“Two-Headed” Executive - University of Alberta - Journal Hosting

Varieties of PartisanSynchronizationOn 21 December 1958, in the first presidentialelection under the new Constitution,Charles De Gaulle was elected by an enlargedelectoral college, composed mainly of membersof parliament. It was quite certain that hewould be elected president if his party led parliament(as it did). But when the president waselected by direct universal suffrage after the1962 change, the electoral college had reached acritical mass. Because of the bicephalous characterof the executive under the Constitution ofthe Fifth Republic, and due to the new balancewithin the constitutional arrangement, therewas, after 1962, a new possibility for presidentand parliament, directly elected by the people,to be synchronized. This possibility affectedthe very functioning of the bicephalous executive.The prime minister, who has usually beena close ally of the president, needed a majorityin the directly elected lower chamber (Assembléenationale), otherwise he would be unableto pass policy into law. Maurice Duvergerwrites that the majority is first formed aroundthe head of state and the president is normallythe party leader. If the president is not, then theparty leader should be the prime minister, althoughin recent times the situation has beenmore complex, even confused. 2 Duverger alsopredicted that a majority in the directly electedchamber from a different party than the presidentwould oppose him.In fact, two such situations after 1962 haveoccurred: the period of constitutional functioningunder a fait majoritaire (a majority in thetwo directly elected institutions) and the periodof functioning under cohabitation (literally livingtogether; it is usual here to characterize atwo-headed executive with two opponents).The fait majoritaire is often called the périodenormale. This implies that there is a “normal”reading of the French Constitution and an “abnormal”one, but this dichotomy is problematic.It is preferable, instead, to adopt the concepts ofsynchronization and nonsynchronization withinthe executive, and therefore between the twoinstitutions elected by the people: president andlower legislative chamber (whether or not weconsider their status as representative or not). Inany case, it is evident from the positions takenafter the two efforts at constitutional revisionthat “normalcy” and “abnormality” constituteimportant aspects of the justification used bythe political elites and commentators (the 2008amendment is an exception): pure synchronizationis normal and therefore good; cohabitationis not normal, so it must be bad. As a result, thesituation had to be brought back to normalcy,even if by force. 3 The Fifth Republic was supposedlyill and the remedy was to enforce partisansynchronization between president and electedchamber.Pure synchronizationIn the “normal” functioning of the institutionsthe fait majoritaire is created by a directlyelected head of state who is the leader ofthe party or coalition leading the elected lowerchamber. As we have seen, the presidential termof office lasted for seven years until amended in2000, and the Assemblée nationale members’term of office lasted for five years. This discrepancyin term of office left the “two-headed” executivein a peculiar position.In a situation of fait majoritaire, there ispure synchronization reflecting a strong semipresidentialsystem. There have been three periodsof pure synchronization: 1958-86 (DeGaulle’s first and second terms, Georges Pompidou,Valéry Giscard d’Estaing, and FrançoisMitterrand’s first term and the period beforethe 1986 general elections), 1988-93 (Mitterrand’ssecond term, the period before the 1993general elections), and 1995–97 (Jacques Chirac’sfirst term and the period before the 1997general elections). Despite appearances, thephenomenon of pure synchronization is variedas regards the power balance between presidentand prime minister.The head of state in a situation of pure synchronizationis no longer considered a refereeor politically neutral (un arbiter). The presidentis involved in policy making, although he mayuse his prime minister as an intermediary betweenhimself and the people or members ofparliament. This may contribute to an inverted70Volume 18, Number 2, 2009

