POLICY VALENCIA
VALENCIA POLICY
DRÔME POLICY
YOUR MEMBER 2012
weekly column for a better
know French institutions and
including the National Assembly.
THE SEPARATION OF POWERS
IN FRANCE
Plan:
INTRODUCTION
§ I-SEPARATION OF POWERS,
STATIC ASPECT
A - THE SEPARATION OF DUTIES
LEGAL STATUS
a) The legislative function
b) The executive
c) The judicial function
B - SEPARATION RIGID OR
SEPARATION OF FLEXIBLE
POWERS?
a) The rigid separation of powers
b) The flexible separation of powers
§ II-THE SEPARATION OF POWERS,
APPEARANCE DYNAMICS
(About the French Constitution
4 October 1958)
A - APPEARANCE: THE SEPARATION
FLEXIBLE POWERS
B - REALITY: THE DRIFT
POWERS
INTRODUCTION
-Definition:
" The separation of powers is the principle
institutional organization of inspiration
liberal regimes in force in the political
modern, advocating the separation of
government policy in several powers,
each with autonomy over
other means of control and reciprocal "
( Lexicon of Political Science, Dalloz).
The theory is, indeed, to make a split
power in three branches: legislative, executive and
judicial , and assign each member a function
each organ is dedicated.
- The purpose of separation of powers "is
avoid any drift towards the government
despotic through the division of the body Political
several powers distinct and balanced
able to resist one another. distribution
power prevents concentration of force
in the hands of one power.
( Glossary supra).
theory separation of powers is therefore
the harmonious arrangement of the various skills of
constitutional bodies, describing how
accurate as their responsibilities as
empowerment of each other.
It is contrasted with the confusion of powers
where they are concentrated in a single institution
(assembly or government) which then combines
the legislative, executive or
(more rarely) judiciary.
- Origins:
The theory of separation of powers
is due to Locke ( First and Second Treaties
Civil Government, 1690) and especially
Montesquieu ( The Spirit of Laws , 1748).
Montesquieu wrote thus: "Any man who has
power is increased to abuse it ... Lest
can abuse power, must, by
disposition of things, the power stops
power. "
The separation of powers is proclaimed in
Article 16 of the Bill of Rights
Man and the Citizen of August 26, 1789 :
"Any society in which guarantee
rights is not assured, nor the separation of
has no specific powers
constitution " reaction of practice under
the Old Regime, the confusion of
powers in the hands of the king. This
held in Indeed, legislative, executive, and even
Judicial since "All justice emanates
King who delegated to officers " (justice),
under reserve the right to registration
Parliaments.
The separation of powers is a principle
constitutional Bill of Rights
1789 part of the "block
constitutionality"
that the Council is responsible for constitutional
enforce.
§ I - THE SEPARATION OF
POWERS
STATIC ASPECT
A - THE SEPARATION OF
DUTIES OF THE STATE
a) The legislative function
The first function of government is to legislate,
that is to say, ask the general rules and impersonal
s' impose on all subjects
of law and the state itself (requirement of the rule of law
) until repealed (express or implied
, but not obsolete). Note that
when the legislature repeals a law, it legislates
again and not, as once said Sarkozy,
" déligéfère ( sic)! This statutory function
may be entrusted to one (unicameral) or two
Assemblies (bicameral: the second chamber being
be created to mitigate runaway
the first chamber, or in a federal state,
to ensure the representation of states).
b) The executive
It is then for the State to execute the laws.
More broadly, the executive has a function
administration (hence the name
government which is to replace that of Executive
too reductive (see Article 20 of the Constitution of
October 4, 1958: "The Government determines and
conduct the policy of the Nation ). The executive can
be attributed to one or two people (
monarch or president of a side and Premier
another, even bicephalism diarchy).
c) The judicial function
Finally, it is for the State to organize a system
courts to try the conflicts of law
private (courts judiciary) and public law
( administrative courts) that exist.
These bodies are placed on an equal footing and
independent of each other: each
and can withstand the pressures of the other two.
B - RIGID OR SEPARATING SEPARATION
FLEXIBLE POWERS?
Two models of separation of powers exist.
a) The rigid separation of powers
(U.S. system)
This type of plan (read the description given by A.
de Tocqueville in "Democracy in America" )
which is an application of rigid design
of separation of powers finds its best
illustration in the political institutions
USA. This regime is characterized by the absence
means of reciprocal action (responsibility
policy of the President, dissolution of assemblies ).
