Michel Debré (1912-1996) and Article 49.3

Natacha Polony, in an editorial in Marianne, began her criticism of Macron by quoting Michel Debré, who was responsible for guiding the constitution of the Fifth Republic into its final form.  A long-time associate of De Gaulle, he then became his first prime minister when De Gaulle was elected, in 1958, as the first president.  Polony quotes Debré in a 1958 interview about the constitution, and particularly about the relationship between the president and the Parlement.  “‘The essence of democracy is conflict,’ [Debré] began.  ‘There is no conflict in a dictatorship.’  He then explained that the role of the president is to regulate these conflicts justly, by different tools, the recourse to the Conseil Constitutionnel, the  referendum or dissolution [of the National Assembly for new elections] . . . . ‘The only sovereignty, is the people, and the president of the Republic makes his appeal to them in case of conflict [through the referendum, which then was the prerogative solely of the President.]  There is no method more democratic and more liberal, if one wants to remain in a regime of liberty.’”  Polony then went on to state that Macron’s mistake was to use these constitutional tools to “avoid the will of the citizens (my emphasis).”[1]  But the sovereign will of the people, and the question of who embodies it or can speak for it, seems to have been a part of the reason for this most contested aspect of the constitution from the very beginning. Once again, France looked back, for better or worse, to Jean-Jacques Rousseau’s General Will.

Michel Debré (1912-1996) was a soldier in World War II.  Captured by the Germans, he then escaped and joined the Free French Forces of General De Gaulle in 1942, thus beginning a long association with him.  In 1944, he became the  representative in Angers of the government set up by De Gaulle as successive parts of France were liberated; the General was determined to have Frenchmen take over the bureaucracy, the local governments, and the courts, rather than an American occupation force.  Debré served in a number of post-war commissions and ministries until elected as Senator for Indre-et Loire, a position he held from 1948 to 1958.  He believed the Fourth Republic (1946-1958) to be fatally flawed because of its proportional system of representation and lack of a strong executive.  The proportional system, in his view, allowed the fragmentation of political representation, potentially depriving the executive of a stable majority.  The president of the Fourth Republic, as in the Third Republic, had mostly symbolic powers; executive power resided in the prime minister, who was dependent, however, on his ability to form coalitions among the multiple parties.  In the twelve years of the Fourth Republic, there were twenty-four cabinets under sixteen different prime ministers. [2]

Debré was an essential part of De Gaulle’s return to power in 1958, as a result of the crisis in Algeria and the revolt of some members of the army, who believed that the government would hand over Algeria to the rebels.  “More Gaullist than de Gaulle,” as it was said, he was instrumental in putting De Gaulle’s principles into the new constitution, and served as his first prime minister.  He strongly supported De Gaulle’s drive to make France part of the nuclear club, but disagreed with the decision to end Algeria’s ties with France with the Evian Accords of 1962.  He resigned from his position in that year, though later served as Minister of Defense

in Prime Minister Georges Pompidou’s cabinet.[3]

De Gaulle was deeply disappointed in the constitution of the Fourth Republic, and had retired from public life late in 1946. Before that, however, he had tried to influence the direction of the country.   On June 14, 1944, eight days after D-Day, De Gaulle had gone to Bayeux, one of the first towns to be liberated; on June 16, 1946 (the new constitution was passed in October, 1946), he went to Bayeux again, and delivered a speech in which he called for “new democratic institutions.”  The executive power could not be based in the legislative branch of the parliament, as it had been under the Third, and soon under the Fourth, Republics; the executive power could not be dependent on the party politics of the National Assembly: “To [the head of state] the mission of naming the ministers, first of all the Prime Minister, who should direct the politics and the work of the government;  . . . to the head of state the task of serving as arbiter above political contingencies, in normal times through the Council or, in moments of grave confusion, in inviting the country to make known, through elections, its sovereign decision [the president can dissolve the parliament and ask the sovereign people to vote, in other words]; to him, if it should happen that the homeland is in peril, the duty to be the guarantor of national independence and of the treaties concluded by France.” The executive would not, then, be a figurehead, nor would he be caught up in the heat of politics; the latter would be left to the prime minister.  The President would be the ultimate safeguard, in times of peril and in times of mere “confusion.”[4]

It was Debré, in 1958, who created 49.3.  In an interview just days before the referendum on the new constitution,[5] Debré was asked if the president might be tempted to misuse his power.  Debré read the first paragraph of Article 16, which listed the safeguards against arbitrary, dictatorial action by the president:

Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council.[6]

Debré did not in his interview mention article 49.3 as a part of the president’s power–but that’s because it is supposed to be the prerogative of the Prime Minister.  It was the prime minister, Elisabeth Borne, who invoked the article, not Macron (as he carefully stated in his recent interview).  Yet no one doubts that it is Macron who wants a change in the retirement system–he ran on it, in both of his elections for  president.  And while putting the article in the hands of the prime minister was meant to protect the president, even as his prime minister might be replaced (much in the manner of the old regime, when one could blame the king’s “bad advisors” for unpopular decisions), that attempt at a strict separation within the  executive branch clearly doesn’t quite work.  

Just as importantly, the attempted restriction of the use of the 49.3 to financial/social security matters doesn’t really work either, since virtually everything that costs money can fall under the heading of “financial.”  Indeed, Debré himself, as prime minister, used 49.3 in 1960 to direct France’s nuclear research and development into a military “force de frappe”–an independent [of NATO] nuclear strike force, a decision that had broad implications, well beyond the financial.  

In total, Article 49.3 has been used 100 times, including Borne’s eleven deployments of it in less than a year in office.[7] When used wisely–as Debré certainly intended–it can prevent paralysis in government.  But it requires of officeholders a genuine willingness to listen, rather than a reflexive assumption that whatever they want, is the sensible, “realistic”, “courageous” choice.

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[1] Natacha Polony, “Réforme des retraites: Emmanuel Macron, le peuple et les marchés financiers,” Marianne, March 23, 2023.  https://mail.google.com/mail/u/0/#inbox/FMfcgzGslkgHPKDpFJtddhzXkrhbLjfr

[2]John D. Huber and Cecilia Martinez Gallardo, “Cabinet Instablity and the Accumulation of Experience: The French Fourth and Fifth Republics in Comparative Perspective,” British Journal of Political Science, Vol. 34, No. 1 (January 2004), pp. 27-48; citation from p. 27.

[3] Partly taken from Alan Riding, Obituary, The New York Times, August 3, 1996.

[4] De Gaulle’s first trip to Bayeux, ttps://www.iwm.org.ukh/collections/item/object/1060019435; and “Discours prononcé par le géneral de Gaulle à Bayeux (Calvados),” June 16, 1946.  https://www.elysee.fr/la-presidence/le-discours-de-bayeux-194

[5] https://youtu.be/MtlBnmZlUbY. Debré’s interview in 1958.

[6] French Fifth Republic constitution (in English):

https://www.elysee.fr/en/french-presidency/constitution-of-4-october-1958

[7] Assemblée nationale, “Engagements de responsabilité du Gouvernement et motions de censure depuis 1958,” https://www.assemblee-nationale.fr/dyn/decouvrir-l-assemblee/engagements-de-responsabilite-du-gouvernement-et-motions-de-censure-depuis-1958