Congress Terrorism & Extremism

French Constitutional Amendment on Emergency Powers Moves Forward

Daniel Severson
Friday, February 12, 2016, 10:38 AM

The National Assembly voted this week to adopt an amendment that would enshrine the state of emergency in the French Constitution and extend denaturalization to dual-nationals born in France who are convicted of terrorism.

The vote in the National Assembly was 317 for, 199 against, with 55 abstentions. The Senate is expected to take up the bill in mid-March—for constitutional reforms, a four-week delay is required between reviews by each house.

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The National Assembly voted this week to adopt an amendment that would enshrine the state of emergency in the French Constitution and extend denaturalization to dual-nationals born in France who are convicted of terrorism.

The vote in the National Assembly was 317 for, 199 against, with 55 abstentions. The Senate is expected to take up the bill in mid-March—for constitutional reforms, a four-week delay is required between reviews by each house.

Both houses must approve the identical text without recourse to a joint committee. If the Senate makes any changes, the bill goes back to the National Assembly.

If both houses do approve the same text, the President can then call a joint session of Parliament assembled in Congress at Versailles. To pass, the amendment must get a three-fifths majority vote (555 of 925 elected officials).

Getting to three-fifths is far from clear, however. The vote in the National Assembly narrowly missed that threshold, and divisions are likely to emerge in the Republican-dominated Senate.

Soon after the terrorist attacks of November 13, 2015, President François Hollande vowed to seek a constitutional amendment to bolster the state’s emergency police powers. The attacks left 130 people dead and 350 wounded. As of late January, 41 people remained hospitalized.

The government wants to secure the constitutionality of emergency police powers.

As introduced by the government in January, the original bill contains two provisions for amending the constitution. The first would enshrine the state-of-emergency law in the Constitution alongside two other emergency powers—special executive powers and the state of siege (martial law). This prior post describes the difference between these powers.

The version adopted by the National Assembly kept much of the original but included a few key modifications. A new provision prevents the government from dissolving the National Assembly during a state of emergency. Added language requires the government to keep Parliament informed without delay of measures taken and gives Parliament power to regulate the details of implementing a state of emergency. The new language also specifies that any extension of a state of emergency beyond the initial 12 days cannot exceed 4 months.

One goal of the proposed amendment is to put the state-of-emergency law on solid constitutional footing. Among its emergency powers, the government has invoked the state-of-emergency law most frequently under the Fifth Republic, yet it is not part of the Constitution of 1958. Prime Minister Manuel Valls argues that inscribing a state of emergency in the Constitution will “prevent its trivialization or excessive use” by framing its “main principles.” Enshrining emergency police powers (not just martial law) in the Constitution takes up an idea from the Balladur Committee, which in 2007 recommended a series of constitutional reforms, including modernizing emergency powers to address global terrorism.

The government surely also worries that measures taken under the current state-of-emergency law—including over 3,300 warrantless searches—remain vulnerable to constitutional challenge.

Indeed, last December a group of environmental activists detained under house arrest during the COP21 climate change negotiations in Paris sought a priority preliminary ruling from the Constitutional Council on the constitutionality of article 6 of the state-of-emergency law. A priority preliminary ruling is also known as a priority question of constitutionality, or QPC, and is described in this prior post. Article 6 authorizes house arrests, including mandatory reporting to the police up to three times per day, restrictions on association, and electronic tagging to track a person’s movements. Supported by the League for Human Rights, the detainees alleged that house arrest violated the Constitution and the Declaration of the Rights of Man of 1789, unconstitutionally infringing on their “freedom of movement, the right to lead a normal private and family life as well as freedom of assembly and demonstration.”

On December 22, 2015, the Constitutional Council upheld the house arrest regime set by the state of emergency following the November 13 attacks as constitutional. [English text here.] The Constitutional Council reasoned that the house arrest, its duration, and the conditions imposed were necessary and proportionate because the state of emergency could only be declared in situations involving “imminent danger” and because only persons for whom there are “serious grounds to consider his or her behavior may constitute a threat for public security or order” may be placed under house arrest. The high court noted that the government could not place anyone under house arrest beyond 12 hours out of any 24-hour period, and that house arrests must be renewed if the government extends a state of emergency. While the court upheld the house arrests as constitutional, the ruling was restricted to the first nine subparagraphs of article 6 of the state-of-emergency law.

