No. 15: January-June 2016

Michel Terestchenko

Rule of Law in France

Academic Foresights

How do you analyze the present situation of the rule of law in France?

The day following the November 13 attacks in Paris, which led to the death of 130 people, the Council of Ministers issued a decree declaring a national state of emergency for the first time since the war in Algeria. This exceptional legal measure, requested by President Francois Hollande, was passed almost unanimously by members of both houses of Parliament and has now been extended for a period of three months, beginning on November 26  (Law of November 20, amending the Law of April 3, 1955).  A prior court order is no longer necessary for either government searches, which may now be conducted by the police, day or night, even at homes, solely by an order from a prefect, or house arrests, by a decision of the Minister of the Interior, whenever they relate not just to individuals whose "activity is shown to be dangerous", but to "any person... as to whom there are serious reasons to believe that his behavior constitutes a threat to security and public order".

An initial report, made public on January 14, 2016, by the Law Commission in charge of parliamentary oversight of the measures taken under the state of emergency, shows that police forces have carried out 3021 searches under the new regime. However, of the 530 raids that resulted in legal proceedings, only 25 offenses were actually related to terrorism. This prerogative has, thus, been applied far beyond the objective supposedly pursued, which explains the small ratio between the number of searches and investigations actually commenced. The same is true of the 381 house arrests ordered to date.

The Interior Minister has even applied this measure to seven environmental activists he believed might participate in actions likely to be prejudicial to public order during the 21st United Nations Conference on Climate Change (COP 21). The Constitutional Council, asked to rule urgently on the constitutionality of these measures, held that they were not contrary to the Constitution (decision of December 22, 2015).

At present, a decision to extend the state of emergency beyond three months has not been made by the President, although he has announced that it was not intended to continue. However, the executive branch, in December 2015, presented a "draft constitutional law for the protection of the nation" which would allow François Hollande to amend the Constitution to be able to act, in accordance with the rule of law, against " terrorist warfare ". According to the President, Article 16, which governs the conditions for granting special powers to the President, and Article 36, which deals with the state of siege, are "not adapted to the situation we face." "This war of a different type against a new adversary calls for a constitutional regime to manage a crisis situation," he said. The executive intends to create "a state plan for crisis management to implement exceptional measures, restricting the exercise of civil rights only to the extent strictly necessary to guarantee national security”.

One of the most controversial measures of the draft constitutional amendment concerns the deprivation of nationality, which would apply to dual citizens or citizens with only one nationality, convicted of terrorist acts. The principle of the indivisibility of citizenship would, thus, be called into question, as well as the principle of equality, if there is a distinction between two classes of citizens, depending on whether they are originally French or not. Applied to mono-nationals, such an amendment, if adopted, would lead to a violation of a fundamental human right and would render individuals stateless. It is likely that the European Court of Human Rights would sanction such developments. In any case, the French government has already announced to the Council of Europe that France was planning exceptions to certain freedoms guaranteed by the European Convention on Human Rights.

A whole series of principles framing the rule of law are, therefore, already called into question: the principle of separation and balance of powers, since the courts' powers to limit freedoms are replaced by an unprecedented enlargement of the powers granted to the executive, its representatives and the police, the principle of equality of citizens, as well as compliance with certain fundamental freedoms of liberal democracy. Indeed, respect for the inviolability of the individual and the right to privacy, free of any political control, is already largely limited by the July 24, 2015 law on the gathering of information.

In your opinion, how will the situation likely evolve over the next five years?

The future development of public policies based specifically on security needs depends in part on the recurrence of attacks in France, comparable or even more serious than those carried out in January and November, 2015. It is clear, however, that there is a strong demand by the majority of society in favor of drastic measures that the existing socialist government no longer hesitates to borrow from the right or even the far right. It is unlikely that the presidential elections to be held in 2017 will significantly change the policies chosen, all of which go in the direction of greater security, be it at the sacrifice of some personal freedoms.

If by chance one or more large-scale attacks were to occur, which is to be feared, no one can predict today what draconian policies the current government might adopt. Maybe we would not witness a total calling into question of the rule of law, but the principles with respect to the limitation of state sovereignty, which are at the heart of our conception of liberal democracy, would be deeply shaken and perhaps even seriously challenged. This is the danger we face and that we must resist.

What are the structural long-term perspectives?

Since the terrorist threat by Islamist jihadists is here to stay, in all likelihood for many years or even decades, it is clear that we have entered a new era, marked by fear, a fear as much individual as collective. The future of our principles, our values and our democratic institutions will depend on our ability to resist political programs inspired by the desire to secure us from fear, that is to say, to eliminate any risk of our lives. Such a demand is impossible to satisfy fully, even by an openly authoritarian state.

The way we negotiate the difficult balance between the legitimate aim of ensuring the safety of citizens and the protection of our civil liberties will determine the type of regime - democratic or not – that will evolve. The greatest danger is that citizens themselves will call for the establishment of a security state. Considering the degree of acceptance of the law on the gathering of information and the limited public protests against such law, there is every reason to be worried. Never, at least since World War II, has French democracy appeared more vulnerable.


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Michel Terestchenko is professor of political and moral philosophy at Reims University and Aix-en-Provence Institute of Political Studies (France). Latest books published : Un si fragile vernis d'humanité, banalité du mal, banalité du bien (Editions La Découverte, 2005), L'ère des ténèbres (Editions Le Bord de l'eau, 2015).

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