Since Pierre Avril has consummately described the meaning and scope of the 2007 revision of article 68 of the Constitution relating to the President’s political accountability, I thought it preferable to examine a closely related but slightly different question to complete the picture already painted. We shall dwell upon a constitutional nicety: although article 68 was revised on 23 February 2007, the organic law called for by that article has still not been passed more than two-and-a-half years later! Right-minded people are growing concerned about it. In the latest edition of his commentary on the Constitution, Guy Carcassonne observes that this new organic legislation ‘is becoming overdue, which is worrying as a matter of principle’.
It is all the more worrying because the non-enactment may well become prolonged judging by current political and constitutional events. At present no government or private member’s bill for organic legislation pertaining to article 68 has been tabled, although Parliament is beset by texts of various orders aimed at enforcing the constitutional revision of 23 July 2008 on the modernization of the country’s institutions. According to article 46 of that legislation, the entry into force of several new constitutional provisions arising from the revision is subject to there being an implementing statute. Let us remember that the organic legislation on article 25 (incompatibility of ministerial and parliamentary offices), on the conditions of enforcement (art. 39) and on parliamentary procedure and the exercise of a right of amendment (art. 44) was passed in the first half of 2009. As for the government bill on organic legislation on the preliminary issue of constitutionality (art. 61-1 of the statute), it is on the verge of being passed by Parliament having been discussed at the Cabinet meeting of Wednesday 8 April 2009. One might point out too that other constitutional provisions are still awaiting their organic legislation before they can be brought into force: the creation of a procedure for gathering parliamentary opinion about certain appointments made by the President of the Republic (art. 13), the composition and jurisdiction of the Conseil supérieur de la magistrature (Judicial Service Commission) (art. 65), petitioning of the Conseil économique et social (Economic and Social Council) (art. 69), and the establishment of a Défenseur des droits des citoyens (Defender of Citizens’ Rights) (art. 71-1). It can reasonably be expected, then, that the drafting of organic legislation to supplement the revision of 23 July 2008 will occupy Parliament until the end of 2009 or even into 2010. Accordingly, enactment of the organic legislation for article 68 is neither for tomorrow nor for the near future, since it seems to be considerably delayed by the interest in other organic legislation called for by the revision of July 2008 consecutive to the new presidential term of office. It is as though the revision of February 2007 had been ‘overlooked’.
One of the difficulties of this study, it must be observed, relates to the comparative uncertainty surrounding the status of the in futurum organic legislation called for by article 68. Will it be long before it is drafted or can it be imagined that it will not be enacted at all before the end of the current presidential term of office in 2012? Here are two related but by no means identical hypotheses that come under the same category of an adjournment in futurum of as yet non-existent organic legislation.
Before setting about examining whether or not article 68 is enforceable, it is worth looking into the legal nature of the particular provision at issue: article 68(4). This provision leaves it to the organic legislation to ‘lay down the conditions of application’ of political accountability introduced by the preceding three subsections of that same article. Technically, in accordance with the categories suggested by Agnès Roblot-Troizier, this text can be characterized as a ‘constitutional provision as to referral’, the specificity of which is that it refers to some ‘other norm that is either included in the constitutional text or external to it’. Article 68(4) is part of the second type of constitutional provision, those that refer to norms ‘outside’ the Constitution, insofar as organic legislation supplements the Constitution, without itself being constitutional legislation, as shall be seen below (2.1). One might also say of article 68(4) that it is both a provision as to referral and an enabling norm inasmuch as, as is often the case with organic legislation, ‘one and the same constitutional provision here has as its purpose both to refer to certain subsequent instruments and to enable an authority to pass those instruments’. Thus, in the case at hand, Parliament is authorized by the constitutional legislator to enact norms to ‘lay down the conditions of application’ of the President of the Republic’s political accountability.
Once the nature of the rule posited by article 68(4) has been specified, the legal point at issue can be more adequately addressed. The legal discussion must begin from the observation that there is on the one side a constitutional act promulgated on 27 February 2008 providing for the enactment of organic legislation to lay down the ‘conditions of application’ of the new procedure for impeaching the President of the Republic (art. 68 (1-3)) and on the other side there is still no organic legislation called for by the constitutional act of 23 February 2007. From this observation arises the question: is article 68 (setting up the mechanism for removing the President) ‘enforceable’ or not in light of the failure to enact the organic legislation that is supposed to set out its ‘conditions of application’? In more abstract terms, can the primary norm of constitutional provision for referral be rendered ineffective by the absence of the secondary norm specified by the referral?
There is nothing, though, to prohibit framing the problem in a more institutional way: is the constitutional revision of 23 February 2007 on impeachment of the President of the Republic fettered by this failing of the organic legislator or can one set in motion a removal procedure despite this? Or again: can the ‘organic legislator’, through its inaction, put off or prevent impeachment of the President of the Republic?
The scope of the question raised here, as can be readily understood, goes beyond the fate of (new) article 68 since the more general problem posed by the present case is that of what consequences should be drawn, in constitutional law, from the organic legislator’s passivity. The expression ‘organic legislator’ denotes the complex organ composed of various actors (organs) involved in passing organic legislation under the Constitution of the Fifth Republic. These actors are both the government and Parliament, as is shown notably by examination of the power to initiate legislation, ‘the foremost of all powers’ as Maurice Hauriou used to say, in respect of the organic legislator. It ensues from article 46 of the Constitution, covering both government and private members’ bills, that both the government and Parliament concurrently have the power to table implementing bills. Thus the question of whether one can consider article 68 enforceable notwithstanding the absence of any organic legislation is inseparably bound up with the question of how to characterize legally the organic legislator’s inertia.
Surprisingly enough, although it has taken an interest in the question of the ‘constitutionality of referral’9 implied by organic legislation, constitutional jurisprudence has scarcely examined the specific case of the postponed or late enactment, or even the non-enactment, of organic legislation called for by the constitutional norm of referral. Yet this is the fundamental question posed by this concrete case. The answer to be made is far from simple. This shall be observed by examining the specific question of whether article 68 is currently enforceable or not. The most intuitively obvious answer to this question is that article 68 is currently unenforceable. This stems from both an exegetic reading and from the application of certain principles of public law to the case at hand (1). There is nothing, though, to stop us adopting a counter-intuitive argument, and one that may be better suited to the circumstances, by claiming that article 68 is immediately enforceable in that its enforceability is the result of a reaction to the culpable inaction of the organic legislator (2).
1. THE ARGUMENT THAT ARTICLE 68 IS UNENFORCEABLE BASED ON AN EXEGETIC READING AND ON ANALOGY WITH ADMINISTRATIVE LAW
At first sight, a reading of article 68 seems to indicate that the absence of any organic act currently impedes any impeachment of the President of the Republic. The fact is that if the organic act is to lay down the ‘conditions of application’ of article 68 and if there is no such act, then article 68 is unenforceable. One might say, using classical terms of legal practice, that article 68 is indeed good or valid, but that its effectiveness is fettered—temporarily or permanently?—by the absence of any organic act. The same is said of a treaty that has been duly concluded by the contracting parties but whose entry into force is conditional upon ratification that has not yet come about. Until such time as it is ratified, the treaty is indeed valid in the international legal order, but it is not yet effective, for want of the ratification required by the very terms of the treaty.
These classic terms shall be preferred to the terms ‘force of law’ and ‘direct application of the Constitution’ that are often bandied about to deal with the issue of whether certain constitutional provisions can be used immediately or set in motion by courts tasked with settling disputes while those provisions are vague or fuzzy. In short, with article 68 we would seem to be in the presence of a series of provisions that are valid in legal terms, and so are constitutional or rank as constitutional law, but that cannot be enforced because of the absence of any organic act, the existence of which is what makes the norms laid down in the remainder of article 68 not valid but effective.
That is the opinion that is adopted almost naturally, seeming as it does to derive from both the letter of article 68 and from the legal relations between the Constitution and the organic act, which relations look deceptively like those between ordinary statute law and subordinate (delegated) legislation.
1.1 Exegesis of article 68(4)
The answer to this question as concerns article 68(4) certainly does not figure in the travaux préparatoires for the constitutional act, which are of little avail here. The question of the organic act was not the subject matter of any real debate during the travaux préparatoires for the act of 23 February 2007. The report from the National Assembly’s statutes commission (the Houillon Report) states that it is the purpose of an organic act of the kind to set forth the ‘details of procedure’. In actual fact, the National Assembly merely reiterates the proposals made by the Commission for reflection on the criminal status of the President of the Republic (the Avril Commission), of which more later. The only discussion worth mentioning about this referral to the organic act bears on a proposal made in the Senate that a President of the Republic once removed could no longer sit in the Conseil constitutionnel (constitutional court). But as another senator pointed out in session, such a provision would mean that an organic act could create an exception to article 56 of the Constitution, which states that former presidents are ex officio members of the Conseil constitutionnel. It was therefore wisely dropped.
In actual fact, the parliamentary report simply restates the Avril Commission’s proposals. The Commission planned for an organic act so that ‘precautions’ could be taken in written texts in order that ‘the procedure should unfold promptly—so as to avoid the head of state being under investigation for too long a time—and so that he could organize his defence’. The Avril Commission’s report is fairly precise about the content of the future organic act: it even goes so far as to list the contents of certain provisions that might be contemplated. From reading the travaux préparatoires, it can only be concluded that the Avril Commission was eager to see an organic act brought in and that it had largely anticipated its contents by setting forth certain provisions. One might legitimately think, then, that an implementing bill might have taken inspiration from that work.
