Constitutional and Administrative Law: Powers, Rights, Review
This paper tests the Constitution of 1926 as amended in 1989 (Taif), the organisation of powers, the Constitutional Council and judicial review of administrative action by the Conseil d'État.
Constitutional framework
- Separation of powers: the President, the Council of Ministers and the Chamber each hold defined prerogatives, and judicial independence is guaranteed.
- Protected rights: equality, personal liberty, property, freedom of expression and association. Restrictions require a legal basis and must be proportionate.
- The Constitutional Council reviews statutes, on references from defined authorities and from a number of members of Parliament, within strict deadlines; individuals cannot seize it.
Administrative action
- An administrative decision is unilateral and immediately enforceable; it must rest on a lawful power, be properly motivated, and follow the required procedure.
- Grounds of annulment: lack of competence, defect of form, détournement de pouvoir and violation of law. The court reviews legality, not opportunity.
- Administrative contracts give public bodies exorbitant powers - unilateral modification and termination with compensation - and admit the imprévision theory.
Worked example
A municipality dismisses a contractual employee without notifying him or holding the hearing the rules require. The decision is annulled for defective procedure. The court does not ask whether dismissal was opportune; it stops at the procedural illegality.
Traps
Confusing legality with expediency; missing the deadline to refer a law to the Constitutional Council; assuming an individual may bring a constitutional challenge; failing to exhaust a required prior administrative appeal; ignoring that silence may itself be a reviewable decision.