GOVERNMENTAL INVESTITURE IN PARLIAMENT:
THE FRENCH EXAMPLE
Iris Nguyên-Duy
Oslo-Rome International Workshop on Democracy
7-9 November 2011, Viale Trenta Aprile, Rome
Session 5: Executive-Legislative Relations I – The Investiture Vote in Parliament
Chair: by Jose Antonio Cheibub (University of Illinois)
*
Abstract
The French legal system – and its evolution over three Republics (the 3rd, the 4th and the 5th) – provides
for an interesting example of investiture of Governments in Parliament.
Parliamentary investiture of Government was an important constitutional requirement under the 3 rd and
th
the 4 Republics. Parliament was “all powerful” and the system was plainly parliamentary. A system of “double
investiture” was introduced under the 4th Republic. Governmental instability and parliamentary supremacy,
however, were such that the fathers of the Constitution of the 5 th Republic decided to remedy the situation by
enhancing the powers of the Executive and by diminishing (or framing) the powers of Parliament. According to
article 8 of the current French Constitution, the President appoints the Prime minister and the other members of
the Government. The appointments do not require the legislature’s approval. Nowhere in the Constitution of
1958 is it written that the Government, when formed, has to be invested by Parliament. If the history of
parliamentary investiture of government can explain why this is so, it may also be interesting to understand what
the lack of formal governmental investiture in Parliament means.
The French history of parliamentary investiture of Government can be of interest for the understanding
of the characteristics, mechanism and effects of such a political and constitutional instrument.
One can however occasionally witness a kind of “de facto parliamentary investiture” also under the
current system, resulting from two sets of constitutional provisions on the political accountability of the French
government to Parliament [We will not, however, in the present study, take into account art. 49.3 of the
Constitution]. Because the National Assembly can inter alia challenge the responsibility of Government and
vote a “motion of censure” / a “resolution of no confidence” (art. 49.2), the President should appoint a
government that shares the same political “color” as the majority in the National Assembly. This requirement is
especially meaningful when there is a situation of cohabitation or “divided political majorities”, much less when
the Presidential majority and the majority in the National Assembly are politically identical. Moreover, even
though the Government is presumed to have the confidence of Parliament, the Prime Minister can strategically
choose to commit the Government’s responsibility on its program or a statement of public policy (vote of
confidence, art. 49.1). No later than in November 2010, the French Prime Minister presented the “statement of
public policy” of the newly formed Government to the National Assembly.
The implementation of these provisions has evolved with the balance of political powers. The study of
governmental investiture in France (and the interpretation of the “practice” of art. 49.1) is interesting,
especially in terms of the accountability of the Executive and of the consequences for the nature of the legal
system.
*

Postdoctoral fellow at the Department of Public and International Law, Faculty of Law, University of Oslo,
Norway. [email protected].
1
The “investiture” is the way by which an authority officially acknowledges the
attribution of a power, a title, a function or a dignity to another person or entity. The French
Lexique des termes juridiques defines the term “investiture” as “an affirmative vote by a
majority of the [parliamentary] Assembly in favor of the Cabinet”. The investiture could
further be defined, in a more narrow sense, as the requirement, for the Government, to obtain
a formal preliminary vote of the legislature prior to the exercise of its governmental
functions/responsibilities. The requirement of governmental investiture in Parliament can
consequently be understood both as a way to limit the freedom of choice and action of the
Executive in a parliamentary system, and as a way to contribute to its protection and stability.
In a parliamentary system, there are mainly two types of vote in the legislature that
affect a Government: the investiture vote and the confidence/no confidence vote. The
investiture procedure should be distinguished from the rule (formal or unwritten, depending
on the country studied) according to which the newly constituted Government must present
itself to Parliament (or to the lower house of Parliament) in order to get its approval on its
program and has to resign when it does not obtain a vote of confidence. In the case of the
investiture, the Government derives its (right to come to) existence from the vote of the
Assembly. In the second case, the Parliament or the National Assembly either gives its
confidence to an already established government or strikes it down.
In France, the current Constitution, the Constitution of the 5th Republic, organises a
hybrid political system, with characteristics of both parliamentary and presidential systems.
Article 20 of the Constitution provides that the Government “is responsible to the Parliament
in the conditions and procedures laid down in articles 49 and 50”. But the Constitution grants
no power to Parliament in the selection of either the Prime Minister or the ministers.
According to article 8 of the French Constitution, the President appoints the Prime minister.
He then appoints the ministers on the proposal of the Prime minister. There is also an article
49 whose first paragraph [art. 49.1 C] organises a possibility for the Government to ask a
motion or vote of confidence (question de confiance), while the second paragraph [art. 49.2
C] organises procedures for a motion of no confidence (motion de censure) initiated by the
National Assembly (also called “spontaneous censure”). The third [art. 49.3 C] provides for a
procedure that allows the Government to force the passage of a bill (unless the Assembly is
ready to overturn it – the procedure is also called “provoked censure”) and, lastly, the fourth
[art. 49.4 C] opens the option, for the Government, to request the approval of its policies by
the Senate. But it is designed to prevent the occurrence of ministerial crises and to protect the
Government from “ad hoc majorities”.
Thus there is obviously no investiture requirement in the French Constitution of 4
October 1958 and the vote of a motion of confidence is initiated by the Government, not by
Parliament. The word “investiture” is more usually used, nowadays, to describe the official
way, for a political party, to nominate/choose his candidates to the next elections.
