The Constitution Of The Fifth French Republic
| Date | 01 January 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00505.x |
| Published date | 01 January 1959 |
| Author | Dorothy Pickles |
THE
MODERN
LAW
REVIEW
Volume
22
~ ~~~ ~
January
1959
No.
1
THE CONSTITUTION
OF
THE FIFTH
FRENCH
REPUBLIC
THE
drafting of the new French constitution was a speedy affair
compared with that
of
the constitution of the Fourth Republic.
On June
13
a Cabinet committee consisting of the four Ministers of
State and the Minister of Justice, and presided over by General de
Gaulle, began work on a draft drawn up in the main by members
of the
Consril
d’Etat,
on the basis of the principles laid down in
the law of June
3
revising article
90
of the constitution of
1946,
so
as to authorise the Government to draw up a new constitution
to
be approved by a referendum. By the end of July the first draft
had been approved by the Government and submitted to a consul-
tative committee consisting of sixteen Deputies and ten Senators
(chosen by the appropriate Commissions of their respective Assem-
blies) together with thirteen members chosen by the Government
and considered as representative of various sections of political
opinion, legal experts and representatives of professional interests.
Its report, published on August
16,
was then considered by the
Government and an amended text submitted to the
Conseil
d’Etat.
The final draft was approved by the Cabinet on September
3
and
published the following day. On September
28
a
referendum
resulted in a majority (in metropolitan France) of
79-25
per cent.
of those voting, who constituted
84-9
per cent.
of
the electorate, a
poll higher than any held since the war.
The law of June
8
laid down
a
certain number of principles of
constitutional reform. The Government undertook to retain uni-
versal suffrage, the separation of legislature and executive, the
responsibility of the Government
to
Parliament, the independence
of
the judiciary, and to draft the constitution in such
a
way as to
leave open the possibility of
“
organising the relations between the
Republic and the associated peoples.” On June
2,
in the National
Assembly, General de Gaulle had stated specifically that these
undertakings meant that the future constitution would not be
1
VOL. 22
1
2
THE MODERN
LAW
REVIEW
\‘or..
Y!
presidential, that the offices
of
President of the Republic and Head
of the Government would remain distinct.
The new constitution, therefore, provides for
a
system of
Parliamentary government.
It
differs in important respects from its
predecessor, and in a number of ways from the so-called
“
Bayeux
constitution,” an outline given by General de Gaulle in a speech
of
June
16,
1946,
and assumed from then onwards
to
represent his
views. There are some echoes of the views he then expressed; for
instance, the concept of the President as arbitrator, his election
by an electoral college larger than that which elected Presidents of
the Third and Fourth Republics, his powers in times of crisis. But
the essentials of democratic, Parliamentary government are retained.
Governments are collectively responsible to Parliament
;
the Presi-
dent of the Republic is Head of the State, with functions distinct
from those of the Head of the Government; and the preamble and
first four articles proclaim the Republican and democratic principles
contained in the constitution of
1946.
This is a constitution that
can
be
made
to
work democratically, if the will
is
there on the part
of the statesmen responsible for applying its provisions
:
though
there are provisions that
could
be used,
or
misused, for undemo-
cratic ends. There is no doubt that General de Gaulle and his
Government intend
it
to serve both democratic and Republican
edds. Indeed, it is at first sight surprising that a Government
headed by General de Gaulle, the opponent
par
excellence
of the
party system, should have included in the constitution a formal
recognition
of
the existence and functions of parties (article
4).
This is something quite new in the history of French Republican
constitutions. Parties are to have freedom of action; they are also
required to
‘‘
respect the principles of national sovereignty and of
democracy
.
’)
THE
PRESIDENT
1
By far the most important and controversial changes concern the
role of the President of the Republic. Presidents of the Fourth
Republic, like those of the Third, played, on the whole, the part
played by a British constitutional monarch, though their effective
power and influence were increased both by their presidency of a
number of important committees and by the existence of a multi-
party system, whose working resulted frequently in the absence of
coherent majorities in the National Assembly. Presidents
of
the
Fifth Republic have the same powers, as well as a number of new
This provision has been widely interpreted
as
being designed to facilitate the
banning
of
the Communist Party, if it should ever become necessary.
Xobody
attaches great importance to this, however, and not even the Communist Party
assumes that any
such
step
is
contemplated either at present or in the near
future.
It is
only
fair to add that the requirement that parties should respect the
principles
of
democracy was not included
in
the’Government’s origlnal draft,
but was added by the Consultative Committee, the majority
of
whose members
were Deputies end Senators.
The
Government retained it, however.
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