Dual-Court System and Roles of Courtroom

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Bluebook 21st ed. Farhad Ghaussy, Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997, 7 UCLA J. INT'l L. & FOREIGN AFF. 1 (2002).

ALWD 6th ed. Ghaussy, F. ., Who protects the stranger - the french dual court system confronts the politics of immigration: A critique of the tribunal des conflits' decision of may 12, 1997, 7(1) UCLA J. Int'l L. & Foreign Aff. 1 (2002).

APA 7th ed. Ghaussy, F. (2002). Who protects the stranger the french dual court system confronts the politics of immigration: critique of the tribunal des conflits' decision of may 12, 1997. UCLA Journal of International Law and Foreign Affairs, 7(1), 1-30.

Chicago 17th ed. Farhad Ghaussy, "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997," UCLA Journal of International Law and Foreign Affairs 7, no. 1 (Spring/Summer 2002): 1-30

McGill Guide 9th ed. Farhad Ghaussy, "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997" (2002) 7:1 UCLA J Int'l L & Foreign Aff 1.

AGLC 4th ed. Farhad Ghaussy, 'Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997' (2002) 7(1) UCLA Journal of International Law and Foreign Affairs 1.

MLA 8th ed. Ghaussy, Farhad. "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997." UCLA Journal of International Law and Foreign Affairs, vol. 7, no. 1, Spring/Summer 2002, p. 1-30. HeinOnline.

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WHO PROTECTS THE STRANGER? THE FRENCH DUAL COURT SYSTEM

CONFRONTS THE POLITICS OF IMMIGRATION: A CRITIQUE OF THE TRIBUNAL DES CONFLITS'

DECISION OF MAY 12, 1997

Farhad Ghaussy*

On May 12, 1997 the French Tribunal des Conflits rendered a

controversial decision limiting exclusive judicial power to protect

civil liberties. The Court freed administrative hands of matters re-

garding illegal entry into France, limiting judicial intervention to

cases that involve a flagrant irregularity. Even more controversially,

the court rendered its decision through an uncommon procedure in

which the Minister of Justice intervened to break the deadlocked

process.

The Tribunal's decision coincides with the increased politiciza-

tion of immigration issues in France. Since the 1980s, growing hos-

tility to immigrants has shaped an important part of French political

debate. In recent years, government efforts to control immigration

have provoked increasing criticism from both the legal community

and the general public, who see government reforms as an infringe-

ment of fundamental civil liberties. This Article explores both the civil

rights and judicial independence issues raised by the case.

Ultimately, this Article raises larger issues of particular signifi-

cance to understanding how international pressures affect ostensibly

domestic legal issues. Viewed from this comparative perspective, the

curtailment of individual liberties and the weakening of legal protec-

* B.A., University of California at Berkeley, 1991; Dipl6me, Institut d'Etudes Politiques de

Paris, 1994; D.E.A., Institut d'Etudes Politiques d'Aix-en-Provence, 1995; J.D., Georgetown Uni-

versity Law Center, 1999. The author wishes to thank Professor James Feinerman for his time and

helpful critique, as well as Stephanie Goeller and Etienne Boursican for their careful editing. Trans-

lations of the May 12, 1997 Tribunal decision, as well as French newspaper articles and legal

commentary, were completed by the author.

2 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

tions of such rights derive, in part, from a domestic political reaction to increased globalization and the perceived threats associated with such globalization. Confronted with this changing world landscape, democracies must strive to reinforce institutions designed to protect individual liberties, rather than succumbing to the facility of political acquiescence.

INTRODUCTION ....................................................... 2 I. AN OVERVIEW OF THE DUAL COURT SYSTEM ............... 4

A . Adm inistrative Law ................................... 5 B. Tribunal des Conflits .................................. 9

II. IMMIGRATION: POLITICAL QUESTIONS, LEGAL ISSUES ........ .11 A. Immigration in French Society and Politics ............. 12 B. Recent Reform Efforts ................................. 15

1II. IN RE BEN SALEM & TAZNARET .............................. 18 IV. CRITIQUE OF THE TRIBUNAL'S DECISION .................... 21

A. Administrative Action Constituted a voie de fait ........ 22 B. Judicial Authority Should Hold Competence ............ 25 C. Question of Judicial Independence ..................... 27

CONCLUSION .......................................................... 29

INTRODUCTION

On May 12, 1997 the French Tribunal des Conflits' rendered a contro- versial decision concerning administrative power to prevent illegal aliens from entering French territory. 2 The essential issue in the case lies at the heart of the French legal system: Whether the administration possesses the jurisdictional competence to prevent judicial judges from presiding over cases which involve fundamental liberties-here, the right to move freely, habeas corpus and due process of the law.