However, the study of French constitutional history under the 3rd, 4th and 5th
Republics1 shows that the French are no stranger to the concept of investiture and practiced it
under different forms, to finally rule it out in 1958. The absence of an investiture procedure is
1
The Third Republic (1875-1940), the Fourth Republic (1946-1958), the Fifth Republic (1958~). There was the
so-called “Vichy Regime” in France, between 1940 and 1944. A Provisional Government of the French Republic
succeeded to the Vichy Regime. It was an interim government that governed France between 1944 and 1946.
2
then, in itself, “revealing” and all the more significant for understanding the nature of the
current political system.
The French example illustrates perfectly the evolution of the relationships between
Government and Parliament and, more specifically, the nuances of/in the autonomy of the
Executive over nearly 150 years.
I. The lack of compulsory governmental investiture in Parliament
under the 5th Republic
The lack of compulsory governmental investiture in Parliament under the 5th Republic
reveals that the drafters of the Constitution have learned from the past experiences and tried to
avoid or prevent the ministerial crises that had weakened the 3rd and the 4th Republics.
The choice of a procedure initiated by the Government itself, a motion of confidence,
has been considered – and chosen – as an acceptable alternative to the investiture of
Government in Parliament.
1. A reaction against the past experiences (under the 3rd and 4th
Republic)
a. No constitutional investiture under the 3rd republic – But investiture and motion of
confidence in practice.
The three constitutional laws of 1875 are the constitutional basis of the parliamentary
system established under the Third Republic that lasted over 65 years.2 Since the text of the
constitutional laws is short (34 articles) and reflects compromises that can be identified in the
coexistence of originally incompatible institutions,3 the Constitution is characterised by its
flexibility and it opens for the development of constitutional practice (pratique
constitutionnelle) and conventions.
The Executive power is dual: It is shared by the President and the ministerial Cabinet.
The President is the stable element in the Executive and is elected by absolute majority in the
Senate (Sénat) and of the House of Deputies (Chambre des députés) that constitute the
National Assembly (Assemblée nationale). The Cabinet, lead by the President of the Council
(Président du Conseil), is in charge of governing. The President appoints the President of the
Council, which is a creation of “constitutional practice”, since there is nothing in the
constitutional laws of 1875 referring to this institution. Yet he is the “ancestor” of the Prime
Minister and the chief of the majority in Parliament. The ministries are formally appointed
and revoked/dismissed by the President of the Republic. But, in practice, it is the President of
the Council that submits a list of ministers to the President of the Republic who signs it.
2
The three constitutional laws of 1875 were adopted on February 24 & 25 and July 16, 1875. They can be found
on: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-lafrance/constitution-de-1875-iiie-republique.5108.html (last accessed: July 27, 2011).
3
Under the Constitution of the 3rd Republic, parliamentarism was combined with the concept of the Republic:
the President of the Republic held the power of dissolution, considered as a « royal prerogative »; at the same
time, the drafters chose bicameralism (a two-chambered Parliament) instead of the Republican tradition of a
single legislative assembly (monocamerism). See Hamon, F. & M. Troper (2009), Droit constitutionnel, 31st ed.,
Paris: LGDJ / Lextenso éditions, p. 387.
3
However Parliament was unquestionably the dominant institutional actor under the Third
Republic. In practice, the Government could not exercise their responsibilities without having
first obtained a favorable vote in the House of Deputies, which decided both on the basis of
the program presented by the government and on the basis of the composition of the
ministerial team.
In fact, governing under the Third Republic proved challenging because of the shifting
of parliamentary coalitions between the elections and several governments were overthrown
on that occasion. According to article 6 of the Constitutional law of 25 February 1875, “[t]he
ministers are jointly responsible to the Chambers for the general policy of the government,
and individually for their personal actions”.4
Stemming from the majority (or from the coalition that forms the majority) in
Parliament, the Cabinet had also to constantly obtain its support. It did so by reporting to
Parliament. The ministers were usually either deputies or senators and they could enter the
Houses of Parliament and speak whenever they deemed it necessary. The ministers had to
resign whenever they failed to obtain a vote of confidence in Parliament on a Bill (projet de
loi) or when the Chamber of Deputies, on its own initiative, voted a motion of no confidence
(motion de censure). Moreover, because it was actually impossible for the President to use the
power of dissolution, the Executive had no means to oppose the questioning of governmental
accountability. In case of conflict with Parliament, the Government had to either surrender or
leave/resign. In practice, the Government was considered as an “agent of Parliament” in fact
appointed and dismissible by Parliament itself.
b. 4th Republic: two kinds of investiture
It is the drafters of the Fourth Republic that introduced the notion/concept of
investiture in the Constitution. The procedure was more complex than the one that had been
developed under the Third Republic. It was tentatively ameliorated in 1954.
A three-step procedure from 1946 to 1954 and the development of the practice of the
“double investiture” from 1947 onwards.
According to article 45 of the French Constitution of 27 October 1946,5 at the
beginning of each parliamentary session (législature), the President of the Republic, after the
usual consultations, appointed the President of the Council who then submitted to the
National Assembly the program and the policy of the Cabinet that he intended to form. The
President of the Council and the ministers could only be appointed after the President of the
Council had been invested with the confidence of the National Assembly, 6 by open ballot and
by absolute majority, except in cases of force majeure preventing the meeting of the National
Assembly. The same procedure applied during the parliamentary session, in the event of
vacancy by death, resignation or other cause, with the exception of what is stated under article
52.7
4
Article 6 : « Les ministres sont solidairement responsables devant les chambres de la politique générale du
Gouvernement, et individuellement de leurs actes personnels. (…) »
5
The text of the Constitution of the Fourth Republic can be found at: http://www.conseilconstitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-de1946-ive-republique.5109.html (last accessed: October 23, 2011).
