Barely ten days into the job, France’s new interior minister, Bruno Retailleau, has prompted outrage over his comments that “the sovereign people” should have primacy over his country’s constitutional state, and his attacks against what he called the “jungle” of judicial powers that hamper a hardline crackdown on immigration.
He was appointed in late September to Michel Barnier’s fragile government made up of a coalition of the conservatives and centre-right, neither of which have anywhere near a majority in the hung parliament that emerged in June after Emmanuel Macron’s call for snap elections.
Retailleau, 63, a senator and member of the conservative Les Républicains (LR) party, who until his nomination as minister led the LR in the upper house, began his political career in 1994 as a member of the hard-right Mouvement pour la France, before joining the conservatives, then called the UMP, in 2012.
Barnier’s government needs the support of the far-right Rassemblement National (RN) to avoid losing a no-confidence vote in parliament, and Retailleau’s outspoken obsessions with law and order and curbing immigration are suitably in line with those of the RN.
His most controversial comment since joining the new government came in an interview published in the weekly Le Journal du Dimanche last weekend. “The constitutional state is neither inviolable nor sacred,” he said. “It is a whole body of laws, a hierarchy of standards, a judicial control, a separation of powers. But the source of the constitutional state is democracy, it’s the sovereign people.”
The statement prompted an angry response from numerous jurists and rights defenders, while the Conférence des bâtonniers, an umbrella institution representing all the spokespeople of Bars across the country, expressed its outrage “against such talk which is likely to place in question one of the foundations of our republic”. The constitutional state, it insisted, “cannot in any circumstance be placed in question”, and “it is both inviolable and sacred”.
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“There is no mathematical definition of the constitutional state,” said Stéphanie Hennette-Vauchez, a lecturer in public law at Paris-Nanterre university. “But one can say that it supposes that public action is subject to the law, that even if its source lies in the vote it must respect a certain number of rules that control its exercise. A constitutional state therefore supposes that the exercise of political power is subject to conditions.”
For her colleague Serge Slama, a lecturer in public law at Grenoble-Alpes university, “Mr Retailleau’s comments quite simply don’t make sense”. He added: “There is a link between democracy and the constitutional state, and all that results from popular sovereignty. But a constitutional state supposes that the state is subject to law, to principles and rules inscribed into the constitution. So when he places a constitutional state into question, he puts the constitution into question.”
As the controversy over his remarks mounted, Retailleau published a terse statement online on October 1st, in which he recognised that “there cannot be democracy without a constitutional state, [and] without the respect of the public powers in law and freedoms”. But in the following line he wrote: “When legislative texts no longer guarantee every right – beginning with the first of these, the right to be protected – they must evolve, in full respect of the institutions of our republic.”
During the handover ceremony on September 23rd when he and outgoing interior minister Gérald Darmanin gave speeches for the media, Retailleau said that, as the new minister, he had three priorities – “to re-establish order, to re-establish order, to re-establish order”. The drive for this, he added, “doesn’t come from the French of the Right or the Left, but from all the French”.
“Of course, I’m told: 'no majority in the national assembly',” Retailleau said, referring to France’s hung parliament and the mathematical possibility that the new government can be toppled by a no-confidence vote. “What policies can we pursue? Well, the policies we will pursue are those of the sovereign people. They are the policies, as General de Gaulle used to say, of the national majority. That’s what gives us a legitimacy to act, whatever the political circumstances.”
The Gaullist concept of a “national majority” to which Retailleau alluded is a reference to a press conference given by the general on September 9th 1965, three months before the presidential elections that December, when he set out his vision of the institutions of the Fifth Republic - the system of government he created in 1958.
De Gaulle spoke of a special relationship between the head of state and the French people that went beyond party political divisions – and which was “the advent of a people as such and collectively as the source of power of the head of state”. He laid claim to being part of a regime of a “national majority”, one which “emerges from the whole of the nation, indivisible in its mass, indivisible and sovereign”.
That typically Gaullist vision of the Fifth Republic is however largely removed from the current political situation in France, with a seriously weakened president and a government sitting on an ejector seat. Serge Slama argues that “Article 3 of the Constitution is very clear” when it states that “National sovereignty belongs to the people who exercise it through their representatives and by the use of the referendum”, and which stipulates that “No section of the people nor any individual can give themselves its exercise”.
