Benutzer:Neismark/Artikel 49 der französischen Verfassung

The Constitution of the Fifth Republic of France (1958)

Article 49 of the French Constitution is an article of the French Constitution, the fundamental law of the French Fifth Republic. It sets out the political responsibility of the government (the executive power) before the parliament (legislative power). It is part of Title V: "On the relations between the parliament and the government" (Articles 34 to 51).

The article, which comprises four paragraphs, is designed to prevent ministerial crises like those that occurred in France under the Fourth Republic. Its best-known provision is the third paragraph (article 49.3), which allows the government to force passage of a bill without a vote unless the parliament votes a motion of no confidence to veto the government ("commitment of responsibility").

Amendments of 1 March 2009

Wikisource: Constitution of the Fifth Republic – Quellen und Volltexte

The constitutional law adopted on 21 July 2008 amended Article 49 of the Constitution. The new text came into force on 1 March 2009. Before that date, the prime minister could use the Paragraph 3 procedure without any limit on any draft legislation; since then, it can be used at most once per session, except for draft bills on public finances or the funding of Social Security (annual budget laws).

According to a report by the National Assembly, Section 3 may be implemented during either a regular session or a special session. If there is a new prime minister during the same session, the second will also have this option even if the first has already used it. In addition, it may be used on several successive readings of the same legislative text.

Speeches

Michel Debré's speech before the Council of State

On 27 August 1958 Michel Debré, then the Minister of Justice and one of the principal drafters of the Constitution, introduced the draft before the General Assembly of the Council of State. Section 49 was mentioned in a brief passage that set out its spirit and motivations:

Charles de Gaulle's 31 January 1964 press conference

In a press conference on 31 January 1964, General Charles de Gaulle returned to the topic of the functioning of institutions. His reading gave the French President a primacy well beyond the letter of the constitution, but often consistent with practice. He addressed, among other topics, the issue of the motion of no confidence:

Vote of confidence (49.1)

The first paragraph of Article 49 allows the prime minister to commit the responsibility of his government before the National Assembly by putting forward a Vorlage:Ill (motion of confidence). As stated in Article 50, if a simple majority votes against the motion, in contrast to the two following paragraphs, which protect the executive to a greater extent, this leads to the resignation of the government. The meaning of 49.1 is sometimes imprecise, and therefore its interpretation is disputed, particularly as to whether the commitment is optional or compulsory. In practice it is viewed as optional, and the presidential post retains a clear supremacy. Thus, the motion of confidence is a weapon at the disposal of the government alone. The political benefit which it can obtain remains limited: even if the motion of confidence is still an important parliamentary tradition that can sometimes bring it advantages in its relation with the parliament as well as with the public opinion, a government not supported by a majority can abandon it without great inconvenience.

Debated interpretation

The word engage (to commit, or to "make [something] an issue") in Section 49.1 is particularly subject to controversy. It can be interpreted as an requirement, as in parliamentary régimes, or simply an option, a privilege of the separation of powers and the prerogatives of the president. Two other elements are subject to discussion but are of much less consequence: deliberation in the Cabinet (Conseil des ministres) and the distinction between a "program" and a "declaration of general policy".

Parliamentary regimes customarily induct the prime minister or the government by the parliament or by the lower chamber of the parliament. For example, the Constitution of Italy states that "The government has to appear before each chamber no later than ten days after its appointment to get a vote of confidence" (94.3). The Basic Law for the Federal Republic of Germany provides for the election of the chancellor by the Bundestag (the lower house of the German parliament). The Constitution of the Fourth Republic of France also stated that "the president of the Cabinet and the ministers cannot be nominated until after the president of the cabinet has been invested with the confidence of the assembly" (Article 45), and the practice of the Third Republic was identical. It is usual in French law for the simple present indicative to connote a requirement and not a simple option: "engage" means "must commit" and not "may commit". The word éventuellement ("possibly") in the declaration of general policy and the phrase peut engager ("may commit") in section 3 reinforce the compulsory nature of the commitment to a program, which lacks this conditional phrasing.

Nevertheless, the government exists by virtue of an order of the President of the Republic (Article 8) nominating it, without reference to a possible investiture by the Assembly. Article 20 makes clear, by referring to articles 49 and 50, that the president is responsible before the parliament, but the constitution does not attach conditions to any of his powers regarding his "commitment of responsibility", and even when it is required, no deadline is fixed to limit the obligation, which in reality is comes down to a moral decision. Michel Debré, before the Conseil d'État, also interpreted the clause as an optional tactic, even before the adoption of the constitution: "the weapon of the government and of it alone". But in his first speech of general policy, he said on this topic that "the text does not say explicitly that he must do it, but the spirit of the Constitution is clear." This difficulty with regards to the connotation of the indicative mood is not the only semantic issue affecting the Constitution; one could also bring up the debate of 1960 about Article 29, "Parliament shall convene in extraordinary session, at the request of the prime minister or of the majority of the members of the National Assembly, to consider a specific agenda." and the quarrel in 1986 about Article 13: "The president of the republic shall sign the ordinances..."

