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  1. 2 Przegląd Sejmowy

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  1. 1 Ghevontian R.

  2. 1 Kubuj K.

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  1. 2 2008

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IS THE PRESIDENT OF THE FIFTH REPUBLIC A REPUBLICAN MONARCH? (Czy prezydent V Republiki jest monarcha repubikanskim?)

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Ghevontian R.
Przegląd Sejmowy
|
2008
|
issue 6(89)
50-69
EN
The constitution of the Fifth Republic introduces a new concept of the role of a President of the Republic, whose authority is strengthened as compared to the limitation imposed upon that office by the provisions of Constitutions of the Third and Fourth Republic. Article 5 of the Constitution of 1958 defines, in a general way, the function of the president, making him as a head of state, the guardian of the constitution and guarantor of national independence, integrity of state territory and respect for treaties as well as an arbiter responsible for proper functioning of public authorities and existence of the state. The notion of arbitration constitutes an essential element of this article, which causes some interpretative problems due to its ambiguity. In fact, the wording used in this provision seems to be reasonable, as it synthetizes the function of the President depending on political circumstances: it can take the form of a pro-active and resolute arbitration (beyond the period of cohabitation), and some other time, can be carried out with reserve, in a more symbolic way (in the period of cohabitation) Irrespective of external circumstances, the functions of President of the Fifth Republic, empowered by the democratic legitimacy derived from universal and direct elections, are not limited to formal and representative dimensions. Since 1958, the President of the Republic is a driving force behind the operation of the executive power. Problems with relations between the President of the Republic and the Prime Minister on the ground on the basic law result from the overlap of two provisions: the above-mentioned Article 5 and Article 20. The latter confers on the government the right to 'conduct' and 'outline' the national policy. These controversies, even if no longer topical, ensue from an erroneous (in the author's opinion) assumption that one of those two provisions must be applied in its entirety. Such a choice is of an arbitrary nature. However, we should rather try to find a way to apply at the same time both the provisions without distorting the will of the authors of the Constitution. The two provisions can be applied simultaneously, but with different and variable intensity depending on political circumstances. When the President performs his role of a resolute arbiter (beyond the period of cohabitation), Article 20 is applied selectively, and the government limits itself to pursue the policy determined, to a considerable extent, by the President of the Republic. But when the President's role of arbiter is weaker, Article 20 operates with no limits, and the government can pursue a policy of its own.
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CRIMINAL RESPONSIBILITY OF THE PRESIDENT OF THE FIFTH FRENCH REPUBLIC (Odpowiedzialnosc karna prezydenta V Republiki Francuskiej)

100%
Kubuj K.
Przegląd Sejmowy
|
2008
|
issue 6(89)
71-86
EN
The significance of the issue of President's responsibility grows with an increasing role of his office in the practice of operation of the national system of government. The strong position of French President and his political authority has been firmly established in the history of the Fifth Republic. President's responsibility is regulated by Article 68 of the Constitution of 1958. Despite interpretative disputes among theoreticians, the matter has not attracted attention of practitioners until the presidency of Jacques Chirac. Then, a doubt was raised whether during the exercise of the function of a head of state, he could be heard as a witness in relation to matters taking place before assuming the office. The decisions of the Constitutional Council and the Court of Cassation (Cour de Cassation) did not provide unequivocal answer to this question, and this was the reason for the change of criminal-law status of the President. On the basis of the amendment of the Constitution of 1958, adopted by the Constitutional Act of 23rd February 2007, a peculiar model of Presidential responsibility, called an institutional responsibility, was created. This model established the possibility, hitherto unknown to the French law, of removal of the President from office (destitution). The key element underlying the constitutional reform was a strong conviction that, from the moment of his election, the President ceases to be an ordinary citizen/subject to trial (n'est pas un citoyen/justiciable ordinaire). This is so because the President of the Fifth Republic, elected in universal and direct election, is the highest representative of the Nation and guarantor of existence of the State. For this reason, the President cannot be held responsible (irresponsabilité) for the activities carried out in his official capacity, except for acts subject to jurisdiction of the International Criminal Court (Article 53-2 of the Constitution) or incompatible with the dignity of his office (Article 68 of the Constitution). As concerns other activities undertaken either before assuming the function or during the exercise of the office, but unconnected with it, any proceedings to which the President would be a party are prohibited during the period of the holding of office by the President (inviolabilité). Of special importance is the place reserved in this model for the sovereign who assesses the performance of the duties by the head of state, initially, by its representatives and then, in direct elections. Under the political system of the Fifth Republic characterized by a strong Presidency the scope of non-responsibility (irresponsabilité) is to be determined by the Nation which have the final say.
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