France: The wrong path? The limits of constitutional reform in response to terrorist attacks

In the game of chess, a player is in a situation of “zugzwang” when any potential move would make his situation worse. Moving, in itself, is a disadvantage simply because none of the options are good. Three months after announcing his plan to revise the constitution in response to the terror attacks, France’s President Francois Hollande is now in a difficult zugzwang. His proposal to strip the nationality of individuals convicted of terrorism and to constitutionalize the state of emergency has created deep divisions in his own party, in the country, and has been criticized as a grave threat to liberties. Although the reform has recently been approved  by the lower house, its fate is still uncertain, as it needs to be voted on under the same terms by the Senate, and then to be adopted by 3/5 of the MPs or to be approved by referendum upon decision by the president. Politically, the president is all but forced to go forward with a reform that he has vigorously defended, but which has become a political and a legal burden. In light of the troubled journey of the reform so far and the constant hesitations surrounding it, one can only wonder whether this hasty constitutional move was the right one.

The context of the reform

Following the attacks in November 2015, many commentators lauded the president’s actions and proposals. Ten months after the Charlie Hebdo attacks, the latest killings in Paris provoked a deep trauma and Francois Hollande’s martial tone seemed appropriate to reassure a country in shock. The president justified his decision to rapidly convene and address the Congress, as a way to “unite the nation during the ordeal”. In a solemn speech, he explained the necessity of revising the constitution in order to allow the government to fight terrorism through exceptional measures without infringing on fundamental liberties. He argued that the regime of the state of emergency, organized until then by a law dating from 1955, had to be constitutionalized because the two states of exception foreseen by the constitution were inappropriate to fight terrorism. He added that other measures should follow, such as the revocation of French nationality from dual nationals convicted of terrorist acts, even if they were French-born citizens. Yet, he did not specify then whether this measure should be enacted through a statute or a constitutional amendment. The proposition of a measure that had long been called for by the political right, and had thus far been opposed by Hollande, was seen as another gesture by the president towards national unity and consensus.

Trouble and confusion quickly ensued however. At the end of December, the government presented a short constitutional bill comprising two articles, one concerning the state of emergency and the other the revocation of nationality of dual nationals, even though Minister of Justice Christiane Taubira had announced just two days earlier that the bill would not contain any provisions relating to the stripping of nationality. Since then, the executive has been going two steps forward and one step back on a draft bill, which is still evolving and remains filled with ambiguity. As the reform is now discussed before the parliament, the situation is so confused that members of the majority recently affirmed that they wished that the article concerning the revocation of nationality would be withdrawn, and other MPs simply declared that “this tragic farce should be over”.

For the past several weeks, public debate in France has focused on the issue of revoking French nationality of dual nationals convicted of terrorism, even though few would agree that it is a useful means to “protect the nation”, which is however the name of the constitutional bill. The extent of the tensions was illustrated by the recent resignation of Christiane Taubira, who is opposed to the initiative. The deep symbolic resonance of the discussion on nationality has overshadowed and, in some way, chilled the debate on the provision constitutionalizing the state of emergency. It is in fact regrettable that the provision on revoking nationality, which is arguably unnecessary and deeply problematic, has obscured and prevented a more vigorous debate about the state of emergency, whose constitutionalization is well founded in principle, but questionable in its current formulation.

Revoking the nationality of dual nationals convicted of terrorism: the puzzles of an unnecessary constitutional reform

Beyond the classic tensions between security and liberty, the fight against terrorism now pushes France to face another dilemma involving equality, which has broad legal and social implications. The principle of equality is protected by the constitution with, among others, article 1 guaranteeing “the equality of all citizens before the law without distinction of origin, race or religion”. Beyond the legal dimension, equality is conceived as the bedrock of the French republican pact, which is why the debate has become so polarizing.

Since the announcement of the nationality stripping measure, defenders of the bill have faced the dilemma of either allowing the revocation of nationality of every French citizen convicted of terrorism, which would create stateless persons in the case of mono-nationals, or enshrining a distinction among French nationals in the constitution by reserving the revocation only for dual nationals. The government has hesitated and modified several times the wording of article 2 of the draft bill. It attempted to find a way out by keeping the constitutional provision neutral, and providing for the revocation of nationality of dual nationals only in the implementing legislation. The text recently adopted by the lower house would thus add into the constitution that “the Law shall determine the rules concerning nationality, including the conditions under which an individual can be stripped of his nationality or the rights linked to it when he is condemned for a crime or a lesser offence gravely prejudicial to the life of the Nation”. This solution is however unlikely to convince those who deem that the constitutional bill was driven by the will, or at least had the effect, to stigmatize the estimated three million dual nationals, a majority of whom come from North Africa, by associating them with terrorism. Drafting the constitutional provision in seemingly general terms, after a long debate that focused on dual nationals, while maintaining the distinction in a law, is thus perceived as pure hypocrisy.

