ORIGINAL FRENCH ARTICLE: Denis Salas « Une Constitution n’est pas un instrument de politique pénale »
by Laurent Mouloud
Translated Sunday 10 January 2016, by
On reading the draft amendments to Article 36 of the Constitution, I have two major concerns. The first section sets out, in the ambit of the state of emergency, the total absence of control through a judicial judge, the sole person within the criminal system capable of guarding against abuse of liberty and security. Everything is left in the hands of an administrative judge. 
As for the second section of the draft, this appears even more alarming to me. According to the text, the civil authorities, beyond the 12 days of the state of emergency, can maintain exceptional measures in force for six months, should “a risk of terrorist action remain”. This comes down to constitutionalising pre-emptive logic, that is to say it is linked to a totally random evaluation of “risks” – all done without judicial control!
If this is the extension of the state of emergency, I personally, am against this. A constitution is a repository of fundamental rights which assures a balance between that which guarantees liberties and that which undermines them. It should not be used as an omnipotent weapon of penal policy. Now, this reform bill, based on security issues, with no control over political power by an independent judge, looks like it is just such a weapon.
What strikes me, is that the rights of the individual are perceived to be a constitutional risk which prevents political powers from acting. Assuredly, this is not new. Since the French Revolution, with every grave crisis comes a re-emergence of exceptional judicial measures which strengthen executive powers based on mistrust of judicial powers. However, I have the impression that this distrust has grown. This desire to brush aside all independent control, embodied in the judicial judge, is a dangerous slide for a great democracy like ours.
 The judicial judge is whom people from Common Law countries, such as the UK and US, perceive a judge to be – part of the judiciary making impartial decisions, independent of the administration, as conceived within the Separation of Powers. The administrative judge is perceived to be, as the name implies, part of the administration, therefore not implicitly impartial – this being considered to be detrimental to the liberty of the individual.