In its decision, the French high court limited exclusive judicial power to protect civil liberties. The Court freed administrative hands of matters re- garding illegal entry into France, limiting judicial intervention to cases that involve a voie de fait (flagrant irregularity). 3 More controversial than the

I See L. NEVILLE BROWN & JOHN S. BELL, FRENCH ADMINISTRATIVE LAW 144-45 (4th ed. 1993) (defining Tribunal des Conflits as the arbiter of jurisdictional conflicts between administrative law and civil law). 2 See Trib. conflits, May 12, 1997, JCP 1997, 11 22861, note Pierre Sargos. 3 See BROWN & BELL, supra note 1, at 135. In the context of French administrative jurispru-

dence, a voie defait consists of a manifest violation of a property right or a civil liberty committed by the government. See ANDRt DE LAUBADPRE ET AL., TRAIT DE DROIT ADMINISTRATIF, Vol. I § 563 (12th ed. 1992) (specifying an occurrence of voie defait where an (1) administration commits

Critique of Tribunal 5/12/97 Decision 3

substantive issue at hand, the manner in which the court rendered its decision sparked widespread criticism from French magistrates.

4 In an uncommon

procedure, 5 the Garde des Sceaux (the Minister of Justice) 6 intervened 7 to

break the deadlocked process. 8

The Tribunal's decision coincides with the increased politicization of

immigration issues in France. 9 Since the 1980s, growing hostility to immi-

grants has shaped an important part of French political debate.' 0 In recent

years, government efforts to control immigration have provoked increasing criticism from both the legal community"I and the general public,'

2 who see

government reforms as an infringement of fundamental civil liberties.' 3

"gross irregularity;" (2) in carrying out "material activity of execution;" or (3) that aggreviates "property law" or "public liberty"). See also GtRARD CONRU, VOCABULAIRE JURIDIQUE 846 (2d ed.

1990) (defining term also as "assault and battery" in a general context).

4 See Bernard Philippe, Un arret du Tribunal des conflits suscite une vive controverse, LE

MONDE, May 16, 1997, available at LEXIS, News, France file.

5 See FRAN(cOIS CHOUVEL ET AL., LES CAS DE PARTAGE AU TRIBUNAL DES CONFLITS ix (1984).

See also BROWN & BELL, supra note 1, at 145 (interpreting the rareness of the tie-breaking proce-

dure as indicative of a close understanding and mutual respect between administrative and civil

legal systems). 6 See ROGER PERROT, INSTITUTIONS JUDICIAIRES § 55 (7th ed. 1995). In France, common usage

often refers to the Minister of Justice as the Chancellerie and the Garde des Sceaux. Both terms

date back to the Monarchy. The latter term refers to an ancient officer of the Crown whose duty

consisted of "guarding the seals of the King" that were employed to authenticate official documents.

Id. 7 The intervention of a government minister in a judicial decision appears starkly. foreign to the

practice of judicial review in the United States. French legal scholars are traditionally hostile to the

notion of judicial review, which they perceive of as undemocratic. See Dallis Radamaker, The

Courts in France, in THE POLITICAL ROLE OF LAW COURTS IN MODERN DEMOCRACIES 129, 139

(Jerold L. Waltmand et. al. eds., 1988).

8 See PERROT, supra note 6, at § 38 (stipulating that the Minister of Justice only intervenes in tie

votes of the Tribunal des Conflits).

9 See ALEC G. HARGREAVES, IMMIGRATION, 'RACE' AND ETHNICITY IN CONTEMPORARY FRANCE

177 (1995).

10 See HARVEY G. SIMMONS, THE FRENCH NATIONAL FRONT: THE EXTREMIST CHALLENGE TO

DEMOCRACY 156-57 (1996). Public antipathy towards immigrants corresponds with pressures from

the extreme right as well as increased media attention on the "problems" immigrants pose to French

society. Id. at 144.

1 See Susan Soltesz, Note, Implications of the Conseil Constitutionnnel's Immigration and Asy-

lum Decision of August 1993, 18 B.C. INT'L & COMP. L. REV. 265, 275-76 (1995).

12 See, e.g., Andrew Gumbel, Pasqua Plays Race Card, NEW STATESMAN & Soc., June 18, 1993,

at 10 (indicating that a massive demonstration would take place in Pais against the government's

anti-immigration measures). 13 See generally JOHN BELL, FRENCH CONSTITUTIONAL LAW 138-98 (1992) (outlining basic funda-

mental freedoms guaranteed by French legal tradition).