The text mentions a requirement for deliberation in the Cabinet, and the doctrine was questioned to find out if the term implied the agreement of the Cabinet or simply discussion, which would in that case leave the decision to the prime minister alone. The gouvernements have always spoken of authorization or of the agreement of the Cabinet. This phrasing has the additional advantage of solidifying the optional interpretation of the commitment of responsibility, since the prime minister could hardly be required to commit the responsibility of the government and prevented from doing it without the agreement of the Cabinet. The Constitutional Council validated the commitment of the responsibility of the government (Section 3) with the phrasing "to the extent that the Cabinet had deliberated [...] the commitment of responsility" without mentioning authorization. Since the gouvernements of the Fifth Republic had always been strongly united and superior to those of prior coalitions' gouvernements, the question of a possible disagreement between the prime minister and the Cabinet remains theoretical. In any case, this deliberation does not give the president, especially in a period of "cohabitation", the power to prevent the commitment of his responsibility, except in the improbable case of a refusal to enter the question on the agenda of the Cabinet.

Lastly, there is the distinction between a "program" and a "declaration of general policy". If the former can be understood as a catalogue of the principal arrangements that the government hopes to make, probably as soon as it is established, in the logic of the investiture, and the latter as an explanation of its reasoning and of its intentions in a precise domain which would take—or to which the government would want to give—a particular importance, the distinction has no practical consequence. Certain prime ministers have used the expression "declaration of general policy" while they were speaking for the first time before the assembly. The Constitutional Council remarked incidentally that article 49 "tends to confer an analogous meaning" to the two terms.

A "presidential" pattern

De Gaulle in his Second Bayeux Speech (deuxième discours de Bayeux of 1946, when he explained his views on political institutions) did not want a parliamentary system, at least not in the monistic sense which had prevailed since the end of the 19th century: "It goes without saying that the parliament, which is composed of two chambers and which exercises legislative power, cannot be the source of executive power." As an important concession, however, which averted a strictly presidential regime, the head of state must "reconcile the general interest regarding the choice of the people with an orientation that is free from the parliament." The first governments of the Fifth Republic, those that set the precedent for later governments, committed their responsibility in front of the assembly after their appointment. They did this, however, always emphasizing that they proceeded from the president of the Republic and not the parliament, and that it was not an investiture. But after the presidential election of December 1965, Prime Minister Georges Pompidou became once again head of a third government, and waited for the opening of the common session of the parliament in April to present his program, making a simple declaration followed by a debate without a vote, and thus without a commitment of responsibility, although he had a solid parliamentary majority. Then, he stated that he wanted to create a precedent establishing the optional character of this commitment. After the general election of 1967, his fourth government had diminished to a narrow and uncertain majority, and he used the same solution.

François Mitterrand attacked the Assembly, saying: Vorlage:Quote Pompidou challenged the opposition to censure his government. The interruption of this practice persisted after the parliamentary dissolution of May 1968 even when the executive faced a crushing and disciplined majority in parliament, showing that the practice is considered optional. (Some commitments of responsibility did occur, but not immediately after the nomination of the government.) The practice was renewed in 1974 and afterwards was followed sporadically. It disappeared again between 1988 and 1993 when the socialist governments, whose support did not reach a majority in the parliament, no longer could resort to the vote of confidence except on a single specific occasion: while France was engaged in the Gulf War, Prime Minister Michel Rocard obtained very wide support in the Assembly, but stated that: Vorlage:Quote Lacking a guaranteed majority, it is preferable for the government to wait for a motion of no confidence as described in subsection 2, as the adoption of a motion of no confidence is more difficult than simply refusing a vote of confidence. One category of government did, however, systematically require the confidence of, and almost investiture by, the Assembly upon coming into office: cohabitation governments. These derive politically, if not legally, from the Assembly rather than from the President and must have its support; the régime thus functions in a more clearly parliamentary fashion.