6
The bicameral Parliament was composed of the National Assembly (Assemblée nationale) and of the Council
of the Republic (Conseil de la République).
7
Article 45 : “Au début de chaque législature, le président de la République, après les consultations d'usage,
désigne le président du Conseil. Celui-ci soumet à l'Assemblée nationale le programme et la politique du Cabinet
4
This initial procedure for the appointment of the President of the Council and of the
ministers was quite complex. It was the result of a compromise between those who wanted the
appointment of the Government by the President of the Republic and those in favor of the
election by the National Assembly.
While the prerogative of appointment of the Government by the President of the
Republic was only limited de facto under the Third Republic by the fact that he had to take
the wishes of the National Assembly into account, article 45 of the French Constitution of
1946 underlined that the President could only appoint de jure a person who had obtained a
positive vote of investiture in the National Assembly.
The procedure was divided in three steps: 1. The selection of a President of the
Council by the President of the Republic; 2. The investiture of the President of the Council by
the National Assembly, after negotiations, and on the program he presented; 3. The formation
of the Government.
This procedure gave a central role to the President of the Council, hierarchically
superior to the other members of the Government, invested by and accountable to the National
Assembly.
However, no later than 1947, the first President of the Council to be appointed under
the Fourth Republic, Paul Ramadier, agreed, after having been invested on January 21st, 1947,
to return to the National Assembly in order to present the composition of the new Government
to the deputies. It was the beginning of a new practice, the so-called “double investiture”.
There were, de facto, two votes of investiture from 1947 to 1954:
- A first vote of investiture, on the name of the President of the Council and the program
of the Government, with an absolute majority requirement.
- A second vote of investiture, on the composition of the Government, with a relative
majority requirement.
Moreover, instead of using sparingly the motion of confidence (article 49), the
President of the Council used it too often, in order to force his majority to adopt bills that he
deemed indispensable. The deputies could refuse their confidence by using a relative (and not
absolute) majority. When they had failed to obtain a vote of confidence, governments usually
had no other choice than to resign.
Needless to say, the system of investiture introduced and practiced in 1946 did not
contribute to diminish the ministerial crises that weakened the whole system.
The constitutional reform of 1954 was triggered by the will to give more stability to
the Executive and to suppress the de facto “double investiture” of the Government. The aim
was to make it easier to form a Governement and harder to overturn it.
The (“rationalized”) “single” investiture procedure of 1954
qu'il se propose de constituer. Le président du Conseil et les ministres ne peuvent être nommés qu'après que le
président du Conseil ait été investi de la confiance de l'Assemblée au scrutin public et à la majorité absolue des
députés, sauf cas de force majeure empêchant la réunion de l'Assemblée nationale. Il en est de même au cours de
la législature, en cas de vacance par décès, démission ou toute autre cause, sauf en ce qui est dit à l'article 52 cidessous. ”
5
Article 8 of the Constitutional law of 7 December 1954 repealed paragraphs 2 and 3 of
the former article 45 of the French Constitution of 1946 and replaced them by the following
provisions: “[The President of the Council] selects the members of his Cabinet and presents
the list to the National Assembly, before which he appears in order to get its confidence on
the program and policy he intends to follow, except in cases of force majeure preventing the
meeting of the National Assembly. Voting will be by secret ballots and simple majority. The
same applies during the parliamentary session, in case of vacancy of the President of the
Council with the exception of what is stated in article 52”.8
The procedure of designation of the President of the Council was the same. The main
differences with the former formulation were the procedure of investiture by the National
assembly and the majority requirements. The President of the Council was in charge of
picking up/choosing the members of the Cabinet, to present the list to the National Assembly
and to ask Parliament to invest the Government with its confidence. It was a return to the
practice of the Third Republic, with this symbolic and significant difference, however, that
the President of the Council and the ministers were not appointed before, but only after the
vote of the National Assembly which invested the President of the Council with the
confidence of the assembly. On the other hand, the requirement of a simple majority made it
easier for the Government to obtain the confidence of the Assembly. And an absolute majority
of the deputies was still required to bring down a Government, which was supposed to make it
more difficult to happen.
However, once again, emerged a de facto “preliminary” procedure, taking place before
the vote of investiture itself, and according to which the President of the Council-to-be (even
before his nomination by the President of the Republic) had to contact the different political
parties and obtain their prior agreement on the composition of the future government.
Moreover, the stability of government depended less on the improvement or design of new
constitutional techniques than on the ability to form durable political coalitions in Parliament.
The failure of the Fourth Republic is not due to the failure of the reform of 1954, nor to the
use of articles 49 and 50 on the motions of confidence and censure. It is mainly due to the
failure to tackle the multiplication of ministerial crises and the lack of a coherent majority in
Parliament.
During the Third Republic, there were too many political parties and the Cabinet had
to get the support of very heterogeneous (unstable) political coalitions in order to govern
properly. Even when a Government had the support of the Chamber of Deputies, it could be
brought down by the Senate, as it was the case for the first government of the Front
Populaire, lead by Léon Blum. In addition to governmental instability, a series of crises
weakened further the whole system: a financial crisis in 1926, a political crisis in 1934, an
international crisis from 1938.
The Fourth Republic was characterised by the same ministerial instability, even
though the politics tried two different constitutional techniques, in 1946 and in 1954, to
remedy it.
Things had to change.
