After the horrendous terrorist attacks in Paris, François Hollande has assumed emergency powers across the totality of French territory. It is the first time that this has happened since 1963 and they are an inheritance from Charles de Gaulle and Michel Debré who designed the French Constitution in 1958 amid the crisis of the war for Algerian independence. The events of 1958 almost led to a regime collapse as General Jacques Massu was planning a military takeover. Instead de Gaulle’s new constitution beefed up the powers of the President and provided him with quasi-dictatorial state of emergency powers under the new Article 16 (see text below) in order to deal with the crisis of Algeria and to head off insubordination in the army born of the near-breakdown of the French Republic. It is these powers that Hollande has inherited.
Left-wing parties’ biggest reason for campaigning against the new constitution in the referendum of September 1958 was Article 16, which they feared would be used against them. But the fact is that, until now, the only time Article 16 was applied in the whole of France occurred between 1961 and 1963 to deal with a further attempted coup by French generals in Algeria and, in 1962, to deal with the forcible evacuation of French settlers from an Algeria that was granted independence. In other words, de Gaulle never used Article 16 against the Left, not even in May 1968, and instead applied it against those who had been his political sympathisers in the army and among the French settlers in Algeria.
To get the 1958 constitution approved, de Gaulle and Debré included a number of checks and balances within Article 16. First, the President must “consult” with the Prime Minister, the Presidents of both chambers of Parliament, and with the Constitutional Council (which is France’s Constitutional Court). He can ignore them but must ask for their views. If consensus on emergency powers is lacking, this could have a powerful effect on public opinion. Likewise, if they are not already sitting, the Parliament has to be recalled and cannot be dissolved for early elections. The Parliament may not exercise legislative power but it is forced to deliberate, which could again have a powerful effect in the court of public opinion if a President abuses his powers. After two months, the Constitutional Council has the right to end the state of emergency if circumstances no longer require it and if the President refuses to do so. The Constitutional Council also has this power after just one month if the President of either chamber of Parliament, or 60 members of either chamber request it to do so.
Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council.
He shall address the Nation and inform it of such measures.
The measures shall be designed to provide the constitutional public authorities as swiftly as possible, with the means to carry out their duties. The Constitutional Council shall be consulted with regard to such measures.
Parliament shall sit as of right.
The National Assembly shall not be dissolved during the exercise of such emergency powers.
After thirty days of the exercise of such emergency powers, the matter may be referred to the Constitutional Council by the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators, so as to decide if the conditions laid down in paragraph one still apply. It shall make its decision by public announcement as soon as possible. It shall, as of right, carry out such an examination and shall make its decision in the same manner after sixty days of the exercise of emergency powers or at any moment thereafter.