Post-hoc constitutional review has finally come of age in France. The current French constitution (image credit) dates from 1958. At that time, the drafters saw fit to provide for checking the constitutionality of laws only before they enter into force and only upon referral to the Conseil constitutionnel (constitutional council). The right of referral was limited to the president, the prime minster and the presidents of the parliamentary assemblies (the Assemblée nationale and the Sénat). This precious right was extended in 1974 to allow a group of 60 deputies or senators to refer a law to the Council, thus giving the opposition the power to challenge new legislation prior to its entry into force. As litigation at the European Court of Human Rights has developed, French citizens have challenged the "conventionality" of legislation without being able to challenge the constitutionality. Nicolas Sarkozy has changed that: among the constitutional reforms he badgered a bare 3/5 majority of parliamentarians into adopting last week is the citizen's right to raise a law's unconstitutionality. Exercise of the right will be tightly controlled to avoid flooding the Conseil constitutionnel, however: administrative law issues will be handled by the Conseil d'Etat (France's highest administrative court) and the Cour de cassation (Supreme Court) will handle the rest. If they believe a law's constitutionality to be in doubt, they'll make an interlocutory appeal to the Conseil constitutionnel. Considering the rarity of constitutional review in the past and the number of laws from the 19th century still on the books, there may be quite a bit of constitutional litigation in the future. But some of the Conseil's most recent decisions upholding the constitutionality of, for example, antiterrorism laws that impinge heavily on fundamental rights leave little room for optimism that France's adoption of post-hoc review will result in the striking down of any more laws than does the current pre-application abstract review.
"Maturing" French Constitutional Review
Post-hoc constitutional review has finally come of age in France. The current French constitution (image credit) dates from 1958. At that time, the drafters saw fit to provide for checking the constitutionality of laws only before they enter into force and only upon referral to the Conseil constitutionnel (constitutional council). The right of referral was limited to the president, the prime minster and the presidents of the parliamentary assemblies (the Assemblée nationale and the Sénat). This precious right was extended in 1974 to allow a group of 60 deputies or senators to refer a law to the Council, thus giving the opposition the power to challenge new legislation prior to its entry into force. As litigation at the European Court of Human Rights has developed, French citizens have challenged the "conventionality" of legislation without being able to challenge the constitutionality. Nicolas Sarkozy has changed that: among the constitutional reforms he badgered a bare 3/5 majority of parliamentarians into adopting last week is the citizen's right to raise a law's unconstitutionality. Exercise of the right will be tightly controlled to avoid flooding the Conseil constitutionnel, however: administrative law issues will be handled by the Conseil d'Etat (France's highest administrative court) and the Cour de cassation (Supreme Court) will handle the rest. If they believe a law's constitutionality to be in doubt, they'll make an interlocutory appeal to the Conseil constitutionnel. Considering the rarity of constitutional review in the past and the number of laws from the 19th century still on the books, there may be quite a bit of constitutional litigation in the future. But some of the Conseil's most recent decisions upholding the constitutionality of, for example, antiterrorism laws that impinge heavily on fundamental rights leave little room for optimism that France's adoption of post-hoc review will result in the striking down of any more laws than does the current pre-application abstract review.