8
Article 8. - Les deuxième et troisième alinéas de l'article 45 de la Constitution sont abrogés et remplacés par les
dispositions suivantes : « Celui-ci choisit les membres de son Cabinet et en fait connaître la liste à l'Assemblée
nationale devant laquelle il se présente afin d'obtenir sa confiance sur le programme et la politique qu'il compte
poursuivre, sauf en cas de force majeure empêchant la réunion de l'Assemblée nationale. - Le vote a lieu au
scrutin secret et à la majorité simple. - Il en est de même au cours de la législature, en cas de vacance de la
présidence du Conseil, sauf ce qui est dit à l'article 52. »
6
2. The motion of confidence: Article 49.1 of the French
Constitution and its interpretation
Since the Executive needed to be stabilised, and even strengthened, in its relationship
to Legislative power, the answer of the drafters of the Constitution of the Fifth Republic was
deliberately quite radical: No vote of investiture is organised in the Constitution of 4 October
1958. It is the President of the Republic who appoints the Prime Minister and the other
ministers on the recommendation of the latter (article 8). According to the General de Gaulle
in his press conference of January 31, 1964, if one person is “invested”, it is the President of
the Republic, and it is by the sovereign People of France: “(…) the sovereign people, by
electing the President, invests him with its confidence. Moreover, in this lies the essence of
things and the greater part of the changes made”.9
However, article 49, 1st paragraph (hereafter art. 49.1) allows the Prime Minister to
commit the responsibility of his government before the National Assembly by putting
forward/presenting a motion of confidence. Article 49 of the French Constitution is part of
Title V (from article 34 to 51) which organises “the relations between the Parliament and the
Government”. It sets out the responsibility/accountability of the French Government (the
Prime Minister and the Cabinet / the ministers) to the Parliament.
“The Prime Minister, after deliberation by the Council of Ministers, may make the
Government‟s programme or possibly a general policy statement an issue of a vote of
confidence before the National Assembly.”10
The motion of confidence is a procedure by which the Prime Minister asks the
National Assembly to grant its confidence to the Government‟s program or to a declaration of
public policy. It is one of the three mechanisms or procedures designed in article 49 of the
Constitution to challenge the responsibility of the Government. The motion of confidence is a
classic mechanism in a parliamentary system: it is intended to ensure the existence of some
kind of « checks and balances » (moyens d’action réciproques) between the Executive and the
Legislative branch. It is the counterpart of the Presidential right to dissolve the National
Assembly according to article 12 of the French Constitution.
The somehow ambiguous formulation of article 49.1 of the Constitution opened for
different, sometimes very conflicting, interpretations on the issue of confidence and of the
Government‟s accountability to Parliament. Contrary to the wording of the Constitution of
1946, the expression “question de confiance” does not explicitly appear in the text of the
Constitution. Instead, there is the formulation : « [le Gouvernement] engage sa
9
”(...) le peuple souverain, en élisant le Président, l‟investit de sa confiance. C‟est d‟ailleurs là le fond des choses
et
l‟essentiel
du
changement
accompli.”
–
text
(extracts)
available
on :
http://www.ladocumentationfrancaise.fr/dossiers/cohabitation/de-gaulle-1964.shtml (last accessed : 28 July
2011)
10
Official translation. Art. 49.1 C (original text in French): “Le Premier ministre, après délibération du conseil
des ministres, engage devant l'Assemblée nationale la responsabilité du Gouvernement sur son programme ou
éventuellement sur une déclaration de politique générale.” For the English version of the French Constitution:
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/constitution_anglais.pdf
(last accessed: 17 July 2011).
7
responsabilité ». The official English translation is misleading, because it deliberately states
that the Government asks for “a vote of confidence”.
What is not controversial is that the Prime Minister commits the responsibility of his
government only after deliberation in the “Council of Ministers” (Conseil des ministres). But
the “authorization” or agreement of the whole Cabinet or of the President of the Republic,
who chairs the Council of Ministers, is not requested. That a deliberation takes place is all that
is required. The issue of a disagreement between the Prime Minister and the Cabinet remains
theoretical. Moreover, the fact that the commitment of responsibility has been deliberated
with the other ministers shows that it is a decision supported by the whole Cabinet/Executive
branch.
It follows from article 50 of the French Constitution that a negative vote – by a
majority of votes cast (à la majorité (absolue) des suffrages exprimés – in contrast with the
motion of no confidence and the “provoked censure” that, to a certain extent, protect better
the Executive from parliamentary threats with a stronger majority requirement: absolute
majority of all the deputies – majorité absolue des membres de l’Assemblée nationale11) –
leads to the resignation of the Government. To gain the confidence of the National Assembly,
the Government needs to obtain more favorable votes than negative ones (no matter how
many abstained from voting).
The interpretation of the rest of article 49.1 C is also still debated.
-
« engage » : an obligation or a simple option ?
The main debate has revolved around the following issue: How is the verb “engage”
(commits) in article 49.1 C to be read/understood?12 Is a newly appointed Government
obliged to present itself to the National Assembly in order to obtain the deputies‟ confidence –
or is it only an option ?
