A Study On The Constitutional Council Of France:Organization And Activities

France is the forerunner of contemporary constitutionalism movement and one of the origins of the modern theory of constitutional government. Compared with its constitutionalism movement and constitutional government theory, however, it takes a much longer and harder time before France's constitutional review system comes into being. The dilemma appears because ever since the French Revolution, the idea that"law is the expression of general will", represented by Rousseau, has dominated French thought circle for a long time, which has resulted in the French political class'strong resistance of the constitutional review against the parliament laws. Once there has existed several constitutional review organizations in France, but they are more of a constitutional review organization in appearance than in functions. What's more, they are established not to promote rule of law and protect basic rights of citizens. The Constitutional Council, which is the product of the constitution of the Fifth Republic in 1958, is established to construct a constitution that re-adjust power distribution of state organs and establish proper political system to form stable and sound political order. It is demonstrated that at its beginning, the Constitutional Council is a political organ balancing parliament power and administrative power rather than a constitutional review organization. The Council has limited functions and impact at that time.The nature and functions of the Constitutional Council has undergone two sweeping reforms in 1970's. The first is the"Freedom of Association"decision made by the Council on 16th July 1971. The decision itself is evidence of the change from review of the form of the law to the content of the law, which has changed the nature of constitutional review. The second is the constitution amendment in 1974. The amended constitution has enlarged the scope of the entity entitled to submit constitutional review request, which provides means of remedy for the minority of the parliament and makes the Council a protector of the basic rights of citizens. This evolvement is a coincidence to some extent in that it seems to be the side-product of party struggle; however, it is inevitable in that it reflexes the change of French politics, society and values. It is noticeable that rather than by revision of constitution articles, the evolvement of the Constitutional Council is triggered by the constitution amendment.The Constitutional Council is a tiny organ in terms of staff number and it runs with extremely low cost. However, the Council assumes multiple functions, playing a significant role in political and social lives in France. One major reason is the independence of the Council. From the angel of the Council's structure, there are various systems defend its independence so that judgment made by the Council is able to win respects from the citizen and other state institutions. From the angel of its functions, the Council shoulders multiple missions; it is more than a constitutional review organization. From the angel of the review procedure, the France mode of confidential review, quick review, written review and first review as the final review represent the pursuit of values of maintaining the constitutional order and legal system stability.The activities of the Constitutional Council has propelled and guaranteed France to be an"Etat de droit". First, the Constitutional Council plays an important role in restraint of power. By judging congressman's election disputes and work conflicts, examining the parliament rules and preventing the parliament's legislative offside, it restricts parliament's power; by controlling the validity of President election, dealing with the temporary substitute of President power and serving as a consultant to the President in emergency, it restricts the President's power; what's more, it ensure the legitimate of people's exertion of their rights by Referendum supervision. It seems that the power of the Council is not restricted at all, however, the Council's judgments must have legal grounds and open to the public. It is subjected to the public surveillance. Besides, the Council don't review the constitutionality of the referendum passed law. If it is necessary, the citizen could change the Council's judgments through referendum or constitution amendment, which means, the Constitutional Council is under the surveillance and restraint of the citizen.Second, the Constitutional Council protects human's legitimate rights, which has become the Council's most significant role although it is not a function that the Council is born with. The constitutional review application made by sixty parliamentarians guarantees the minority's opinions are respected and defended. The Constitutional Council has enlarged the legal origin of basic rights and broken the limitation of constitution items. Therefore, a"system governed by Constitutional norms"is forged.At last, the Constitutional Council implements and regulates the principle of the separation of powers. It plays as a"Railroad switchman"to indicate respective rights of the parliament and the government and settle their conflicts. Through its arbitral activities, the Constitutional Council not only carries out the principle of the separation of powers, but also adjusts the principle to expand the legislative power of parliament to meet the needs of society.To sum up, the functions of the Constitutional Council can boil down to one point—the combination of democracy and law, which corporate the previously unrestricted and absolute parliament rights into constitutional frame and thus make France a real"Etat de droit".Compared with American judicial review mode, the French mode of pre-review and abstract review excised by the Constitutional Council has its own advantages. The first and the most important advantage is that under the French mode, people define any law that is promulgated and come into effect as in compliance with the constitution. This is beneficial to the stability of legal system and to the better utilization of the forecasting function of law as social rules. Second, the parliament will have plenty of chance to counter balance their job slips so as to improve legislative quality. Third, the judge of the ordinary court doesn't assume constitutional review function, which avoids conflicts with tradition. Yet the French mode is not perfect. From one hand, it cannot cope with anti-constitution after the law comes into effect; from the other, ordinary people are excluded from the constitutional review entity. They cannot submit review application directly to the Council.From the experiences of France, we have a deeper understanding of the development of constitutional review system. The development takes time and undergoes phrases; it is in various forms and of special characteristics. Also, we can take hints from the experiences to help solve problems in China, especially in fields of enhancing awareness of the relationship between democracy and law and combining the people's congress system and constitutional review system.