eading of what is happening. The president issupposed to preside while the prime ministerexecutes: it is a system that should be simultaneouslypresidential and parliamentary. In fact,the president becomes the real and unique motorof the executive; he defines the program ofhis government. But articles 20 and 21 of theFrench Constitution state that the “the governmentshall determine and conduct the policyof the nation” and “shall direct the conduct ofgovernment affairs,” not the head of state. Thepresident, in receiving democratic legitimacyfrom an election that was supposed to put himabove all partisan games, enters the politicalarena. This has an impact not only on the functionof the head of state, but also on the president’sability to stay in power. Indeed, if thepresident is the real actor of the executive, hewill suffer from taking and making decisions.(Giscard d’Estaing was not re-elected in 1981,for example, while Mitterrand in 1988, andChirac in 2002 were re-elected after a period ofnonsynchronization).The strong leadership of the head of state isonly possible because the president increases hislegitimacy with his democratic mandate; as aresult, constitution practice that differs from itsletter goes uncontested. Strong leadership contributesto a modification of the classic functionsof government as laid out in the Constitution,and the classic parliamentary practice ofgovernment as the initiator and maker of lawsis no exception.Indeed, in every case of presidential powersexercised on the advice of the prime minister orthe government, the practice of fait majoritairemodifies the reality of the Constitution, invertingthe meaning of the articles’ wording. In relationto the wording of article 8, paragraph 1,which obliges the prime minister to resign onlyif he decides to, we note that, in practice, it isalways the head of state who forces the head ofgovernment to resign, legality being respectedby a purely artificial agreement on the legalmechanism involved. Article 8, paragraph 1is worded in such a way as to suggest that theprime minister will issue a letter of resignationand the president will accept it. In reality,the president asks the prime minister to preparethis letter when the prime minister is firstappointed.Similar comments can be made on the useof article 11. According to the text, the governmentis supposed to advise the president on theholding of a referendum (although not on aconstitutional amendment, which is dealt with,normally, in article 89). Nevertheless, referendaare initiated by the head of state. This phenomenonis certainly evident in the case of the “Father”of the French Constitution. Indeed, somehave claimed that De Gaulle’s use of article 11(in 1962 and 1969) was illegal. 4Outside the scope of presidential discretionarypowers, the president needs the governmentand/or the prime minister to act legally. Countersigningof presidential documents in a periodof fait majoritaire is automatic. It is the coreof the bicephalous organized executive. Bothheads sign acts of the executive. In a conditionof synchronization, the two heads have similarwills and present a unified opinion. Unlike theformer republics, however, in the Fifth Republicthere is no ambiguity: the head of state is thedecision maker and the prime minister followssuit.The appointment and firing of governmentmembers, under article 8, paragraph 2, is presentedas something the president does withthe help of the prime minister. In fact, in thefait majoritaire, the head of state not the primeminister chooses ministers and gets rid of them.The same may be said of article 13, paragraph1 of the Constitution, or the understanding ofarticles 15 and 21. Article 13 states that governmentregulations are deliberated upon bya council of ministers. The initiative is left toministers and the discussion is collegial, withthe president signing only government regulations.In a situation of fait majoritaire, the presidentinterferes with this process and may refuseto sign. In article 15 and 21 the president is thehead of the army, but the prime minister (and insome respects the minister of defence) also hassome powers in this area. In a situation of faitmajoritaire the latter are mere executants of thepresidential will and lose all freedom to act ontheir own initiative.Constitutional Forum constitutionnel 71