The use of the present indicative in a sentence, especially in a French legal text,
usually means that it has to be interpreted as obligation, not as an option: “engage” means
“commits” and not “may commit”. The word “éventuellement” (possibly) before the general
policy statement and the words “peut engager” (may commit) in article 49.3 C13 contrast with
the phrasing “engage” and reinforce the interpretation in the direction of the compulsory,
obligatory nature of the commitment of the Government‟s responsibility on the basis of a
program. The fact that it is customary in parliamentary regimes for the Constitutions to
provide for the Prime Minister or the Government to appear before Parliament or the lower
house of Parliament to get a vote of confidence also tells for this interpretation. On the other
end, the full paragraph lacks details and no explicit deadline is fixed. And, as we shall see
later (II. 1.), a majority of politics and governments understood/understands the commitment
of responsibility on a vote of confidence of article 49.1 C as an option, not an obligation, for
the Government. However, more than half of the Governments of the Fifth Republic have
11
Cf. Hamon & Troper, op. cit., p. 718.
The official translation « solves » the problem by choosing explicitly to present this as an “option” for the
Prime Minister by using the formulation “may” instead of using the present indicative.
13
Article 49.3 C : « Le Premier ministre peut, après délibération du conseil des ministres, engager la
responsabilité du Gouvernement devant l'Assemblée nationale sur le vote d'un projet de loi de finances ou de
financement de la sécurité sociale. » (“The Prime Minister may, after deliberation by the Council of Ministers,
make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the
National Assembly.”).
12
8
committed their responsibility on their program or on a statement of general policy before the
National Assembly since 1958…
-
Is there a distinction between “program” and “declaration of general policy”?
The distinction between “program” and “declaration of general policy” is not crystal
clear either. Although the wording and structure of article 49.1 C suggest a distinction
between the two, especially with the use of the word “possibly”, according to the
Constitutional Council of the French Republic (Conseil constitutionnel), the two terms are
“analogous”14, i.e. interchangeable. And some Prime Ministers used the expression
“declaration of general policy” while they were speaking for the first time before the National
Assembly. The official website of the Prime Minister (Direction de l’information légale et
administrative) defines “déclaration de politique générale” as “an act by which the Prime
Minister commits the responsibility of the Government before the National assembly or
requests the Senate‟s approval by presenting his program of government”.15 The confusion
between the two terms is total.
However, some academics and politics were able to find a material and a temporal
difference between the two terms: the program of the Government is a list or catalogue of the
principal policy measures the Government hopes to make when it comes into office; the
statement of general policy is the political presentation and explanation of the Governement‟s
position and planned actions in a defined area/field of intervention – to which the Government
wishes to give priority. The government‟s program is usually submitted to the National
assembly when the Government has been newly appointed; the “declaration of general
policy” is usually presented after a certain amount of time has elapsed/passed in the exercise
of governmental functions, i.e. after the Government has been in office after a certain period
of time. According to these meaningful distinctions, the two parts of the sentence can then –
and even should – be read separately.
II. Article 49.1 of the French Constitution: implementation and
assessment
A motion of confidence is a parliamentary motion whose passing demonstrates that the
elected Parliament or its lower House, the National Assembly in the case of France, invests
the appointed Prime Minister and Government with its confidence. It is a classical mechanism
in a parliamentary system and a weapon designed to ensure that Parliament can overturn the
Government when necessary.
But, in 1958, the drafters of the Constitution were concerned with reconciling two
often conflicting notions: governmental responsibility and governmental stability. The
drafters were concerned with avoiding designing a “pure” or “monistic” parliamentary system
in which the Government is only accountable to Parliament. They had to protect the Executive
from the Legislative. They expended further the so-called “rationalization of the
parliamentary system” (parlementarisme rationalisé) begun under the Fourth Republic
14
« [la Constitution] tend à conférer une acceptation analogue au terme „programme‟ et à l'expression
„déclaration de politique générale‟ » - Decision nr. 76-72 DC, January 12, 1977, available on :
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisionsdepuis-1959/1977/76-72-dc/decision-n-76-72-dc-du-12-janvier-1977.7519.html (last accessed 28 July 2011).
15
“Acte par lequel le Premier ministre engage la responsabilité du gouvernement devant l‟Assemblée nationale
ou demande une approbation au Sénat en présentant son programme de gouvernement.”. Available on:
http://www.vie-publique.fr/th/glossaire/declaration-politique-generale.html (last accessed: 29 July 2011).
9
notably by strictly defining the legislative field of action of Parliament, by creating a
Constitutional Council and by strengthening the Executive. They maintained the idea of the
directly elected National Assembly endorsing a government‟s program or statement of general
policy by a vote of confidence, but they gave the initiative to the Government and they
suppressed the notion of investiture from the Constitution. The Government is presumed to
have the confidence of the National Assembly.
What is interesting here is to understand when and how article 49.1 C has been used
since 1958 and to what end. We could then draw some conclusions and consider other
alternatives.
1. A fluctuating use of article 49.1 C.
What is the purpose behind the design and use of article 49.1 C since 1958 ? How has
it been interpreted and used over time?
It is quite safe to say that the use of article 49.1 C has, since the beginning, been
considered by a majority as a matter of political opportunity and it is now quite certain that it
is the prevailing interpretation of the constitutional text. It is the Prime Minister‟s
interpretation of the best time to put it into use/practice that prevails. This remark seems to
concur with the spirit of the Constitution of 1958. On August 27, 1958, the then Minister of
Justice – and one the main drafters of the Constitution – Michel Debré, presented the drafted
Constitution to the General Assembly of the Council of State. A brief passage of his famous
speech mentions article 49, and notably the motion of confidence of article 49.1 C, and the
contrast between article 49.1 C and 49.2 C (motion of no confidence), as well as another
governmental weapon, article 49.3 (the provoked motion of no confidence on a bill):
The difficult procedure of the motion of no confidence should temper the defect that
we‟ve known well and for too long. The motion of confidence is a weapon for the
Government and for it alone. Deputies can only use the motion of no confidence and it
is framed by terms that are disputed only by those who do not want to remember.