A limited tool in the hands of the prime minister

When introducing the Vorlage:Ill (motion of confidence) in the National Assembly, the prime minister generally takes the opportunity to make an important political statement. This parliamentary ritual gives the motion some formality, which will be widely commented upon by the media. For many years, it was the best format for making political policy speeches, that is, before the television interview appeared in its various forms offering alternatives. The speech is a mark of courtesy and deference to parliament. It allows the new prime minister to put forward his positions and pledge the soundness of his government. The refusal to make commitments is seen as an admission of the majority's weakness. Apart from the prime minister's nomination, the motion of confidence allows the government to deliver a new declaration on matters and events that may impose themselves or to which the government wishes to give importance.

On the other hand, under the Fifth Republic, it is no longer possible, as under the previous Republics or régimes, to attach motions of confidence to votes of law to force the assembly to vote on the combined motion and the law. Under prior practices, the government could link its continuance to the adoption of legislation. The Fifth Republic provides for a much more powerful weapon with Paragraph 3 (see below).

The motion of confidence can also help the government in its relations with its majority in parliament. Voting on the motion can reassure MPs worried about the unpopularity of their party, if there is a clear victory in the National Assembly. It also can help rally MPs to stand up to the opposition, and possibly force a critical coalition partner to renew its membership in the majority, as occurred with the RPR between 1976 and 1981 or the Communist Party between 1981 and 1986. However, the impact of the motion is often limited and does not often change the popularity of the government and its majority unless the prime minister delivers a highly successful speech. As for the reluctant coalition partner, it may vote to support the motion while expressing reservations and criticisms. In this regard, these reluctant MPs will become more bound by their vote since the text of the motion focuses on specific points, rather than on their general support of the government's policy, however, this does not prevent them from rejecting certain laws.

Lastly, the approval of the motion by the assembly does not strengthen the ability of the prime minister to stand up to the president of the republic. Prime Minister Jacques Chaban-Delmas requested and received the confidence of the assembly on 24 May 1972, while clearly reaffirming that the government took its legitimacy from the president of the republic, who may at any time put an end to its functions. (In reality, the president appoints the government, but the government can be withdrawn only on the resignation of the prime minister). President Georges Pompidou had given his agreement to this commitment, noting that it was the prime minister's prerogative. (Some time later, he said: "I was not in favor of that and that was known.") Five weeks later, he asked for and obtained the resignation of Chaban-Delmas.

Vote of no confidence (49.2)

Vorlage:Not English A vote of no confidence (censure) allows the National Assembly, on its own initiative, to force the government to resign. The vote's application and action by the parliament, in this regard, is an essential characteristic of any parliamentary system. De Gaulle, when inaugurated as prime minister under the Fourth Republic, promised he would include this procedure in the proposed reform of institutions. It was actually imposed by the Constitutional Law of 3 June 1958.

In the constitution, the government's responsibility is framed by devices that allow it to streamline the parliamentarian system to promote stability of government. However, it is difficult to ascribe actual stability of the governments with these technical measures. The strength is due to two other factors. First, if a vote of non-confidence is approved by the National Assembly, the government, instead of resigning, is likely to ask the president to dissolve the Assembly to stop it from voting. On the other hand, the Fifth Republic has been characterized by stable political parties and reliable electoral coalitions able to effectively support the government. All these elements have reduced no confidence votes by parliamentarians. To date, a vote of censure has passed only once.

Key element of the regime

The possibility, even unused, of the National Assembly to bring down the government has a deep impact on the workings of the institutions. Without it, the French constitution would clearly define a presidential system, albeit with strong powers endowed to the executive branch by the constitution. For even without a majority in the National Assembly, the president would still be able to nominate a government to suit himself and thus hold all theirs powers The ability of the Assemblée nationale to overturn the government, even though it is not used, has a profound influence on the functioning of institutions. In its absence, the regime would clearly be of the presidential type, with an executive moreover particularly well armed by the constitution. Without a majority in the'Assembly, the president can nonetheless name a government which is favorable to him, and avail himself in this way of all of his powers, subject to contreseing (countersignature) (Vorlage:Ill), notably the power to nominate (Vorlage:Ill), while the government would have the power to regulate (Vorlage:Ill), and the considerable means offered to him by the constitution in his relations with the parliament (the essential part of Title V). Supposing he also has the support of the Senate, he could block any initiative of the Assemblée nationale with which he disagrees; at least, considerably impede it. It would still be impossible for him to make it pass the laws he desires, and above all the necessity to reach every year a compromise with the Assemblée to pass the budget. He would still be much better armed against the pariament than is, for example the president of the United States, the archetype of the presidential form of government.

On the contrary, given the threat of a motion of censure, a hostile majority in the National Assembly leads the president to name a government issued from this majority. ("Compatible" is the word used in the Bayeux speech), an institutional operating mode known as "cohabitation" since it emerged for the first time in 1986 following the legislative elections. This government thus has available the essence of executive power, and can rely on its majority in the Assembly. Article 49.2 thus imposes coherency between the government and the parliamentary majority (to the extent that such a majority exists), characteristic of the modern parliamentary regimes, even if the head of state disposes in it of much wider powers than in other European regimes.

