In the hours following the Paris attacks, President François Hollande decided to pursue as part of its response to the current crisis the amendment of France's already authoritarian constitution  --  An investigation by Mediapart, a French investigative journalism site, last week suggested that the move is principally a form of posturing.  --  "it puts the finishing touch on the incredible ultra-securitarian turn taken by François Hollande and his government since the Nov. 13 attacks," Lénaïg Bredoux said.  --  “It’s as if the Parti Socialiste does not want really want to see what it’s doing:  pursuing a policy that it would have violently denounced if it were out of power.”[1] ...





By Lénaïg Bredoux

** The proposal would write the state of emergency into the Constitution, and strip those with dual nationality born French of their citizenship when they convicted of terrorism.  Origin and details of a text that also allows the executive to use exceptional powers for six months.  **

Mediapart (Paris)
December 3, 2015 (subscription required)

It's a reform prepared in only two weeks.  And it puts the finishing touch on the incredible ultra-securitarian turn taken by François Hollande and his government since the Nov. 13 attacks.  According to several government sources consulted by Mediapart, the government's bill plans to write the state of emergency into the Constitution and strip all those with dual nationality of their citizenship if they are convicted of terrorism.  It would also authorize the executive to keep certain special powers for six months, even when the state of emergency is lifted.  The Élysée hopes the text will be adopted in the cabinet meeting of Dec. 23, and passed by Congress in June 2016.  [NOTE: The Congrès du Parlement français is the name given to the Assemblée Nationale and the Sénat when it meets together in Versailles to revise the Constitution, something that has happened 24 times since 1958.  --M.K.J.]

According to these sources, the bill to revise the Constitution "to protect the nation" that was sent to the Conseil d'État at the beginning of the week for an opinion contains, as previously reported by Le Monde and Libération, two articles:  the first writes the state of emergency into Article 36, and the second contemplates stripping binationals born French of their nationality.  These two measures were announced by François Hollande in his address to Congress in Versailles on Nov. 16, only three days after the attacks.

As for the state of emergency, the government is following, in part, the Balladur Committee's 2007 recommendation to add such a provision to Article 36, which is devoted to the state of siege, which is a provision that can transfers civilian authority to military authority and that has so far never been used.  The government wants to put a provision for the declaration of a state of emergency after the one providing for a state of siege, to be declared "in the event of an imminent peril resulting from serious dangers to public order or in case of events that have the character of a public calamity by virtue of their nature and gravity" -- a formula borrowed from the law currently in effect, which dates from 1955.  It then refers to the law for the concrete execution of the state of emergency, whose length would be unchanged:  it could be decreed by the cabinet for twelve days, but its prolongation would require a vote in parliament.  This is precisely the procedure that Manuel Valls's government has carried out.

But the text sent to the Conseil d'État for review goes further:  it provides for the maintenance of exceptional measures for a period of six months after the lifting of the state of emergency.  The government calls this an "exit by stages" from the state of emergency, if "there remains the risk of an act of terrorism," according to a government adviser.  The notion is an extremely vague one, and is subject to a very broad interpretation.  "The threat is real and it will not have disappeared at the end of the state of emergency.  We must be able to confront this threat, even as we emerge from the state of emergency," a ministerial source explained.

According to our sources, the government has also put into the proposal for constitutional reform the possibility of supplementary security measures lasting six months.  The list of provisions that are contemplated, as reported by Le Monde, is quite long:  collating all files (including those from Sécurité Sociale [NOTE: This term refers the national health care system.  --M.K.J.]), revising the definition of self-defense that applies to police, requiring those using telephones to maintain detailed use records for two years, allowing the use of ISMI-Catchers [ISMI = International Mobile Subscriber Identity], those little boxes that enable spying on portable phones within a given perimeter...  A series of provisions relating to penal procedures will also be presented, in January in principle, in a text that is being prepared by the Ministry of Justice.  “The objective, in both cases, is to reinforce the effectiveness of police and judicial agencies at the end of the state of emergency,” according to government adviser.