By contrast, a literal interpretation of the disputed provision seems to indicate that the existence of an organic act is essential to making article 68 enforceable. When one reads ‘An organic act sets out the conditions of application of this article’, one must obviously understand, for a type of act designed to supplement or clarify the constitutional text (see below), that ‘an organic act shall set out’ the conditions of application. This indicative form is an imperative, and a plain reading of the text leaves no doubt that the addressees have no leeway as regards the actual passing of the organic act. Referral to that act is no mere option, as is the case exceptionally under the hypothesis set out in article 34 in fine of the Constitution whereby ‘the provisions of this article may be clarified and supplemented by an organic act’. We shall examine later the reasons why it should be thought that the intervention of the organic act is indeed mandatory and not merely optional (see 2.1).
Were we to ignore this requirement laid down by article 68(4), which provides for an organic act to set out the conditions of application, this provision of article 68 might be deprived of useful effect and the very clear intention of the power of constitutional review might be brought into question. The constitutional legislator in February 2007 wanted an organic act to be brought in and it is hard to ignore this clear intention.
Moreover, if we continue this exegetic analysis, we must compare the accountability of the President with the immunity provided for by (the new) article 67 of the Constitution. As regards the question of the organic act, the difference between article 68 and article 67 is striking. Although the Avril Commission had also envisaged an organic act to set out certain measures for enforcement of the constitutional rule on presidential immunity, the new article 67, as it features in the constitutional act of 27 February 2007, did not provide for any organic act. Comparison of articles 67 and 68 strengthens the argument, examined above, that the constitutional legislator considered such an organic act as essential for making impeachment of the President of the Republic under article 68 enforceable.
Whatever the worth of such an interpretation, it is above all by reasoning on principle that one tends to consider article 68 unenforceable for want of an organic act.
1.2 The solution of article 68 being unenforceable by analogy with administrative law
The first reaction of a public law jurist examining this question of the relationship between the Constitution and the organic act would be to turn to the case law of the Conseil d’État (France’s highest court for administrative litigation) because of the clear analogy between this case and that of an act that cannot come into force for want of subordinate legislation or what were formerly called public administration regulations. Let us continue this analogy with administrative legislation for a moment, even if we challenge it later (see 2 below). Such reasoning supposes we first admit that the relationship between the Constitution and organic acts is equivalent to the relationship that exists today between parliamentary legislation and subordinate legislation and then that, administrative law being public law par excellence, one need only ever transpose the solution adopted in administrative law into constitutional law to hold the keys to the solution.
In the context of such reasoning, the strongest argument in favour of article 68 being unenforceable arises from the very nature of any organic act and from the way in which most jurists view its relationship with the Constitution. It is argued that the organic act is ‘a regulation made pursuant to the Constitution’. This expression can be used to introduce, in a way that is not merely metaphorical, the comparison that is often made between the relationship between the Constitution and the organic act and the relationship between statute and subordinate legislation. In this way, ‘just as a regulation clarifies and completes the statute by which it is supposed, so the organic act clarifies and completes the constitutional article that must announce it’. It has been said likewise that the twenty organic acts provided for in the 1958 text ‘are to the Constitution what public administration regulations were to statute’. It can then be inferred from this comparison, prompted by administrative case law, that the absence of an organic act fetters the effectiveness of a constitutional provision, that is to complete (or materialize) it, in the same way as the absence of subordinate legislation fetters a statute that refers on to it. However, a cursory examination of administrative case law reveals a more contrasted position, that it is best to describe before transposing the rule to the constitutional issue that is of interest to us here.
1.2.1 The jurisprudential rules on the relationship between statute and subordinate legislation
In the context of what might be characterized as ‘administrative reasoning’, it is not certain that the answer is as clear cut as one might first think since there are subtleties in the analysis of practice that needs to be made. Admittedly, it is established precedent that, when the entry into force of a statute is subordinated to the entry into force of its rules for application, ‘the absence of such subordinate legislation precludes the entry into force of the basic provision’. In this event, it is considered that the ‘former statute’ survives until the subordinate legislation is brought in.
However, this rule suffers an exception that arises when entry into force is postponed unintentionally. Under this assumption, the mere fact that the statute refers its implementing provisions on to subordinate legislation is not enough to render its enforceability subject to the passing of the subordinate legislation: the question is whether the statute is precise enough to be applicable as it stands. And so ‘it is indeed, then, the degree of precision of the statute that determines whether its entry into force is made subject to subordinate legislation and not the statute’s express referral to such surbordinate legislation’. Administrative precedent requires that it should be manifestly impossible to enforce a statute in the absence of subordinate legislation. As for civil precedent, it is yet more favourable to the immediate enforcement of statute since the Cour de cassation has ruled that ‘it is a matter of principle that statute is immediately enforceable, even in the event it provides for regulatory instruments pertaining to its enforcement’.
1.2.2 Which of the two rules of precedent is applicable in the case of article 68?
In the context of this ‘administrativist’ reasoning, it should be asked which of these two solutions—non entry into force for want of an organic act or entry into force regardless—might apply to the relationship between the Constitution and the organic act, which is clearly a problem of constitutional law.
The facts of the matter plainly show that the new article 68 did not expressly subordinate its applicability to the passing of the organic act. This transpires first from the wording of the text (art. 68(4)) and above all from comparison with other constitutional provisions that do expressly provide for postponement of their entry into force. Thus, former article 93 of the Constitution, introduced by the 1993 revision for an ad hoc settlement of the ”contaminated blood affair“ and abrogated since, postponed the entry into force of the reform of the Conseil supérieur de la magistrature. Similarly, article 46 of the constitutional act of 23 July 2008 laying down the transitory provisions of the revision, contains the provision: ‘Articles 11, 13, the final subparagraph of article 25, articles 34-1, 39, 44, 56, 61-1, 65, 69, 71-1 and 73 of the Constitution, as drafted as a result of this constitutional act, enter into force on the conditions set out by the statutes and organic acts required for their application’. In the two instances aforecited—the 1993 revision and the revision of 23 July 2008—the entry into force of the constitutional provisions, that I call the effectiveness of these norms—is clearly dependent on the existence of the forthcoming organic acts. Now, we are a long way from such an assertion for the new article 68, which is silent about any date of entry into force and in any event does not subordinate such entry into force to the passing of ‘its’ organic act.
In consequence, we must reason as per the second solution relating to the immediately applicable character of an act, as extricated by administrative case law. Recall that under this assumption, it is enough that the statute be sufficiently precise for it to apply, even if it refers to an instrument of subordinate legislation. The question we must now ask to settle the problem of the applicability of the provisions of article 68 is whether they themselves are sufficiently precise. If they are, article 68 of the Constitution may be considered to have entered into force and therefore be applicable to any cases in point. It is probably on this point that divergences might arise as to what one might call the ‘precise’ character of provision of a constitutional law that would have as its effect to make it ‘applicable’. In what way and on what matter need the article be precise? Does the required precision relate to substantive rules and procedural rules alike?
A careful reading of the new article 68 suggests that the substantive rules are precise. The article describes not only the cases to which it may apply (‘failings in his duties manifestly incompatible…’)—what one might call by analogy the operative fact of presidential accountability—but also the authorities (the two chambers of Parliament) competent to set in motion the procedure for removal from office and to decide on committal to the Haute Cour, and the authority (the Parliament meeting as the Haute Cour) competent to decide on whether or not the President should be removed from office. Likewise it set out almost at each stage the voting majorities required to decide on the committal to the Haute Cour and on possible removal from office. For this set of reasons, it might be concluded that the provisions of article 68 on the substantive rules are sufficiently precise and that, on this point, the article could be deemed directly applicable, despite the absence of any organic act.
However, it might be thought for good reasons, and possibly even better reasons, that article 68 is not sufficiently precise overall because it is not precise in matters concerning procedure.
Indeed, for so important a matter as the removal from office of a President of the Republic, which, whatever one might say, looks like a political trial of sorts, the procedural rules are of capital importance, even if they have not been set out in the Constitution. To be persuaded of this, it is enough to invoke the testimony of one of the main actors of the reform, Pierre Avril himself, for whom ‘since the arrangements for removal from office are to be laid down by an organic act, this Article is not applicable until the said organic act has been passed, especially as concerns the initial proposal’. One would need to provide in particular for the rules that would set out the initiative to convene a Haute Cour and the holding of proceedings before it, should it have to convene to adjudicate on a possible removal from office.
The existence of such a procedure would be that much more necessary, as there can be no thought of applying the former implementing instrument governing the operation of the Haute Cour de justice. The new article 68 has abolished the former system of political and criminal liability of the President of the Republic before the Haute Cour de justice. Henceforth jurisdiction lies with the Haute Cour, which is the Parliament convened in its entirety, for deciding on whether to remove from office a President who has allegedly failed in certain duties. It ensues that the former implementing order of 2 January 1959 on the Haute Cour de justice is implicitly abolished. The Haute Cour has been very widely reshuffled, even if its name has been kept, but no instrument frames the removal procedure provided by the new article 68. Lastly, one might add that the jurist must never ignore the many procedural issues, which are not just details. Formal rules are decisive and compliance with procedure is the most valuable guarantee of freedom (see 2.2.2 below). It might appear highly adventurous to want to embark on a removal procedure without providing the means by which the President under accusation or threatened with removal from office might defend himself against his accusers.