Well-supervised implementation

Subparagraph 2 relates, through the classic means of Vorlage:Ill (rationalized parliamentarism) to making it difficult both to introduce a motion of censure as well as it adoption. Its goal is to avoid government instabilit and thus, " that a government exists which is made to govern, to which is given the time and the possibility to do so", as de Gaulle said in his speech on 4 September 1958 at the Place de la République.

Introduction is limited by requiring for each motion of censure the signature of one tenth at least of the députés, each of whom may only sign three such motions during an ordinary session under Vorlage:Ill. Prior to the 1995 constitutional reform sur la session unique, a single motion for each of the two ordinary sessions in a year), or for each extraordinary session under Vorlage:Ill. The consequences of this restriction are minor, since the opposition generally does not run out of authorized motions. The most visible consequence is that when there is more than one opposition party, the smallest (for example, the Front national between 1986 and 1988) cannot introduce such motions, since they would be unable to reach the 10% bar; however such a motion would in any event have had no chance of adoption.

The article also makes it more difficult to adopt a motion. First, a delay of forty-eight hours must elapse between introduction of the motion and its vote. If the vote looks close, the 48 hours may allow the government to convince a few of the undecided not to vote for the measure. The constitution thus prevents the interpellation prevalent under the Third Republic, in which a single deputy could interpellate the government, and the Chamber vote, after debate, a text which, when it was unfavorable to the government, could lead to its departure. The Fourth Republic already provided for a full day between the motion's introduction and its vote. Next, by requiring a vote in favour of the motion by the majority of the members of the Assembly. This means that to be adopted, more than half of the current members (any vacant seats do not count under the rules of the Assembly) must vote for the motion. The system does not allow for abstention: a deputy may vote for the motion, or not vote for the motion, in which case he is assumed not to wish the overturn of the government. A motions is said to not have been adopted, meaning that it did not receive majority support, not that it was rejected, which would mean that a majority had voted against; whereas, only supporter of the motion will vote. This mechanism, in a close vote, can assure the survival of the government. The motion that failed with the narrowest margin targeted the agricultural policy of the government of Pierre Bérégovoy in June 1992. It lacked only three votes to pass. The procedure of the Fourth Republic was similar, with a nuance: while advocates of censure needed, like today, an absolute majority of the deputies, all deputies took part in the vote, and thus one could distinguish the supporter of the government from those who abstained; while nothing changed with respect to the adoption of the motion, the vote could weaken the government by making evident how little support it had.

These precautions were further reinforced by the exclusive character of Article 49 quant à la mise en cause de la responsabilité du gouvernement. The Constitutional Council censure any attempt, under organic law or Assembly regulation, which would allow the parliament or an Assembly la possibility of a vote marking its defiance of the government, even without an constraining effect, outside of Article 49.

These various rationalization techniques demonstrated their effectiveness for those governments of the Fifth Republic which disposed of only a feeble majority to sustain them. However the same techniques, or almost, that were already present in the constitution of the Fourth Republic completely failed to reach their goal. Most however were not formally overturned, but were withdrawn having failed to obtain the support thought necessary, or following serious disagreements between ministers. These two causes have vanished.

A conflict of legitimacy

The governments of the two preceding Republics (at least after the fall of Patrice de Mac-Mahon) owed all of their legitimacy to the parliament, the president of the Republic merely proposing them to the Assemblies, to which he himself incidentally owed his function. Too little support from parliament, even if there was no vote of censure, often caused their resignation. The president of the 5th Republic had his own legitimacy and considered, hors période de cohabitation, that the government was his and responsible to him, which often leads to a parallel between the Fifth Republic and the dualist parliamentary regimes of the first half of the 19th century. Responsibility to the parliament subsisted, but the government could consider itself legitimate so long as it was not formally overturned. A censure vote could be interpreted as a conflict between legitimacies, both founded on election, of the president of the Republic and of the Assembly, a conflict which, as de Gaulle explains, The Assembly should now no longer overturn the gouvernment except for a major disagreement, and the President of the Republic, to end a conflict of legitimacy "can have recourse to the nation", by dissolving the Assemblée nationale (Vorlage:Ill). This is one of his inherent powers, without condition from its implementation except purely of form, and was indeed used the sole time when a motion of censure was voted. The constitution also forbids censure when dissolution is not possible, during the holiday ou l'empêchement de la présidence (article 7). The possibility, not to say probability, of this dissolution may have a great dissuasive effect on the Assemblée, given that many deputies risk losing their seats.