Moreover, experience has led to provide a somewhat unique provision to ensure,
despite the [political] maneuvers, of an essential bill.16
Michel Debré stated explicitly that the motion of confidence was a weapon at the
disposal of the Government alone.
The use of article 49.1 C has varied over time. Some governments did ask the National
Assembly for its confidence as soon as they were appointed. Others waited a few months,
even one or two years (Government Rocard II), before doing it. 17 And some never asked for it
16
« La difficile procédure de la motion de censure doit tempérer le défaut que nous connaissons bien et depuis
trop longtemps. La question de confiance est l'arme du Gouvernement, et de lui seul. Les députés ne peuvent
user que de la motion de censure, et celle-ci est entourée de conditions qui ne sont discutées que par ceux qui ne
veulent pas se souvenir. L'expérience a conduit à prévoir en outre une disposition quelque peu exceptionnelle
pour assurer, malgré les manœuvres, le vote d'un texte indispensable. » - Speech available in French on the
National
Assembly‟s
website :
http://www.assemblee-nationale.fr/histoire/micheldebre/micheldebr%C3%A9_discoursconseild%27etat_270859.asp (last accessed : 30 July 2011).
17
When Prime Minister Rocard did, at last, use article 49.1 C, he did so by underligning that he wished to make
a statement on France‟s foreign policy and involvement in the Gulf War, not a statement on domestic political
issues.
10
(Government Cresson). Moreover, most of the time, the motion of confidence was based on a
statement of general policy and not on the newly formed Government‟s program. The
confidence on the basis of article 49.1 C has, until now, never been refused to a government,
and article 50 has consequently never been used under these circumstances.
Quite remarkably, the first three Governments of the Fifth Republic chose to commit
their responsibility before the National Assembly right after their appointment.18 However,
they did so by systematically emphasizing that it was not an investiture and that they
proceeded from the President of the Republic and not from Parliament / the National
Assembly.19 They set the precedent for the following Governments.
Appointed Prime Minister for the third time in January 1966, George Pompidou even
waited for the opening of the common session of Parliament in April 1966 to present his
program, making a simple statement followed by a debate without a vote – and thus without a
commitment of governmental responsibility, even though he had a solid parliamentary
majority. Pompidou‟s aim was to create a precedent establishing the optional character of the
commitment based on article 49.1 C. He did the same for his fourth government (1967-1968).
From 1966 to 1974, article 49.1 C was used sparingly, with some reluctance.
However, between 1974 and 1988, one could observe a “renewal” of the more
“parliamentarist tradition” – even if it might all just be a front; the same in 1993, 1995, 1997,
2002, 2005 and 2007, when the then Prime ministers Balladur, Juppé, Jospin, Raffarin, de
Villepin and Fillon asked for a vote of confidence on the basis of a statement of general policy
a few days after having been appointed – but not between 1988 and 1993, because the
governments Rocard, Cresson and Bérégovoy did not have the support of an absolute majority
of the deputies, and had to limit themselves to statements of general policy. Of course, the
choice of using article 49.1 C is dictated by the political composition of the National
Assembly: if the Government does not benefit from the support of the absolute majority of the
deputies, it should avoid the risk of being overturned by a negative vote of confidence by a
relative majority.
Only in one specific kind of “political climax” has article 49.1 C played the role of a
significant parliamentary mechanism and of a “de facto investiture”: in periods of divided
political majorities – also called periods of “cohabitation”. Because the National Assembly
can inter alia challenge the responsibility of Government and vote a “motion of censure” / a
“resolution of no confidence” (art. 49.2), the President should appoint a government that
shares the same political “color” as the majority in the National Assembly. While the
parliamentary majority usually supports the President, there have been times, during the 5th
Republic, when the National Assembly was in opposition to the President and the President
had to appoint a Prime minister from the majority opposing him. The three Governments of
cohabitation (Chirac 1986, Balladur 1993, Jospin 1997) of the Fifth Republic had to have/get
the support of the majority in the National Assembly, since they stemmed from it. That is why
18
Government Debré (1959-1962), Government Pompidou I (1962), Government Pompidou II (1962-1966).
See, for example, the statement of Prime Minister George Pompidou in his speech before the National
Assembly in 1962 (April 26): “la Constitution a défini les droits et les devoirs du Parlement ainsi que les
obligations du gouvernement dans ses rapports avec les Assemblées. Nommé par le chef de l'Etat, trouvant donc
en lui sa source, le gouvernement est et reste responsable devant l'Assemblée Nationale. Il doit par suite, mettre
celle-ci en mesure d'assurer pleinement son contrôle, c'est-à-dire tenir régulièrement le Parlement au courant de
sa politique et de son action.”. Text available on: http://histoire.comze.com/pompidou2641962.pdf (last
accessed: 30 July 2011).
