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Jean-Pierre Bosino: “The unacceptable challenge to the separation of powers”

Translated Monday 11 January 2016, by Adrian Jordan

Interview by Julia Hamlaoui

"As its name indicates, the state of emergency should not be permanent. And this is the very risk with constitutionalisation."

"That our fellow citizens have the need to feel protected, there is no doubt. However, there have been more than 3,000 police searches with, overall, limited results - you could say almost none. There are increased investigative powers, given to the police and security services, deemed necessary for the fight against terrorism. The constitutionalisation of the state of emergency will have grave repercussions."

"This instrument sets aside judicial power, which poses a real problem regarding the separation of powers. [1]. This is because administrative justice pertains to politics. It is therefore politics that decides who is to be searched, who is to be placed under house arrest, without the interference of a judge. This is unacceptable in a democratic country. Inclusion of such measures within the Constitution makes them permanent, with the risk of all possible regressions."

"Rescission of nationality, even if a u-turn is made on the issue, is a revealing, almost characterising, example: its aim is to respond to pressure, particularly from the National Front, without regard to usefulness. As if threatening to rescind the nationality of people prepared to blow themselves up will dissuade them."

"On the other hand, in the context of a permanent state of emergency, trade unions and political freedoms could be undermined by a simple administrative decision. Because two shirts are ripped off, unionists or demonstrators could be treated like terrorists. Now, the prolonging of the state of emergency for three months, like the scheme to constitutionalise it, shows the will to have recourse to these measures in a permanent manner."

"By taking this path, the government would be burdened with countless difficulties in trying to reverse these uncommon measures - without considering the fact that another political party could come to power and use these measures in an even more repressive manner."

[1This is the notion that, within a democracy, the functions of state should be divided in order to prevent abuse of power, hence the administrative (and executive), legislative and judicial powers are separated in a real democracy. However, even in democratic countries, there is often a blurring of the lines, as was seen under Thatcher in the UK, in what was termed an “elective dictatorship” – with a similar risk being perceived here under Hollande.

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