It follows from this line of argument, which places procedural rules on the same footing as substantive rules, that article 68 as it stands is not ‘precise’ enough to be immediately applicable. Because of the absence of the organic act, one should deduce that the new article 68 is inapplicable. Yet, despite the seeming soundness of this first opinion, I would now like to defend a different opinion, based on reasoning that gives precedence to the supremacy of the Constitution and that resorts, in the final instance, to the idea of a constitutional state of necessity to justify putting that supremacy into practice.
2. DEFENDING THE ENFORCEABILITY OF ARTICLE 68 AND OVERCOMING THE INACTION OF THE ORGANIC LEGISLATOR: A QUESTION OF CONSTITUTIONAL LAW
Rather than focusing on a purely exegetic interpretation of article 68, the problem should be addressed from another angle, by querying the significance of the absence of an organic act from the very notion of constitution. The fundamental question underpinning the concrete question and determining it then becomes: can a provision of the Constitution be rendered ineffective or inefficacious because of the attitude of the authorities tasked with applying it, that is, here because of the implementing legislator’s inertia?
That is the decisive question raised by this constitutional casus. It ought to be taken seriously. This can be done by calling into question the administrative law analogy examined previously by which the relationship between Constitution and organic act is supposedly equivalent to the relationship between statute and subordinate legislation. One might well wonder why, when the constitutional texts are silent, one should resort to the ‘principles of public law’, that is, to the principles of administrative law, to find a solution to the constitutional issue at stake. Should we invariably consider that the principles derived from administrative law are intended to be transposed into the domain of constitutional law? We might, at a push, admit that it is natural enough to want to transpose the technique for ultra vires acts, with the necessary changes, developed in administrative litigation to the domain of constitutional litigation. But, in the case at hand, in an area where litigation seems to play no part, it seems to me that such ‘administrative law’ reasoning disregards the notion of Constitution and the relationship between the Constitution and organic acts (2.1). But there is more: to resign oneself to article 68 being inapplicable, for want of an organic act, is to overlook the specific character of this removal procedure that creates an exception to the ordinary law and that presupposes an exceptional situation that may lead to what are exceptional solutions (2.2).
2.1 The relationship between the Constitution and organic acts as gauged by constitutional law
Let us recall the predominant opinion examined above by which ‘in the same way as statute that refers on to subordinate legislation, the 1958 Constitution provides for organic acts to determine or specify the conditions of application of the articles that are the necessary complement of certain provisions’. Such an assertion relies implicitly on a ‘legislative’ conception of the Constitution that has become predominant in France. This conception must be understood as an unfortunate departure from a model that placed not the Constitution but statute at the centre of French public law. The keenest minds have observed that the rank order arising from positive law between the constitutional act, the organic act and the ordinary act of law is evidence of a break-up of the principle of the unity of law that was the pride of revolutionary public law.
‘There is no authority above that of the law’ proclaimed the French Constitution of 1791 (Art. 3, Title III, Chap. 1). From this standpoint, the constitutional act and the organic act are two facets of one and the same movement: a ‘rationale of atomization of statute law’. So if the Constitution is principally statute law, then one can apply to it the techniques and forms of reasoning that go hand in hand with the notion of statute law in positive law. The perfect example is the resort to the model of the relationship between statute and subordinate legislation.
The job here is to refute this alleged equivalence between the relationship between a constitution and an organic act and the relationship between an ordinary statute and subordinate legislation. To demonstrate this, it suffices to argue that this administrative analogy leads to consequences that are inadmissible from the constitutional standpoint. But, it will be objected, everything depends on what one means by the ‘constitutional standpoint’. Now, there are two ways of envisaging the constitution: ‘normatively’ or ‘institutionally’. Even if we take up the dominant perspective of the Constitution understood as supreme constitutional legislation (2.1.1) it seems difficult to accept the absence of any organic act. This is truer still from the institutional perspective of the Constitution and of constitutionalism (2.1.2).
2.1.1 The formal principle of the hierarchy of norms commands the effectiveness of article 68 and the intervention of the organic legislator
Let us underscore the paradoxical situation we arrive at if we reason as in administrative law: the constitutional norm cannot be effective or ‘directly applicable’ unless it is completed by the organic act. Now, the least that can be said is that this is a surprising outcome insofar as it directly calls into question the principle of the hierarchy of norms despite it having been held aloft as the alpha and omega of contemporary and constitutional law.
It follows from such reasoning that the constitutional norm, here article 68, is at the mercy not strictly speaking of an organic act but waits upon the pleasure of its author, the implementing legislator. If, as in the case at hand, the implementing legislator acts in ill will, that part of the constitutional revision of 23 February 2007 pertaining to article 68 has its effects obstructed. Such a conclusion, if it were accepted, would clearly contradict everything we know of the Constitution considered as the supreme constitutional act (‘normative’ conception of the constitution) taking precedence over the other norms by virtue of the famous principle of the hierarchy of norms. A review of the notion suffices to establish this decisive point: under the most firmly established principles of constitutional law, the organic act cannot go against a constitutional act. But we propose to go a step further and consider that the implementing legislator cannot go against the constitutional legislator by exhibiting such inertia and therefore, through this failing, is guilty of breaching a specific obligation of constitutional character. But to demonstrate this idea, we must first quickly review the idea of an organic act under the Constitution of the Fifth French Republic.
18.104.22.168. The notion of organic act
Organic legislation is ‘legislation defined as such by the Constitution, having as its purpose, following a specific procedure that the Constitution determines, to clarify or complete the provisions of the constitutional text that provides for it’. During the travaux préparatoires for the drafting of the 1958 Constitution, it was characterized as a ‘measure for direct application of the Constitution’. A closer study of constitutional practice reveals that it has a dual purpose: either to complete the Constitution, or to adapt the Constitution (see below). We might even add a third purpose that is circumstantial under the 1958 Constitution: to enable the institutions to start up by circumventing the Parliament via the executive orders technique of article 92.
Whatever the typology of organic acts, one must recall the most important idea from the constitutional standpoint, which is the relationship of dependence between constitutional acts and organic acts. It has been seen above (cf. Introduction) that an organic act is a norm referred to by the Constitution; formally, it is the outcome of a referral by a written constitutional norm and that referral is in futurum. We shall return later to the time element in this notion (see 2.2), but what matters is that the relationship between the constitutional act and the organic act is above all a relationship of validity: the organic act is only valid because it is founded in the Constitution. But this validity has effects on the content of the subsequent organic act, as was judiciously pointed out by Michel Rousset by contrasting the ‘comprehension’ of the organic act with its ‘extension’ in the sense of its scope. From the standpoint of its comprehension, ‘the notion of organic act is not unlimited. Logically, the hold of the organic act ends where the domain of principles begins’. That amounts to stating that the organic act ‘is limited to the implementation of the principles’ featuring in the Constitution. This means that generally the organic act’s main purpose is to complete, that is, to ‘specify’ the constitutional principles that refer on to it. Some authors claim that organic acts therefore have a ‘materially constitutional’ purpose because they deal with the organization of power. Others claim they are ‘supplementary legislation’.
In our specific instance, the organic act relating to article 68 should essentially confine itself to laying down the procedure for applying the principle of political accountability of the President of the Republic. It serves therefore to implement the constitutional provisions of article 68 other than the provision of subsection 4. From the legal standpoint, this means in particular that ‘like any enforcement regulation, the organic act must be subject to the norm it supplements’. Nowadays, this rule of subordination of the organic act to the Constitution is illustrated by its legal regime and in particular by the mandatory test for constitutionality of all organic acts. The precedents of the Conseil constitutionnel on organic legislation reflect this idea of their infra-constitutional value; it is asserted many a time that organic legislation cannot ‘thwart constitutional rules’ or ‘modify the conditions for its exercise’. It also transpires logically from the norms that organic legislation cannot revise ‘the Constitution albeit indirectly’. It is clear for the Conseil constitutionnel that organic provisions can only be understood ‘in the context of the provisions of the Constitution itself’. Jurisprudence draws the logical conclusion that ‘organic legislation is subordinate to the Constitution’. But this proposition, which raises no difficulties, does not settle in the least the essential problem before us here: can the organic legislator exempt itself from acting when called upon to do so by constitutional legislation?
22.214.171.124. The mandatory character of the passing of complementary organic legislation
If we consider that its infra-constitutional nature is the first characteristic of organic legislation and is part of its legal regime, a second should be added that is less often remarked upon: its ‘mandatory’ character in the sense of a mandatory intervention of the organic legislator.
In fact, the only difficulty is as to whether or not this obligation to act, and so to legislate, holds for all organic acts. We saw above that organic acts were for the purpose either of ‘completing’ the constitutional act or adapting it. For the latter type, it has been written that they were ‘permissive’ in the sense that they were not mandatory meaning that ‘the organic legislator is not compelled to intervene. Its competence is not bound’. Two instances in particular are cited in support of optional organic acts: the organic act in article 13 (former version) on appointments made by the Cabinet and above all article 34 in fine (cf. 1.1 above) authorizing the organic legislator to clarify and complete the list of legislative subjects. These instances of optional organic acts seem to be limited and some scholars even contest their optional character. However, assuming they do exist, such acts, that are optional as regards their enactment, are exceptions to the rule that holds for the other organic acts that we shall call ‘complementary’ organic laws, those, then, whose main function is to clarify the Constitution.