As previously mentioned, the constitutional reform also contemplates something about the loss of nationality:  this would become possible for binationals (it is impossible for those who are uniquely French, since that would create people who are stateless) born in France but who have been convicted of an "attack on the fundamental interests of the Nation" or an "act of terrorism."  Heretofore, Article 25 of the Civil Code has stated that only binationals who acquired French nationality [after birth] could be stripped of it.  This measure, which dates from 1998, was carried out under Lionel Jospin's government by a socialist, then-Minister of the Interior Élisabeth Guigou.  Seventeen years later, the Parti Socialiste is taking up an idea long advocated by the Front National that has also been taken up by Nicolas Sarkozy.  [NOTE: On Dec. 6, 2015, three days after this article was published, in the first round of voting in regional elections, the Front National won more votes (about 28%) than any other French political party.  --M.K.J.]

The proposal sent by the government most now be examined by the Conseil d'État.  [NOTE: The modern Conseil d'État ('Council of State') was first created by Napoléon Bonaparte in 1799 to perform functions that formerly belonged to the French kings, who over the centuries had created a similar institution.  Under the Constiution of the Fifth Republic, it meets in the Palais-Royal in Paris and must be consulted on proposed legislation, though in most cases the government is not required to follow its advice.  --M.K.J.]  The Élysée's objective is to see it adopted by the cabinet [Conseil des Ministres, which meets weekly on Wednesday mornings] on Dec. 23, and before being sent to the Senate, then to the National Assembly.  If adopted, Congress would be convoked to approve it next June.

If, as presented, it is validated by the Conseil d'État, this reform would constitute one more change of heart by François Hollande in a five-year term that has been marked by a sharp turn to free-market and security-minded policies whose extent is doubtless without precedent for a socialist government.

The reform was decided upon only a few hours after the attacks:  during the night of Nov. 13-14, François Hollande called a meeting of the cabinet to validate his declaration of a state of emergency.  This is something he did not do in January, after the [Jan. 7] Charlie Hebdo attack, nor after the attacks of Montrouge [on Jan. 8, when a policewoman was killed] and the Hyper-Cacher [at the Porte de Vincennes on Jan. 9, when shoppers at a market were taken hostage, and three of whom as well as a store employee killed].  This time, the executive ratcheted up its response.  The president decided that the attacks that had just taken place, because of their extent, their operational mode, and their complexity, required it.  He also wanted to forestall any panic that might take hold of the French people.  At that moment, François Hollande felt that the state of public sentiment in France was in flux. 

During the night, officials at the Élysée Palace [the president’s residence], the prime minister's office, the Ministry of the Interior, and the Ministry of Justice prepared the decrees applying the law on states of emergency, which dates from 1955.  In doing so, they realized that some of its provisions are out of date, or even inoperative:  the text predates the 1958 constitution and had never been the object of review.  "Very quickly, the president, Manuel Valls [the prime minister], and Bernard Cazeneuve [the minster of the Interior] realized that the text was largely obsolete and that it included juridically weak aspects," said a source close to the president.

Already, on that Saturday morning, the three men decided to update the 1955 law:  this is the bill that was submitted to the representatives and senators last week.  And very quickly, Hollande, Valls, and Cazeneuve began planning a second political response:  a constitutional reform.  The idea came from the minister of the Interior, who convinced François Hollande.  The minister of Justice, Christiane Taubira, was present at the discussions, and it is she who will present the constitutional reform to parliament.

According to some government sources, it was first and foremost to protect itself from a possible annulment of the measures it has taken.  "The government is afraid of a QPC [NOTE: 'Question prioritaire de constitutionnalité', or a challenge to the constitutionality of a measure under Articles 61 and 62 of the Constitution; this is a recent constitutional provision that only became effective in 2010.  --M.K.J.]," one of them said.  "If one undertakes exceptional measures that are long-lasting, and that is what we're talking about today, the law is inadequate. . . . It therefore has to be made invulnerable to attack," said a government adviser.

