Compared to its foreign counterparts, the French Constitutional Council (hereinafter referred to as the Council or the Constitutional Council) does not meet the conditions that might qualify it as a Supreme or Constitutional Court. This constitutional weakness is explained by the mediocre legal and argumentative quality of its decisions and its inability to establish itself as a staunch advocate of “Social republic” proclaimed in article 1 of the Constitution of France. The political composition of the Council is inherently unprofessional and determines situations that would be considered “intolerable” in other democracies. Sometimes, the Council’s Rules of Procedure violate the rule of continuity in the administration of justice and call into question the principle of impartiality of this body by practising the recusal of a constitutional judge, which is contrary to the standards of modern constitutional justice. The possibility for members of the Constitutional Council to request leave «for the period of the election campaign» in which they wish to participate, as provided for by the decree, creates confusion between the executive, legislative and judicial functions and ignores the issue of the continuity of the administration of justice. The various «influences» exerted by interested parties on the Constitutional Council and the practice of «narrow doors» also raise many questions about the work of the Council. However, in a state of law, parties must rely on the impartiality of the court, which is not the case with the Council. The decisions of the Constitutional Council, due to the inadequate or sometimes nonexistent justification of its decisions, can hardly be called real judicial acts. The absence of an institution to deal with dissenting opinions of Council members undermines the legitimacy of the decisions taken by the Council.
Fontaine et al. (Sun,) studied this question.