Why a constitutional reform?

Article 25 of the Civil Code already provides for the revocation of nationality of dual nationals who acquired French nationality, and who have committed crimes or less grave offences of terrorism. In contrast, it does not provide for the revocation of nationality of mono-nationals and dual nationals who are French-born citizens. The Conseil Constitutionnel recently rejected an equality challenge and held this provision constitutional. While affirming that individuals who acquired French nationality and French-born citizens “are in the same situation”, the judges laconically validated the distinction in light of the interest of the fight against terrorism and the specific conditions under which the nationality can be stripped.

François Hollande’s original proposal in November was thus merely an expansion of the scope of article 25, authorizing the stripping of French nationality not only from dual nationals who acquired French citizenship but also from dual nationals who are French-born citizens. A case can even be made that this measure in fact pursues equality among the category of dual nationals, by unifying the applicable regime. Why could some dual nationals be stripped of their nationality while others could not? Doesn’t the fact that nationals who acquire French nationality fall under a less protective regime than those who were French-born citizens, indicate that a two-tiered nationality regime is already in place?

However, even with a new law unifying the regime applicable to dual nationals by allowing the revocation of nationality for everyone in this category, there would still be the question of the distinction between mono-nationals and dual nationals, which is at the heart of the problem.

The principle of the revocation of nationality is contestable in and of itself. One can certainly question its value and its efficiency. However, once the political decision has been made to revoke the nationality of certain dual nationals, it is not clear why this policy would not apply to all dual nationals. In contrast, the distinction between mono-nationals and dual nationals could still be possibly defended on the ground that they are objectively in a different situations, due to the risk of creating stateless persons when revoking the nationality of mono-nationals. In other words, once the government goes down the road of establishing the revocation of nationality, the application of the principle of equality could justify unifying the regime of dual nationals while maintaining a separate regime for mono-nationals. It is therefore difficult to see why the measure unifying the regime of dual nationals could not have been implemented through a law, in the same way the first measure establishing the revocation had been adopted. The administration could thus arguably have decided to enact the intended provision through a statute modifying article 25 of the Civil Code. Indeed, a former President of the Conseil Constitutionnel recently declared that this would have been an adequate solution. Furthermore, an ancient and almost forgotten legislative provision already authorizes the revocation of nationality of dual nationals who are French-born citizens in certain cases.

Others argued that such a law could be held unconstitutional and that it was therefore necessary to revise the constitution to enact the measure. They claimed that the Conseil Constitutionnel might hold that depriving a French-born citizen of his nationality violates a “fundamental principle recognized by the laws of the Republic”. These are constitutional principles not explicitly written in the constitution, but which the Conseil can recognize if certain conditions are met. It is however far from certain that the Conseil would have recognized such a principle, especially in light of the prudence it has traditionally shown in sensitive cases.

The Executive thus opted for a constitutional bill, referring explicitly to the case of dual nationals convicted of terrorist crimes. By enshrining in the constitution a distinction between mono-nationals and dual nationals, the bill was perceived as creating and formalizing two categories of citizens in the fundamental law itself, with some nationals being less equal than others. One can wonder whether such a provision is appropriate in a constitution, a text supposed to be the normative embodiment of the collective and unifying project formed by citizens to organize the allocation of power, the creation of norms and the guarantee of their rights.

In reaction to the protests coming from the political left, the government removed all references to dual nationals. At the same time, it made concessions to the right by allowing the revocation of citizenship not only for terrorist crimes but also for lesser offences (délits), which raises the question of the proportionality of such a measure. In any event, the removal of the references to dual nationals was merely symbolic, since the implementing legislation being drafted stated explicitly that France would not create stateless persons.