Nonsynchronization based onpolitical factorsNonsynchronization occurs when the directlyelected head of state and the majorityof the directly elected lower chamber are fromdifferent sides of the political spectrum. In corollaryfashion, cohabitation is a counter to faitmajoritaire and in that situation the system ofgovernment is closer to a prototype of the parliamentarysystem of government than it is to apresidential system. 5These issues may initially seem somewhatmechanical, or simply questions of timing. Thepresident’s term of office was seven years andthat of the Assemblée nationale, five years. In apurely parliamentary regime, there would be noproblem when at year n + five of the presidentialmandate, the lower chamber shifted to theopposition, leaving a head of government fromthe other political side. In the case of the FifthRepublic, the bicephalous executive makes thepartisan views of the two executive heads extremelyimportant. In situations of nonsynchronization,the prime minister is either the leaderor a strong figurehead for the party or coalitionleading the directly elected chamber. The twoheadedexecutive is not synchronized anymoreand although that is no cause for alarm in aparliamentary system of government, it appearsto disrupt the system of strong leadership establishedby De Gaulle (hence the comment madeearlier on the normal and abnormal functioningof the Constitution). Then again, even witha president confined to his constitutional powers,there is still a strong leader as the figureheadof the country. This situation was manifestin 1967 and 1978.In March 1967 it was expected that generalelections would be won by the opposition andthat a majority hostile to De Gaulle would bereturned, although in the end a very small majoritysupporting the president was elected tothe Assemblée nationale. In 1978, the Left wasexpected to win the general elections. If it wasclear in 1967 that De Gaulle would not remainpresident if facing a hostile Assemblée nationale,in 1978 Giscard d’Estaing was prepare toremain in place and therefore create an opportunityfor the Fifth Republic’s first instance ofnonsynchronization. The loss of a general electionis a clear demonstration that a party haslost the support of the people who have becomedisenchanted with how the country is ruled.De Gaulle would certainly have resigned hadhe faced an instance of nonsynchronization,respecting “his” populist interpretation of theConstitution. In light of the proximity of theMarch 1967 elections to the well-known politicalphenomenon of May 1968, 6 it is worth consideringthe potential impact of rigidity in Frances’spolitical institutions. The people had notseen anything changing and took to the streets.De Gaulle’s resignation might have broughtabout a left-wing presidency, which would haveaccepted the need to govern alongside an oppositionparty-led Assemblée nationale. But thisis only supposition. What is important to notein this “missed” cohabitation is the necessityof equilibrium within the basic institutions ofgovernment. If there is none, political oppositionis left to people taking to the streets ratherthan working within the mechanisms for institutionalmediation.The second possibility offered by nonsynchronizationis an executive with two opposingleaders. It occurred in neither 1967 nor 1978,although the president was ready for the possibilityof nonsynchroniszation. The first instanceof this phenomenon was in 1986, and two variationshave taken place in more recent history.A left-wing president briefly faces a rightwingprime ministerPresident François Mitterrand lost generalelections twice, each time within two yearsof the end of his term of office. On 16 March1986, 7 Mitterrand lost the support of the lowerchamber; the general election was won by aright-wing coalition made up of the Rassemblementpour la République and Union pour ladémocratie française (RPR-UDF) lead by Chirac.Mitterrand did not resign but appointedChirac as head of government, who remainedin place until the presidential election of 1988.The general elections of 21 and 28 March 1993again returned a right-wing majority. The Partisocialiste (PS) won only fifty-six seats (17.5 percentof the vote). During this period, 1993-95,72Volume 18, Number 2, 2009

Mitterrand appointed Edouard Balladur, Chiracpreferring a “semi retreat” to prepare for thepresidential election of 1995.A right-wing president facing a left-wing primeministerIn 1997, Chirac decided to dissolve a stronglysupportive lower chamber and provoke generalelections. He subsequently lost his majority.This triggered the beginning of a long period ofnonsynchronization, 1997–2002. Lionel Jospinbecame prime minister and he remained in thisposition until the 2002 presidential election. 8Political disagreement within the executivemay have an impact on constitutional practicein many ways. The functioning of the Constitutiondescribed in situations of synchronizationis mirrored in nonsynchronization withthe president losing many of his powers (strongpresidential leadership remains on matters ofexternal sovereignty, with diplomatic mattersand defence being part of the “presidential domain”).The president may decide to block thework of the government by using constitutionallysanctioned discretionary powers to signdelegated legislation (ordonnances). Under article13,paragraph 1 of the Constitution, Mitterrandrefused to sign three ordonnances. 