The executive function is exercised by a President elected
universal suffrage for a term of four years
, renewable once. The legislative function is
entrusted to Congress with a House of
representatives elected for two years by all of
Population Union, and a Senate elected for six
years, with renewal by thirds every two years
, which represents the states.
Finally, judicial power belongs to a Supreme Court
, composed of judges appointed (by
Chairman) to independent living and other
powers.
In principle, as we said, neither the executive nor the
legislature does have levers
reciprocal: the President can not be removed
[except appeal to the exceptional
procedure of impeachment which can lead to
impeachment or resignation of President ,
as was the case for President Nixon])
by Congress, and it can not be dissolved by
President.
However, the American Constitution (1787)
provides for certain relations between the executive and legislative
: the President can impose its veto to
a law, Congress must authorize the budget
federal government. In addition, the presence of two major parties
(Democrat and Republican)
creates a link between powers (a party may
indeed hold both Presidency and the
majority in Congress).
A drift of this type of system has been found
in some Latin American countries
with the regime in favor of presidential-
president, serving screen to dictatorships .
b) The flexible separation of powers
(French model)
This is the parliamentary system where organs
are separate but together:
- distinct. .. :
Principle balance of power is found to
even within the legislative and the executive,
traditionally are split into two elements
:
. Parliament consists of two chambers
(or bicameralism bicameralism ): bedroom
elected lower direct universal (House of Commons
in Britain, National Assembly
France), an upper house recruited
by cooptation, heredity or universal suffrage
indirect (House of Lords in Great Bretragne,
Senate in France).
. The executive has a dualistic structure : it is divided
between a head of state (monarch, president of the
Republic elected by direct universal suffrage
or indirect, and principle, irresponsible) and
ministerial office (reporting to the
Parliament), with at his head a President of the Council
or Prime Minister.
- ... working together: a collaboration is established
between different bodies:
The executive involved in the legislative function by
his right of initiative laws, and its
power regulation. And he has right
of dissolution of one of the meetings.
The legislative acts in the public
Executive by financial authorities
allowing ministers d exercise their
skills. And it can initiate
political responsibility of government
by censure motion.
A drift can be found. The scheme
Parliamentary sometimes evolves into a
balance of meetings (third and
IV Republics which have reduced the
government a role of simple
subordinate) or for the benefit of executive
(in Britain, the firm has the
real power. The assembly loses its
rights in favor of the government because
of existence majority of faithful
agrees to vote all texts it is
submitted.
II - THE SEPARATION OF
POWERS
APPEARANCE DYNAMIC
(About the Constitution
French, 4 October 1958)
A - APPEARANCE: THE SEPARATION
FLEXIBLE POWERS
In his classic reading, that resulting from
text , the Fifth Republic was established under the auspices
of flexible separation of powers
( parliamentary system). The Constitutional Law
June 3 1958 (after
coup on May 13, 1958) gives
various directives to the constituent:
" The Government of the Republic establishes
a constitutional bill putting
implement the following principles:
... 2) The executive and the legislature could
must be effectively separated
so that the government and the Parliament ensure
each for itself and
under his responsibility the fullness of their
functions;
3) The Government shall be responsible
before Parliament;
4) The judiciary must remain independent
to be able to ensure compliance
liberties e ssentiel
such that they are defined by the Preamble
the 1946 Constitution and the Declaration
of human rights to which it
refers .
On this basis, have been enacted various
articles in the bill that became the
Constitution of 4 October 1958:
Article 20: "The Government determines
and conducts the policy of the Nation. It has
administration and the armed forces.
is accountable to Parliament .
Article 21: "The Prime Minister heads action
government. He is responsible for
national defense. It provides law enforcement
... It exercises regulatory power and appoints
for civil and military .
Article 24: "The Parliament [National Assembly
and Senate] vote law. It controls the action of
government.
Article 31: "The government members
access to both meetings. They agreed
when they ask."
Article 44: " Members of Parliament and the
government have the right to amend .
Article 49: "The National Assembly in
question the responsibility of government by
voting a motion of censure .
Article 12: "The president of the Republic may
... dissolve the Assembly
National .
