1

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 3rd

and

the 4th

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 5th

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. i.n.duy@jus.uio.no.

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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.

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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-la-

france/constitution-de-1875-iiie-republique.5108.html (last accessed: July 27, 2011). 3 Under the Constitution of the 3

rd 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.

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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.conseil-

constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-de-

1946-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

5

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 ci-

dessous. ”

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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. »

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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).

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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. 12

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.”).

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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/decisions-

depuis-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).

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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/michel-

debre/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.

11

(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). 19

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).

12

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-fillon-

annonce-un-gouvernement-d-action.html (last accessed: 30 July 2011).

13

“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-discours-

de-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.

14

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.

15

APPENDIX

1. Prime Ministers and Governments under the Fifth Republic (1958-

2011)

président de la république période premier ministre notes

Charles de Gaulle 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

Georges Pompidou 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

Valéry Giscard d'Estaing RI 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 -

François Mitterrand PS 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 cohabitation

16

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 cohabitation

Jacques Chirac 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 cohabitation

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

Nicolas Sarkozy UMP 18/05/2007 18/06/2007 François Fillon I UMP

19/06/2007 en cours François Fillon II UMP

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)]

17

2. Motion of confidence - article 49.1 C (overview)

Premier ministre Engagements de responsabilité

Michel Debré (1959-1962) 2

Georges Pompidou (1962-1968) 2

Maurice Couve de Murville (1968-1969) 0

Jacques Chaban-Delmas (1969-1972) 3

Pierre Messmer (1972-1974) 1

Jacques Chirac (1974-1976) 1

Raymond Barre (1976-1981) 2

Pierre Mauroy (1981-1984) 5

Laurent Fabius (1984-1986) 1

Jacques Chirac (1986-1988) 3

Michel Rocard (1988-1991 1

Edith Cresson (1991-1992) 0

Pierre Bérégovoy (1992-1993) 1

Édouard Balladur (1993-1995) 2

Alain Juppé (1995-1997) 3

Lionel Jospin (1997-2002) 1

Jean-Pierre Raffarin (2002-2005) 2

Dominique de Villepin (2005-2007) 1

François Fillon (depuis 2007) 3

Total 33

[Source: http://www.assemblee-nationale.fr/connaissance/engagements-49-1.asp (last

accessed: 31 July 2011)]

18

3. Motion of confidence – Article 49.1 C (detailled version)

19

20

[Source: http://www.assemblee-nationale.fr/connaissance/stat-49-1.pdf (last accessed: 31 July

2011)]