9 Thisnonsynchronization creates an interesting situation,which does not comply strictly with theconstitutional gaullienne vision of the Fifth Republic.While many were considering the riskof a major institutional crisis under nonsynchronizedinstitutions of government, the factis that such occurrences prove the Constitutionto be simultaneously rigid and yet flexible in itsapplication. The Constitution remained rigid,allowing alternance in 1981, and allowing dissonantexecutives in 1986, 1993, and 1997. However,the Constitution also proved flexible in itsresistance to a reading not intended in 1958.Cohabitation produced a condition of equilibriumaround the most important keystoneof the institutional arrangement of the FifthRepublic, which was a move from a noninstitutionallybased equilibrium during periods ofsynchronization (where the people/nation providesthe counterweight to political institutionsbelonging to the same party or political coalition),to an institutional equilibrium (nonsynchronization),where the counterweight formsaround the executive itself. This “return” to aparliamentary system of government providesmore opportunities for input by the people. Assuch, the electorate may s tangibly see the resultof its efforts at the end of election day. Nonsynchronizationmay therefore characterize an instanceof power used against power. 10Nonsynchronization may, at times, be conceptualizedin more personal terms as a problemof personality conflicts between head ofstate and head of government, although theterm cohabitation is best constrained to referto problems arising from the lack of partisanuniformity in presidency and lower chamber.In any case, what French commentators haveshared in analyzing situations of nonsynchronizationis its presentation as an abnormal situation,which needs to be considered and dealtwith. Constitutional changes proposed in 2000presented a solution.Commentators have been able to defend a“normal” reading of the Constitution with referenceto the “normal” political conditions ofsynchronized political institutions. However,the normal reading of the Constitution is DeGaulle’s interpretation, while the conventionallyabnormal reading, associated with situationsof nonsynchronized political institutions is actuallya reading of the Constitution as organizinga parliamentary system of government, andit is an interpretation consistent with a plainreading of the Constitutional text. The effort toforce synchronization through constitutionalamendment is the way in which the Constitutionwas been rendered once again “normal.”Forced Synchronization Based onConstitutional AmendmentThe modification of the Constitution in2000 was marked by the wish to tackle the possibilityof nonsynchronization. This change focusedon the mandate of the president, reducingit to five years, aligning it with the tenure of thedeputies. In that respect, it was necessary, afterthe 2000 amendment, to differ the end of theterm of office of the deputies. Parliament mayConstitutional Forum constitutionnel 73

legislate to complete the Constitution throughloi organique, special statute law that detailssome articles of the Constitution. In 2001, it wasdecided to extend the term of office of the deputiesby eleven weeks to allow legislative electionsto take place after the presidential election. 11 ArticleL.O. 121 of the Code électoral was modifiedas a consequence. The general elections wereplanned for a few weeks before the presidentialelection on 24 March 2002, and the presidentialelection was to be held either on 14 or 21 April2002. The spirit or logic of the institutional arrangementwas to be examined. 12 In the light ofthe 2000 constitutional evolution, it was consideredillogical to set the elections for directlyelected members of parliament to take place beforethe presidential election. The Conseil constitutionnel,which automatically controls all loiorganique, 13 referred in its decision to the specialposition of the presidential election: “becauseof the place of the election of the president ofthe Republic by direct universal suffrage in thefunctioning of the Fifth Republic”; 14 the counsellorswent on to explain that it was logical forthe general election to follow the presidentialone. They made clear that “it was desirable thatthe presidential election precedes, as a generalrule, the legislative elections and that this ruleshould be applied to the presidential electionforeseen in 2002.” 