The majority restraint

Apart from the dualist aspects specific to the Fifth Republic, which can also help explain the solidity of governments versus the Assemblée, on a souvent remarqué les limites de la rationalisation technique du parlementarisme, celle qui repose sur l'introduction dans la constitution de mesures entravant le vote des motions de censures. The first examples of technical rationalisation, found in constitutions drawn up at the end of World War I, notably that of the Weimar Republic, which also had a strong head of state, totally failed, just as they failed under the Fourth Republic, or else in the Italian republic. On the other hand, British parliamentarism, totally without such measures, demonstrated great stability. This stability is often attributed to bipartisme, notably by Michel Debré in his speech to the Conseil d'État or by René Capitant, un des inspirateurs du régime, both great admirers of the British system, founded on a single-round majority vote and bipartisme. While Michel Debré judged its transposition to France impossible, majority elections in two rounds, introduced in 1958, led to similar outcomes, with coalitions formed before the election and remaining stable afterwards. Lors qu'il ne relève que de la loi ordinaire (article 34), ce mode de scrutin contribue sans doute plus à la stabilité du gouvernement que le détail de l'article 49. On peut remarquer de même l'effet du changement de mode de scrutin en Italie en 1993, en l'absence de réforme majeure de la constitution, which remained strict monist parliamentarism, incidentally fairly close to that of the Fourth Republic. Cependant, this election method does not always guarantee the existence of a majority, as shown by the English example in the 1920s, or else the composition of the Assemblée nationale between 1988 and 1993. Vorlage:Wikt

Censure of 5 October 1962

Censure was passed only once under the Fifth Republic, during the 4 October 1962 meeting (in reality on the morning of 5 October). The motion was filed on October 2, after General de Gaulle had announced on 30 September a referendum (in accordance with Article 11 of the Constitution) to organize the election of the President of the Republic by direct suffrage. The circumstances of that vote are quite specific. It occurred at the end of the Algerian crisis, which affected the first years of the Fifth Republic, a kind of transitional phase in its history. The vote took place during the first legislature of the Fifth Republic, and put an end to it. The parliamentary elections of 1958 had not resulted in a clear majority, but the president and the Debré government could work with the assembly without a secured majority, because the priority was to resolve the Algerian crisis. In the summer of 1962, the crisis ended, and many of the deputies wished to revert to a more parliamentarian regime. De Gaulle, requesting the resignation of Prime Minister Debré, and appointing Georges Pompidou, a non-parliamentarian, seemed not to go in this direction.

The motion passed easily, the Gaullist party (Union for the New Republic) being the only major group not to vote for it. De Gaulle was moving on 5 October and received on 6 October Pompidou announcing his resignation, as Article 50 forces him to do. De Gaulle took note of the resignation without formally accepting it, and requested the Government to remain in office, and announced the dissolution of the National Assembly on 9 October. De Gaulle won very easily the 28 October referendum and the parliamentary elections on 18 and 25 November. With this last vote, the left recovered from the 1958 elections in which there had been no alliance between socialists and communists. Conversely, centrist parties, popular and independent Republicans are defeated at the benefit of the UNR, which monopolized the rightist votes. That election, consequence of censorship of 5 October, put in place the polarization of political life in France. Pompidou's new government was appointed after the elections.

The announcement of the referendum, which was preceded by a few rumors in the summer, caused considerable excitement. The universal suffrage elections were to change the balance of powers, and would turn the election of the President of the Republic into a plebiscite, reviving the painful memory of Louis-Napoleon Bonaparte and General Georges Ernest Boulanger. However it was the procedure which was under attack, because De Gaulle choose to revise the constitution with Article 11 and not with Article 89, which requires the consent of parliament. Most parliamentarians believe that the procedure is unconstitutional. This was also the opinion of most experts, by the State Council whose opinion was published in the press after a leak, by the Constitutional Council whose advice remains confidential, and by most of the entourage of the president, even the Prime Minister. The motion was clearly directed against the President of the Republic. Most of its powers are subject to contreseing (countersignature), which in parliamentary tradition, justify its irresponsabilité , the minister who countersigns endorsing the act. Article 11 is not subject to contreseing, however one cannot speak of inherent power, since the initiative must come from either the government, or the parliament. In this case it came, while as a matter of pure form, from the government, which allowed putting its responsibility into play. The text of the motion however left no doubt as to its target, the government being mentionned only at its end: "The Assemblée nationale [...], Considering that by ignoring the vote by the two chambers the President of the Republic violates the Constitution of which he is the guardian; Considering that he thus opens a breach through which an adventurer could one day go, to overturn the Republic and suppress freedoms; Considering that the President was only able to act based on the proposition of the Government; Censure the Government in conformity with Section 2, of the Constitution. » Its wording is not far from suggesting the use of Title IX, the Haute Cour de Justice (Article 68, the submission of an accusation against the president of the Republic of high treason, rather than just censure of the government.

