Legality of crisis

The legality of crisis indicates a series of judicial apparatuses, which they are Constitution nels, legislative or jurisprudential conferring in crisis period to face the events with certain public authorities of the capacities that they do not hold in normal circumstances.

France

France, in heritage of the many crises which it has passed through for two centuries, has various judicial apparatuses to face these extreme situations on whole or part of its territory.

Constitutional devices

Article 16

See also: Article 16 of the Constitution of the Fifth French Republic

Article 16 of the Constitution of 1958 confers on the president of the Republic exceptional capacities, i.e. executive powers and legislative. In this direction, article 16 sets up a provisional mode of confusion of the capacities.

The meeting of two conditions is necessary to implement the capacities of article 16:

• It is necessary on the one hand that a serious and imminent threat weighs on the institutions, the integrity of the territory, the independence of the nation, or the execution of its international engagements,
• It is necessary on the other hand that the regular operation of the public authorities constitutional is stopped.

It should however be stressed that the respect of these two conditions being controlled by any body likely to prevent the coming into effect of article 16, this limit remains largely theoretical.

This mode of exception can be implemented only after consultation of the constitutional council held to formulate an opinion published in the Official journal, Prime Minister and presidents of the National Assembly and Sénat. The nation must then be informed by the president.

State of siege

See also: State of siege

The state of siege is in the beginning a legislative device of the Second Empire whose constitution of 1958 registered the principle in its text (article 36). The state of siege is codified in the Code of defense and allows the transfer of policing powers the military authority, the creation of jurisdiction soldiers and the extension of the policing powers.

The state of siege can be implemented on whole or part of the territory after deliberation of the Council of Ministers and on decree of this last when there is imminent danger because of a armed insurrection or of a foreign Guerre.

The extension of the state of siege beyond 12 days is subjected to the authorization of the Parliament.

Legislative devices

State of emergency

See also: State of emergency in France

This mechanism was created to face the events of Algeria by the law of the April 3rd 1955. It allows the extension of the policing powers the profit of the authorities of police force either in the event of gravely hurts to the law and order, or in the event of public calamities. The implementation of the state of emergency is copied on the implementation of the state of siege. The extension beyond 12 days must be authorized by the Parliament.

In the Rolin stop the Council of State recalled that the law of 1955 envisages in its article 7 one recourse for abuse of power while underlining in the Allouache stop and others that the President of the Republic had a " power of appreciation étendu" to determine if the conditions posed by the law of the April 3rd 1955 were met.

In the Allouache stop and others, the Council of State decided that the President of the Republic, invested by the law of extension of the capacity to put an end to it before the term posed by the aforementioned law, was to implement this capacity on the assumption that the circumstances would characterize a return to a state of calm durable.

The Code of defense also envisages provisions in the event of crisis when there is simultaneous vacancy of the presidency of the Republic, the presidency of the Senate and the functions of Prime Minister, the responsibility and the capacities of defense are automatically and successively reserved for the Minister for defense and, failing this, for the other ministers in the order indicated by the bearing decree composition of the Government .

Jurisprudential devices

The administrative judge shows a great pragmatism when times are disturbed and legalizes situations which in normal weather would be censured. Two theories illustrate this pragmatism, the theory of the exceptional circumstances and the theory of the civils servant in fact.

Exceptional circumstances

The judge recognizes the exceptional circumstances in the event of war, of paralysis of the territory: strikes, War of Algeria, (declared circumstances " particulières"), or in the event of natural disasters, like the eruption of the volcano of the Sulfur mine in Guadeloupe.

May 68 was not regarded as exceptional circumstances, perhaps because of the absence of deaths.

For higher reasons of General interest and effectiveness, the judge considers in these circumstances that the administration can abstain from respecting certain regulatory and legal provisions; this theory is devoted by the Council of State in its stop of June 28th, 1918 (Heyriès business) and on February 28th, 1919 (Ladies Fraud Laurent.)

Theory of the civil servant in fact

See also: Theory of the civil servant in fact

When the circumstances lead to the disappearance of the administration, the judge admits that ordinary persons ensure the continuity of the State, and make decisions noting of the prerogatives of the public power (EC, Lecoq January 7th, 1944).

Reference

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