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Dominique Rousseau, constitutionalist: “It seems difficult for the Constitutional Council not to censure the law on pension reform”


Constitutional law professor Dominique Rousseau considers the various possible scenarios as the pension reform law continues to stir up a social and political storm.

The Constitutional Council must now rule on the conformity of the text. What do you expect from this step?

The decisions of the Constitutional Council are obviously very important. I would even say that the institution is somehow playing its destiny in this affair. It seems difficult, in fact, that it does not censure the law on pension reform as the grounds of unconstitutionality for reasons of form are serious.

No one can dispute that the debates were rushed using tools like section 47.1, diverted from their usual use, that amendments were declared inadmissible in a very questionable way, that the debates were at the very least constitutional principle of “clarity and sincerity” recognized by the Council, in particular on the minimum pension of 1,200 euros, and that the National Assembly did not vote for the text.

On these grounds alone, the Constitutional Council can censure the law without pronouncing on the conformity of the passage from 62 to 64 years, which is not its role. Social appeasement would be immediate while making it possible to satisfy the law. The government could not enact the law and would have to start from scratch, on other bases. While it is often criticized for being subject to power, the Council could, by taking such a decision, show its independence and emerge strengthened. He would then fully play his role as guardian of the proper functioning of parliamentary procedure and debate.

The Council must also rule on the constitutionality of the parliamentary proposal for a shared initiative referendum (RIP). What will happen if the RIP is deemed admissible?

For the proposal for a referendum on maintaining a pension at 62 to be declared admissible, according to the texts, three conditions must be met: the proposal must be signed by 185 parliamentarians, it must relate to political social, and no law on the reform of the pensions must have been promulgated for one year at the time when the Council is seized. In my view, these conditions are met and the RIP seems entirely admissible. Indeed, the referral dates from March 20 and, on this date, the law on the reform of the pension system has not been promulgated.

If the referendum proposal is validated, parliamentarians will have nine months to collect the required 4.8 million signatures, i.e. 10% of the electorate, which seems entirely possible given the social mobilization . Parliament will then have six months to examine the referendum proposal. Will he want to legislate against it? Legally he has the right to do so, but politically it would be disastrous and [cela] would further widen the gap between elected officials and citizens. In the United Kingdom, during the Brexit referendum, the British Parliament, in favor of remaining in the European Union [UE] and ultimately remaining sovereign, nevertheless chose to follow the conclusions of the referendum, and voted to leave the EU.

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