Commitment of responsibility on a bill (49.3)

Clause 3 allows the government to impose the adoption of a text by the Assembly, immediately and without a vote, that the assembly cannot oppose without toppling the government through a motion of no confidence under Clause 2. This is one of the best known clauses of the Constitution, often cited by number, "article 49.3" or even "the forty-nine three." This clause reveals a reversal of the relationship between governments and parliaments in the 20th century in favor of the former: the executive power is no longer subordinated to the legislative one and must be able to adopt laws in accordance to its policy. Various solutions have been implemented to ensure the ability of the government to pass laws. With article 49.3, the governments of the Fifth Republic are stronger than ever. The article allows the government to compel the majority if reluctant to adopt a text, and also to accelerate the legislative process, and in particular to end any obstruction from the opposition.

Primacy of the executive

Article 20 of the Constitution of the Fifth Republic provides that "the government determines and conducts the policy of the nation." This concept differs considerably from the usual definition of an executive power charged with the execution of laws. Determining and conducting the policy of the nation on the contrary implies being its primary author, to which the constitution devotes its article 49, which obliges the Assembly to prioritize debating the legislative projects of the government. Although constitutional texts are not always as favorable to the government as they are in France, this practice is found in most European countries, where four fifths of the laws originate with the executive branch, and even in the United States, even though the executive branch there has no legislative power. The role of the executive thus extends well beyond the simple power to implement the law, which would have made it subordinate to legislative power. On the contrary, it is parliament when sees its role reduced to validating the projects of the government, to the point where it has been called a rubberstamp chamber. The legislature nonetheless retains its power to amend them or to oppose them. But an executive would be gravely weakened by the rejection of an important project, to the point where this could be read as censure of its policies.

Motion of confidence in a parliamentary system

The traditional mechanism of the question of confidence (distinct from the more limited that remains in paragraph 1 under the Fifth Republic) forces the parliament to undertake a blocking of government policy and the quasi-censure implied by the rejection of a project. It may consist simply of the government announcing that it will resign if its project is not adopted. A government may do this informally, in the absence of measures to implement this commitment. This was for example the case under the Third Republic. The action may also be framed by the constitution, generally in a way favorable to the government. In Germany. article 68 of the Fundamental Law of the Federal Republic of Germany provides that if a motion of confidence, which may include adoption of a text, is not adopted by an absolute majority, the Chancellor may ask the President for the dissolution of the Bundestag or the proclamation of a "state of legislative necessity", which for a limited time allows the adoption of laws with assent of a single upper chamber, the Bundesrat. The president is free to accept this request, or not. In any case the non-adoption does not force the government to resign. The resignation of the government may only be obtained if the Bundestag passes a motion of censure with an absolute majority which also designates a new chancellor, known as a "constructive" motion of censure in Article 67.

Motion of confidence under the Fourth Republic and the origins of Article 49.3

A motion of confidence caused the fall of numerous governments under the Third Republic. One reason for this was that it was often raised by a single minister without the prior agreement of the government as a whole, and thus the coalition that he represented . The other partners in the coalition could refuse to see their hand forced in this way, and the government fell. Under the Fourth Republic, the question of a vote of confidence was organized under the constitution, article 49. This was the sole perogative of the President of the Council, after deliberation of the Council of Ministers. It provided that the government could only be overthrown by a majority of the members of the Assembly. The latter provision, intended to protect the government, instead proved devastating to it. The rules of the National Assembly provided that a text attached to a vote of confidence would in normal circumstances be adopted, in other words if passed by a simple majority of votes. Therefore deputies could, through many abstentions, ensure that a measure passed by a simple, but not an absolute, majority. The effect of this was that the measure did not passed and the government was put in the minority. However, due to the large number of abstentions, the government was not overturned under the constitution. Deprived of the support of the Assembly, from which it drew its legitimacy, and prevented from implementing its programs, it was nonetheless cornered, politically if not legally, into resignation. The Assembly avoided by this means, known as "calibrated majority", the dissolution of the legislature, which under the constitution was conditioned on the formal overthrow of the government.

