Democratic Deficit

7 April 2023

The future of the pension reform bill remains in suspense for another week, until the Conseil Constitutionnel renders its decision on the provisions of the law itself as well as on the petition that the reform be submitted to the people for a decision by referendum. Meanwhile, the government is pretending that the controversy is behind it and that the time has come to move on. So the president has turned to other parts of his agenda (a new water plan, a plan for dealing with end-of-life issues, a trip to China), while the prime minister tried to meet with union leaders to discuss matters pertinent to the implementation of the reform without touching its essence, which is what union leaders wanted to discuss. In the absence of any movement by the government, the unions returned to the streets, albeit in somewhat diminished numbers, and renewed their call for further demonstrations despite renewed outbreaks of violence.

Meanwhile, everyone, no matter what their position on the substance of the issue, is left feeling that something has gone seriously awry with the democratic process. Witness the interesting debate between Dominique Schnapper and Thierry Pech in today’s Le Monde. Schnapper is convinced that democracy was disserved by the left’s tactics in the Assembly, which in her view prevented debate on the substance of the bill. In contrast, Pech argues that the government’s recourse to constitutional provisions allowing it to limit debate and ultimately to secure passage without a vote via Article 49.3 demonstrated a contempt for widespread misgivings about the bill that were tantamount to a circumvention if not a dismissal of democracy. Schnapper enshrines the presidential election as the ultimate expression of the democratic will; Pech insists that a more robust form of consultation with civil society is required. My sympathies are entirely with Pech, but the impasse recapitulated in this debate reflects the actual institutional blockage in France, which the Conseil Constitutionnel may or may not resolve.

I am not normally in favor of deciding major issues by referendum, but I think that in the present case a referendum may be the least bad alternative and the best way to restore faith in faltering institutions. It will probably, if polls are to be believed, result in a rejection of the present bill, but since there is ample time to draft another plan before the financing of French pensions is put in serious doubt, that would not be a catastrophe. Without a referendum, the bill will become law, leaving everyone with a bad taste in the mouth owing to the manner of its passage.

ADDENDUM: I might add that my colleague Will Phelan informs me that when Article 49.3 was added to the 1958n constitution, it was at the behest of PIerre Plimlin and Guy Mollet, who both had served as prime ministers under the Fourth Republic. Their purpose was to shore up the executive in the face of a recalcitrant legislature, based on their own experiences. De Gaulle, by contrast, thought that if the executive could not command the support of the elected representatives of the people, then there was no choice but to consult the people via referendum, as he did several times during his tenure. In short, although the constitution of the Fifth Republic is generally thought of as the work of de Gaulle and Debré, Article 49.3 in particular was contrary to de Gaulle’s wishes and understanding of the kind of regime he was seeking to build.

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