19
11
these specific Governments had to systematically present – and ask for – a motion of
confidence as soon as they were appointed.20
2. A strategic « weapon », but of limited range
The Government legally exists from the day it is appointed, without having been
invested by the National Assembly, and without a vote of confidence. However, a
Government still needs some kind of support from – and confidence of – the National
Assembly. The use of article 49.1 C could give the Government both parliamentary support
and a stronger legitimacy. If used in the beginning of its term of office, it can secure the new
Government with a sufficient majority to implement its political program. Such a motion of
confidence can also be asked, from the National Assembly, in the course of the Government‟s
term of office, in order to further unite the majority and to check that the deputies still support
the Government (for ex.: Government Chaban-Delmas, Mauroy II & III, Chirac II,
Balladur).21
It is noteworthy that the current French Prime Minister, François Fillon, has used
article 49.1 C three times (twice on a statement of general policy, 3 July 2007 and 24
November 2010, once on a declaration of foreign policy, 17 March 2009), the last time (in
2010) with a possibly different – and strategic – purpose, concerning not his relationship with
the Parliament, but with the President of the Republic. The Prime Minister knew that there
was an UMP-majority in the National Assembly that would support his statement of general
policy and give him the “confidence” he needed. This was the conclusion many came to: the
speech lead to a “tidying up of the majority” (“un discours de remise en ordre de la
majorité”), to a majority of deputies “more tightly bound together” (une majorité
parlementaire “reserrée”). Some commentators have however suggested an interestingly new
interpretation of the reasons why François Fillon decided to commits his government‟s
responsibility on 24 November 2010, ten days only after the President had appointed them: he
did so “in order to show that he is the true leader of the majority in Parliament, in a context
where one questions the division of labour with [President] Nicolas Sarkozy” (“[a]fin de
montrer qu‟il est le véritable chef de la majorité parlementaire, dans un contexte où l‟on
s‟interroge sur la répartition des tâches avec Nicolas Sarkozy” 22), and not just a simple
20
The text of the Constitution of the 5th Republic can be interpreted in different ways since 1962: According to
political circumstances, it opens either for a semi-presidential or a parliamentary regime. This situation of
“divided political majorities” is called “cohabitation”. There were three cases of cohabitation in France since
1958: two took place during the presidency of François Mitterrand and the third during the presidency of Jacques
Chirac. On the contrary, except in times of “cohabitation” in France (when the President is less powerful and
“loses” some of his prerogatives), the Government, which draws its legitimacy from the National Assembly,
must also secure the support of the President. It is called “dualistic parliamentarism” (parlementarisme dualiste).
The constitutional reform of October 2000 (and the reversal of the electoral calendar) was designed to avoid the
recurrence of this situation (cohabitation) by reducing the presidential term to five years (instead of seven) in
order to connect it to the five-year parliamentary term of office. Next year (2012), the French people will both
vote for a new President and elect their MPs at the National Assembly. See Loi constitutionnelle n° 2000-964 du
2 octobre 2000 constitutionnelle relative à la durée du mandat du Président de la République.
21
Favoreu, L., P. Gaïa, R. Ghevontian, J.-L. Mestre, O. Pfersmann, A. Roux, G. Scoffoni (2009). Droit
constitutionnel. 12th ed., Paris : Dalloz, p. 756.
22
http://tempsreel.nouvelobs.com/actualite/politique/20101124.OBS3487/discours-de-politique-generale-fillonannonce-un-gouvernement-d-action.html (last accessed: 30 July 2011).
12
“collaborator”.23 It might not be the official interpretation, but it pinpoints another issue: the
imbalance of powers in favor of the Chief of the Executive, due to the overarching role played
by the President of the Republic, especially since the constitutional reform that transformed
the Presidency into a 5-year office (in order to avoid the occurrence of cohabitation) and that
provided for combined presidential and general elections.24 However, history has shown that
the approval of a motion of confidence by the National Assembly does not necessarily
strengthen the ability of the Prime Minister to stand up to the President of the Republic. Even
though Prime Minister Jacques Chaban-Delmas and his government were invested with the
confidence of the National Assembly on 24 May 1972, President George Pompidou obtained
the resignation of Prime Minister Chaban-Delmas a few weeks later, in July 1972.
A motion of confidence is actually a “limited tool” in the hands of the Prime Minister,
a weapon of limited range and benefit for the Government. The impact of a motion is often
limited and does not often impact on the popularity of the Government and its majority
(especially because it is used when the Prime Minister already knows he has the support of
the majority), except when the Prime Minister manages to deliver a specially convincing
speech, that succeeds in gathering the majority, in forcing coalitions etc.
If the motion of confidence is a weapon of limited range, it is also of limited risks: The
Government can choose not to use it, can abandon it without great inconvenience and it can
even avoid a vote after the presentation of the program or the statement of general policy.
Theoretically, the introduction of a motion of confidence in the National Assembly
can be an opportunity for the Prime Minister to make an important political statement, to
show deference to the directly elected MPs and to play the game of a partially parliamentary
system.
But in practice, the use of article 49.1 C makes it look like a masquerade, a parody of
parlementarism. There is no real risk, there is nothing really at stake. The issue of
governmental accountability to Parliament is completely “neutralised”, especially since it is
optional (and since the reform of article 49.3 C). It was what the future President François
Mitterrand seemed to criticise on April 18, 1967, right after the fourth Government
Pompidou‟s statement of general policy (on the economic policy of the Government linked to
the new integration phase to the Common Market) without commitment of governmental
responsibility : for Mitterrand, the statement contained no substantial program, was a “sitting
parade” (“séance de parade”), and certainly not a “rendez-vous between the national
representation and the Government” for the discussion of a program.25
With this final remark, I would like to underline the fact that, all in all, the lack of
investiture and the optional use of a motion of confidence (article 49.1 C has been
implemented 34 times since 1958) have contributed – as hoped and expected by the drafters
23
For
other
commentaries
on
the
Prime
Minister‟s
speech:
http://tempsreel.nouvelobs.com/actualite/politique/20101125.OBS3588/revue-de-presse-fillon-et-son-discoursde-politique-generale.html (last accessed: 30 July 2011).