4 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

This Article explores both the civil rights and judicial independence is- sues raised by the case. Part I explicates the French legal system for the common-law practitioner. Particular attention is devoted to the distinctions between public and private law, and the specific role of the Tribunal des Conflits. Part II examines the social and political context in which immigra- tion law operates. Since the 1980s, immigration has become a divisive polit- ical issue 14 subject to several major legal reforms. 15 Part III explores the specific facts of the case, the procedure leading to the Tribunal des Conflits, and introduces the actual decision of the high court of jurisdiction. Part IV argues the Tribunal mistakenly denied judicial authority and glossed over the existence of a flagrant irregularity. Further analysis considers implications of the decision on the independence of the judiciary in France.

Ultimately, this Article raises larger issues of particular significance to understanding how international pressures affect ostensibly domestic legal issues. Viewed from this comparative perspective, the curtailment of indi- vidual liberties and the weakening of legal protections of such rights derive, in part, from a domestic political reaction to increased globalization and the perceived threats associated with such globalization. Confronted with this changing world landscape, democracies must strive to reinforce institutions designed to protect individual liberties, rather than succumbing to the facility of political acquiescence.

I. AN OVERVIEW OF THE DUAL COURT SYSTEM

The French legal system' 6 provides insight into comparative law. 17 Foremost, France is a civil law' 8 jurisdiction. The French judiciary

14 The French experience corresponds with changing attitudes towards immigration throughout Western Europe. See DEMETRIOS G. PAPADEMETRIOU, CONVERGING PATHS TO RESTRICTION: FRENCH, ITALIAN, AND BRITISH RESPONSES TO IMMIGRATION (1996). 1- See infra Part lI.B. 16 For a general overview of French law, see BRICE DICKSON, INTRODUCTION To FRENCH LAW

(1994); NICOLE GUIMEZANES, INTRODUCTION AU DROIT FRANCAIS (1995); SIR OTTO KAHN-FREUND ET AL., A SOURCE-BOOK ON FRENCH LAW (Bernard Rudden ed., 3d ed. 1991); ARTHUR TAYLOR VON MEHREN ET AL., THE CIVIL LAW SYSTEM (2d ed. 1977); BARRY NICHOLAS, FRENCH LAW OF CONTRACT (2d ed. 1992); DAVID POLLARD, SOURCE BOOK ON FRENCH LAW (1996); FRANCOIS TERRE, INTRODUCTION GtNtRALE AU DROIT (2d ed. 1994); ANDREW WEST ET AL., THE FRENCH LEGAL SYSTEM: AN INTRODUCTION (1992); MARTIN WESTON, AN ENGLISH READER'S GUIDE TO THE FRENCH LEGAL SYSTEM (2d ed. 1994). 17 See generally JOHN H. BARTON ET AL., LAW IN RADICALLY DIFFERENT CULTURES (1983);

MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS (2d ed. 1994); ARTHUR TAYLOR VON MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW SYSTEM: AN INTRODUCTION TO THE COMPARATIVE STUDY OF LAW (2d ed. 1977); RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW (5th ed. 1988).

Critique of Tribunal 5/12/97 Decision

maintains a dual court system,' 9 differentiating between public 20 and pri-

vate 2 1 law. This duality remains deeply rooted in French legal history. 2 2 A

Cartesian perspective, however, differs from the philosophical outlook famil-

iar to most common-law practitioners. 23 The originality of the French system

lies in the specificity of its administrative law.

A. Administrative Law

France practices a system of dual jurisdictions and dual court hierar-

chies, clearly distinguishing between private and public law. 24 One system

covers civil and penal justice, the other administrative justice. The former is

18 See generally JEAN-Luc AUBERT, INTRODUCTION AU DROIT ET THPMES FONDAMENTAUX DU

DROIT CIVIL (1992); WALTER CAIRNS & ROBERT McKEON, INTRODUCTION TO FRENCH LAW (1995);

F.H. LAWSON ET AL., AMOS AND WALTON'S INTRODUCTION TO FRENCH LAW (3d ed. 1967). The

major differences between civil law and common law stem from their underlying ideology.

Whereas civil law takes meaning from an ideology of revolution, "the conservative tendencies of

the common law tradition stand in marked contrast." John Henry Merryman, On the Convergence

(and Divergence) of the Civil Law and the Common Law, 17 STAN. J. INT'L L. 357, 359-73, 387-88

(1981), reprinted in JOHN HENRY MERRYMAN ET AL., THE CIVIL LAW TRADITION: AN INTRODUC-

TION TO THE LEGAL SYSTEM OF WESTERN EUROPE AND LATIN AMERICA 32 (2d ed. 1985).

19 See Jacques Chevallier, Du principe de siparation au principe de dualiti, in LA DUALITt DES

JURISDICTIONS EN FRANCE ET A L'tTRANGER XX (Marceau Long et al. eds., 1990) (indicating that the

Law of Aug. 16-24, 1790 constitutes the foundation of modern administrative law and source of

contemporary duality of jurisdictions).

