Conservative candidates Marine Le Pen and Éric Zemmour, if elected, will not be able to end mass immigration to their country without the Senate’s approval, the president of the Constitutional Council, France’s constitutional court, has warned. The news that French courts will block a democratic referendum related to immigration reveals just how powerless people across Europe have become to decide the demographic fate of their countries, as the severe watering down of Switzerland’s referendum vote to implement immigration quotas previously showed.
The idea that France’s top court can decide against the will of the people despite a popular referendum is a perversion of what the court originally stood for. In fact, in 1962, the French constitutional court declared itself incompetent to rule over the constitutionality of laws “adopted by the people following a referendum” since they “constitute the direct expression of national sovereignty.” However, in 2000, the French Constitutional Court partly reversed its 1962 decision by limiting its scope. It marked one of the many decisions that have transformed France from a semi-presidential democratic regime to what looks more and more like a government by judges.
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The 2000 ruling is especially notable given what is at stake in the upcoming election. Both Le Pen and Zemmour have declared that they will hold a referendum on ending mass immigration. Perhaps even more importantly, a majority of French say they support such a referendum. Given polling showing seven out of ten French citizens are in favor of ending immigration, there is also a good chance such a referendum would succeed in favor of Le Pen or Zemmour.
The Constitutional Council’s decision to block such a referendum even before it has taken place has been confirmed by Laurent Fabius, who was appointed to the post of president of the Constitutional Council by his friend, Socialist President François Hollande, in 2016 when he was Hollande’s foreign minister.
The Constitutional Court would not only squash an immigration referendum, but would also block the project of the VIth Republic, which is promoted by the best-placed left-wing opposition candidate, Jean-Luc Mélanchon.
In France, the constitutional court is highly politicized, much more so than in Poland, which is nevertheless the country accused by the EU institutions of having a constitutional court that is too politicized and therefore not independent enough to make it legitimate.
In Poland, the Constitutional Tribunal judges are elected for a nine-year term by a simple majority vote in the Sejm, the lower house of parliament, from among persons with legal education and recognized professional experience in the legal field. In France, the Constitutional Council judges are appointed in groups of three for nine years by the President of the Republic, the President of the National Assembly, and the President of the Senate, each of whom alone decides on the choice of his or her own Constitutional Council judges. Those judges are not required to have any knowledge, competence, or experience in the legal field.
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The incumbent president of the Constitutional Council, Laurent Fabius, is an old socialist apparatchik. The institution he presides over has authorized, despite their obvious unconstitutional nature in some cases, all the restrictive and discriminatory measures imposed by Emmanuel Macron and his government as part of their strategy against the Covid-19 pandemic.
Even today, France is one of the few EU countries to still make extensive use of a vaccine pass scheme, despite such apartheid-style scheme having proved useless during the current Omicron wave of the pandemic. At the same time, the French branch of the American company in charge of advising the French government for its strategy against Covid and its vaccination campaign, the McKinsey firm, is directed by Victor Fabius, Laurent Fabius’ son.
The first step of the Constitutional Council’s ongoing judicial putsch on the democratic institutions of the Fifth Republic that had been drafted by General de Gaulle and confirmed by the French people in a referendum was carried out in 1971 when the Constitutional judges integrated the preamble of the 1958 Constitution, the preamble of the 1946 Constitution and the 1789 Declaration of the Rights of Man and of the Citizen into what they called the “constitutionality block.” This way, those judges transformed the Constitutional Council, without asking the French people or its elected representatives, into the guardian of fundamental rights and freedoms based on the general principles it would from that point on derive from those documents.
In 2018, under Laurent Fabius’ presidency, the Constitutional Council further extended the “constitutionality block” to the principle of “fraternity” contained in the motto of the French Republic: “Liberté, Égalité, Fraternité.” The case it was ruling over was about aiding illegal immigration for humanitarian purposes. Thus, France’s Constitutional Council has now made it illegal for the legislative and executive branches of power to punish citizens and organizations engaged in supporting illegal immigration when their activity is non-profit related. The guardians of the French constitution thus decided, without having been elected and without having presented their proposals to the voters, to give legal force to the Republic’s motto, considering that the word “fraternity” in that motto implies “the freedom to help others, with a humanitarian aim, regardless of the legality of their stay on the national territory.”
The French Constitutional Council has thus become an American-style Supreme Court, which was not its role under the 1958 Constitution. This was done without a vote of the people, only by virtue of decisions made by politicians appointed to their positions by their political friends, and without introducing the democratic process that presides over the nomination of Supreme Court Justices in the U.S.
Today, as reported in the weekly L’Express on Feb 23, “for candidates with ‘breakthrough’ programs, the obstacles will not stop after the presidential election (…): Even if he or she has the 500 endorsements required to run for president and wins the election and then the legislative elections in the wake of it, the new president could find himself or herself prevented from implementing his or her project if it is Marine Le Pen, Éric Zemmour or Jean-Luc Mélenchon.”
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Whether it is a matter of deporting illegal immigrants or abolishing family reunification, it goes against the principles recognized as “constitutional” by the French Constitutional Court, even though such decisions are not covered in the 1958 Constitution which was approved by a vote of the French people. They are indeed covered by the “constitutionality block” invented by the Constitutional Council. Therefore, the laws promised by Le Pen and Zemmour, who planned to bypass the Constitutional Council using a referendum like General de Gaulle once did, amount, in the eyes of Laurent Fabius and his colleagues, to changing the French Constitution, which means that a vote of both houses of parliament is required first.
The problem is that the upper house, the Senate, is not elected by direct universal suffrage. It is made up of representatives of local elected officials — the electors — with a six-year term. It is renewed by half every three years.
As a result, even after a landslide victory for his or her party in the June legislative elections, the new president elected in April could see his or her reforms, particularly in the area of immigration, blocked by a Senate populated by the cronies of the major parties that have alternated in power for decades and have transformed France into a multicultural and increasingly Islamic society.
No wonder a majority of citizens consider that democracy does not work well in France. According to a December poll, half of the French people even think that the state of democracy has deteriorated further under the presidency of Emmanuel Macron, himself a former socialist minister under François Hollande, just like his fellow crony Fabius. Even The Economist, the English liberal weekly, ranked France as a “failing democracy” for the second year in a row in 2021.