Such organic acts, those that are acts of ordinary law, have the characteristic that they have to be passed by the legislator to whom they are referred on, the organic legislator. Far from being optional, the other organic acts, those that ‘(give details of) a necessary regulation of the principles that (are) in the Constitution’, must necessarily be passed to make the constitutional provision of referral applicable. Various legal arguments support this opinion which is tantamount to saying that the organic legislator has no power of discernment to decide whether or not to pass a complementary organic act. It must do so and to that extent and only to that extent is its competence bound. It is this crucial point for our argument that now needs to be demonstrated.
First of all, certain textual arguments point in this direction and can be inferred from reading the current Constitution or the constitutional history of the Fifth Republic. The first argument, which is of historical order, is derived from the enforcement of the organic act within the time laid down by article 91 (four months as from publication of the Constitution of 4 October). This is an important precedent. If the government acted through executive orders because the ordinary parliamentary session was suspended it was also because one ‘could not contemplate conferring on the Assemblies the power to delay the setting up of the new institutions’. Nor have commentators failed to invoke the wording of the constitutional texts to support the argument of the mandatory intervention of the organic legislator. The texts of the Constitution mentioning the referral to an organic act contain either an indicative form that counts as an imperative, or formulations describing what ought to be. In doing so, they leave no doubt as to the existence of an obligation upon the authorities to pass these organic acts (cf. 1 above). Lastly, as already seen, there are various provisions for referral that lay down deadlines for bringing in organic acts (art. 46 of the constitutional act of 23 July 2008) or their functional equivalents (organic orders provided for by article 92 of the Constitution). The deadline must be construed here as a factor that reinforces the idea of the organic legislator being under a duty to act.
Another argument can be derived from the comparison that can be made between passing organic legislation and modifying existing organic acts. In the latter case, it is plain there is no duty upon the specific legislator to amend an organic act. But there is an asymmetry in that, in the former case, the organic act must be passed. In that organic acts differ from ordinary acts because for ordinary acts, it is accepted even today that Parliament is perfectly free to pass a new act or abolish and old one. Unlike the organic legislator, the ordinary legislator seemingly has unfettered power to legislate in the sense of ‘the discretion to legislate’ even if the Conseil constitutionnel has tended in its case law to lay upon it, under certain circumstances, ‘special duties to legislate’.
Lastly and above all, we can by a fortiori reasoning use the argument of the superiority of the Constitution over the organic act to deduce the duty to pass a complementary organic act. We must start out from the observation that organic acts are ‘norms subordinate to the Constitution (see 2.1 above), therefore being from a formal standpoint at least of infra-constitutional and not constitutional value. From this we should draw an even stronger argument should the organic act not be passed. If such an act cannot encroach on the domain of the Constitution because it is considered an inferior norm, it should be inferred, a fortiori, that its absence, resulting from inaction and therefore from a failing of the organic legislator cannot impede the effectiveness of a constitutional rule. In other words, if through its content, it cannot thwart ‘or hold a constitutional rule in check’—to take up the colourful expression of the Conseil constitutionnel cited above—neither can it thwart the effectiveness of the same constitutional rule through the simple fact that it is non-existent! Although it is ‘essentially the instrument for organizing the public authorities’, it cannot become, negatively—if it is non-existent—the instrument that disorganizes them. That amounts to saying that while the organic legislator’s action may be detrimental to a constitutional rule, its inaction is even more serious as it paralyses the effectiveness or application of the Constitution. The paradox, it will have been understood is, that while action is controlled (mandatory control of organic acts by the Conseil constitutionnel), inaction is not. That does not mean there is no possible reaction to the (wrongful) inaction of public authorities (see below).
It can be added nonetheless that it is exactly the same reasoning that legal theory follows when studying abstention by the ordinary legislator; it considers that such abstention is tantamount to challenging the supremacy of the Constitution and therefore that it must be recognized that there is a duty to legislate. From this standpoint there is no major difference between the two hypotheses, for organic acts and ordinary acts then appear as having to be passed in order to ‘materialize’ the Constitution, that is, to effect constitutional norms. But what can be intuitively accepted is that organic acts are even more necessary for such materialization in particular because their aim is to organize the public authorities.
In this respect, the absence of the organic act, where its existence is prescribed by the Constitution, is of great interest in that it unveils a sort of blind spot of the principle of the hierarchy of norms. This relies on the supposed existence of norms and consists in asserting that inferior norms must comply or even be compatible with superior norms. In the case of organic acts, it is even considered that constitutional precedent requires a relationship of compliance. But in the context of constitutional norms of reference, which contain a reference to the organic act, the most acute problem is that of the absence of the text referred to. The constitutional norm of referral prescribes a subsequent text, a secondary norm, and that prescription for the future is indeed a duty incumbent upon whoever ‘makes’ organic legislation.
All of these arguments point in the same direction: the organic legislator must intervene to lay down the arrangements for enforcing the constitutional law referring to them. In other words, there would appear to be under the constitutional law of the Fifth Republic a ‘duty to legislate organically’ (if we can use a somewhat barbarous term) that is the necessary condition for the constitutional norm of referral to be effectively enforced. This is what one of the commentators on the legal status of organic legislation observed: ‘The legislator in the 1958 system cannot disregard the constitutional provisions. This constraint can be cast in either of two ways: it may take the form of a prohibition: Parliament cannot pass a text that does not comply with the Constitution. But it also takes the form of a duty: Parliament must enforce the Constitution. But such enforcement requires passing complementary texts that set forth arrangements for application of several constitutional provisions’. Thus the duty to legislate organically is part of a larger framework that is the duty upon Parliament ‘to enforce the Constitution’.
Let us conclude on this point: in the case of complementary organic acts, their legal regime is characterized not only by their subordination to the Constitution but by the duty upon the organic legislator to pass them. Admittedly, no explicit textual requirement can be found but ‘reason requires, since otherwise the public authorities are unable to exercise their competence’. This obviously supposes conceiving constitutional law as going beyond the constitutional text, is that not what the Conseil constitutionnel does by inventing ‘principles’ of constitutional value? In the final analysis, one might also invoke a fortiori reasoning: if legal theory increasingly recognizes some duty to legislate for certain ordinary acts intended to materialize the Constitution, it must logically recognize, all the more so, that complementary organic acts, which are intended to organize the proper working of the public authorities, are subject to such a duty.
The question now is whether article 68 falls within this analysis, that is, whether the organic act provided for by article 68(4) is part of this category of complementary organic acts. The answer is beyond any doubt as it can come under both the first group of organic acts that ‘specify the composition and workings of certain constitutional organs’—for the organic act of article 68 must set forth the rules applying to the Haute Cour—and the second group of organic acts defining ‘the arrangements of a procedure for which the Constitution sets out only the general outline’. In this, (new) article 68 barely differs from other articles containing such a referral: it does not bestow on the organic legislator any discretion as regards the passing of an act. The organic legislator cannot not pass the organic act relating to the impeachment of the President; it must do so.
2.1.2 The thorn in the side of constitutional law: the sanction for breach of a duty to act
From the now dominant standpoint of constitutional law by which the Constitution is a supreme law and the organic act a dependent and subordinate norm, the absence of an organic act that ought to complete a constitutional norm poses a disturbing problem. Under such a conception, it is quite absurd to accept that norms for application of the Constitution, that is, organic acts, should call into question the actual application of the question by the mere fact that they have not been passed. But at the same time, the proponents of the normative conception of the Constitution hit upon a difficulty that is the enforcement of this constitutional duty to legislate organically. How can the potential failure of the organic legislator be sanctioned?
As is known, the constitutional text does not provide any sanction here. Admittedly the Conseil constitutionnel has jurisdiction as concerns reviewing the as yet unenacted organic legislation to ensure its compliance with the Constitution (Art. 61), but it has no jurisdiction to examine the case of the failing of the organic legislator. It therefore controls the outcome of action (the organic act) but not of inaction (the absence of organic act). If one were to push the paradox all the way, one might say that the more serious the breach of the Constitution, the less jurisdiction it had! It shall be observed in this respect that this absence of sanction goes for ordinary legislation too for which the Conseil constitutionnel has no ‘power of enjoinder’ to require the legislator to act.
Moreover, constitutional law does not have the option either of resorting to state responsibility for its failure to act, that is used both in administrative law and in Community law. The payment of compensation for state responsibility would be meaningless in compensating an applicant complaining of the absence of an organic act preventing the implementation of a dismissal procedure. Those few scholars who have raised the issue are forced to agree about the true difficulty in finding a sanction. One of them writes: ‘The fact remains that, even without sanctions, the duty does exist and is incumbent on Parliament’, but immediately admits that law is powerless, adding that, under this assumption, ‘the drafters of the Constitution did not provide for sanctions which, in practice, were difficult to conceive of’.
So, whenever one adopts a ‘normative’ conception of the Constitution one is caught in a contradiction in recognizing that there are non-sanctionable norms, as is the case of this article 68(4), while the very idea of a non-sanctionable norm is contrary to the very idea of law that positivist doctrine entertains. In other words, the proponents of the normative or legislative conception of the Constitution run into difficulty here: by their principles, it must be agreed that the duty to pass organic acts ‘is incumbent upon Parliament’. But at the same time, this duty has no sanction, and so it is not effective.
