France has extended the Executive’s emergency powers under a “state of exception” or “état d’urgence”, which gives the police unchecked powers not–subject to judicial review–including the power to confine an individual to house arrest, to ban demonstrations, and to conduct searches not only of homes but also of computers and other electronic devices without judicial authroization or oversight.
The Socialist governmnent of President François Hollande and prime minister Manuel Valls, already on shaky ground politically with Hollande’s popularity standing at record lows, has not only adopted these emergency measures but also announced that it wants to change the constitution to make them and other restrictions on civil liberties permanent.
The example of France underlines the fact that the struggle for democracy and the rule of law is a permanent struggle, in which the rule of law is particularly at risk of being weakened in times of widespread perceptions of terrorist threats. In part, the measures are a reaction to the Paris bombings in Novermber 2015.
The most serious defect of the emergency powers adopted in France is the total absence of judicial control over police activities under their authority.
Not only is this extraordinary assertion of dictatorial powers a matter of great significance for the future of French democracy, but it also constitutes a horrendous example which will be utilized and followed by authoritarian states, particularly in Francophone Africa, which will argue they are only doing what France is doing in fighting terrorism.
(1) Alissa J. Rubin, “Muslims in France Say Emergency Powers Go Too Far,”New York Times, February 17, 2016.
The emergency powers now in effect allow the police to conduct raids of homes, businesses, associations and places of worship without judicial review and at any time. The police can place people under house arrest even if they do not have sufficient evidence of wrongdoing to detain or charge them.
Beyond the emergency powers, Mr. Hollande’s government has already pushed through an expansion of surveillance laws. It is now lobbying for a raft of constitutional changes, including provisions that would allow some convicted terrorists to be stripped of their citizenship, a step that has raised fierce debate and protest from even members of his Socialist Party.
The French Parliament voted on Tuesday to extend the state of emergency for another three months.
(2) Letter to the Editor, “France’s Antiterror Methods,” New York Times, February 19, 2016.
(3) Lizzie Deardon, “French parliament votes to write controversial state of emergency powers into constitution as counter-terror measures spark protests; The United Nations warned current measures were imposing ‘excessive and disproportionate restrictions’ on human rights,” The Independent, February 10, 2016.
Human rights groups warned about the scope for rights abuses in November, when the state of emergency was extended for three months.
The laws allow police to place anyone deemed to be a security risk under house arrest, dissolve groups thought to be a threat to public order, carry out searches without warrants and copy data, and block any websites that “encourage” terrorism.
Curfews can be imposed, large gatherings or protests forbidden and movement limited.
France’s adoption of emergency powers should be a warning to all democratic societies, to be particularly vigilant to ensure that hard-won civil liberties, achieved in some cases after centuries of struggle, are not allowed to erode in the face of terrorists’ threats.
One can imagine a public outcry, after a terrorist attack involving many thousands of deaths of innocent civilians, that would sweep away the most basic freedoms of a democratic society. We need to talk through how we can best defend our democratic values and the rule of law, even in such horrific circumstances.
Advocates and defenders of democracy and the rule of law need to not only challenge actions such as the emergency powers adopted by the French government, but also to be prepared to defend the rule of law when horrendous terrorist attacks occur in democratic countries in the future.
The Trenchant Observer