24
The next presidential and general elections will be organised in 2012. NB: One aim of the constitutionnal
reform of July 2008 was to restaure a balance, by giving back a little more power to the Parliament.
25
http://www.ina.fr/politique/gouvernements/video/CAF90024811/debat-politique-a-l-assemblee.fr.html (last
accessed: 30 July 2011). See also Chevallier, J.-J., G. Carcassonne, O. Duhamel (2004). La Vème République
1958-2004. Histoire des institutions et des régimes politiques de la France. 11th ed., Paris: Armand Colin, p.
136.
13
of the Constitution – to a more stable Executive26 and have even resulted, combined with
some other constitutional reforms, in another constitutional issue, which is now the imbalance
of powers, not in favor of the parliamentary assemblies, but in favor of the President of the
Republic and his Government, with a significantly reduced role played by the Prime
Minister.27
26
Meanwhile, a vote of confidence does not necessarily ensure the survival of a Government: in 1972, Jacques
Chaban-Delmas had to hand in his letter of resignation to President Georges Pompidou a few weeks only after
having received the support of the majority in Parliament.
27
It is also worth mentioning that what should also be taken into account is the balance of power within the
Executive, but also between the political parties themselves as the situation has proved to be very different when
the majority in Parliament was very composite or when there was cohabitation.
14
APPENDIX
1. Prime Ministers and Governments under the Fifth Republic (19582011)
président de la république
Charles de Gaulle
Georges Pompidou
Valéry Giscard d'Estaing
François Mitterrand
période
premier ministre
notes
UNR 08/01/1959
14/04/1962
Michel Debré
UNR
14/04/1962
28/11/1962
Georges Pompidou I
UNR
28/11/1962
08/01/1966
Georges Pompidou II
UNR
08/01/1966
01/04/1967
Georges Pompidou III
UNR
06/04/1967
10/07/1968
Georges Pompidou IV
UNR
10/07/1968
20/06/1969
Maurice Couve de Murville
UDR
UNR 20/06/1969
05/07/1972
Jacques Chaban-Delmas
UDR
05/07/1972
28/03/1973
Pierre Messmer I
UDR
02/04/1973
27/02/1974
Pierre Messmer II
UDR
27/02/1974
27/05/1974
Pierre Messmer III
UDR
27/05/1974
25/08/1976
Jacques Chirac
RPR
25/08/1976
29/03/1977
Raymond Barre I
-
29/03/1977
31/03/1978
Raymond Barre II
-
03/04/1978
13/05/1981
Raymond Barre III
-
21/05/1981
22/06/1981
Pierre Mauroy I
PS
22/06/1981
22/03/1983
Pierre Mauroy II
PS
22/03/1983
17/07/1984
Pierre Mauroy III
PS
17/07/1984
20/03/1986
Laurent Fabius
PS
20/03/1986
10/05/1988
Jacques Chirac
RPR
RI
PS
15
cohabitation
Jacques Chirac
Nicolas Sarkozy
10/05/1988
22/06/1988
Michel Rocard I
PS
23/06/1988
15/05/1991
Michel Rocard II
PS
15/05/1991
02/04/1992
Edith Cresson
PS
03/04/1992
29/03/1993
Pierre Bérégovoy
PS
29/03/1993
11/05/1995
Édouard Balladur
RPR
07/05/1995
07/11/1995
Alain Juppé I
RPR
07/11/1995
02/06/1997
Alain Juppé II
RPR
02/06/1997
07/05/2002
Lionel Jospin
PS
07/05/2002
17/06/2002
Jean-Pierre Raffarin I
DL
17/06/2002
30/03/2004
Jean-Pierre Raffarin II
UMP
31/03/2004
30/05/2005 Jean-Pierre Raffarin III
UMP
30/05/2005
15/05/2007
Dominique de Villepin
UMP
UMP 18/05/2007
18/06/2007
François Fillon I
UMP
en cours
François Fillon II
UMP
RPR
19/06/2007
cohabitation
cohabitation
données compilées par Laurent de Boissieu © http://www.france-politique.fr
N.B.: par convention : UNR = UNR-UDT et UDR = UDVe
[Source: http://www.france-politique.fr/gouvernements.htm (last accessed: 31 July 2011)]
16
2. Motion of confidence - article 49.1 C (overview)
Premier ministre
Engagements de responsabilité
2
Michel Debré (1959-1962)
2
Georges Pompidou (1962-1968)
Maurice Couve de Murville (1968-1969)
Jacques Chaban-Delmas (1969-1972)
0
3
1
Pierre Messmer (1972-1974)
1
Jacques Chirac (1974-1976)
2
Raymond Barre (1976-1981)
5
Pierre Mauroy (1981-1984)
1
Laurent Fabius (1984-1986)
3
Jacques Chirac (1986-1988)
1
Michel Rocard (1988-1991
0
Edith Cresson (1991-1992)
1
Pierre Bérégovoy (1992-1993)
2
Édouard Balladur (1993-1995)
3
Alain Juppé (1995-1997)
1
Lionel Jospin (1997-2002)
2
Jean-Pierre Raffarin (2002-2005)
1
Dominique de Villepin (2005-2007)
3
François Fillon (depuis 2007)
33
Total
[Source:
http://www.assemblee-nationale.fr/connaissance/engagements-49-1.asp
accessed: 31 July 2011)]
17
(last
3. Motion of confidence – Article 49.1 C (detailled version)
18
19
[Source: http://www.assemblee-nationale.fr/connaissance/stat-49-1.pdf (last accessed: 31 July
2011)]
20