Already in the cabinet meeting of Saturday, Nov. 14, the second in less that twenty-four hours, Hollande evoked in passing the possibility of a constitutional reform.  "The president said a word about the Constitution not being adequate.  But it was very elliptical," confided a minister who was present.  Like many of his colleagues, this minister learned about the measures the president had decided upon during his speech to Congress on Monday, Nov. 16.  A handful of persons had been notified in advance, but on Saturday and Sunday, during exchanges with party officials and parliamentarians, Hollande had said nothing about his plans.

As he habitually does, he listened, and often gave the impression to those he met with that he shared their point of view.  Several among them, moreover, would find some of the sentences they had uttered repeated in the presidential speech.  Jean-Luc Mélenchon, cofounder of the Parti de Gauche, even recognized a sentence he uttered Saturday evening on television in the president’s speech:  "We're not engaged in a war of civilizations, because these assassins don't represent one."  "The president said nothing to us about a constitutional reform," said Bruno Retailleau, president of the Les Républicains group in the Senate.  Even the president of the Senate, Gérard Larcher, only learned about it a few minutes before the presidential speech, when François Hollande arrived in Versailles.

Constitutionalists close to the Parti Socialiste were also taken by surprise:  those questioned by Mediapart had not been consulted.  "We're handling it internally," the Élysée told one of them.  Charged with drafting the proposals from the Ministry of the Interior and the Ministry of Justice, it was Marc Guillaume who went to work.  Guillaume is the government's general secretary, a key post in this administration.  Setting up shop in the prime minister's office, he was familiar with the topic, having previously been general secretary of the Conseil constitutionnel.  [NOTE: This 'Constitutional Council' was created by the Constitution of the Fifth Republic and rules on the conformity of statutes with the Constitution.  --M.K.J.]

"The constitutional reform is a way of preparing us for action," conceded Bruno Retailleau (Les Républicains).  From the beginning, this was one of the Élysée's fundamental objectives:  the tactics, the political maneuvering of the operation was crucial in what François Hollande decided on.  He was open about this in private.  So were his collaborators.  “The political significance combined with the juridical reasoning,” a close counselor of the president acknowledged without hesitation.  He then added:  “When liberties are affected, it is logical to inscribe it in the Constitution.  That’s the appropriate level for discussing this.  But this is also an occasion for bringing people together.”

But Jean-Philippe Derosier, professor of public law at the University of Rouen, said:  “The 1955 law did not raise any important constitutional question.  For me, there was no urgency about the need to change the Constitution, unless it be political in nature.  But the Constitution should not be a political recourse, nor should it be a penal code!”  “I agree on the symbolism of amending the Constitution,” temporized Pascal Jan, a professor of public law at Sciences Po Bordeaux favorable to a constitutionalization of the 1955 law.  “But there was definitely no urgency.”

This wish to strike a political “coup” at the expense of the right and the extreme right is even more flagrant when it comes to stripping binationals born French and convicted of terrorism of their nationality.  On the left, everybody or almost everybody was opposed to it.  Bernard Cazeneuve above all.  At the Place Beauvau [where the ministry of the Interior is housed], such a step is hardly viewed as useful from an operational point of view, whether the goal be to stop an attack or prevent the departure of apprentice jihadists for Syria.  Christiane Taubira, the minister of Justice, too, does not look on this proposal favorably.

Several sources have been swearing for days that it’s only a trap set for the right and the extreme right, and that in no event will the measure be approved.  “It won’t pass.  Either the Conseil d’État, the Conseil Constitutionnel, or those on the left at the National Assembly will prevent it,” a Socialist source insisted.  It’s as if the Parti Socialiste does not want really want to see what it’s doing:  pursuing a policy that it would have violently denounced if it were out of power.  In the name of values.

Translated by Mark K. Jensen
Associate Professor of French
Department of Languages and Literatures
Pacific Lutheran University
Tacoma, WA 98337-0003
Phone: 253-535-7219
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