The Council declares one provision unconstitutional, asks to apply others with moderation.
by Massimo Introvigne
Readers of Bitter Winter may have followed the long saga of the French law on “separatism,” renamed by the government “Law for the Respect of Republican Principles.” The law has been voted on July 23, 2021, but more than sixty members of the Assembly, and more than sixty senators, have asked the Constitutional Council to re-examine seven articles for possible issues of constitutionality. On August 13, 2021, the Constitutional Council rendered its decision. It declared two articles totally, and one article partially, unconstitutional, and dictated interpretive rules for other articles.
While the French media interpreted the decision as a “green light” for the law, in fact the story does not end here. The Constitutional Council examined the articles denounced as possibly unconstitutional by the MPs and senators who asked for its intervention. It would have had the power to examine all the other articles ex officio, some of them in response to the “external interventions” it received. All French citizens can send “external interventions” to the Constitutional Council, but the Council is not compelled to take them into account. In this case, it decided to go beyond the requests of the MPs and senators and to examine ex officio only one provision, dealing with the activities of the local security councils, and to declare it unconstitutional because not of its content but of the procedure adopted to approve it.
As a result, the articles of the so-called law on separatism can be divided in four groups. First are the articles, and part of articles, that some MPs and senators criticized as possibly unconstitutional while the Constitutional Council declared them constitutional. These include the provisions of Article 16 allowing for the administrative dissolutions of associations responsible of, or inciting to, physical violence. In their final text, these provisions allow the associations, before being dissolved by a decree of the President of the Republic, to defend themselves, and to file an appeal before an administrative court against the decision. The Constitutional Council also noted that, with respect to previous versions of the text, the reasons for dissolution now refers only to physical violence (happily, the references to “violations of human dignity” and “psychological violence” that some politicians planned to use against the so-called “cults” have disappeared). It is true that the associations are responsible for the behavior of their members, which was criticized by the MPs and senators who suspected the provision to be unconstitutional, but the responsibility is limited to the cases in which the organizations are able to control their members and willingly omit this control.
Second are the articles, or parts of articles, declared unconstitutional. They include, importantly, the provisions of Article 16 that would have allowed the Minister of Justice, when a procedure of dissolution has been started but has not yet been concluded, to suspend the activities of an association for a maximum of six months. This, the Constitutional Council says, would destroy the principle of freedom of association, because a long suspension would irreparably damage an association, and, under this provision, would be pronounced before it is recognized guilty of any wrongdoing.
Also unconstitutional has been declared Article 26, that would have conditioned the grant of asylum, or permission for a foreigner to remain in France, to his or her “respect of Republican principles.” Foreigners and refugees not respecting “Republican principles” might have been expelled. The Constitutional Council recognized that there is no right to live in France for foreigners, and that the state may expel dangerous non-citizens, but regarded the references to “Republican principles” as so vague that they would open the road to arbitrariness by local authorities.
Third come the articles that have been declared constitutional, but only as long as they are interpreted according to the Council’s indications. The most important provision in this group is Article 49 about homeschooling. The Council intervenes at the end of a process where the original project of forbidding homeschooling altogether was modified, after widespread protests, into a system where homeschooling is allowed but submitted to a preliminary authorization by the local school authorities.
This is still not good enough for Christians and other supporters of homeschooling, including the legislators who protested, because before the law homeschooling was free, although with controls by school authorities, and not subject to the preliminary authorization that has now been introduced. The Constitutional Council decided that the preliminary authorization per se is not unconstitutional, provided it is granted or denied based only on the respect of mandatory programs and on the ability of the teachers to instruct the pupils, with the exclusion of any “discrimination of any nature.”
Fourth, the majority of articles have not been examined by the Constitutional Council and have not been declared constitutional, nor unconstitutional. This means that any judge called to enforce them may be challenged by parties on their constitutionality and, via the Court of the Cassation or the State Council, they may be examined by the Constitutional Council, which will do what it did not do now and rule on their constitutionality.
Doubts in fact remain on other provisions. Interviewed by Le Figaro, scholar Emmanuel Tawil, who is a member of the Commission Consultative des Cultes (Consultive Commission on Religious Organizations: “cultes” does not mean “cults” in French), stated that MPs and senators did not do their homework, which would have not been difficult, as “it would have been enough to copy the comments by the Defensor of Right and the Consultative Commission on Human Rights. In fact, certain legislators had promised the religious organizations they would do it.”
Tawil looks in particular at article 69 with “a strong suspicion of unconstitutionality,” as it changes a regime where religious associations (associations cultuelles) could be freely established to one where, in substance, they should be authorized by the administrative authority, the Prefect, although the authorization system has been softened after the comments by the State Council.
Another article that may suspected of unconstitutionality is article 77, which asks the associations to declare to the Prefect any contribution, unless minimal, in money or “resources” they receive from abroad, and authorizes the Prefects to oppose these contributions (without establishing a fixed term within which this opposition should be filed). It is true that, here again, the legislators took criticism into account and limited the possibility for the Prefects to oppose these contributions to the sole cases of a clear risk for a “fundamental interest” of French society. However, it should be considered that for several religious organizations the contributions from abroad are essential, and Prefects are thus given a dangerous power to paralyze their activities.
From the first to the last drafts, and through the interventions of the State Council and now of the Constitutional Council, the law has certainly been improved. The provisions intended to crack down on “cults” have been eliminated. However, the opportunity to use the law to modernize the old French system of religious associations has been lost, and some controversial provisions remain and will probably generate a significant number of litigations.
Massimo Introvigne (born June 14, 1955 in Rome) is an Italian sociologist of religions. He is the founder and managing director of the Center for Studies on New Religions (CESNUR), an international network of scholars who study new religious movements. Introvigne is the author of some 70 books and more than 100 articles in the field of sociology of religion. He was the main author of the Enciclopedia delle religioni in Italia (Encyclopedia of Religions in Italy). He is a member of the editorial board for the Interdisciplinary Journal of Research on Religion and of the executive board of University of California Press’ Nova Religio. From January 5 to December 31, 2011, he has served as the “Representative on combating racism, xenophobia and discrimination, with a special focus on discrimination against Christians and members of other religions” of the Organization for Security and Co-operation in Europe (OSCE). From 2012 to 2015 he served as chairperson of the Observatory of Religious Liberty, instituted by the Italian Ministry of Foreign Affairs in order to monitor problems of religious liberty on a worldwide scale.