15 Everything was organizedto synchronize this chronology: first electingthe president, then electing the Assemblée nationale.That said, some possibilities remainedfor nonsynchronization, like the dissolution ofthe Assemblée nationale, or the resignation oreven death of the president, for example. 16 Onlythe president can activate the end of the synchronization,and even if this happens, it will belimited to a short cohabitation. Since 2002, thishas lead to a forced synchronization.This is a new situation and there are onlytwo examples to explore. In 2002, Chirac waselected with a large majority because he was facingthe extreme right candidate Jean-Marie LePen. A “republican front” was built around Chiracthat would also lead to success in the generalelections. An ally of the new president, Jean-Pierre Raffarin, became prime minister. He wasdefinitely the secretary of the president. The bicephalousexecutive was back to “normal.” Evenwhen Dominique de Villepin was appointedafter the defeat of the referendum on the EuropeanConstitutional Treaty, the functioning ofthe institutions was a strongly semipresidentialone. The only opposition the president had toface came from among his supporters. NicolasSarkozy abducted the presidential party, andbecame its leader while a member of the government(although not its chief). A second readingof pure synchronization is the 2007 election. Althoughhe has been president for only two years,it is, of course, too early to judge the actions ofSarkozy, although journalists have dubbed hima “hyperpresident” or “omnipresident.” 17 Sarkozy,who is a young president, provides a starkcontrast to Chirac in many ways, partly becausehe follows Chirac’s presidency. Indeed, Sarkozyhas probably earned the tag given him. AlainBadiou, a French philosopher, has sarcasticallycompared Chirac to the Brejnev years in a recentarticle published in Le Monde, comparing Chiracto Leonid Brejnev. Chirac was portrayed asthe caretaker of the system rather than as someonewho took action. This particular methodof ruling made him look like a president of theThird or the Fourth Republic, closer to the pureFrench model of a parliamentary regime, but atthe same time it made him appear very distant,more like a monarch.In fact, this may have been a way of dealingwith the forced synchronization that resultedfrom the 2000 constitutional amendment. Sarkozydeclared recently that “Je l’avais rêvé, je lemets en oeuvre” 18 (I dreamt it, I will do it), andthe message is, indeed, that he will do it. Sarkozyindicated that he would take decisions, hencethe journalists’ accusation of hyperpresident,omnipresident or even “telepresident.” Nevertheless,this very gaullienne reading of the presidencyis reflected in Sarkozy’s proactive bent; hehas not taken the dull path of counterbalancingthe pure synchronization that once again marksthe French regime. The presidential electionwas followed by legislative elections, and no onewould have predicted the sudden reversal ofthe majority over this time. President Sarkozyled his Union pour un Mouvement Populaire(UMP) party to a massive victory in the lowerchamber of the French parliament. The majorityreturned in both directly elected institutions74Volume 18, Number 2, 2009

ciety in Europe is radically changing the structureof the relationship between the people/nationand its governing body. Second, the FrenchRepublic has been facing globalization with alot of economic problems undermining the waythe system has recently developed. Third, thedecline of the nation-state concept, and of representativeinstitutions, particularly the electedchamber as an institution that clearly representsthe people.There is also in France, finally, the deeplyrooted reference to the leader of “the group,”the “father of the horde.” Since the decapitationof Louis XVI, there has been a successionof political systems of government oscillatingbetween strong and weak leaders. Particularlysince 1870, the strength of the leader has beendramatically decreased by successive constitutions.De Gaulle believed that the strong leadershould be restored to the French Constitution.As France democratizes, however, the head ofstate has been symbolically “killed” with regularelection. In that respect the 1962, 2000, and,in a way, the 2008 amendments of the Constitutionhave given the people even more opportunitiesto weaken the head of state. The 2008change goes even further in that respect, obligingthe “father” to step down after ten years.If this does not happen, the group may not behappy and may show its discontent by taking tothe streets. De Gaulle when re-elected in 1965replaced himself; “the group” protested in 1968.Chirac, re-elected in 2002, again replaced himself;“the group” again protested in 