Problematic French Constitutional Reforms on the Horizon

By Rebecca Sheff and Annie Glasser

The French parliament is considering a set of constitutional amendments. One would add provisions to the constitution on the terms for declaring a state of emergency. The other would enable the government to strip convicted terrorists of their French nationality.

These changes have the potential to undermine human rights, civil liberties, and equal treatment for all citizens. If these “reforms” are ultimately approved, the government would have expanded authority to impose prolonged state-of-emergency restrictions on basic rights, with serious privacy and due process implications. Human Rights First is concerned about how this legislation would increase the potential for government overreach and discrimination in the use of surveillance, raids, detention, and prosecution of individuals during a state of emergency.

Today’s situation reminds us why these are not merely abstract issues. In the current state of emergency, out of the 3,336 administrative raids only 563 judicial procedures were launched, and of those, only 5 were for terrorist plans, threats, or attacks, according to government figures released in February.

These reforms would also exacerbate divisions in French society based on national origin, by legitimating the flawed notion that dual nationals are somehow inherently more “suspect” or more susceptible to extremist ideology. The underlying social struggle is in part about which populations are perceived as truly “French,” and which are relegated to marginal or outsider status. The French government, by pursuing this legislation, is in fact bolstering the troubling “clash of civilizations” narrative perpetuated by extremists.

President Hollande announced that the government would pursue these changes after the attacks in Paris in November 2015, and on December 23 the government presented draft text to the parliament.

The text first went to the National Assembly, which passed it on February 10 with slight modifications from the original, which for the most part positioned it to infringe more deeply on human rights, such as including minor charges (“misdemeanors”) for terrorism-related activity as grounds for potential revocation of French citizenship.  The bill was contentious; 317 voted in favor, 199 against, and 51 abstentions.

After the National Assembly vote, the majority leader in the Senate indicated that he intended to “rewrite” the text. It is now with the Senate—and the Senate version is already looking substantially different from the National Assembly version. On March 9, the relevant Senate committee adopted a version of the text that abandons most of the changes made by the National Assembly, and aligns more closely with the original text presented by the executive branch. While this unwinds some of the more troubling expansions that the National Assembly had crafted, the bill still poses a serious threat to human rights and civil liberties.

The Senate committee adopted the following significant changes:

On stripping certain persons of French citizenship:

1. Forfeiture of nationality would explicitly only apply to dual nationals. The National Assembly version was more opaque. The background concern is whether individuals could be rendered stateless as a result of this measure.
2. Citizenship could only be revoked from persons who were convicted of certain terrorism-related “crimes” and not in cases of misdemeanors. The National Assembly had added misdemeanors, which was not in the original text.
3. The committee took out any mention of a forfeiture of “civil rights.” The National Assembly version had modified the original text to say that persons stripped of French nationality would also be stripped of “the rights attached to” that nationality.

On the conditions for declaring a state of emergency:

1. “Public calamity” would not be grounds for the declaration of a state of emergency. The National Parliament had added that condition.
2. The committee confirmed the principle of parliamentary control over the state of emergency, and added details to the National Assembly version on how these controls would be exercised.
3. A state of emergency could be extended for a renewable period of three months, not four as the National Assembly version had stated.

The Senate as a whole is now taking up consideration of these provisions, adding additional amendments, and will vote on the legislation on March 22. After that, it goes back to the National Assembly for a second reading. In order to move forward, the two chambers will need to agree on a harmonized version. Then, the final text will be considered in a joint session of both chambers and can only be adopted by a three-fifths majority.

Human Rights First has called on the U.S. government to urge its French counterparts to reject any constitutional reforms that would compromise human rights, civil liberties, and equal treatment for all citizens. The French government, with support from the United States, should instead be combating xenophobia, antisemitism, and anti-Muslim attitudes by sending messages of tolerance and strengthening civil society.