The Splendor and Misery of the Élysée Palace: Peculiarities of the Role of the French President Through the Eyes of Jaromír Císař

De Gaulle, Giscard d'Estaing, Mitterrand, and more recently Chirac, Sarkozy, and Macron. What kind of presidents have led the Fifth French Republic? What scandals have surrounded them and continue to do so? And in what ways is the office of the French president different and more powerful than that of the Czech head of state? A comprehensive interview with JUDr. Jaromír Císař, author of the book Power and Strength of the Presidents of the French Republic, explores the fascinating aspects of the “semi-presidential” model.

France operates a "semi-presidential" system. What are its advantages and disadvantages compared to, for example, a parliamentary democracy like ours, or conversely compared to a presidential system such as that in the USA?

The most basic division of these democratic systems is into presidential and parliamentary. The most important distinguishing feature is whether the executive power is politically accountable to the legislative power. In practice, this means that the political orientation and actions of the government—that is, the executive authority—even if conducted fully in accordance with the law, may not be liked by the legislative power, i.e., the parliament. In such a case, the parliament can express a vote of no confidence in the government, of course, if a majority of deputies vote for it. The consequence is then the resignation and fall of the government. This is the basic principle of parliamentary government, which originally developed gradually in Great Britain, the cradle of parliamentary democracy.

In the presidential system, a typical example being the USA, nothing like that exists. Here the basis lies in the separation of powers and their mutual balancing. This is called the system of checks and balances. In the USA, the principle applies that Congress cannot remove the president for disagreement with his policies, and the president under no circumstances can dissolve Congress. Congress can control the government headed by the president and limit it through its legislation but cannot overthrow it. I should note that this is not about impeachment, that is, removal from the presidency for violation of the constitution, an oath, or another constitutionally defined offense. That is something different. Here, the question is whether the government can be overthrown by the parliament if a majority of deputies vote for it. In the presidential system, this is not possible; in the parliamentary system, like France or the Czech Republic, it is standard.

Both systems have their advantages and disadvantages, but that would be a long discussion. More important, in my opinion, is that in their countries they are firmly rooted in their political and constitutional traditions, with many specific features.

So why is France sometimes described as having a "semi-presidential system"?

It is because under Charles de Gaulle, France developed the parliamentary republic as we know it today, that is, towards a strong presidency. The well-known French theorist Maurice Duverger coined the term at the turn of the 1970s and 1980s to describe this specific regime as "semi-presidential."

Isn't that just a journalistic shorthand?

I agree. It actually originated as a journalistic shorthand, already in January 1959, when Hubert Beuve-Méry, founder of the newspaper Le Monde, published an article titled "From Transitional Dictatorship to Semi-Presidential Regime" upon Charles de Gaulle's first election as president of France. But in the 1980s and 1990s, it became clear that France could also experience phases of a weak presidency, called cohabitation, without any change to the constitution. It became evident that there is no room for a third type of regime. In short, the so-called semi-presidential regime is actually a parliamentary regime with the difference that the power of the president varies significantly at different times. The term "semi-presidential system" stopped being used in France itself and was replaced by the term "presidentialized parliamentary system." Literally translated, this would be "a parliamentary system with variable presidential dominance."

Why variable?

The system is based on—and this is mainly its peculiarity—that the French president must be de facto the leader of a political party. The constitution says nothing about this—but in fact, since de Gaulle, no one has become president without being the leader of the winning party or coalition.

It can happen—and indeed has happened three times (Mitterrand–Chirac 1986–1988, Mitterrand–Balladur 1993–1995, and Chirac–Jospin 1997–2002)—that during a presidential term the National Assembly was elected with a majority of the opposite political color than the president. This occurred because the presidential term was seven years and the parliamentary term five; the French called this "cohabitation," i.e., coexistence of two political directions, one represented by a strong prime minister supported by the parliamentary majority, and the other by a weakened president. Such an exceptional state occurred three times during the 65 years of the Fifth Republic (from 1958 to today) and lasted a total of nine years.

The first time was under François Mitterrand, who, immediately after becoming president in 1981, dissolved the National Assembly. New elections resulted in the same outcome as the presidential elections. Logically: the same time, the same voter moods, so France still had a strong president, this time the first socialist one in history. But after five years, in the 1986 parliamentary elections, he had to appoint the then winner, the Gaullist Jacques Chirac, as prime minister. He could not choose otherwise and had to hand over a decisive share of the executive power. Cohabitation thus showed that the concept of a "semi-presidential" system actually makes no sense. It is still either a presidential or parliamentary system—only, thanks to the fact that since de Gaulle there is no tradition of a non-partisan president in France, these presidents are strong precisely because when they have a same-color political government and National Assembly behind them, they wield broad political power.

However, cohabitations were seen negatively in France, as a weakening of the executive power.

Why?