The legal and practical challenges of creating stateless persons

Providing for the revocation of nationality of all French nationals convicted of terrorist crimes would perhaps solve the issue of equality, but would be problematic under international law and untenable in practice. Indeed, Article 15 of the Universal Declaration of Human Rights guarantees the right to a nationality. The Declaration is not legally binding as such, but many of its provisions are now part of customary international law. Furthermore, France has signed the 1961 Convention on the Reduction of Statelessness which provides that “a State shall not deprive a person of his nationality if such deprivation would render him stateless”. Although France has not ratified the convention, it is under the obligation to refrain from acts which would defeat the object and purpose of the convention. However, the convention itself foresees exceptions to the principle of the interdiction of creating statelessness, including when the individual has conducted himself in a manner seriously “prejudicial to the vital interests of the State”. Strictly speaking, France might be able to invoke those exceptions but enacting such a measure would do damage to France’s credibility in the international community. European law must also be taken into account since the European Court of Human Rights could rule that stripping the nationality of French-born citizens violates article 8 of the European Convention on Human Rights.

Beyond these legal challenges, the most serious and obvious obstacle to the revocation of nationality of mono-nationals lies in the practical question of what to do with the stateless persons created by such a measure. The 1954 Convention on the Status of Stateless Persons, which France has ratified, limits the possibility to expel stateless persons and one can only wonder which country would accept a stateless person convicted of terrorism. The hard reality is that the evil of terrorism is not one that can be merely wished away nor extirpated from the national community by legal slight.

A problematic symbol

The ultimate paradox of the inextricable puzzle created by the constitutional reform is that everyone agrees that it is not efficient to protect the nation and dissuade terrorists. It is in fact a symbolic measure. True, symbols are important and there is nothing wrong with symbols being enshrined in a constitution. In fact, constitutions derive their extra touch of soul from the symbol they project on the national community. The question is simply whether this symbol is the appropriate one. It is hard to deny that it divides more than it unites, that it stigmatizes more than it coalesces.

If the Executive truly wanted to enact such a measure, the lesser evil would have been, as mentioned earlier, to do it directly through a law. Choosing a constitutional reform and using legal manoeuvers to ultimately backpedal was not only unnecessary but also damaging to the fragile national cohesion. It crystallized the tensions and stirred up passions. It was simply the wrong path. Montesquieu famously said that “useless laws weaken the necessary ones”. This is all the more true with regard to constitutional laws, and one can only regret that the discussion on the revocation of citizenship prevented a richer discussion on the provision constitutionalizing the state of emergency.

Constitutionalizing the state of emergency: desirable in theory, questionable in practice

The content of the revised 1955 law on the state of emergency

On November 13, the night of the terrorist attacks, Francois Hollande decreed a state of emergency, as authorized by a law from 1955. This law provides that the state of emergency can be declared by presidential decree “on all or parts of the territory in case of imminent danger resulting from grave breaches to public order or in case of events presenting the character of public calamity, by their nature and gravity”. The statute provides that the extension of the state of emergency beyond twelve days must be authorized by the Parliament. On November 20, MPs thus voted overwhelmingly to extend the application of the state of emergency for three additional months, starting from November 26^th.

The law not only extended the state of emergency but it significantly increased the already wide range of exceptional measures that authorities are allowed to use. For instance, the Interior Ministry can now order house arrest whenever there are serious reasons to think that someone’s behavior constitutes a threat to security and public order, whereas the former standard required that the individual’s activity be “proved to be dangerous for security and public order”. The text also explictly foresees the possibility to dissolve any groups taking part in the commission of acts harming public order, or faciliting such acts, and the possibility to block any websites glorifying terrorism. Furthermore, searches can be performed day and night, anywhere, except in certain places such as MPs’, judges’ and journalists’ offices. All these actions can be done without judicial authorization.

Prime Minister Valls refused to refer the law to the Conseil Constitutionnel and urged MPs not to do so, affirming that there was a risk of unconstitutionnality and thereby revealing the legal fragility of the measures. (A few years ago, when a Minister urged MPs not to refer a law to the Conseil because of a risk of unconstitutionality, the President of the Conseil Pierre Mazeaud famously declared that “the respect of the Constitution is not a risk but an obligation”.) Although the PM shut the door on the a priori review of the Conseil, the law quickly came before the Conseil through a “priority question of constitutionnality”, the new procedure established in 2010 that allows the Conseil to review a law after its entry into force. The case involved ecologist activists who had been placed under house arrest in prevision of the COP 21 summit in Paris. This illustrates how a law adopted in the context of the fight againt terrorism can serve other purposes due to the malleability of the term “public order”. Nevertheless, the Conseil found the law constitutional. In particular, it held that house arrest orders were not “measures privative of liberty”, which have to be authorized by a judicial judge under article 66 of the Constitution.

