“National preference would be a radical break with French identity”

The idea of ​​the rule of law was abused during the election campaign, as was the role of the Constitutional Council, including among the governing parties. Constitutionalist Dominique Rousseau, Professor Emeritus at Paris-I-Panthéon-Sorbonne University, explains how the rule of law goes beyond mere respect for the law, whatever it may be. It requires citizens to be able to have compliance with fundamental rights checked. To forget this would be to follow the paths of Hungary or Poland, the illiberal democracies.

What is rule of law?

It is a state subject to respect for fundamental rights and scrutiny of citizens to ensure that these rights are respected. Citizens pay attention to whether the decisions of the authorities and political power respect the rights enshrined in the 1789 Declaration of Human Rights and in the preamble to the 1946 Constitution. This control of the citizens over the actions of the state has been achieved through the exercise of freedoms such as freedom of the press, freedom of expression and the independence of the judiciary. Citizens are therefore free to have an independent judge check whether administrative decisions or laws passed respect fundamental rights and freedoms. Even a democratically elected parliament or an executive cannot do everything. If we cannot do without the state, it must remain under the control of the citizens.

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This is expressly stated in the preamble to the 1789 Declaration, according to which the proclaimed rights are intended to enable citizens to compare the actions of public authorities with these rights. And then allow them to demand justice if the actions of the authorities turn out to be incompatible with fundamental rights.

Can this control be done by referendum?

no The referendum makes it possible to pass a law, but not to ensure that it does not violate fundamental rights such as freedom of movement or freedom of expression. There must be an instrument to check whether the laws passed by Parliament or by the people respect fundamental rights.

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Exactly this kind of problem exists today in Poland or in Hungary, where the possibilities of the citizens to control the state are restricted. Freedom of the press, the independence of the judiciary and academic freedom are thus being called into question. That is the difference between a constitutional state and an illiberal, populist state.

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