International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 95

The Legal Scheme of Exceptional Circumstances
After article 36 of the Constitution, an article 36-1 was inserted, written as
follows:“Art. 36-1.—The state of emergency by the Council of Ministers, in all or in
part of the territory of the Republic, either in a situation of imminent peril resulting
from serious attacks on the public order, or in the case of events that present, due to
their nature and seriousness, the character of public calamity.
The law determines the administrative police measures that civil authorities
may take to prevent this peril or deal with these events.
Throughout the duration of the state of emergency, the Parliament shall meet
without requiring to be convened.
The National Assembly and the Senate shall be informed without delay of the
measures taken by the Government during the state of emergency. They may require
any supplementary information as part of the monitoring and evaluation of these
measures. The regulations of the assemblies provide for the conditions according to
which the Parliament shall monitor the implementation of the state of emergency.
The prorogation of the state of emergency beyond twelve days can only be authorized
by law. The law shall determine the duration, which shall not exceed four months.
This prorogation may be renewed under the same conditions."
Article 1a (new)
At the end of the second phrase of the last subparagraph of article 42 and in
the third subparagraph of article 48 of the Constitution, after the word: “emergency,”
the following words are inserted: “under articles 36 and 36-1.”
The National Assembly adopted the text without too much difficulty but the
Senate was much more circumspect.
The Senate legislative committee expressed its doubts on the legal need for
this constitutional amendment which would only be accepted in the name of national
unity on the condition that it strengthened guarantees offered to citizens.
After noting that recent decisions by the Constitutional Council on the state
of emergency measures demonstrated that inscribing this legal scheme into the
constitution was not necessary, it nonetheless considered that inscribing the state
of emergency into the Constitution could be of interest in order to set limits on
administrative police powers and determine the guarantees for respecting freedoms
and judicial and parliamentary control.
It thus adopted nine amendments in order to subject the administrative police
measures to the principle of proportionality, specify that the state of emergency
cannot override the jurisdiction of the courts, protector of individual freedoms, and
allow Parliament to hold a public debate on the state of emergency at any time,
including a draft law bringing it to an end.
The Senate passed a text different from the one adopted by the National
Assembly, especially concerning the revocation of nationality. This political and
constitutional impasse led the head of state to abandon the constitutional review
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