"The constitutional reform threatens the rights and freedoms of every citizen"

© AFP / Martin Bureau

Interview with Patrick Baudouin, lawyer and FIDH honorary president.

The draft constitutional reform will be debated in February in the National Assembly and then in the Senate before being voted on by Congress. From the moment it was announced, reactions have been fierce. FIDH and its French member organisation, the League of Human Rights, are formally opposed to it. Until now, debate has focused mainly on the issue of revoking nationality, but there are many other provisions that could also endanger the rights and freedoms of citizens.

FIDH : First off, could you explain why revoking citizenship violates human rights?

Patrick Baudouin : To start with, it is important to understand that the measure relating to the deprivation of citizenship was announced as part of the fight against terrorism. Yet everyone agrees that this measure is completely ineffective in combating terrorism. It is obvious that depriving terrorists of their citizenship is not going to dissuade them from carrying out their evil acts.

Not only is it ineffective, but what is more worrisome, is that the draft bill applies to any “individual sentenced for a crime that constitutes a serious assault on the life of the nation”. So this goes much farther than the fight against terrorism. It is an extremely vague concept that lends itself to all sorts of interpretations and to the measure being very widely applied. It is truly dangerous and takes us beyond the scope of François Hollande’s speech in which he said that it concerned only crimes of terrorism. This in itself is evidence of a shift. And incidentally this is always how it goes. First, we are told that it is a measure adopted as part of the fight against terrorism and then the measure begins to be more widely applied to other crimes that have nothing to do with terrorism.

We should also remember the principle of ius soli that has existed in France for a long time. Anyone born on French territory is a French national and has the same rights and responsibilities as any other citizen, even if that person has dual citizenship.

Saying that this group of French citizens can be stripped of their citizenship introduces inequality among French citizens and therefore ignores a fundamental principle - that of equality - underpinning the republic’s motto. In addition, while the government’s oft-repeated goal is one of unity, this is clearly a cause for division, because all those born in France with dual nationality will feel marginalised.

Lastly, this measure is intended to be applied once a sentence has been served. Then, people will be told, “You have completed your sentence, and now you are stripped of your French citizenship, so you may no longer remain on French territory and must leave.” But leave and go where? For, if their other country is one that practises torture, the death penalty or ill treatment, they cannot be sent there. France still applies the principle by which people cannot be deported to a country that practises the death penalty or torture.

Where will we send them then? This discussion is not serious. Besides being ineffective and dangerous, the measure cannot be applied in practice.

The constitutional reform also includes enshrining the state of emergency in the constitution. What exactly will that include? What dangers does this pose?

PB : At present, there are two exceptional measures in the Constitution: Article 16, which confers full power on the President of the Republic in extraordinary circumstances - this was requested by General de Gaulle during the Algerian war - and during a state of siege (or attack) when the army may be granted sweeping powers under common law.

The state of emergency is not included in the current Constitution. It is the result of a 1955 law which was voted through during the Algerian war. It is a law which at present has a fairly inadequate legislative framework.

Three things need to be pointed out about the state of emergency: first of all, it should not have been declared in such haste; and it is a measure that needed to be well thought through. In fact, it was immediately announced that it would be included in the Constitution. There was no need for this measure to be taken so quickly.

Secondly, the question arises whether it is necessary to include the state of emergency in the Constitution or whether, conversely, it should be adopted through legislative channels, without making it an article of the Constitution. Otherwise it gives the impression that the state of emergency could be invoked frequently or even become permanent. This would be extremely dangerous.

Thirdly, the draft legislation is still very vague: “The state of emergency is declared on part or all of the territory of the Republic in the case of imminent danger resulting from serious attacks on public order or in the case of events that, by their nature or gravity, could cause a public disaster”. 

The provision that seems most dangerous here is the “imminent danger resulting from serious attacks on public order”. What is “public order”? What are “serious attacks”? This provision is extremely loosely worded and could lead to a generalised use of the state of emergency.

At the same time as the constitutional reform, a draft reform of criminal procedure is also underway. What exactly does it include? Does it respect human rights?

PB : The main point here is that the ordinary court – traditional guarantor of rights and freedoms – is excluded from many measures likely to violate individuals’ rights and freedoms.

What is most alarming are the powers that are conferred on prefects. The prefect is nothing more than an administrative authority and is not part of the judiciary. The prefect is granted autonomous powers, such as the power to order searches and house arrests for a period of up to one month. These measures are extremely serious to the extent that they curtail individual freedoms. Seemingly, these powers would be given to prefects without an administrative or ordinary court’s prior control or authorisation. This is what is most alarming. It would be possible subsequently to challenge the decision in an administrative court, however this would be after the search or house arrest had happened. The control measure would therefore be applied a posteriori. This is highly contentious.

Many powers would also be transferred from the examining judge to the prosecution, in other words to the prosecutor. This reflects a major trend in criminal law that has been observed over several years. The same can be said for the police. And it is very clear that it is not the terrorists who will be caught up in these measures but the ordinary citizen who will be mistakenly subjected to a search or house arrest.

Of the 3000 searches which have been carried out since 13 November, only 10 led to judicial proceedings. This gives an idea of the number of people who were needlessly affected.

Furthermore, when lawyers contest house arrests, in many cases the administration prefers to withdraw the order before the case is taken to court. This is clear evidence that it was unable to justify the order.

Whether in France or elsewhere, the fight against terrorism often leads to the introduction of measures which seriously curtail freedoms. Do you have any examples of the reverse happening?

PB : Unfortunately not.

When a state of emergency is imposed, certain fundamental freedoms are infringed. Experience always shows that, furthermore, it is extremely difficult to backtrack. So a state of emergency becomes an everyday fact of life. We saw what happened with the Patriot Act in the United States.

France is now no longer any different. It was the first country to adopt exceptional measures to fight terrorism. And France was the one that invented the offence known as “criminal association in relation to a terrorist undertaking”, which had a ripple effect and has been adopted in many other countries. As a result, it has been very loosely interpreted by courts and has led to sentences being meted out on the basis of mere intent rather than on the basis of sound evidence.

The successive accumulation of laws in France, presented as emergency laws and most often formulated in response to an attack that just occurred, persist, despite the fact they were initially declared temporary. It is extremely difficult to extricate a country from a spiralling state of emergency. And we end up with countries where democracy is nothing more than an illusion. For these measures -eat away at- the democratic state without generating any results. Since 1986, France has adopted increasingly repressive laws and yet acts of terrorism continue.

We already have all the legal measures we need for arrest and repression. What we lack are resources. The government’s statements and measures are nothing but a smoke screen. What would be worthwhile – and this is being done to a small degree and is the only positive point – would be to allocate more resources to the justice department and the police and to strengthen relevant services to try to prevent terrorist acts from occurring.

Examining judges in the anti-terrorism unit point to shortages. They say that they are short of magistrates, short of prosecutors, short of law enforcement officers and short of appropriate services. Strengthening these institutions would ensure the safety of the people. The rest simply serves to misdirect and threaten democracy. We should also add here that France, unfortunately, is often held up as an example that other countries rush to follow in the measures they adopt. And when reproached for adopting measures that destroy freedoms, they blithely answer that France, a country of human rights, did exactly the same thing.

Read more
communique