France’s anti-terror measures are unconstitutional

But most French people do not view the new anti-terror measures as offensive to French values.

The police patrol at the Place de la Republique as the public gather in memory of the 130 victims of the Paris terrorist attacks on November 27 [Getty]
The police patrol at the Place de la Republique on November 27 as people gather in memory of the victims of the Paris attacks [Getty]

The immediate reaction of French President Francois Hollande to the terrorist attacks in Paris on November 13 was to declare a state of emergency; for the fifth time in France’s history and the first time since the riots in the suburbs in 2005.

The state of emergency extends the powers of the administrative police, and the number of acts that don’t need to be authorised by the judiciary. The government can now temporarily shut down theatres, bars and other places of gathering and restrict freedom of movement and the right to hold public meetings. Theoretically, demonstrations are now forbidden in Paris.

The state of emergency also allows police to make warrantless searches whether in the day or night in places of residence. So far, about 800 such searches have been ordered.

Inside Story: How should France deal with aftermath of Paris attacks?

It allows suspected individuals to be placed under house arrest. This means, those individuals must remain in their homes for a maximum of 12 hours per day. For the rest of the day, they may have to clock out in police stations. So far, 266 house arrests have been enforced.

Upgraded and extended

This and other measures will be in place until the state of emergency is lifted.

To prolong the state of emergency after 12 days, the government must pass a law through parliament. This law was promulgated last week to prolong the state of emergency by three months. It will now be in effect until February 26, 2016.

Interestingly, this law also modernised – or upgraded – the state of emergency, for example, expanding warrantless searches to vehicles and electronic devices.

Also read: The Paris attacks did not take place

To guide its investigations, the intelligence services have in their possession the famous “S files”. These files contain detailed information (name, photos and how dangerous the individual could be under arrest) on most individuals suspected of involvement in terrorist activities. They are categorised according to threat and type: for example, S14 defines those known to be in, or returned from, Syria or Iraq.

Since the French revolution of 1789, the French people like to imagine themselves as rebellious, not unlike the Gallic people of the comic strip Asterix.


So why would all this require a constitutional revision?

The law on which the state of emergency is based dates back to 1955. But the Constitution itself was drafted in 1958.

Therefore, it can legitimately be asked whether the state of emergency is consistent with the constitution. In other words, could acts of police and restrictions of liberties based on a law passed in 1955 be considered unconstitutional? This would be bad news for the fight against terrorism, and of course, the French government.

For this reason, the purpose of the constitutional changes is to integrate the law of 1955 into the constitution. However, it could also be an occasion to slip in other anti-terrorism measures, such as the stripping of citizenship from individuals convicted of terrorism. This has not yet happened, and it is not clear whether it will.

Natural born protesters

France is a nation of natural born protesters. Since the French revolution of 1789, the French people like to imagine themselves as rebellious, not unlike the Gallic villagers of the comic strip Asterix. They are a people who may have failed to resist during World War II but who have broken all world records of the number of strikes and demonstrations.

However, no strong voices have so far been raised to denounce these anti-terrorism measures as destructive to cherished French values and freedom.

Pairs of shoes are symbolically placed in the Place de la Republique, after the cancellation of a planned climate march following the Paris attacks [REUTERS] 
Pairs of shoes are symbolically placed in the Place de la Republique, after the cancellation of a planned climate march following the Paris attacks [REUTERS] 

Most French citizens are now aware that the measures taken by the government are necessary at two levels: police security and legal security.

Most French citizens also understand that the measures are not designed to target or marginalise a specific community, ie, the French Muslims, who continue to enjoy the same rights and liberties as every other citizen, as long as they are not involved in terrorist activities.

A poll by Ifop and Le Figaro showed 84 percent ready to accept “controls and a certain limitation of liberty in order to guarantee better security”.

According to another poll conducted by Le Parisien, 53 percent of French people approve the revision of the Constitution to enlarge the exceptional powers of the president. Some 84 percent of French agree to facilitate the self-defence of policemen. And an overwhelming 91 percent of the French agree with the stripping of nationality from French-born dual nationals engaged in jihadist activities.

Also read: Marine Le Pen is playing into ISIL’s hands


n the contrary, the question to ask is: Will these measures be sufficient to defeat terror? They’ll surely help speed up investigations and possibly thwart new attacks. Unfortunately, they may not prevent all attacks in the future.

For this reason, some have already advocated for stronger decisions such as putting the “S files” into “administrative detention” or establishing a French Guantanamo Bay.

Ultimately, however, the French government’s measures are part of the wider war against terrorism – a war which must be waged in conjunction with the international community.

Antoine Bueno is a writer and a jurist at the French Senate.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.