Because the executive power, represented by both the president and the government, was split and its two parts put against each other, leading to power struggles and various backstage compromises. Voters felt that France was not always speaking with a single strong voice. Therefore, there was consideration on how to eliminate cohabitation.

The idea to prevent "cohabitation" was already expressed by Georges Pompidou (head of state 1969–1974), but he could not carry it through. In 2000, during the five-year cohabitation between Chirac and Jospin, the presidential term was successfully shortened from seven to five years following a constitutional referendum. The calendar now is such that presidential elections are held first, and parliamentary elections take place within two months after them. Thus, both occur at a time when voter moods are roughly the same.

Interestingly, although this reform stabilized the presidential function, none of the presidents elected after its introduction managed to win a second term—Emmanuel Macron last year was the exception. Chirac theoretically could have run for a third term in 2007 but was so burdened by a scandal about misuse of Paris city council funds and health issues that he did not try. Sarkozy’s second candidacy in 2012 was tainted by his own scandals related to financing the 2007 campaign. His successor François Hollande was probably the least notable of all presidents so far. So much so that he decided not to run for a second term.

Since then, we can say presidential dominance has significantly stabilized, but the last elections in 2022 showed it is not that simple—Macron’s party (Renaissance) and its allies gained only a relative majority, not an absolute one, and must rely on support from the Republicans (Les Républicains), neo-Gaullists among whom Nicolas Sarkozy plays an important backstage role. Sarkozy advises Macron and they communicate quite actively.

Meanwhile, a constitutional amendment in 2008 also limited the president to a maximum of two consecutive terms.

Comparing presidents before and after the 2000 reform, it seems the former had a stronger, more stable position. Why is that?

The five-year term and the president’s excessive involvement in current politics. Nothing now suggests he is above party politics. The constitution provides that the government determines the country’s policy. However, we all know that under usual circumstances it is the president who actually sets the policy. The authority of the presidency thus wears down in the daily political struggle, which explains why these presidents either fail to win a second term, or—as in Macron’s case—their second term is marked by weakness and a constant need to negotiate support elsewhere.

How did it work in the Third (1870–1940) and Fourth (1946–1958) French Republics?

If you read the constitution of that time, you would not find that it provided for a weak president. However, both systems developed into a system of a weak president by custom. At the beginning of the Third Republic, after 1875, the president’s right to dissolve the lower chamber was compromised as an attempted coup. It should be noted that the French republican system of the time was, alongside Switzerland, an exception in Europe, where monarchies prevailed almost everywhere else.

If the lower chamber expressed a vote of no confidence in the government, the president could support the cabinet, dissolve the lower chamber, and thus ask the voters what they wanted. In 1877, President Patrice de MacMahon, a monarchist, dissolved the lower chamber, but the subsequent elections brought more republicans. After 1879, the then-elected president (Jules Grévy) declared that he would never use the right to dissolve the chamber, and none of his successors used it either.

The whole situation evolved so that subsequent governments were short-lived, averaging about half a year (between 1877 and 1883 France experienced 12 prime ministers). At that time, the Senate also had the right to express no confidence in the government. This all culminated in a clear demonstration of weakness in 1940, when the Nazis conquered all of France within weeks and the government was unable to mount any significant resistance, especially when compared with the 1914 invasion of France, when the French stopped the enemy, albeit close to Paris.

When the Fourth Republic was collapsing in 1958 due to the Algerian crisis and there was a threat that Algerian generals in Paris would organize a coup, the then-president René Coty turned to de Gaulle, who was granted special powers by the parliament to resolve the crisis and was tasked with preparing a new constitution. The mandate explicitly stated that the executive power would be subordinate to the legislative power, but that the executive power should be strengthened. Thus, the French Fifth Republic was born, on the ruins of the Third and Fourth.

Now, let’s move on to Nicolas Sarkozy. The former French president will spend a year under electronic bracelet monitoring for illegal campaign financing—the first such “hard” punishment for a former head of state in French history. What does this mean for the French system, which is essentially semi-presidential, in terms of reputation and stability?

I think it is not that terrible. It shows that cheating is simply punished within democracy. It is the result of the improvement not only of political mechanisms but also of surveillance technology—we can only guess how previous presidential campaigns were financed, for which no scandals arose. It is easy to imagine what financial resources might have been used to fund some of them.

I would assess it as a tightening of control over the honesty of election campaigns, supervised by special regulatory bodies and, in extreme cases, the police. It is a raised warning finger to every French politician.

You said this might not yet be the worst thing Sarkozy faces…

Yes, because this punishment is not for the original offense but for unfair conduct during its investigation. The latest verdict does not yet concern the financing of Sarkozy’s victorious 2007 election campaign, where there is strong suspicion he accepted a donation of an enormous 50 million euros from Libyan dictator Muammar Gaddafi. The official campaign budget then amounted to only 20 million euros. Logically, this raises the question of what Gaddafi got in return for his secretly sent money. Further investigations are ongoing into unreported, i.e., illegal sources of campaign financing, this time domestic.