2005.The difficulty in relation to the Constitutionof the Fifth Republic is that it is a text ofconsensus, a settlement in which the position ofthe leader is similar to that of a clan that recallsthe memory of a strong figurehead, power, andGod, while the parliament remains the rationalinstitutionalized democratic side of the Republic.It is a difficult game.Notes* Lecturer in Public and Comparative Law, Universityof Essex, United Kingdom. The originalversion of this article was presented as a lectureto the Law School of the International Universityof Audentes, Tallinn, Estonia in May 2007. Arevised version was presented at the Public Lawsection at the 2007 SLS Conference in Durham.I wish to thank professor John Bell for his help.The present version has been revised in style(rather than in substance) under the helpfuladvice of Cliona Marrani.1 Loi n˚ 62-1292 du 6 November 1962, relativeà l’élection du Président de la République ausuffrage universel, J.O., 7 November 1962; Loiconstitutionnelle 2000-964 du 2 October 2000,relative à la durée du mandat du Président de laRépublique, J.O. 229, 3 October 2000, 15582; Loiconstitutionnelle 2008-724 du 23 July 2008, demodernisation des institutions de la Ve République,J.O., 24 July 2008, 11890. During President Jacques Chirac’s last term ofoffice, Nicolas Sarkozy served as minister for thehome office, and was the leader of the party supportingChirac.3 Indeed, when one is not well, one has to forceoneself to take a pill!4 Instead of using article 89, which is the one concerningconstitutional revision, De Gaulle usedarticle 11 in dealing with constitutional mattersin 1962 and 1969. This practice was widelycriticised.5 Jacques Chapsal, La vie politique sous la VeRépublique 2 1974-1987, 3d ed. (Paris: PUF Thémis,1987) at 534: « Tout semble indiquer que leprésident de la République s’est comporté commela reine de Grande-Bretagne, qu’il lui était impossiblede faire autrement et que les mécanismes dela Ve République ont basculé du présidentialismeau parlementarisme. »6 The same comments may be made about the situationin 2002 and 2005. The traditional model of deputy elections since1958 had been the majoritarian system of tworounds of runoffs. In 1986, proportional representationwas used and elections organized for asingle day.Jospin was so damaged by the nonsynchronizationthat, as candidate of the Parti socialiste tothe presidential election in 2002, he did not evenreach the second round.9 Concerning the privatization of public enterpriseson 13 July 1986; the remodelling of constituencieson 2 October 1986; and the management ofworking time on 17 December 1986.10 See R. F. Howell, “The Philosopher Alain andFrench Classical Radicalism” (1965) 18:3 TheWestern Political Quarterly 594.1Loi organique 2001-419 du 15 May 2001, modifiantla date d’expiration des pouvoirs de l’Assembléenationale, J.O., 113, 16 May 2001, 7776.76Volume 18, Number 2, 2009

12 Rapport de M. Christian Bonnet au nom de lacommission des lois, 186 (2000-01).13 Lois organiques are acts of the French parliamentthat complete the Constitution without the needto amend it. The possibility of lois organiques beingadopted is specified in the constitutional textitself. As such, these differ from laws amendingthe Constitution (that are not considered by theConseil constitutionnel), as well as from “normal”statutes that may be controlled.14 Cons. constitutionnel, 9 May 2001, Loi organiquemodifiant la date d’expiration des pouvoirs del’Assemblée nationale, 2001, 2001-444 DC 9: « enraison de la place de l’élection du Président de laRépublique au suffrage universel direct dans lefonctionnement des institutions de la cinquièmeRépublique. »15 Ibid. « qu’il était souhaitable que l’élection présidentielleprécède, en règle générale, les électionslégislatives et que cette règle devait s’appliquer dèsl’élection présidentielle prévue en 2002. »16 The Conseil constitutionnel mentioned a generalrule because it is possible to have a case where thesynchronization may be lost (although the probabilityof this happening has been dramaticallydiminished).17 François Jost and Denis Muzet, Le Téléprésident,Essai sur un Pouvoir Médiatique (Paris: L’aubeseuil, 2008).18 , Le Journal duDimanche, Paris (8 July 2007), online : .19 Ministre d’Etat, ministre de l’Environnement,du Développement durable, de l’Energie et desTransports.20 Mainly, the amendment concerned the equilibriumof powers within basic political institutions,rebalancing them by (slightly) diminishing therights of the head of state and increasing therights of the French parliament and the rights ofthe citizens.Constitutional Forum constitutionnel 77