In the 1946 constitution this measure was among those which contributed the most to the instability of government and the absence of clear policy in a particularly difficult context, marked until 1954 by the war in Indochina and later in Algeria. The regime was in crisis. While the need for reform was widely agreed upon, no concrete proposal emerged. The last and most radical was that of the government of Félix Gaillard, presented to the National Assembly on January 16, 1958. This notably included a re-writing of Article 49. The primary change was that there would be no further votes on motions of confidence, but only on one or more motions of censure which might be introduced in answer to it. Unless one of these motions of censure was adopted, the government measure would pass. The Gaillard measure was inspired as well by the German "constructive" motion of censure, requiring that motions of censure contain a counter-proposal and "suggest" the name of a new president of the Council. It sought in this way to avoid a government being overturned by a divided opposition unable to agree on a different policy. On first reading the National Assembly adopted a watered-down version of the measure. Where the Gaillard measure provided that deputies would vote only on censure, they would under the Assembly version chose between confidence and censure, without the option of abstention. The Assembly version thus forced those who did not want to overturn the government to pass its text, even if they disapproved of it or did not wish it to pass. The original proposal allowed them to remain passive, and simply not vote for censure. Serious diplomatic setbacks related to Algeria led to the fall of the Gaillard administration on April 15, before the constitutional reform could be passed. After a long ministerial crisis and a brief intermission of Pierre Pflimlin as president of the Council, de Gaulle took power June 1st and his government was empowered to draw up a new constitution.

Adoption of 49.3 in 1958

At the interministerial council, which essentially drafted the new constitution, Pierre Pflimlin, Vorlage:ILL (Minister of State), insisted on taking the Gaillard project back up, in particular the adoption without a vote of projects on which the government commits its responsibility, with only a motion of censure able to oppose it. Michel Debré thought the proposition unsuitable, and defended a complex system founded on the one hand on frequent and compulsory commitments of responsibility in the meaning of section 1, and on the other by a distinction between an exclusive area of competence for the parliament and another where the government could take measures by decree (a more supple distinction than that established by articles 34 and 37. Given these conditions he felt that the exclusive domain of parliament did not include any topic on which a law project could have been urgent, and that therefore there would be no occasion for such a brutal procedure. De Gaulle on the other hand wished the president to be able to call a referendum on any legislation rejected by parliament. This desire was unacceptable to the ministers of State, who were attached to a strictly representative government and to whom a referendum recalled the plebicites of the Bonapartes. They did not wish to see an appeal to the people used to debase parliament and control it. Recourse to a referendum was thus very limited in Article 11 of the constitution. Pflimlin and his party, the MRP, imposed their solution: in the consultative constitutional committee, composed primarily of parliamentarians, examining the legislative project of the government, Pierre-Henri Teitgen

Procedure

Implementation of the article took place in three stages. First, the deliberation of the Council of Ministers, in the same conditions as for the first subsection. Next, a commitment of responsibility, strictly speaking, by the Prime Minister, in a session of the National Assembly. If applicable, the submission of a motion of censure, barely facilitated with respect to subparagraph 2 and its vote. In the case where there is no such motion, or it is not adopted, the text is considered adopted by the Assembly.

The deliberation in the Council of Ministers is carried out under the same conditions as under subparagraph 1, and one can discuss in the same manner the distinction between deliberation and authorization (see above). If, outside of periods of cohabitation, the President, the real head of the executive branch, may informally have a great role in the decision to have recourse to 49.3, he has never opposed it in periods of cohabitation, which he could only do by refusing that the deliberation be recorded in the minutes of the Council of Ministers. Use of 49.3 is a strictly executive prerogative. Notably, just after his refusal to sign ordinances in 1986, a refusal whose constitutionality was the subject of a lively discussion, François Mitterand allowed the Council of Ministers to authorize Jacques Chirac to commit the responsibility of the government to a law project that again took up the same provisions. After deliberation of the Council, the prime minister is free, in a session of the National Assembly, to commit the responsibility of a government at a moment he judges opportune, and only if he judges it opportune. He must do this in person. He may do this as soon as the text is introduced, preventing all debate. More frequently, he allows debate to take place and perhaps the legislative text to be amended. The rules of the Assembly allow the government to ask for an amendment to be held, in other words to push discussion back until a later time (Article95). If a commitment of responsibility takes place in the meantime, this discussion does not take place. The government can thus avoid amendments it does not favour, but which the Assembly may support, as well as those introduced with dilatory ends. When the commitment of responsibility is in effect committed, it is no longer possible to come back to measures previously adopted. However the text to which the government has committed may on the other hand take back up measures that had been pushed back. It may also contain amendments to the original legislation, whether they were introduced by the executive or are amendments by the legislature which the administration has chosen to retain. The commitment of responsibility may also bear only on a part of the text, in which case discussion proceeds in the normal manner on the remaining articles. Once the government commits to responsibility on a text, debate on it is definitively closed. A delay of twenty-four hours opens, for the introduction of a motion of censure. The only difference between such a motion of censure, said to be 'provoked', and a 'spontaneous' motion of censure under subparagraph 2 is that a provoked motion is not counted in the fixed limit to the number of motions that a deputy may sign in the course of a session, The other provisions of subparagraph 2, signature by a tenth of the members of the Assembly, delay before a vote, and adoption by an absolute majority of the Assembly members, all apply.

