THE CONSTITUTIONAL COUNCIL AND THE PROTECTION OF FUNDAMENTAL RIGHTS (Rada Konstytucyjna a ochrona praw podstawowych)
Selected contents from this journal
Languages of publication
To increase the powers of the Constitutional Council was one of the most important amendments to the constitution, proposed by the committee on the modernization and rebalancing of the institutions of the Fifth Republic. The functions of the Council had to be considerably extended, and its role in the review of constitutionality of law deeply modified. The committee's proposed new wording of Article 61-1 of the constitution establishes a mechanism for submission of a complaint - as an exception - under a court proceedings. This mechanism would include an assessment on the conformity of a statute with fundamental freedoms and rights, thereby excluding the review of parliamentary procedure or the review of the division of normative authority between a statute and a regulation. The above-mentioned procedure would be applied 'as an exception', upon request of the court hearing the case (paragraph 1), but also on request of the person subject to a trial which in a particular process may include administration (paragraph 2), or on request of the Council of State, the Court of Cassation or their subordinate courts, or any other court. According to the proposal presented by the Committee, any district court would submit application to the Constitutional Council. This mechanism would allow to challenge constitutionality of statutes adopted before 1958 and those which avoided review after 1958, particularly because of the lack of the right to submit applications by Deputies (before 1974) and because of the lack of a political will for submission of applications (after 1974). The above-described strengthening of powers of the Council would make it possible to find the desired balance between the review of constitutionality of statutes and the review of conformity with international agreements. What is at stake is the survival of the principle of supremacy of the constitution in the domestic legal order. These innovative ideas are partly consistent with the opinions of present members and president of the Council.
Publication order reference
CEJSH db identifier