So far, 3336 searches and about 400 house arrest orders have been issued since the declaration of the state of emergency, and only five percent of the judicial investigations lauched concerned terrorism. The Parliament has already authorized a second extension of the law, till May 2016, which gives rise to legitimate fears of a permanent state of emergency. Indeed, Prime Minister Valls declared that the state of emergency should continue until the “war against ISIS is over”. States of exception are meant, by definition, to be exceptional. Their perpetuation risks creating structural and enduring alterations to the liberties protection regime.

Concurrently to the legislative debate over the extension of the state of emergency, the Executive pushed for its constitutionalization.

Inscribing a state of emergency in the Constitution

In principle, the decision to constitutionalize a state of emergency seems appropriate. If the Constitution provides for the liberties that are to be protected, it is logical that it should also provide for the conditions and circumstances under which exceptional measures potentially infringing on these liberties can be adopted. The derogations to the ordinary regime organized by the constitution should therefore have an anchor in the fundamental law.

The French Constitution provides for two exceptional states that, however, are both inappropriate for the current fight against terrorism. The “extraordinary powers” given to the President under article 16 correspond to situations where the independence of the nation, the institutions of the Republic or the integrity of the territory are under “serious and immediat threat”, while the “state of siege” defined by article 36 corresponds to situations of traditional wars or armed insurrections.

There is therefore an understandable rationale for enshrining the state of emergency in the constitution. Such action was in fact called for in 2007 by a committee tasked with proposing amendments to the Constitution. Constitutionalizing the regime of the state of emergency is a way to place this exceptional regime out of the reach of volatile majorities. It ensures that majorities willing to change it would have to muster the super-majority necessary for any constitutional change. Although prominent jurists have argued that the principle of the constitutionalization of the state of emergency is, in itself, unacceptable, it is more the conditions under which it is done, and the insufficient guarantees foreseen that are problematic.

Firstly, isn’t there a dangerous irony in constitutionalizing the state of emergency during a state of emergency? Legally speaking, there are no barriers to the revision of the Constitution in such circumstances. Article 89 only forbids revising the Constituion when the integrity of the territory is violated, which is not the case. However, politically speaking, the timing of this revision is questionable. It does not allow for the serene reflection that the amendment process calls for, and it therefore exarcebates the risk of excesses and abuses. Furthermore, if revising the constitution is forbidden during the application of article 16, as recognized by the Conseil constitutionnel in 1992, and would probably be forbidden during most instances of “state of siege” due to article 89, one can wonder why it would be more acceptable to amend the constitution under a state of emergency.

Secondly, are the guarantees established in the bill satisfying ?

The constitutional bill voted on by the lower house provides for the conditions under which a state of emergency can de declared, merely repeating the wording of the 1955 law. It then gives competence to the administrative authority for “preventing and coping with the events” creating the state of emergency. This wording means in practice that the judicial authority will be side-stepped and that the judge in charge will be the administrative judge, unless measures privative of liberty are issued, which call for the intervention of the judicial judge. This distinction has significant consequences since the administrative judge intervenes ex post, controlling for instance whether the searches or the house arrest orders were legal. Imposing the intervention of the judicial judge would allow for the control of the measures before they are actually implemented and would thus strenghten the guarantee.

The bill also provides that the Parliament shall be informed of the measures taken, and that the extension of the state of emergency shall not exceed four months, even though it can be renewed indefinitely.

It is also telling that an amendment, initially adopted by the representatives in the lower house, that would have forbidden the dissolution of the National Assembly during a state of emergency, was fought by the government and finally written out of the bill.

Going forward

It is not so much the principle of the constitutionlization of the state of emergency than the way it is being done that gives rise to fears about the protection of constitutional rights in France. However, the constitutional reform is far from being adopted. Senators, who will discuss the two articles of the constitutional bill in the coming weeks, have already annnounced their intention to rewrite both of them. Because both houses need to vote on the text under the same terms before the reform can even be submitted to the Congress for final approbation or to the people through a referendum, the future of the reform is very uncertain.

One of France’s greatest jurists, Portalis, once said that laws should be touched only with “trembling hands”, being mindful of the gravity of the consequences following their modification. The currently debated constitutional amendments illustrate the pitfalls of not heeding this advice, with a hasty reform which is partly unnecessary and partly insufficient.

Idris Fassassi is a research fellow at the Group of Studies and Research on Constitutional Justice – Louis Favoreu Institute, at the Faculty of Law of Aix-en-Provence. He has a LL.M. degree from Harvard Law School and a PhD in public law from Aix-Marseille University.