But, it will be objected, is the sanction of constitutional law jurisdictional only? Is this failure of the organic legislator an insuperable obstacle? On the contrary, we seek to show that to answer these crucial questions, an institutional conception of the Constitution is better suited for justifying both the existence of a duty to legislate organically and the sanction for any failure.
2.2 Inaction wrongful with respect to the Constitution which can be overcome through resort to a theory of emergency constitutional law
The organic legislator’s inertia may be looked at from another slant by trying to show that another way of apprehending the idea of constitution can allow the constitutional problem at issue here to be resolved more readily with an aim to making the supremacy of the Constitution a true institutional reality.
2.2.1 Thinking through the concrete case with another conception of the Constitution
As seen, most jurists reason by postulating that the Constitution is constitutional legislation and that the relationship between the Constitution and an organic act is a ‘normative’ relationship between two types of legislation: constitutional legislation on one side and organic legislation on the other. The difference between the two supposedly dwindles away in their hierarchically different places in the ‘pyramid of norms’. But it can be legitimately objected that the hierarchy of norms is partially belied by the observation of positive law and that it runs up against a serious difficulty when there is no sanction directly provided for of the constitutional norm breached. What is the point of making so much of the Constitution by saying it is an act of legislation and even a ‘supreme’ act of law if it is to observe that the jurist is at a loss whenever a constitutional obligation is violated?
At the risk of causing some surprise, it shall be claimed here that we misconceive the specific nature of the Constitution by treating it like a specific piece of legislation. It is often only an ‘act of law’ metaphorically. This is why it seems preferable to adopt an institutional conception of the Constitution that better illuminates the case at hand. We are therefore going to suppose now that the Constitution is not principally a piece of legislation but rather a sort of ‘instrument of government’ as constitutional theory once called it, a regulation of political character that must be incumbent on those who govern, and that it is urgent that we no longer conflate constitutionalism and constitutional law. Three illustrations can be given of this idea, even if they tend to be overlooked nowadays.
Citizens are generally only indirectly concerned by anything relating to the Constitution’s institutional content. It is worth emphasizing the difference in this respect between ordinary legislation and the Constitution. Such a difference was, formerly, well identified by a part of legal theory. From the standpoint of public law, ordinary legislation could be defined as nothing ‘other than a police provision intended for those administered’. Nothing like that for the Constitution, which shares with organic legislation, which is materially constitutional legislation as seen, the characteristic of governing the behaviour of those who govern. In respect of public law, the Constitution is a law that is internal to the state insofar as, when written, its existence is the outcome of a state act intended to direct the conduct of those who govern and of the agents of that state. Any grasp of the concept runs into a difficulty that pervades all of public law: how can the state be capable of laying down laws that are binding on the state itself. In particular, some jurists have argued that the Constitution could not be a constitutional act of legislation in the material sense of the term because it did not formulate ‘orders’. It is this idea that Léon Duguit combated continuously by explaining that ‘organic constitutional acts’ (as he called them) could be considered ‘positive’ acts, even if they confined themselves to ‘ascertaining’ objective law and the rules laid down in a Constitution could not be likened to ‘orders’. So the Constitution cannot be thought of as a unilateral act or at least of one the same type as an administrative measure. Here we have a rather striking example of the fact that it is sometimes hard to conceptualize the Constitution in the form of a legislative act because, to be brief, the addressees of the rules it lays down are not individuals (as is usually the case for ordinary legislation) but those who govern, that is representatives of the state such that there is no clearly visible difference between the author of the Constitution (the state to which it is ascribed) and the addressees of the constitutional rules, without being able to think of it as a form of contract, which is the standard case for a norm where the authors and addressees of the norm are one and the same.
However, we should not exaggerate the scope of this first remark insofar as citizens are not absent at all from the modern Constitution. They are the addressees of certain norms, the importance of which is crucial, whether we think of political rights or of human rights. They are also indirectly so for the norms that are imposed on those who govern are evidence too of the respect those governors owe, in a democracy, to the governed because of the equality as a matter of principle characterizing the legal relations between them.
The difficulty pointed up about constitutional law—the sanctionable character of its obligations—is not specific to this discipline but is shared by others and in particular by international law. This difficulty arises in that some of its norms are not ‘justiciable’ in the sense that a judge would have jurisdiction to examine any violation of them. This observation is still valid nowadays, despite the emergence of constitutional litigation. So neither the provisions of article 46, as concerns the duty to legislate, nor those of article 68 of the Constitution of the Fifth Republic, although they are constitutional provisions, are justiciable. It is hard to see how a political organ, a governor, or a fortiori a mere individual could contest the absence of organic legislation before a court of law.
And so we are in the presence of a concrete case that reveals the specific nature of the Constitution conceived of as an ‘instrument of government’, the application and appraisal of which are, by force of circumstance, a matter for political actors alone. The result is that those political actors alone, in actual fact, can, as need may be, remedy any constitutional abuse where redress before the courts is impossible. The sanction lies not in the hands of an impartial third party but in those of the political actors concerned who, through their behaviour, may decisively determine the content of constitutional law as it is applied. Were this not so, we would not understand why there are conventions of the Constitution, the central character of which Pierre Avril had the singular merit of showing in the practice of the Constitution of the Fifth Republic.
This specific nature of the Constitution, which is less of a piece of legislation (or a collection of legislative acts) than a ‘political regulation’ to take up an old expression, reveals itself in particular through the emblematic figure of the accountability of those who govern—a theme that is the subject of article 68 (in a particular variant). On this quite specific point, the purely normative analysis of constitutional law fails to give account of a constitutional subject that is governed less by strict law than by custom or usage. The parliamentary regime in the United Kingdom was born of a phenomenon of accountability that itself developed in a customary way. Similarly in France it would be rather illusory to believe that political accountability is contained solely in the terms of article 49 of the Constitution that sets out the procedure for the accountability of the Government with respect to Parliament. It is perfectly well known that the various forms of accountability take wider paths that are not confined to just those norms set out in that article.
It so happens that the scope of article 68 is that of political accountability applied to the specific case of the head of state. The rules of article 68 correspond to the ideal type of political accountability as it exists in constitutional law as it contains the three characteristics: first, this accountability does not presuppose any ‘misconduct or negligence’ in the civil or criminal law sense; next, it does not imply the existence of a trial decided by a third party, but is based on the contrary of the principle of ‘identity between sovereign and representative’; lastly there is strictly speaking no other sanction of political accountability than the loss of power’.
After emphasizing the importance of this idea that the Constitution is a political regulation, which is the political status of the state, it may be then be asked whether the absence of a detailed procedure for removal of the President of the Republic renders (new) article 68 inapplicable.
It does not seem so for a reason that relates quite simply to the nature of the political accountability of the head of state that has so far been left a little in the shadows in this exposition.
2.2.2 Resort to an emergency constitutional law and a procedure that is self-instituted by the members of Parliament
We now know (see 2.1 above) that for the Constitution to take its full effect the organic acts it provides for must be passed. The normative or institutional conceptions of the Constitution both concur on the point that failing to pass an organic act (of the complementary type) is tantamount to challenging the supremacy of the Constitution, which takes precedence over all public authorities; that is unacceptable. The main difficulty lies in there being no possible sanction for inaction by the organic legislator, at least so long as we reason in the context of a ‘court’ sanction, since the Conseil constitutionnel cannot be seized of such a dispute. There would need to be some form of redress for inaction, as in other countries, for the legal vacuum seen here to be filled.
But—and this is precisely the point—if a loophole were to be observed with respect to the sanctioning of an obligation, the institutional conception of the Constitution appears more adequate for meeting such a challenge because it has always been considered that the absence of a court did not prevent the political actors from solving a problem of interpretation of the Constitution themselves and because it facilitates resort to the idea of an emergency constitutional law that could prevail because of the circumstances. This solution alone can overcome the inaction of the organic legislator by making it possible, if necessary to activate article 68, which would otherwise be rendered ineffective.
This question cannot be understood unless we imagine the case, which for the time being is hypothetical because in the future: what would happen if the unlikely, but henceforth provided for, event arose of a President of the Republic who committed deeds that could come under the category of ‘failings in his duties that were manifestly incompatible with the holding of his office’ provided for by article 68? If such a situation occurred, there would be no organic act organizing the implementation of the removal procedure in detail. What should be done? Would one have to take note of this absence and abandon bringing a removal procedure by arguing that article 68 is inapplicable for want of an organic act (see 1 above)? But article 68 is constitutionally valid, as seen, and moreover it is precise enough in its substantive provisions. Might one not try to show that, in such an abnormal situation, a normally inapplicable text could be made applicable? It is this difference between the normal situation and the abnormal situation that should be introduced to resolve the legal problem. Such resort is not arbitrary since, precisely, the removal procedure falls largely within the category of an emergency situation.