History of 49.3

The section 49.3 procedure has been used 82 times since 1958 by prime ministers.

[[French Prime Minister|Vorlage:Black]]	Vorlage:Blue	Vorlage:Blue	Vorlage:Red	Vorlage:Red	Vorlage:Black
Michel Debré	40	4			0,10
Georges Pompidou	75	6			0,08
Maurice Couve de Murville	12	0			0
Jacques Chaban-Delmas	37	0			0
Pierre Messmer	23	0			0
Jacques Chirac	27	0			0
Raymond Barre	57	6			0,11
Pierre Mauroy			38	7	0,18
Laurent Fabius			21	4	0,19
Jacques Chirac	26	8			0,31
Michel Rocard			37	28	0,76
Édith Cresson			11	8	0,73
Pierre Bérégovoy			12	3	0,25
Édouard Balladur	26	1			0,04
Alain Juppé	25	2			0,08
Lionel Jospin			60	0	0
Jean-Pierre Raffarin	37	2			0,05
Dominique de Villepin	16	1			0,08
Total on May 4, 2006	397	30	179	50	Right: 0.08 Left: 0.28

• Jean-Pierre Raffarin :
  • bill concerning the election of regional councillors and representatives at the European Parliament as well as public aid for political parties (February 15, 2003)
  • bill concerning local rights and responsibilities (July 27, 2004)
• Dominique de Villepin : 1 use
  • bill concerning the Equal Opportunity law, including the First Employment Contract (CPE, February 9, 2006)

49.3 in practice

Section 49.3 was conceived at a time when parliament was often divided into numerous undisciplined parties. This situation disappeared after the legislative elections of 1962. The new arrangement is more efficient, in that the legislators will prefer not to vote to force the resignation of the government even if they oppose the law in question, because they fear a form of political suicide in the eyes of the voters.

Various factors can bring the section into play:

• when a need arises to accelerate a debate which is dragging on too long in relation to the necessities of the government calendar or when the opposition is trying to block the debate process by multiplying indefinitely amendment proposals, when the government enjoys a real majority and there is no surprise possible. The government includes the amendments which it considers most serious and important and begins the procedure of 49.3.
• when part of the governing party opposes a law, preventing it from being voted. Resorting to section 49.3 enables the government to test the inner opposition, forcing it either to ally itself with the opposition to the government or to accept the law. Raymond Barre has used this procedure in such a situation eight times between 1976 and 1981 to fight against the permanent oppression from Jacques Chirac's RPR deputies, who each time accepted the enforcement of the law instead of allying with François Mitterrand's Parti socialiste;
• when the government is only supported by a plurality in the National Assembly (that is it has the support of the largest group in the Assembly, but less than an overall majority). Michel Rocard used the procedure 28 times to make his legislation pass, because he was permanently torn apart between the [[French Communist Party}}, the center-right Vorlage:Ill (separated from the Union for French Democracy), and deputies faithful to President François Mitterrand. Édith Cresson, who succeeded him, used it eight times, even though she benefited from greater support from Mitterrandist deputies.

Bibliography

• Maus, Didier. Les grands textes de la pratique constitutionnelle de la V^e République. La documentation française, (The Important Texts of Constitutional Practice in the Fifth Republic: French Documentation) Paris, 1998. Vorlage:ISBN
• Chevalier, Jean-Jacques et al. La Ve République 1958–2004. Histoire des institutions et des régimes politiques de la France. (The Fifth Republic 1958-2004: History of the Institutions and Political Régimes of France) Dalloz, Paris, 2004. Vorlage:ISBN
• Monin, Marcel. Texte et documents constitutionnels depuis 1958. Analyse et commentaires. (Text and Constitutional Documents since 1958) Dalloz, Paris, 2004. Vorlage:ISBN

Notes and references

This article was originally translated from the French Wikipedia article, fr:Article 49 de la Constitution de la cinquième République française. Vorlage:Reflist

External links

• Vorlage:Fr icon Constitution du 4 octobre 1958: Titre V
• Title V of the Constitution translated into English