The President, under Article 5,
" ensure compliance with the Constitution. It provides
through his arbitration regular operation
government and the continuity of
the state. He is the guarantor of national independence
, territorial integrity and respect for
treaties. According text of the constition, the
own powers (enumerated in Article 13)
recognized President of the Republic are
mutatis mutandis those of a préseident
Third and Fourth Republic ( sort of moral
judiciary). Therefore, it is politically irresponsible
(but see
Article 68 resulting from the 2007 reform which
provides for impeachment of President
in cases of "breach his duties
manifestly incompatible with the exercise of
its mandate. "In this case, Parliament is set
High Court). Hence, also, originally, the fact that
President of the Republic is elected by a college
major constituents (deputies, senators, counselors
generals, mayors, representatives delegates from municipal councils
) and not by direct universal suffrage.
As for the judiciary, called an authority
judicial by the 1958 Constitution, Article 66 provides that
" The judicial authority, guardian of
individual liberty, enforces this principle
as provided by law .
Article 64 states that "The president
guarantees the independence of the judiciary.
He is assisted by the Superior Council of Magistracy
... Judges are irremovable .
B - REALITY: THE DRIFT OF POWERS
CONFUSION TO THE SOLE BENEFIT
THE PRESIDENT THE REPUBLIC
The Constitution of 4 October 1958 introduced a regime
original is not entirely the
parliamentary system nor entirely plan
president. We then could qualify regime
semi-presidential. However, analysis of the text
original is basically a system
parliament (see below the cohabitation).
As mentioned above under Article 20 of the Constitution
"The government determines and
led national policy." Everything will change
with change just a few words
the Constitution. By changing little, we changed
all. constitutional reform of 28
October 1962 introduces the election of the President of the
Republic by direct universal suffrage
(Article 6: "The president of the Republic is elected
for seven years by direct universal direct . This
reform has also been made in
controversial circumstances by the recourse to
referendum on the basis of Article 11 to be
Article 89 ( participant and the Coup d'Etat
permanent " to resume terms
Francois Mitterrand ). Hence the preponderance
President of the Republic
due practice (the "agreements of the
Constitution," the Professor Pierre April),
not to text itself, enhanced by
personality of General de Gaulle is then
i nstitutionnalisée. Other powers and
constitutional bodies, according design
General de Gaulle , subordinate.
The practice Gaullist last
after the departure of General de Gaulle and experience a kind of apotheosis
with presidentialization
of excessive Sarkozy. Rather than plan
semi-presidential it is more accurately described
hyperprésidentiel scheme.
drift of the parliamentary system is
then performed.
Other events are part of this
hyperprésidentialisation of scheme:
- the constitutional reforms in 2000 and 2001
deciding the reduction of office Presidential
7 to 5 years and reversal of timing
election (first election
presidential elections then
legislative);
- the fact the majority (coincidence
presidential majorities and legislative )
- personality erased early
Ministers (last place Fillon considered
as a kind of super director
firm Chair)
- the assertion of a "reserved area "
(foreign affairs, national defense :
actually rather a "shared domain");
- Parliament has seen his reduced duties by
the 1958 Constitution. Indeed, the law has
a limited field (combination of
Articles 34 and 37 of the Constitution), it is sometimes
confiscated by the government
(use ordinances of the article 38) and
sometimes controlled by the Constitutional Council
that can be seized the constitutionality of laws before
promulgated by authorities
qualified, and after promulgation (since 2008)
at the request of any defendant in
a proceeding pending before a court
judicial or administrative.
Admittedly, the constitutional law of 23 July 2008
was presented as increasing the rights of
Parliament. In reality, the strengthening of those rights
is designed in the sense of limiting
prerogatives of the Prime Minister in respect of
weakening the national representation;
- the intervention of the executive in the judiciary:
Minister justice is superior
hierarchical prosecutors.
The independence of the Prosecutor
is a requirement arising from the jurisprudence
European Court of Human Rights and
of the Court of Cassation.
It requires cutting the "umbilical cord"
entre le ministère de la justice et les magistrats
du Parquet. Cette indépendance passe par
l'interdiction des instructions individuelles
données par le ministre au Parquet. Le Conseil
supérieur de la Magistrature doit recevoir
compétence pour faire des propositions pour
les postes de Procureur général et avocats
généraux de la Cour de cassation ainsi que
pour les postes de procureurs généraux des
cours d'appel et des procureurs de
the Republic, and assent
for appointments of other judges
the prosecution. The Superior Council of Magistracy
be disciplinary body
(and not the minister of justice as
today) to prosecutors
as is already the case for magistrates
seat. Article 64 of the Constitution
(" The president is the guarantor of
independence of the judiciary ") Should be repealed
as contrary to the principle of
separation of powers.
LOOK ...
