How Emmanuel Macron Reaffirmed the Rationalised Character of the French Parliament - Hoofdinhoud

French President Emmanuel Macron’s so-called pension reform, which raises the pension age from 62 to 64, appears to have been successful. The bill (Act on Amending the Social Security Financing Act for 2023) has been enacted by the Parliament, but without approval of the National Assembly. This was possible because the bill has been enacted by way of a bypass procedure that is known as the nuclear option. This procedure was initiated by Prime Minister Elisabeth Borne, who is a member of Macron’s political party Renaissance. Art. 49/3 of the French Constitution bestows the Prime Minister with the power to make the passing of a Finance Bill or a Social Security Financing Bill an issue of a vote of confidence before the National Assembly. Once applied, the bill in question shall be considered passed unless a resolution of no-confidence is successfully tabled within the subsequent twenty-four hours. Art. 49/3 reflects the traditionally strong executive and ‘rationalised’ parliament of the French Constitution, which dates back to the aftermath of turbulent Fourth Republic. Nevertheless, invoking such a powerful procedure, which was deemed obsolete under modern political conditions, came with severe criticism.

Although parliaments are traditionally considered the home base of governmental accountability and responsibility, this supervision function may occasionally lead to unstable and nonpersistent governments. In particular, when a parliament constantly tends to reject the government’s political or legislative agenda and force the government to resign by a vote of no confidence, political deadlocks are inevitable since the executive branch is not allowed to govern in such circumstances. During such periods, parliaments are considered to act irrationally as what they mainly do is solely reject government bills and dismiss the prime minister and her/his government without proposing an alternative policy or cabinet. The period of the Fourth Republic is a poster child of such political instability. Between 1946 and 1958, French politics witnessed 18 prime ministers (also known as presidents of the council of ministers) who served in 26 governments. These short-living governments increased distrust towards the Parliament and thus led to the Fifth Republic, France’s current system of government, which is based on a strong executive vis-à-vis the legislature. To rationalise the French Parliament, the Constitution of 1958 bestows remarkable tools both to the president and the government and relatively weakens the initiative of the Parliament in the legislative procedure. Art. 49/3 of the Constitution is among the rationalised provisions of the Constitution which are intended to enable the government to accomplish its legislative agenda – even if it is opposed by the parliamentary majority.

Rationalised parliaments are characteristic of post-war constitutions that adopt a parliamentary system of government. An example of an instrument typical for rationalised parliaments is the so-called constructive vote of no-confidence prescribed in Art. 67/1 of the German Basic Law, which allows the Bundestag to express its lack of confidence in the Federal Chancellor only on the condition that it has elected a successor by an absolute majority of its members. Similarly, Art. 49/2 of the French Constitution, which prescribes that solely votes cast in favour of the no-confidence resolution shall be counted for ousting the government, is a typical measure aimed at maintaining government stability. What makes the French type of rationalised parliament relatively disputatious, is that some constitutional provisions are deemed too far-reaching for balanced government. For instance, Art. 16 of the Constitution allows the President to undertake all constitutional functions in times of crises and emergencies. Art. 16 has been invoked just once in 1961 by Charles de Gaulle during the Algiers putsch. Art. 49/3 of the Constitution may similarly be regarded as excessive and outdated since it authorises the government to override the parliamentary majority, while Parliament is no longer considered as irrational as it was during the Fourth Republic. However, it should be noted that French politics is still fragmented and especially minority governments can still be in need of the rationalised mechanisms of the Constitution of 1958 to survive and govern.

Since Macron’s Renaissance Party and its Ensemble Coalition allies (Democratic group, MoDem and Independents and Horizons) do not have the majority in the National Assembly (250 of 577 deputies), to accomplish his political agenda, the President is in need of an additional backup. In recent months, the Republicans have provided this backup. However, it is a so-called paper thin liberal-centre right majority in the National Assembly and this backup did not work out for the pensions reform bill. Substantial lobbying efforts were made but could not convince enough MPs and a defeat for Prime Minister Borne in the National Assembly seemed to be likely. The pension bill was already adopted by the Senate in which the liberals and centre-right predominate. Instead of slackening the process and seeking for a further compromise, Macron and Borne invoked the nuclear option by triggering Art. 49/3 and defying the opposition bloc in the National Assembly. Immediately after, on 20 March, two motions of censure were tabled, respectively by Bertrand Pancher from the Liberties, Independents, Overseas and Territories Group and 90 deputies and Marine Le Pen from the National Rally Group and 87 deputies, but both motions failed (in fact, the government survived the first motion only by a margin of just nine votes). In sum, the rage towards Macron’s and Borne’s government among the leftist and far-right political blocs did not pan out because of the abovementioned leverage of government, which reflects the historical foundations of the Constitution of 1958.

Although invoking Art. 49/3 is regarded as a tyranny of the minority or denial of democracy, the so-called nuclear option is a typical instrument of rationalised parliaments. A similar procedure exists in Germany where the Chancellor, under Art. 68 of the Basic Law, may tie the confidence question to the passing of a specific bill or policy proposal. What is striking, however, is that instead of seeking a tight vote adaptation, Macron chose to insist on his relatively unpopular social security reform and thereby to alienate himself from the opposition blocs in the Parliament. This reckless move might shorten the life span of the government in the long term. Nevertheless, invoking the nuclear option cannot be regarded as incomprehensible, since Macron has made this reform a corner stone of his election campaign. Since his party and the alliance lost the majority in the National Assembly after the general elections last year, his party has not much to lose but a little to gain, for example consolidating its liberal/centrist electorate, as he holds another powerful constitutional instrument: dissolution of parliament. The government argues that pensions of the poorest 30 percent of the population will increase by 2.5 to 5 percent by virtue of the reform. Macron says that the previous pension system would cause a huge deficit in the coming years in the face of aging population of France. However, triggering the nuclear option has met fierce opposition from workers and trade unions and has led to widespread protests and strikes across France as this manoeuvre was regarded by the labour unions as bypassing the Parliament rather than operating a constitutional mechanism.

It is well-known that during the second term of their presidency, French presidents tend to act more relentlessly because they do not have to worry about being re-elected. This fact constitutes the background of Macron’s persistence which differs from his catch-all profile which was seen back in 2017 and thereafter. Ultimately, the legislative process of his pension reform demonstrates that the legislative support of the conservative Les Républicains is not absolute and that the future survival of the ‘weathered’ government is on a knife’s-edge after all. Under the recent government practice to table controversial acts, Prime Minister Borne had referred the Act under Art. 61/2 of the Constitution for further judicial consideration on the 21^st of March. The Council has validated the core provisions of the Reform, including the provision on the newly introduced retirement age of 64. Eventually, the Pension Reform has stayed alive. In the end, depending on the future course of legal and political events, Macron’s ‘reform without a vote’ preference will be decisive on how he is going to be memorialised on the spectrum between ‘liberal reformist’ and ‘post-modern De Gaulle’.

Türker Ertaş is werkzaam bij de afdeling staatsrecht van de rechtenfaculteit van de Dokuz Eylül universiteit in het Turkse İzmir.