126.96.36.199. Emergency law or the allowance for time in legal reasoning
The common sense argument that article 68 is inapplicable (see 1 above) comes down to adding a sort of implicit condition to that article: it is not applicable until the organic act that it provides for is passed. This is one way of introducing a time dimension that is inherent in the technique of the referral in futurum. The interpretation then becomes: article 68 of the Constitution is not applicable for the time being. But how could the supporters of this argument justify its corollary: until the organic act is passed, new article 68 is not applicable, which means, ultimately, that if the organic legislator’s inaction were to last, it would never be applicable? So the inapplicability of article 68, from being temporary, would become a lasting or permanent inapplicability, and the organic legislator’s failing would fetter a provision of the Constitution in a firm and final way. As seen, this would be to annihilate the supremacy of the Constitution in that it prevails over all who govern, including the organic legislator…
This first remark is designed to show that the legal discussion needs to include what might be characterized as a temporal feature. One might admittedly tolerate some delay in the passing of the organic act, but one could certainly not tolerate any excessive delay and a fortiori a delay that would imply relinquishing the idea of applying article 68 for want of the organic act to complete it. Sceptics will obviously say that the idea of ‘excessive delay’ is meaningless, but an expression of the sort is typical of legal standards that structure jurists’ reasoning. One can perfectly well imagine an apposite case of ‘excessive’ delay should the organic act not be passed within the five-year term of office following that of the passing of the constitutional act—in the case in point 2007-2011. Why? Because that would shelter the President of the Republic from implementation of exceptional political accountability throughout his period of office. Currently, the President, elected in May 2007, has already served two years of his term. Because of the concurrency of organic acts planned to bring into force the constitutional revision of 23 July 2008, it has been seen that one can hardly contemplate an organic act being passed before the middle of 2010 (at the earliest)—unless a government or private member’s bill for an organic act is tabled.
How could one then get out of the conundrum resulting from having a situation requiring the implementation of the removal procedure but having no applicable constitutional provision, for want of an organic act? This can only be done by making article 68 applicable and that can only be done, to my mind, by relying on the particular character of the political accountability of the President of the Republic set up in 2007.
188.8.131.52 The self-instituted procedure as a riposte in time of crisis
The removal procedure is a response to the hypothesis of a serious political crisis. By the terms of the revision of 23 February 2007, the removal procedure is characterized, apart from by equal representation of the two chambers, by ‘the swiftness of the procedure’. This ‘arises from the short deadlines: after being passed by one chamber, the bill to convene the Haute Cour is ”thereupon“ forwarded to the other assembly which decides ”within a fortnight“ (art. 68(2), the Haute Cour rules ”within one month“ (the draft revision, before amendment, gave it two months) and its decision takes immediate effect (art. 68(3)). A critical political situation is therefore to be cleared up as a matter of urgency’. There is a striking contrast between the swiftness of the removal procedure and the tardiness of the bringing into application of article 68. This contrast may become glaring at any time, especially because of the occurrence of a serious political crisis that would compel the actors to turn to the Constitution and would then see them at a loss because of the absence of any organic act.
In this particular hypothesis, with no organic act while the need for one were felt, and urgently, the delicate question is how one can set any removal procedure in motion regardless. The first solution would be to prompt the passing of the missing organic act. But that solution is unrealistic as it contradicts the requirement for speed contained in article 68. Things would have to be taken in two steps: drawing up an organic act in accordance with the procedure laid down by the Constitution and then applying the procedure to the case in point of a possible implementation of the removal procedure.
There then remains no other possible, more radical solution than that by which the members of Parliament themselves (or some of them), observing the failing of the organic legislator, take the initiative of bringing a removal procedure, which would necessarily cross the dividing lines between majority and opposition. For such an undertaking to have any chance of success, the members of Parliament would have to have the option of themselves elaborating the removal procedure that is so cruelly absent, for want of an organic act. This would mean taking advantage of the setting of the agenda, now open to members, to set down the discussion of an ad hoc resolution on the removal procedure. To draft such a proposal, they could draw inspiration not just from the former organic order of 2 January 1958 on the Haute Cour de justice but above all from the recommendations of the Avril Commission that were detailed enough to provide a framework for the future organic act (cf. above). And so the operation would be peculiar in that the members of Parliament would themselves create the procedure applicable to the case in point, and would not be bound to comply with a pre-established rule. They would create a sort of constitutional precedent, for want of having an organic act at their disposal. There would then be nothing to prevent such a procedure being confirmed by an organic act in the formal sense of the Constitution.
It shall be added, as seen above, then, that such an action falls within the scope of parliamentary law and of political accountability where the control of constitutionality does not cover all the hypotheses of action by members of Parliament. It is known that the rules of the assemblies are subject to the mandatory control of the Conseil constitutionnel. But it is not known that a parliamentary resolution not listed in the parliamentary rules of procedure and allowing a possible removal procedure to be set in motion in an ad hoc manner might be subject to control by the courts. There is potential here for the resurgence of a sort of parliamentary sovereignty. Paradoxically, this recovery of its power of control by Parliament might be construed as a sort of reaction against the promotion of the organic act. The most alert commentators have all observed that the notion of organic act was part of the armoury used by the Constitution-maker in 1958 to limit the ordinary legislator’s competence.
By circumventing the absence of an organic act, Parliament would take back part of the power that was confiscated from it and would grasp a power that the framers of the constitutional reform of 2007 wanted to bestow on it by entrusting it with the awesome mission of removing, if need be, a President who had failed in his mission. The solution outlined here aimed at tempering the absence of sanction for the organic legislator’s failing by an ad hoc procedure takes note of a legal void, but contrary to the dominant conception that sees as the only possibility of filling the legal void that of calling on another norm, by proceeding therefore to a ‘substitution of norms’, we propose to create an ad hoc procedure that might, or might not for that matter, form a constitutional precedent.
A solution of the kind presupposes trusting in the members of Parliament themselves who must ‘make up’ a procedure as they implement it. This raises some serious objections that deserve to be examined (see below, 2.2.3). But to be understood, it must be specified that it presupposes a conceptual distinction between the ‘organic legislator’ within the meaning of article 46 of the Constitution and ‘members of Parliament’ within the meaning of article 68, who as members of Parliament have specific prerogatives for removal of the President for which the executive does not intervene in any way. It is the same people—members of Parliament—who are competent: they can now control the entire process leading to the organic act (initiative, setting down on the agenda, discussion, passing) and they entirely dominate the procedure for removing the President. Under this assumption, one cannot criticize such an ad hoc procedure for breaching the separation of powers. From this standpoint, the current case is different from the matter in which the Belgian Cour de cassation, in judging a former minister, for want of an ‘implementing act’ (an organic act of sorts) had to invent an ad hoc procedure. So in that instance it was the legal organ that applied the rule of procedure normally laid down by the legislator. But in the case we are examining here, article 68 of the Constitution, it is hard to claim that members of Parliament would be encroaching on another power by themselves drawing up a procedure for bringing an action for removal. It would be more appropriate to say that, legally, members of Parliament act according to two separate ‘powers’ one of which, the activation of article 68 and the President’s political accountability, flows from an appreciation of the political situation that refers to a case of constitutional emergency.
We can now summarize the argument proposed in this paper: should presidential acts manifestly incompatible with the office of head of state occur, members of Parliament would be confronted with a legal void. There would be no organic act in force for starting the removal procedure while article 68 introducing that procedure is a valid provision that should be effective. To escape the deadlock arising from the absence of an organic act, members of Parliament could, to my mind, recover by way of exception a sovereign power allowing them to draw up the removal procedure themselves (applicable rule of law) at the same time as applying it, so making up the procedure as operations unwound. It would be a matter of speed to solve an ad hoc problem, that of implementing accountability, to set in motion this removal procedure.
2.2.3 Beginning a removal process without any procedure: a violation of the rule of law?
One might criticize such a solution for disregarding the importance of the procedure and forgetting that the procedural rules are the twins of freedom, to paraphrase Rudolf von Jhering’s famous expression: ‘Form is the arch foe of arbitrariness, the twin sister of freedom’. By refusing to subject members of Parliament to a pre-established legal rule laying down the procedure to follow, does one not deny the fundamental principle of constitutionalism, the very idea of the rule of law, of the État de droit by which one can only obey a pre-established norm and that prevents those who govern from creating law as circumstances may demand and applying it immediately? Can one thus, at the same time, vindicate the defence of the supremacy of the Constitution and defend a dispensation from a founding rule of constitutionalism by legitimizing a self-instituted procedure for removal by members of Parliament? Does not the means employed contradict the stated end? If the answer were yes, the argument made here would be highly paradoxical. To answer any criticism from people invoking the defence of the rule of law against reason of state, three observations ought to be made.
The first is that the removal procedure has been explicitly thought up as a political procedure that is largely non jurisdictional. Procedural forms are less important here insofar as one should not reason in terms of a fair trial since the possible removal of the President of the Republic is not a ‘trial’ in the jurisdictional sense. As Pierre Avril wrote in answer to a criticism by Robert Badinter, the procedure is designed here ‘to remove rather than to judge’. If one pursues this autonomization of the ‘political’ rationale compared with the criminal rationale that the Avril Commission wanted, it must be considered that the largely ‘non-justiciable’ character of the procedure adopted to set the removal procedure in motion is not inconsistent. Nor, for the same reason, can one invoke ‘uncertainty’ about the rules of procedure that constitutes a breach of the rule of a fair trial insofar as the removal procedure is not a court trial.
