The Constitution And Its Iimpact

Running head: THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY
AND AMERICA
THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND AMERICA
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THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
AMERICA1
Introduction
The concept of dictatorship must be taken into consideration before discussing
about the Constitution of France, Germany and America. The dictatorship power is
known as the power where all political power is centralized under the hand of one
individual and it is considered as a use of coercion and arbitrary power in the political
scenario of a state. The centralized power is harmful for the citizens of the people as it
will allow the dictator to rule according to its wish and nobody has control over the
dictator. In order to act for the best of a country the separation of power must be
exercised. The power of legislature, executive and judiciary must be independent
bodies and all the power must not fall under any particular body. The three countries
which are falling under democratic country are France, Germany and America. Only the
United States of America has observed the strict separation of power but in case of
Germany and France weak separation has been observed. This study will discuss about
the constitutional council and the impact on the state and different viewpoints of the
commentator will be discussed to show different viewpoints related to that.
Discussion
France
The Constitution of France came into existence in the year of 19581 and it helped
to develop the position of the President. France has been criticized because of the weak
executive power during 3rd and 4th Republic2. The executive in the country is divided
under two heads The President and the Prime Minister. The President is known as the
ultimate authority to govern the political system and the President is responsible to
appoint the Prime Minister of the state3. The term of President has been reduced from 7
years to 5 years in order to ignore the inhabitation. Article 6 of the Constitution4 talks
1 Bell, John, and John. 1953 Bell. French constitutional law. Vol. 188. Oxford, UK: Clarendon Press, 1992.
2 Keeler, John TS. "Executive power and policy‐making patterns in France: Gauging the impact of fifth republic
institutions." West European Politics 16.4 (1993): 518-544.
3 Bucur, Cristina. "A mould-breaking cabinet? Changes and continuities in the formation of the 2017 French
government." French Politics 15.3 (2017): 340-359.
4 Stevens, Anne. Government and politics of France. Macmillan International Higher Education, 2017.

THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
AMERICA2
about the term of president and it says the President must not hold the office more than
two consecutive terms. The President of France5 is also liable to look after the function
of the government and it different from the Constitution of Germany who has only
symbolic powers to exercise. Article 19 of the Constitution6 gives power to the President
to make all the acts impenetrable but it makes responsible to the government under
Article 20 and 49 of the Constitution7. The President has the authority to diffuse the
National Assembly8. The French Constitution is considered as the supreme authority
and all the government derives its power from the Constitution. The Constitutional
Council9 has been established to review the laws of the land and it has the power to
quash anything if it found against the Constitution.
The Constitution of France observes the secular nature10. It treats equally all the
people of the country without any injustice on the basis of gender, nationality, origin of
an individual. However the country in order to vanish discrimination on the part of the
religion11 restricted to wear certain outfits as a symbol of any religion. The effort to this
however made certain group of people unhappy for example the Sikh Community of
India.
The Conseil Constitutitionnel in France
The Conseil Constitutitionnel12 established in France in order to deal with the
questions related to Constitution. The Conseil Constitutionnel has followed the
European model13 and it was made to have a separate jurisdiction and to answer the
constitutional questions on the request by political or judicial authorities. The control of
5 Sowerwine, Charles. France since 1870. Palgrave, 2018.
6 Moghadam, Fariba Sanjari, and Vahid Maleki. "The Role of the President on the Implementation of the
Constitution: a Comparative Study of Fundamental Rights in Iran, France and Afghanistan." International Journal
of Humanities and Cultural Studies (IJHCS) ISSN 2356-5926 1.1 (2016): 1871-1887.
7 Bell, John. "External Dimensions of the French Constitution." Va. J. Int'l L. 57 (2017): 493.
8 Duyvendak, Jan Willem. The power of politics: New social movements in France. Routledge, 2019.
9 Duhamel, Olivier. "Terrorism and constitutional amendment in France." European constitutional law review 12.1
(2016): 1-5.
10 Hennekam, Sophie, et al. "Managing religious diversity in secular organizations in France." Employee
Relations (2018).
11 Fox, Jonathan. The unfree exercise of religion: A world survey of discrimination against religious minorities.
Cambridge University Press, 2016.
12 Wright, Susan. "The French Conseil constitutionnel under an Evolving Constitution." European Public Law 23.2
(2017): 245-251.
13 Larik, Joris. "Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of 31 July
2017." European Constitutional Law Review 13.4 (2017): 759-777.

THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
AMERICA3
the constitution on laws are priori basis as per this system the laws has to be
communicated to the Conseil Constitutionnel prior to come into operation if there is any
unconstitutional nature. Once it comes into existence, it cannot be challenged. The
priori system has lots of disadvantages as debated by the people. The laws which are
not referred to the Conseil Constitutionnel cannot be challenged though it has
unconstitutional in nature. The French judges does not have the power to reject the old
laws which are not constitutional in nature. The priori system has both the
disadvantages as it creates force on the judges to deal with laws which are against the
constitution and it also does not allow the law to act in an effective way.
It has been criticized by many that France does not allow the individuals to deal
with the constitutional issues like the US and only the authorized organs has the power
to refer it for review before the proclamation. However Professor Favoreu observed a
different perspective by explaining that reference made by an individual is sometimes
unreal to deal with the constitutionality of law. The Supreme Court of the US in order to
deal with individuals selects a small number of cases on discretion and rejects the
maximum cases.
The priori system irrespective of the drawbacks has also certain advantages like
it creates a security in the mind of the judicial system that a law which is going to come
for effect has a constitutional nature. The US system does not have any such protection
and it can be challenged at any time. The priori system also helps to reduce the
chances of litigation and creates a united judicial order.
The Preamble of the Constitution talks about the rights of the individual but it is
not originally controlled by the Constitution. The Conseil d’Etat, since 1872 was
responsible for protecting the rights of the individual against any illegal or improper acts
of the Government.
Drawbacks of Constitutional Protection on Individual Rights
The Conseil Constitutionnel was not able to provide full protection to the rights of
the individual because as it has sudden drawbacks14. Firstly insufficient control over
14 Gulasarian, Arthur S. "STATES AND INTERNATIONAL ORGANIZATIONS IN THE EARLY 21ST
CENTURY: RETHINKING THE CONCEPT OF SOVEREIGNTY." Kutafin University Law Review 4.2 (2017):