Today, the League of Human Rights filed new attacks on the constitutionality of articles 8 and 11, which allow the government to close concert halls and to conduct warrantless searches. The Constitutional Council is set to rule on February 19.

France debates denaturalization.

The second provision in the proposed constitutional amendment has generated heated debate in France. The Hollande government wants to be able to revoke French citizenship for those persons convicted of terrorism who benefit from another nationality. Salah Abdeslam—the prime suspect in the November 13 attacks—is a Belgian-born French-Moroccan national.

Under article 25 of the French civil code, the state can already revoke citizenship for any naturalized citizen convicted of a crime that constitutes an attack on “fundamental national interests” or perpetrates an act of terrorism. However, the government cannot revoke citizenship for those persons born French or who were naturalized longer than 15 years ago. Therefore, the constitutional amendment aims to allow the government to strip such terrorists of their French nationality.

Critics complain that the amendment risks discriminating against “second-class” dual-nationals in favor of “real” French-only citizens. In response, some have proposed making all French citizens convicted of terrorism subject to possible denaturalization. But what if the individuals has only French citizenship? Would rendering him or her “stateless” violate international law? France has signed, but not ratified, both the U.N. Convention on the Reduction of Statelessness and the European Convention on Nationality. Article 15 of the Universal Declaration of Human Rights provides: “Everyone has the right to a nationality.” This text is also not legally binding on France, though it may point to customary international law. An interview with one French scholar suggests statelessness might not violate French constitutional principles either, but could fall afoul of European courts.

Others question whether the constitutional provision serves any effective purpose. Robert Batinder, former president of the Constitutional Council, argued in Le Monde that the symbolic measure does not merit a constitutional amendment; the Parliament could simply change the civil code to apply to “all French people,” not just those naturalized, and the Prime Minister could refer the enacted law to the Constitutional Council to assure its constitutionality.

The question of revoking citizenship has divided both the left and the right in France and could complicate any effort to pass the constitutional amendment containing the state of emergency provision.

Parliament may extend the current state of emergency through May.

In addition to a constitutional amendment, the government is seeking to extend the current state of emergency (set to expire on February 26) for another three months, through May 26. (The text of the bill is here.)

The State Council, which on January 27 rejected a petition to end the state of emergency, defended its extension, noting that the terrorist threat remains high, particularly given the prospect of French foreign fighters returning from Iraq and Syria. Interior Minister Bernard Cazeneuve reported some 600 French nationals are in Iraq and Syria, and that 254 have returned to France—with 74 imprisoned, 143 followed by law enforcement, and another 111 under the eyes of the intelligence services.

On Tuesday, the Senate voted overwhelmingly (316 to 28) to maintain the emergency measures, and the National Assembly will debate the extension on February 16.

Since the state of emergency began on November 20, 2015, the government has conducted over 3,300 warrantless searches, seizing 578 weapons, including 42 assault weapons.

The government has initiated 563 court proceedings, but only 28 related to terrorism, of which 23 involved advocating or sympathizing with terrorism and just 5 involved actual planned or threatened attacks. Interior Minister Cazeneuve told the Senate that French intelligence services foiled 11 terrorist plots in 2015, but the government claims to have thwarted only one using measures authorized under the state of emergency: a search on a 27-year-old Chechen man’s residence revealed videos on his computer claiming allegiance to the Islamic State and threatening police, though he reportedly denies planning any attacks.

Amnesty International sharply criticized the state of emergency measures as “discriminatory and disproportionate.” Under its broad emergency powers, the government has detained 344 persons in police custody and searched 45 mosques, closing 10. The police imposed some 400 house arrests, of which close to 300 remain in effect. According to the Constitutional Council’s ruling, if the state of emergency gets extended those house arrests set to expire on February 26 would need to be renewed based on a reexamination of each file.

Daniel Severson is a Harvard Law School and Harvard Kennedy School graduate. He served as editor-in-chief of the Harvard International Law Journal and writes for Lawfare. Daniel was a Harvard University Presidential Public Service Fellow at the Defense Department, a Council of American Ambassadors Fellow at the State Department, and a Fulbright Scholar in Taiwan. He plays the French horn.

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