French government seeks to write state of emergency into constitution

French President François Hollande spoke before both houses of parliament in a rare Congress meeting at Versailles, 16 November 2015.
French President François Hollande spoke before both houses of parliament in a rare Congress meeting at Versailles, 16 November 2015. REUTERS/Michel Euler/Pool

Following last Friday's deadly attacks in Paris by the Islamic State armed group, the government said Tuesday it would pursue changes to the country's constitution that would allow the presidency to suspend civil liberties without parliamentary approval.


French Prime Minister Manuel Valls said Tuesday the government would present a reform before parliament, a sign the government expects the main opposition party, Les Républicains, will vote in its favour and give it the two-thirds majority required for constitutional changes to pass.

The reform would follow proposals of French President François Hollande during a rare address to both houses of France’s parliament on Monday, which would modify the founding document of the Fifth French Republic to “allow public authorities to act consistently with the rule of law against terrorism”.

The changes would concern article 36, which allows the government, in the event of a “state of siege”, to transfer powers to military authorities in the event of an attack or an armed insurrection, as well as article 16, which allows the presidency to grant itself “exceptional measures” when France’s institutions or territory are confronted with a “serious and immediate” threat.

For Hollande, neither article was “adapted to the situation we are facing”, because “the regular functioning of public powers is not interrupted and it is not conceivable to transfer power to the military. And yet, we are at war.”

The modifications would allow the executive to activate the state of emergency as it would a state of siege, rather than follow the current process of seeking approval from lawmakers. 

“What the president wants, as far as I have understood him, is to give a constitutional foundation to the state of emergency, which it presently doesn’t have,” says Otto Pfersmann, professor of constitutional law at the School for Advanced Studies in Social Sciences in Paris.

Although the president can currently activate a state of emergency of up to 12 days by decree and ask for it to be extended by a parliamentary vote, Pfersmann explains it still “exists at only a statutory level, which precisely because of this reason, has very weak foundations in terms of the rule of law”.

The state of emergency, as defined by a law passed in 1955, allows severe restrictions of civil liberties and could involve curfews, restricted movements, house arrests, closing public establishments, expanded powers for police to make arrests and to control the press and broadcast media, all of which are liberties the constitution is meant to guarantee.

“If you assign someone to house arrest, this of course restricts personal liberty,” Pfersmann says.

“Let’s say a terrorist is subject to measures taken in application of the state of emergency and succeeds in having the provisions annulled by the Constitutional Council [the country’s highest authority on constitutional questions]. That would be, politically, extremely problematic.”

The proposals have raised alarm bells with civil liberties groups, who fear the response to the Paris attacks will be too focused on security, military action, eroding rights and concentrating power.

“In the face of such a tragedy, we must now take a hard look at reality and not be afraid of facing the complex causes that led to these events,” reads a statement by online rights group La Quadrature du Net.

“Unfortunately, given recent political statements, we fear that the only response will lie in further bombings in the Middle East and the escalation of security measures evermore harmful to fundamental rights,” continues the statement.

“During a dangerous period like today, we must ensure civil rights and liberties. The government has refused to analyse social and cultural problems and its intelligence service strategy,” says Adrienne Charmet, the group’s campaign director.

“We understood that the president wants to give more power to the executive – the government and the presidency – at the expense of the judicial and parliamentary power. For us, it’s dangerous for democracy.”

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