The Constitution of the Fifth Republic; A Commentary
| Author | Martin Harrison |
| Published date | 01 February 1959 |
| Date | 01 February 1959 |
| DOI | http://doi.org/10.1111/j.1467-9248.1959.tb00891.x |
| Subject Matter | Article |
THE CONSTITUTION
OF
THE
FIFTH
REPUBLIC;
A
COMMENTARY
t
MARTIN HARRISON
Nu field College, Oxford
‘THE
French nation will flower again, or perish, depending on whether
the State has or has not strength, steadfastness, prestige enough to direct it
in the way it must take. It is therefore for the people that we are, for the
century and for the world in which we live that the Constitution has been
made.’ It was in such terms that General de Gaulle commended the Fifth
Republic’s constitution to France. The dying act of the old National
Assembly authorized him to undertake the constitutional revision which
was to transform the Fourth Republic into the Fifth. Despite the long years
of waiting at
Colombey-les-deux-Bglises,
the General did not reach the
Matignon with
a
constitution in his pocket. The first draft was rapidly
drawn up in June and July by
a
small team working under M. Michel
Debrt,
Garde
des
Sceaux,
within the General’s broad instructions. On
29
July, after cabinet discussion had led to several amendments-notably
to the motion of censure procedure-the provisional draft was sent for
advice to the
ad
hoc
Constitutional Consultative Committee (CCC), com-
posed
of
thirty-nine members: sixteen nominated by the National Assembly,
ten by the Council of the Republic, and thirteen by the Government.
Meeting under the Presidency of M. Paul Reynaud, from
29
July to
14
August, the Committee proposed numerous amendments.* The Govern-
ment, though declining to be bound by its recommendations, accepted
some, firmly rejected others? and had second thoughts on new points.
M.
Mollet exacted several modifications (chiefly
to
the role
of
the Senate)
as the price of Socialist support. The important addition
of
the ‘right to
independence’ for the overseas territories followed General de Gaulle’s
African tour at the close of August. After examination by the Council
of
State, the final draft was commended to the electorate by General de Gaulle
*
I
owe particular acknowledgement
for
suggestions and criticisms to
Mr.
Philip Williams.
For
the first draft, CCC draft, and the final text, see
M.
Prtlot,
Pour
comprendre
la
nouvelle
constitution,
editions du Centurion, Sept.
1958.
The most important CCC amend-
ments were made
to
Articles
2,
4,
6,
16,
24,
31,
66,
77-87.
Notably Articles
23
(incompatibility of minister’s functions with membership of Parlia-
ment) and
32
(election
of
the
Bureau
of the National Assembly). Numerous suggestions
were partly accepted.
Political Studies,
Vol.
VII.
No.
1
(1959.
41-61).
42
THE CONSTITUTION OF THE FIFTH REPUBLIC
at the unhappy meeting of 4 September in the Place de la Rtpublique.
Accepted by referendum in France and overseas, it was promulgated on
5
October and, after the operation of the transitional articles, becomes fully
operative on
5
February 1959.
It is not strictly ‘de Gaulle’s constitution’. Certainly there are frequent
echoes of the Bayeux speech of 1946, modified by observation of the Fourth
Republic. But
M.
Debr6’s influence is frequently evident-notably in the
provision that the functions of minister and deputy are incompatible.’ The
CCC, the African parties, and the General’s African tour transformed the
proposed ‘Federation’ into the substantially altered ‘Community’. Finally
the constitution was conceived within the terms of the Constitutional Law
of 3 June, which, notably, laid down that the revision must preserve uni-
versal suffrage; that legislative and executive power were to derive either
from universal suffrage or from bodies elected by universal suffrage; execu-
tive and legislature were to be separated in such a way that ‘the government
and the Parliament assume, each for itself and on its own responsibility, the
fullness of their attributions’. The Government was to be responsible to
Parliament. In the course of debate, General de Gaulle had promised that
this meant that there could be no ‘presidential rtgime, and that the powers
of the president could not be merged with those of the prime minister’.
Given the haste with which it was drafted and the diverse influences
conditioning it, the new constitution is not surprisingly termed by RenC
Capitant ‘the worst drafted text in our constitutional history, worse even
than the Constitution
of
1946 . . .
a
cause
of
permanent humiliation to those
who held the pen’.2 Its authors appear to share Thomas Hardy’s belief that
a
constitution may ‘owe her success in practice to her inconsistencies in
principle’. The constitution is at times obscure enough to have satisfied
Napoleon’s famous test. Undecided what form the French Community and
its institutions were going
to
take, the drafters have prudently left some
articles equivocal to allow further discussion and a freedom
of
manceuvre
which was sadly absent in the 1946 Con~titution.~
Elsewhere, however, obscurity, coupled with the need for a good dozen
organic laws to fill in such misty articles as ‘Parliament votes budgets in
the conditions provided by an organic law’ mean that it will be some time
before the constitution is textually complete. (The Fourth Republic had not
at its death voted all the laws promised by the 1946 Constitution.) What
the
working
constitution, formed by customary usage and interpretation,
The idea apparently originates in
L.
Noel,
Notre derni2re chance,
Gedalge, 1956,
pp.
183-7,
deriving from
a
criticism
of
the existing system made b$ General de Gaulle in
his
press conference of
30
June 1955. Cf.
also
M.
DebrB,
Ces princes qui
nous
gouvernent,
Plon, 1957.
’
For possible interpretations of these articles and
in
explanation
of
the Community
Preface
to
L.
Hamon,
De Gaulle
dans
la
Rkpublique,
Plon, Oct. 1958.
see
La
Constirurion
et territoires
do.-M.,
Secretariat Social
d‘0.-M.,
Sept.
1958.
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