PARIS — French President Emmanuel Macron has picked one of his closest allies to lead France’s highest constitutional authority, just weeks before it is slated to rule on a case likely to impact Marine Le Pen’s political future.
The appointment of Richard Ferrand to serve as president of the Conseil Constitutionnel for the next nine years, which Macron announced Monday but had been an open secret for several days, has been met with widespread criticism from the president’s political opposition and raised eyebrows among legal and constitutional scholars.
Several prominent voices argued that Ferrand’s prestigious appointment could politicize an independent institution at the heart of French democracy, especially as it gets ready to render a decision that could impact the far-right leader’s ability to stand in future elections.
Benjamin Morel, a constitutional law professor at one of France’s leading law schools, said Ferrand’s presidency could cast a shadow over the institution’s decision, given his “political weight and his closeness to the head of state.”
Le Pen was charged with having participated in a scheme to embezzle European Parliament funds to pay for domestic staff for her party, the National Rally. Prosecutors have asked that the far-right leader, one of the current front-runners for the next presidential election in 2027, be banned from running for public office over the next five years and that the sentence be immediately executed — even if she appeals. Typically in France punishments are suspended until the appeals process has concluded.
Le Pen has repeatedly professed her innocence and claimed that her trial was “politicized.”
In the weeks to come and in all likelihood before Le Pen’s verdict date, set for March 31, the Conseil Constitutionnel will, in relation to a separate case, rule on whether enforcing an ineligibility ruling before a defendant has exhausted their appeals undermines the constitutionally guaranteed right of voters to freely choose their representatives.
“If Ferrand announces a decision which in any way affects Le Pen’s ability to run in the next election, there’s a risk it will be perceived as a disguised coup,” Morel added.
One of Macron’s BFFs
The role of the Conseil Constitutionnel is similar to constitutional courts in other countries. It reviews legislation, oversees elections and rules on constitutional challenges. But unlike Germany’s BVerfG or the United States’ Supreme Court, you don’t need to be a trained judge or lawyer to be appointed.
Ferrand isn’t a judge, but the former head of the French National Assembly and one of Macron’s earliest supporters.
Like Ferrand, both the outgoing president of the Conseil Constitutionnel, Laurent Fabius, and his predecessor Jean-Louis Debré, had previously presided over the National Assembly. Fabius and Debré were both politically aligned with the presidents who appointed them as well. But Debré was appointed by former President Jacques Chirac when he was just weeks away from leaving office and thus didn’t stand to benefit from Debré’s new role. Fabius, meanwhile, had not historically been close to the president who appointed him, François Hollande.
Constitutional experts like Morel believe Ferrand’s ties to the president are much more worrying than those who had the job before him, and they have pointed to a legal principle according to which institutions, particularly courts, must not only be impartial but also appear impartial to the public.
Writing in Le Figaro, the Conseil’s former secretary-general, Jean-Éric Schoettl, said that its leader “must be beyond any suspicion of partisanship, favoritism, or personal ties.”
Macron’s political opponents have seized on the controversy. Member of the European Parliament Marion Maréchal, Le Pen’s niece and a National Rally ally, said in an interview on RTL Ferrand’s appointment was an attempt to hinder Le Pen’s capacity to lead reforms if she is elected president.
The Democratic and Republican group in the National Assembly — made up of communist lawmakers and representatives from France’s territories outside Europe — said it would reintroduce a bill to require all members of the Conseil Constitutionnel to have legal experience and skills and not have been in government or parliament in the decade preceding their appointment.
A change to the system is backed by many French legal scholars, said Julien Bonnet, a constitutional law professor at the University of Montpellier and head of the French Constitutional Law Association.
“With the current appointment system, a decision can be perfectly sound from a legal perspective, but read as being political by public opinion or media,” Bonnet said.
Ferrand’s final hurdle will be approval by the law committees of both houses of the French parliament, the Senate and the National Assembly. To block his nomination, three-fifths of the combined committee members would need to oppose it — an outcome that, at this stage, appears unlikely.
Macron picks close ally to lead court that could decide Le Pen’s fate
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