The second observation is that the scheme outlined here is a reaction in self-defence in the face of an unconstitutional situation in the absence of an organic act. The exception proposed here is a defensive measure against an infringement of the Constitution. It cannot, by hypothesis, be based on written constitutional law since it is a case that is not provided for by the Constitution. The Constitution does not provide, as seen, any means for remedying the case where an organic act that should have been passed is not passed. In other words, only the idea of a riposte to a manifest unconstitutional situation legitimizes what one might otherwise construe as an infringement of legality. One should not then reverse the order of things. The first wrong is the organic legislator’s inaction which imperils an important provision of the 2007 revision. It is this situation of self-defence, coupled with the fact that there is no possible recourse to the courts that makes the action of members of Parliament legitimate in that it is born of a sort of law of necessity. Moreover, political actors have little leeway for interpretation as concerns the assertion that the organic legislator’s inertia is unconstitutional. The situation is quite clearly distinct from the pertinent case of the right to disobey a law or of the right to insurrection, both emblematic cases of criticism of positive law, where one can always fear the arbitrariness of the interpreter of the law who, under the cover of natural law, would destroy positive law. But in this specific instance, it is not a question of members of Parliament appraising the content of an order or a norm but, more prosaically, of noting the existence of a state of affairs: the absence of an organic act. Observing that there is no organic act whereas there ought to be one is a judgement of fact and not a value judgement. That reinforces the argument of being able to appeal to a law of necessity as a reaction against something that is manifestly unlawful.
The thing that in the final analysis vindicates this derogation from ordinary legality, that is, this self-creation of a removal procedure by members of Parliament, is nothing other than the urgency of the situation, that is, the exceptional circumstances. In the normal case, one might hope that, in the perspective of a removal procedure being foreshadowed, the organic legislator would be seized and would quickly pass a text that could serve as a guide for members of Parliament. But our assumption relies on the contrary assertion: for one reason or another there is still no organic act at the time one is needed. What should members of Parliament do? Do nothing: simply take note of this failing of the institutions? No. They should far rather advance the argument of an emergency right to have the Constitution prevail over the organic law. It is in the name of the supremacy of the Constitution that members of Parliament could draw up in an ad hoc way a procedure to trigger removal proceedings much as the framers of a constitution do when they create law at the same time as they institute a new regime.
On this matter of the applicability of article 68 we formulated the question: can the organic legislator through his ‘inertia’ postpone for long the application of a valid provision of the Constitution? The answer does not pose any problem in theory: it is no. Inaction here is clearly unconstitutional insofar as it calls into question the supremacy of the Constitution, just as it reverses the relation between ancillary norm and main norm that characterizes the relationship between the organic act and the Constitution. The only way to overcome the failing of the organic legislator is to authorize members of Parliament themselves as competent organs within the meaning of article 68 to stand in for the defaulting organic legislator so as to create, in an ad hoc and provisional manner, a procedure to initiate removal proceedings.
When he concluded his speech of 17 February 2007 to Congress, the Prime Minister of the day said of articles 67 and 68: ‘By adopting this reform, I want everyone to be aware we are strengthening the Fifth Republic. (...) We are showing that the Fifth Republic is a Republic for today. We are also making a major democratic choice: the choice of accountability’. The only question that is to be asked is whether this requirement as to accountability, proclaimed politically, is legally fulfilled. In a way, such a constitutional reform seeking to set up checks and balances should the head of state commit acts so serious—whether in the exercise of his presidential office or not—is already a matter of controversy. There would therefore henceforth be a ‘safety valve’ for the impeachment of the President of the Republic, an exceptional circumstance that it can be hoped will never occur.
Now, it should be observed that in its initial intent the revision of 23 July 2008 on the modernization of the institutions of the Republic tends towards exactly the same end-purpose: to adjust the balance of power, with the difference that it purports to re-balance all relations between the executive and the legislative arms. There is therefore no disharmony between the
2007 revision that introduces exceptional political accountability of the President of the Republic and the 2008 revision that is supposed to give more power back to Parliament. But why does the first revision seem somewhat overlooked, or even doomed to oblivion if we are not careful?
In this failing of the organic legislator noted so often here, the jurist might see either incompetence or incoherence where the political observer might find other reasons. However, might the latter not advance the idea that the former holder of presidential office ‘had’ this reform of article 68 effected at the end of his term of office, nearly five years after the Avril Commission’s report, that is, to put things more clearly, when there was no risk for him in person? Might one not then suspect that he wanted to bequeath to his successors, or at least to his immediate successor, a largely poisoned chalice? By the same token, might not the same political commentator be inclined to see in the organic legislator’s failing the mark of a sort of instinctive rebellion by the successor here refusing the inheritance the predecessor wished to foist upon him? To these various arguments the legal scholar must confine himself to reminding the political scholar that the presidential function is an institution that is independent of its incumbents and that the Constitution applies to all Presidents, current and future. To abide by this classical rule is simply to have a sense of what makes our institutions what they are.
My thanks to Jean-Marie Denquin and Patrick Wachsmann for their benevolent critical reading and to Juliette Hili for collating some of the documentation needed for this paper.
 See P. Avril, ‘La responsabilité du chef de l’État : la France’, in La responsabilté du chef de l’État en de droit comparé (Paris: Société de législation comparée, 2009) p. 143-148.
 G. Carcassonne, La Constitution, 9th edn. (Paris: Seuil, 2009) p. 331, art. 68.
 See the interesting developments on this point in her PhD thesis, A. Roblot-Troizier, Contrôle de constitutionnalité et normes visées par la Constitution française. Recherches sur la constitutionnalité par renvoi (Paris: Dalloz, 2007) no. 9, p. 4.
 In contradistinction to a referral to a constitutional norm within the Constitution.
 Roblot-Troizier, Contrôle de constitutionnalité, no. 12, p. 5-6.
 ‘The government bill or private member’s bill cannot be submitted to the deliberation and vote of the assemblies, at first reading, until the deadlines set in article 42(3) have expired’. The version before 2008 read: ‘The government bill or private member’s bill is only submitted to the deliberation and vote of the first assembly seized upon expiry of a period of fifteen days after it has been tabled’.
 This is the subtitle of A. Roblot-Troizier’s PhD thesis.
 It is surprising, for example, that the article that is supposed to summarize all the legal problems relating to article 46 of the Constitution does not examine this issue at all. See X. Prétôt, ‘L’article 46’, in G. Conac, F. Lucahire, X. Prétôt (eds.) La Constitution de la Vème République. Analyses et commentaires (Paris: Economica, 2009).
 The analysis here relies on the distinction between validity and effectiveness, it being understood that the entry into force of a constitutional norm, within the meaning, say, of article 46 of the Constitutional Act of 23 July 2008, is considered here as relating to the effectiveness of the norm and not its validity. Its validity is attested by the passing of the Constitutional Act. The contrast outlined here corresponds pretty much to the distinction that is increasingly drawn by contemporary public law scholarship between the constitutional ‘value’ of a norm and its ‘direct application’ (see on this F. Melleray, ‘De quelques distinctions à opérer à propos de la notion d’application directe des normes constitutionnelles’, in Mélanges en l’honneur de Slobodan Milacic (Brussels: Bruylant, 2007) p. 185 ff, and especially p. 186-7). This question needs to be investigated further than it has been possible to do here.
 Rapport no 3537, Ass. Nat. by Philippe Houillon for the Commission of Constitutional Acts (...) on the constitutional bill to amend Title IX of the 1958 Constitution (http://www.assemblee-nationale.fr/12/rapports/r3537.asp) p. 58.
 Rapport de la commission de réflexion sur le statut pénal du Président (format PDF) p. 49.
 ‘Only one of the houses can instigate a removal procedure that may emanate indifferently from either the National Assembly or the Senate’ and it adds that in both cases ‘the organic act shall set out the conditions for filing and putting on the agenda the proposal to convene the Haute Cour’ (p. 49). At the end of the report, the Avril Commission goes into the details of the future content of the organic act. A proposal to convene the Haute Cour should be signed by at least one of the members of the house in question and should state its reasons. Moreover, a member of Parliament could ‘be a signatory of only one proposal to convene the Haute Cour during the same presidential term of office’. The organic act should obviously frame and structure the Haute Cour. It will have a Bureau, composed of the Bureaus of the two houses and a President, who is the President of the Assembly. In fact, the Bureau is the cornerstone of the removal process. It has ‘full power to organize the debate and vote and to take any decision that might be help the Haute Cour to carry out the mission conferred on it by article 68 of the Constitution, within the time and on the conditions set out by that article’ and its decisions cannot be challenged. Lastly, the organic act could task a ‘commission’ with preparing the accusation and drafting a written report so the Haute Cour could make a ruling promptly.
 The Commission’s report says it would be essential for an organic act to contain both ‘provisions designed to effectively and immediately protect the rights of third parties that might be infringed by it being impossible to bring a prosecution’ (p. 49) and provisions organizing ‘the suspension of all time limits (...) so that, if need be, prosecutions rendered impossible during the term of office might take or resume their normal course upon expiry of that term of office’. The Commission was even adamant about adding this statement to its draft article: ‘He cannot be required to bear witness nor be the subject of any enquiry, investigation or prosecution during his term of office in any French court of law or before any administrative authority. The conditions on which such procedures might be brought or resumed once the term of office is over are laid down by an organic act’.
 C. Sirat, ‘La loi organique dans la Constitution de 1958’ (1960) Recueil Dalloz, Chronique, 154.
 Ibid., at 154.
 H. Amiel, ‘Les lois organiques’ (1984) Revue de Droit public 411.
 G. Eveillard, Les dispositions transitoires en droit public français, Coll. ‘Bibl des thèses’, vol. 61 (Paris: Dalloz, 2007) p. 311, no 402. Case law cited, fn 565, p. 311-12.
 Ibid., p. 314, no 404.
 The decision laying down the principle is the arrêt d’assemblée du Conseil d’État, Union départementale des associations familiales de la Haute Savoie, 10 mars 1961, Rec., p. 172.
