system will make a major difference insofar as :

1) Any citizen will have access to the constitutional judge, the Conseil d’Etat or the Cour de cassation acting as filters.

2) Any statute will be subject to review, even if it has been into force for years. On our constitutional planet, there won’t be a hidden face of the Moon any more …

Decades ago, this model of constitutional review would have appeared as a breach in our Republican legal tradition. Paradoxically this provision was probably the most easily adopted one during the 2008 constitutional amendment process. It shows that when it was introduced it seemed pretty natural to legislators and to the media even though it was indeed a major change in our checks and balances system as it had been shaped by the principles set out during our Revolution, when the French democratic model came to life. I hope this brief summary will help you understand the real nature of the role that has been and is nowadays exercised by French judges in the regulation of the democratic system. This legal “Copernican Revolution” took place without any genuine objection from the public opinion.

Bringing this presentation to an end, I wish to say that I’m not so sure that this lack of opposition toward the new role played by judges in the democratic regulation process will stay as it is. I feel that its consequences have been underestimated. It should be pointed out that in the French society some people want Parliament to take action to limit the exercise of certain rights and liberties. For instance this is the case with respect to the immigration policy, the right of police to detain someone in custody or even – and this may seem surprising to you – the right of a few hundred Muslim women to dress with the full Islamic veil.

Many people and political leaders advocate radical measures that could be repealed by courts, not because judges disagree on the substance but because they have to implement constitutional norms or treaty law that may forbid Parliament to take such statutory measures.

In other words my feeling is that this new power in the hands of judges may lead to misunderstandings between judges on the one hand, politicians and the public opinion on the other hand. Some people may object that judges tend to block the free expression of democracy. At the same time it would seem difficult to go backwards in a modern democratic society. Two conclusions can be drawn at this stage :

1) Judges should practise some form of self-restraint or judicial deference in exercising these new powers.

2) Even though legal issues are complicated, judges should try to explain their rulings as clearly as possible, use appropriate wording and communicate in a way which is up to date in our media society. Our mission is mostly difficult and sensitive especially when two fundamental rights are at stake and oppose each other, or when there is a risk of major split between the sovereign – i.e. the people – and the judges. Let us exercise it with wisdom.

I thank you very much for your kind attention.