The French constitution, adopted in October 1958, was drafted taking into account the difficulties experienced by the executive in 1940 during the
Battle of France and the contemporary state of affairs, namely the
Algerian war.
Article 16 of the Constitution – '''' Article 16 of the constitution grants the
President of France "extraordinary powers" in exceptional cases, leading to an effective "state of exception": The conditions are both that the state is confronted with exceptional circumstances and that the regular institutions are disrupted and cannot govern effectively. This article of the constitution of the
French Fifth Republic has been qualified as "liberticide" by critics. which stated that after 30 days the Constitutional Council can be requested to determine in a public ruling whether or not the conditions that justified the use of Article 16 are still current. At any time beyond 60 days, the Council rules on this issue without the need for a referral.
Article 36 of the Constitution – '''' Article 36 of the constitution is concerned with the state of siege (, which can be decreed by the president in the Council of Ministers for a period of twelve days and which can only be extended with the approval of Parliament. A state of siege may be declared in case of an "imminent peril resulting from a foreign war ['
, or simply "war"] or an armed rebellion ('). Military authorities may take police powers if they judge it necessary. Fundamental liberties may be restricted, such as the right of association, legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, etc.
Statute provisions – '''' The state of emergency in France is framed by the Law n°55-385 of 3 April 1955 (pre-dating the constitution of the Fifth Republic) and modeled on the "'
". It was created in the context of the Algerian War, to allow the authorities to manage the crisis without having to declare the "'", which allows the military to take over a large part of the civilian authorities and which was conceived for wartime. The 1955 statute states that the state of emergency can be decreed by the president in the Council of Ministers. The decision to proclaim the state of emergency can only last for 12 days. To extend the state of emergency for a longer period of time necessitates a law passed regularly through the Parliament. Proclaiming the state of emergency gives exceptional powers to the
Minister of the Interior and to
prefects. The Minister can pronounce
house arrests. The prefects can regulate or forbid circulation and gathering in some areas: the power of
curfew, which
mayors can pronounce for the territory of their city independently of the state of emergency, is extended to prefects. The Minister and the prefects can, for the part of the territory concerned by the state of emergency, order places of gathering to be closed. Authorities can also order that legally-detained weapons be relinquished to them. There is no need for the administration to motivate its decisions: house arrests or decisions forbidding someone to enter a defined area can be appealed. All of those powers are not enacted by the simple proclamation of the state of emergency but may be decided by the authorities if the need arises. If the decree, or later, the law, says so, the authorities can: • conduct administrative searches and seizures, day and night, without judiciary oversight, • censor the press, radio, films, and theater representations. Article 12 of the 1955 law allows, if a decree specifically provides it, the transfer of some crimes from the judicial jurisdiction to that of the military. This law is modeled after the society of the time, to deal with a specific crisis, and its objective was to prevent a civil war or very severe unrest emanating from a part of the population. Some parts have since become obsolete: • politically, censorship is not as acceptable in the twenty-first century as it was at the time the law (which mentions neither television nor the internet) was passed; • administrative search and seizures must now be submitted to judicial oversight; • the 2012 law on gun control has rendered partly obsolete the possibility of a decree requiring citizens to relinquish legally-owned weapons, which were more common in the aftermath of
World War II; • various terrorism laws have strengthened the criminal procedure since the 1980s: the powers available to the police and judges when investigating acts of terrorism are more extensive than those described in the 1955 law.
Sanitary state of emergency To control the
COVID-19 pandemic in France, the Parliament created a
sanitary state of emergency (). To protect public health, the prime minister can: • regulate or prohibit the movement of people and vehicles and regulate access to public transport and the conditions of their use; • prohibit people from leaving their homes, except for necessary travel such as for medical or important familial appointments; • order measures aimed at the quarantine of persons likely to be affected; • order measures to place and keep in quarantine, at their home or any other suitable accommodation, the affected people; • order the provisional closure and regulate the opening, including the conditions of access and presence, of one or more categories of establishments open to the public as well as meeting places, guaranteeing the access of people to goods and basic necessities; • place restrictions on the
freedom of assembly; • order the requisition of all persons (
mandatory service) and all
goods and services necessary to combat the health disaster; • take temporary measures to control the prices of certain products; • take all measures to make available to patients appropriate medicines for the eradication of the health disaster; • take any other regulatory measure limiting the freedom to conduct business. This state of emergency is framed by the law of 23 March 2020 and can be declared in the Council of Ministers for a period of 2 months. Extensions to this must be voted for by Parliament. == Historical uses ==