 Cass. Civ. 3o, 1er avril 1987, d’Arthuis de Charnisay, Bull. III, no 67. Cited by Eveillard, Les dispositions transitoires, p. 315.
 ‘The provisions of article 65 and of title XV in their wording as arising from Constitutional Act 93-952 of 27 July 1993 shall come into force on the date of publication of the organic acts passed for their enforcement’.
 E-mail of 2009. Private correspondence cited with its author’s consent.
 Amiel, ‘Les lois organiques’, 417.
 ‘If the unity of law opposed any fundamental distinction between consitutional law and ordinary law, it can be understood that it should yet more radically oppose organic law being recognized as having any independent existence.’ M Rousset, ‘La loi organique dans la Constitution du 4 oct. 1958’ (1960) Recueil Sirey, Chronique, 2.
 A. Berramdane, ‘La loi organique et l’équilibre constitutionnel’ (1993) Revue de Droit public 721.
 On this distinction between descriptive constitution and normative constitution, see E. Zoller, Droit constitutionnel, 2nd edn (Paris: PUF, 1998) p. 9 ff. For a slightly different presentation see O. Beaud, ‘Constitution et constituionnalisme’, in P. Raynaud and S. Rials (eds.) Dictionnaire de philosophie politique (Paris: PUF, 1996) p. 117 ff. Four meanings of the word ‘constitution’ can be found, as in J.-M. Denquin, ‘Le respect de la Consitution’, in D. Chagnollaud (ed.) Les 50 ans de la Constitution (Paris: Litec, 2008), p. 116. My institutional conception is a mixture of his ‘institutional’ and ‘customary’ conceptions (the Constitution as a political regime).
 O. Duhamel and Y. Meny (eds.), Dictionnaire constitutionnel (Paris: PUF, 1992) p. 604.
 Exposition of grounds for the preliminary draft of the Constitution submitted to the Constitutional Consultative Committee on 29 July 1958, approved by Michel Debré, in Documents pour servir à l’histoire de l’élaboration de la Constitution du 4 oct. 1958, vol. I (Paris: La Documentation française) p. 520.
 This is what transpires from Berramdane, ‘La loi organique’, 728-9.
 A point judiciously made by Berramdane, ‘La loi organique’, 732.
 M Rousset, ‘La loi organique’, 2.
 Ibid., at 2.
 Berramdane, ‘La loi organique’, 728.
 Sirat, ‘La loi organique’, 154.
 While the petitioners had tried to have articles 22 and 23 of the organic order prevail over articles 10 and 61 of the Constitution, the Conseil recalled that ‘far from thwarting these clear and precise constitutional rules that call for no interpretation or far from altering the conditions for exercise, which an organic act could not have done anyway, articles 22 and 23 of the Order of 7 November 1958 serving as organic act on the Conseil constitutionnel are only implementing provisions of it’. Décision no 85-197 DC du 23 août 1985, Évolution de la Nouvelle-Calédonie, cons no 16.
 Berramdane, ‘La loi organique’, 736.
 C.C. 78-96 D.C. 27 juil. 1978, Rec., p. 29.
 D. Rousseau, Droit du contentieux constitutionnel, 7th edn. (Paris: Montchrestien, 2006) p. 113.
 A constraint that ‘may take the form of a prohibition: the Parliament cannot adopt a text that does not comply with the Constitution’. Amiel, ‘Les lois organiques’, 417.
 It goes without saying that no claim is made to describe the legal notion of organic act in full. See the papers already published on this and cited in the footnotes.
 The expression borrowed here from Berramdane is inadequate. A permissive norm is a norm and therefore it is mandatory. It sets out a permission.
 Berramdane, ‘La loi organique’, 729.
 See Sirat, ‘La loi organique’ and Amiel, ‘Les lois organiques’.
 The expression comes from Michel Debré before the Constitutional Consultative Committee, in Documents pour écrire l’histoire de la Constitution de 1958, vol. II, p. 539.
 Amiel, ‘Les lois organiques’, 417.
 See former article 91(6): ‘organic acts that shall regulate the firm and final Constitution of the Senate shall come in before 31 July 1959’.
 ‘Conversely, once adopted, the Houses are no longer bound to modify organic acts’, Amiel, ‘Les lois organiques’, 418.
 S. Miller, Le pouvoir discrétionnaire du législateur : contribution à une étude du pouvoir législatif, Université de Paris II, 2002, PhD thesis, p. 120 ff. The point had already been raised by Alain Bockel, who had recognized the legislator could determine whether it was appropriate to act. A. Bockel, ‘Le pouvoir discrétionnaire du législateur’, in Itinéraires. Études en l’honneur de Léo Hamon (Paris: Economica, 1982) p. 56.
 Ibid. p. 142 ff. It should however be added that the case of the legislator’s negative absence of jurisdiction sanctioned by the Conseil constitutionnel does not correspond exactly to the hypothesis here of an obligation to act, to legislate. In the case of the ‘reserve of statute’, the legislator has already acted, but has acted wrongly, it has poorly fulfilled its duty by underestimating its power. It is a separate case, as Sébastien Miller judiciously points out in distinguishing between ‘obligation to do’ and ‘obligation to act’. S. Miller, Le pouvoir discrétionnaire, p. 147.
 We ignore here the atypical situation of the organic act whose provisions are considered by the courts as being of ‘constitutional value’. This is what the Cour de cassation found in the case of Melle Fraisse of 2 June 2000 about the organic act of 19 March 1999 about New Caledonia. See on this the interesting development in Roblot-Troizier, Contrôle de constituionnalité, no 258 ff, p. 170-2.
 Rousset, ‘La loi organique’, 4.
 For an exposition of the theories in question, see D. Ribès, ‘Existe-t-il un droit à la norme ? Contrôle de constitutionnalité et omission législative ?’ (1999) Revue française de Droit constituionnel, 238.
 Amiel, ‘Les lois organiques’ 417. Emphasis added.
 S. Miller, Le pouvoir discrétionnaire, p. 133.
 This typology is borrowed from Berramdane, ‘La loi organique’ 728, who adds a third group of ‘constitutional outgrowths’ corresponding to organic acts that ‘govern certain statuses de novo’.
 It is this point that has been studied above all. See especially the PhD thesis by J.-C. Car, Les lois organiques de l’article 46 de la Constitution du 4 oct. 1958 (Paris: Economica/PUAM, 1999).
 ‘The Conseil constitutionnel has no power of injunction with respect to the legislator and, unlike in Community law or in Portuguese law, there is no right of redress for absence in French law; the Conseil cannot compel the legislator to pass the legislative provisions required to materialize those principles.’ B. Mathieu and M. Verpeaux, Contentieux constitutionnel des droits fondamentaux (Paris: LGDJ, 2002) p. 274.
 Amiel, ‘Les lois organiques’, 417-18.
 Ibid., 417-18.
 See C. Brami, ‘La hiérarchie des normes en droit constitutionnel français. Essai d’analyse systémique’, PhD thesis, Université de Cergy-Pontoise (2008).
 For another way of viewing this relationship between constitutional law and sanction, see C.-M. Pementel, ‘Reconnaissance et désaveu. Contribution à une théorie du droit politique’, in Jus Politicum, 1, ‘Le droit politique’ (Paris: Dalloz, 2009), p. 43.
 As recommended by J.-M. Denquin, ‘Situation présente du constitutionnalisme’, in Jus Politicum, 1 (Paris: Dalloz, 2009) p. 22.
 Sirat, ‘La loi organique’, 159.
 L. Duguit, L’État, le droit objectif et la loi positive (1901, republished Paris: Dalloz, 2001), p. 123-4. See also pp. 308,
 From this standpoint, the argument defended here is somewhat removed from what I defended formerly in a chapter of my PhD thesis on ‘constitutional commandment as a unilateral legal act’. O. Beaud, La puissance de l’État (Paris: PUF, Léviathan, 1994) p. 245 ff.
 See the demonstration by D. Baranger, Parlementarisme des origines (Paris: PUF, 1999).
 D. Baranger, Le droit constitutionnel, 4th edn., Coll. ‘Que sais-je’ (Paris: PUF, 2004).
 See the now classical argument of S. Rials, Le juge administratif et la technique du standard. Essai sur le traitement juridictionnel de l’idée de normalité (Paris: LGDJ, 1980).
 D. Thomé, ‘Titre XI – La Haute Cour articles 67 et 68’, in G. Conac, F. Luchaire and X. Prétôt (eds.) La Constitution, p. 1598.
 Ibid., p. 1598-9.
 The expression comes from Miller, Le pouvoir discrétionnaire, p. 157 when examining the case of a legislative ‘omission’ and the possible remedy, which he claims can only lie in ‘the creation of a legislative norm of enforcement of the Constitution’.
 The European Court of Human Rights then considered that ‘the Court of Cassation had manifestly disregarded the principle of the separation of powers as regards enactment and application of the criminal law’. Case of Coême and Others v. Belgium, 32492/96, 2000-VII, 96. I owe it to the vigilance of Patrick Wachsmann to have read this interesting decision.
 Le Monde, 22 July 2003.
 Case of Coëme and Others, 103.
 For a critical discussion of Pierre Avril’s argument that these acts should be understood as outside of presidential functions see O. Beaud, ‘Irresponsabilité et immunité du Président de la République sous la Ve République’ in D. Chagnollaud (ed.), Les 50 ans de la Constitution, p. 192-3.