During the investigation, it was documented from a wiretapped phone conversation between Sarkozy and his lawyer that a judge was bribed. This was recorded from a device they both believed was secret, because the lawyer obtained it under a different name and then gave it to Sarkozy. The verdict condemns Sarkozy, his lawyer, and the judge for leaking information from the ongoing investigation—in exchange for the promise of a position in Monaco for the judge.

How would a hypothetical impeachment or prosecution of a sitting French head of state work? We know France introduced its own version of impeachment…

The French naturally do not call it impeachment, because that is a foreign term; at one time there was even a law removing English-origin words from French.

In 2007, a constitutional change concerning the criminal liability of the president was made. This relates to what I already mentioned, i.e., the scandals of Jacques Chirac. Before he was elected president in 1995, he was mayor of Paris. This was not a scandal about one election campaign, but a major scandal concerning the financing of his political party RPR, where they illegally helped themselves from the Paris city council’s account. During Chirac’s first presidential term, the investigation began, but since the president cannot be prosecuted during his term, it was conducted “in suspense,” and Chirac could not be interrogated or charged until he left office.

In 2002, he was reelected president, which was very paradoxical because in the first round he got less than 20 percent of votes—never before had an incumbent president managed reelection with such a weak result.

At that time, it was jokingly said that the French “pinched their noses” and in the second round voted for Chirac rather than the radical Jean-Marie Le Pen…

Exactly. The favorites for the first round were Chirac and the socialist Lionel Jospin. The 2002 elections were also characterized by a record number of candidates in the first round: sixteen in total, usually between nine and twelve. The first round was very fragmented, especially on the left. And in the end, surprisingly, it was Jean-Marie Le Pen, not Jospin, who advanced to the second round by a narrow margin against Chirac, which was a huge shock.

The French thus, as it is said, “pinched their noses.” There were also various student protests; I recall a student poster saying “vote for the thief, not the fascist.” That election set another record, as no directly elected president had ever achieved such a high result in the second round—Chirac got over 82 percent, a figure not even de Gaulle reached.

And to solve the issue that the president cannot be prosecuted for something unrelated to his presidential duties or for something committed before election, a reform was prepared. Chirac did not oppose it and could not show that he was against it, so he promised to initiate it during his campaign.

It states that the president can be charged for breach of duties if such breach is incompatible with the exercise of the presidential mandate.

So, a rather vague definition…

Yes. However, one that allows prosecution even for something not directly related to the exercise of the office. Because it is incompatible with the exercise of the office for the president to be relevantly suspected of criminal activity. The conditions for holding the office also include dignity.

It thus acts largely preventively on presidents and candidates, to make them cautious and not involved in any scandal. However, a two-thirds majority is required in both chambers of parliament — this is a safeguard against using this rubbery formulation for political score-settling or abuse.

Let’s briefly turn to the anniversary of your law firm Císař, Češka, Smutný. This year you celebrate 30 years on the Czech market. I went through your latest annual report, so a few figures: 69% of services are provided to the private sector, annual revenues amount to 360 million CZK, and in the ESG rating you received the second highest rating, A+. What does that say in your view?

The 69% for the private sector represents an increase compared to the past. The numbers show that our primary source of income is work for the private sector. On the other hand, work for the public sector has always been a matter of prestige for us, as we assume that the best should be working for the state. We definitely want to continue this trend.

The ESG rating is a sign that when applying the law, we always consider its social context. Very early on, and among the first, we began to study this phenomenon deeply, and we try to study it very realistically, i.e., to protect ourselves and others from some kind of “ESG hooliganism.” With these modern trends, there is always a risk that they will be handled superficially, and even worse, that everyone will be bureaucratically judged according to superficial criteria. Our approach is that it should be beneficial for society as a whole.

Although the public sector now represents a smaller share of your workload than before, I’ll mention that you represented Czech Railways in a dispute with Grandi Stazioni. How do you assess this case?

In this case, it was not so much about savings but about defending this company with 100% state ownership against claims we were convinced from the start were unjustified. Grandi Stazioni failed to fulfill their obligations related to the reconstruction of the Main Railway Station, which entitled Czech Railways to terminate the contract and carry out their project in another way. In this respect, we not only succeeded, but eventually Czech Railways even recovered over 42 million CZK from Grandi Stazioni as compensation for court costs.

Finally, I ask: what topics dominate modern legal practice?

I think that the dominant topic for corporate law will continue to be ESG because it is a very broad concept that reforms existing notions for some, and deforms them for others. For example, the understanding of the term “duty of care” must change today because ESG aspects must be taken into account. Net profit is no longer the only criterion. And because prosperity inevitably has its costs, certain harms arise that need to be minimized — weighing various types of harm and sacrifice so that it is balanced for the benefit of society. That is how we view ESG. In my opinion, it will penetrate from the large corporations that have adopted or are adopting it down to increasingly lower levels.

The interview is also available on the website [info.cz]