“That includes Bruno Retailleau, who is not the representative of the national majority,” said Slama.
Focussing on immigration
“Mr Retailleau’s comments are disconcerting,” added Stéphanie Hennette-Vauchez. “He places the constitutional state in opposition to democracy, by supposing that he directly knows what the popular will is. He sets himself up as the holder of what this popular will would be. What was striking in his argument is that one has the impression that the content of this popular sovereignty boils down to immigration, and that his aim is the adoption of the measures in the immigration law that were thrown out by the Constitutional Council.”
Jacques Chevallier, a senior lecturer in public law and political sciences with the Paris-Panthéon-Assas university, said the old arguments critical of the constitutional state are that it cannot take certain measures that are indispensable for the population. “But we can very well see that this is just quibbling, because on almost each occasion this criticism is about questions linked to the rights of foreigners,” he said. “A constitutional state supposedly does not permit the fight against ‘migratory pressure’, as one hears it from the Right and the far-right.”
Interviewed by rolling news channel LCI on September 29th, Retailleau prompted further controversy when he declared that “immigration is not ‘an opportunity’” as sometimes described, and complained that a “jungle of judicial regulations” prevent the authorities from dealing effectively with immigration.
“What, more precisely, is brought into question is European law,” added Jacques Chevallier. “It supposedly prevents the authorities from applying the public policies they wish. But what is being criticised is quite simply the hierarchy of standards inscribed in the constitution.” Article 55 of France’s Fifth Republic sets out that “treaties and agreements regularly ratified or approved have, as of their publication, a superior authority than that of laws”.
During the interview with LCI, Retailleau lamented that immigration is not an issue which, under the terms of Article 11 of the French constitution, can be submitted to a referendum. “The underlying idea is that there needs to be a referendum,” continued Chevalllier. “But for that, the constitution has to be changed. The next step would be to reform it by a referendum to, for example, put in place national preference” – a term that figures in the manifesto of the far-right, by which priority for jobs and housing, for example, is given to French nationals.
“An intermediary step would be to put in place what Michel Barnier proposed during the 2021 primary”, said Chevallier, referring to Barnier’s unsuccessful campaign to become the presidential candidate for his conservative Les Républicains party in the 2022 elections. “A ‘constitutional shield’ that would allow, in the name of the constitution, to obstruct the application of European Union law on the matter. But that would lead to the affirmation of a primacy of internal law over European law and, to say things clearly, to exit a constitutional state.”
Serge Slama said that it was concerning that Retailleau was not alone in his views. “Among jurists, there are some who place democracy in opposition to the constitutional state.” They notably include Jean-Éric Schoettl, a member of the Council of State (France’s supreme court of administrative justice) and a former general secretary of the Constitutional Council.
For Stéphanie Hennette-Vauchez, Retailleau’s recent comments “surf upon a line of speech that is becoming more and more established in public debate, and which is notably adopted by jurists who regularly sign op-ed articles in support of the idea that, in the end, the constitution could hamper public action”.
“This tendency is not new,” she added, “and it must be given the greatest attention. Last year, France took the responsibility of deporting an Uzbek national despite a contrary ruling by the European Court of Human Rights. And during the [parliamentary] debates [last December] over the immigration law, we saw the French president, the prime minister and the minister of the interior who, all three, recognise that some of the measures were unconstitutional, leaving the Constitutional Council the task of censoring them. By doing that, they made the constitution an adjustable item.”
“This movement of placing into question the constitutional state could be described as separatist. The constitutional state that these people want to put aside is, in effect, the common language of democracy. It is the place where, whatever the political spectrum, everyone can find themselves and discuss within a common and fixed judicial framework. As of the moment that some no longer recognise this common language, it is impossible to know just how far things can go. It is in effect the instruction manual for an evolution towards a whole series of regimes.”
Jacques Chevallier agrees. “We are at risk of aligning ourselves with illiberal democracies like that in Hungary, which affirm that there is no standard that is superior to the people, that political will is always superior and should impose itself over the constitutional state.”
Henette-Vauchez warned that those who criticise the constitutional state will raise issues around immigration to propose, for example, unsubscribing from the European Convention on Human Rights. “But they will never include in this popular sovereignty social protection or the raising of wages,” she surmised.
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- The original French version of this article can be found here.
English version by Graham Tearse