French scholars note ‘special power’ constitutional problems

The article was compared to the idea of the National Strategic Reform and Reconciliation Committee, which had appeared in the defeated constitutional draft. The idea to have special powers or a mechanism to handle crises remains in the new constitutional draft under Meechai Ruchuphan. 

As many critics said this amounted to a “state within a state”, advocates of the special powers argued that France, a democratic model nation, had a similar article that gave absolute power to some political bodies during critical periods.

But Article 16 has been widely and highly criticised among French legal academics as well as politicians, Raimbault, director of Sciences Po Toulouse, said yesterday at an academic seminar titled “Legal Perspectives of Democracy’s Transition” at Thammasat University’s Tha Prachan Campus.

He elaborated that the article went against a principle of French constitutions involving the separation of powers, where the legislative, executive and judicial powers are independent from one another but related in terms of checks and balances.

The scholar cited former French president Francois Mitterrand as saying that the use of Article 16 was the same as staging a permanent coup d’etat. That is, the seizure of power was being enacted through a constitutional clause that allows such power.

Similar criticism also arose under the use of martial law and emergency decrees during urgent situations, especially when Paris was recently under attack.

 

One of the criticisms has been that it lacks a concrete time frame of when to use those special powers, said Piyabutr Saengkanokkul, a law lecturer at Thammasat who yesterday acted as a French-Thai translator. However, the French constitution was amended in 2008 to give a specific time frame for its use, he added.

 

Xavier Magnon, a fellow French public-law scholar from Toulouse Capitole I, added that Article 16 permitted the president to take absolute power only in situations where no political body was able to function. 

The French constitutional court also had a role to play in scrutinising whether political bodies were genuinely paralysed in a way that would justify invoking Article 16, he said.

The court is also tasked with overseeing actions of a president ruling with absolute power, judging on both their appropriateness in a given situation and on whether they were steering the country back to normality. 

Magnon went on to say that the French constitution court was meant to safeguard the people’s rights and freedoms.

However, the court’s existence is itself sometimes controversial. Critics claim it can help political players exploit the constitution to further their own aims and power. 

Meanwhile others say it bolsters democracy by offering citizens a channel to contest decisions taken by the powers-that-be. Some see that as a weak point, claiming the court protects the majority interest – which often equates to state interest – rather than protecting the rights of individuals, Magnon explained.