20 See CHRISTIAN DADOMO & SUSAN FARRAN, THE FRENCH LEGAL SYSTEM 16 (2d ed. 1996)

(defining public law as pertaining to relationships between government and governed).

21 See KAHN-FREUND, supra note 16, at 10 (defining private law as dealing with private persons:

"it defines who, or what is to count as a subject of its legal system with a capacity for legal rights

and duties ... and it deals with the legal relations between them").

22 See, e.g., A. ESMEIN, COURS tLtMENTAIRE D'HISTOIRE DU DROIT FRANAIS (1892); A. FOUILLtE

ET AL., MODERN FRENCH LEGAL PHILOSOPHY (Mrs. Franklin Scott trans., 1968) (1916).

23 American law, for example, strictly interprets the notion of one law equal for all. See, e.g.,

Clinton v. Jones, 520 U.S. 681 (1997) (holding unanimously that neither the doctrine of separation

of powers, nor the need for confidentiality of high-level communications, can sustain absolute,

unqualified Presidential privilege of immunity from judicial process). The French system erects a

separate and distinct jurisdiction-with its own courts, procedures and jurisprudence-specifically

applicable to the administration. See DE LAUBADIRE, supra note 3, at § 429 (explaining the exis-

tence in France of administrative jurisdiction distinct from judicial jurisdiction as the product of

history, originating in the Monarchy, systemized by the Revolution, and completed by jurisprudence

of Nineteenth Century). Another contrast with the common-law system is the preeminence of the

legal scholar in the civil law tradition. See, e.g., MERRYMAN, supra note 18, at 57-60 ("[T]he legal

scholar is the great man of the civil law.").

24 See Nicolas Marie Kublicki, An Overview of the French Legal System from an American Per-

spective, 12 B.U. INT'L L.J. 57, 60 (1994).

6 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

crowned by the Cour de Cassation,2 5 the latter by the Conseil d'Etat.26

These two jurisdictions are both independent and sovereign,2 7 notably in de- fining their own competence.

28

Administrative acts are neither reviewable by the judiciary, nor the leg- islature. 29 The autonomy of administrative law stems in part from the impor- tance of the administration30 in French society.3 1 The French administration constitutes more than an adjunct of the executive branch. It encompasses different forms of "public service" including the executive, the civil service, and different forms of government bureaucracy. 32 Likewise, le droit adminis- tratif covers a much wider array of legal issues than encountered in a com- mon-law context, 33 presenting a "fully developed system of administrative

25 The Cour de Cassation is the highest court of the judicial order. See DADOMO & FARRAN, supra note 20, at 85. See also KAHN-FREUND, supra note 16 at 269-88 (describing in detail func- tions, organization, goals, and styles of court). 26 Created by Napoleon in 1799, the Conseil d'Etat (the Council of the State) is the supreme court

of the administrative order. See generally KAHN-FREUND, supra note 16, at 160-65 (defining the triple role of the Conseil d'Etat as legal consultative body for government, regulatory body of executive, and highest court of administrative order). 27 Although each jurisdiction remains distinct from the other, with no overarching court unifying

the system, a separate high court comprised equally of judges from the judicial and administrative systems oversees attribution of competence should a conflict arise. See infra § I.B text and notes. 28 In this system, different judges preside over individuals and the administration, and different

principles and constructions govern accordingly. See CHOUVEL, supra note 5, at ix (1984) (noting the difficulty for "Anglo-Saxon" jurists to understand how, in a democracy, such distinction remains). 29 See BROWN & BELL, supra note I, at 23 (explaining that civil courts were excluded from

adjudicating in matters involving administration, central government, or local authorities). 30 The term "administration" in France refers to the permanent bureaucracy carrying out govern-

mental activity despite political changes. See HENRY P. DE VRIES, CIVIL LAW AND THE ANGLO- AMERICAN LAWYER 71 (Oceana Publications, 1976) (1969). 31 The administration has held a historically significant role for many centuries. See generally

JEAN-LouIs MESTRE, INTRODUCTION HISTORIQUE AU DROIT ADMINISTRATIF FRANQAIS (1985) (trac- ing the origins of administrative law from the Middle Ages to the French Revolution). 32 See MARTIN WESTON, AN ENGLISH READER'S GUIDE TO THE FRENCH LEGAL SYSTEM 86 n.32

(2d ed. 1993) (indicating the appropriate translation for the French term may be "public service," "civil service," "executive," "the authorities" or "bureaucracy" depending on its use). 33 See KAHN-FREUND, supra note 16, at 119 (including the following topics within the scope of

administrative law: structure of central and local administration, general theory of administrative acts and functions, public property and public works). In fact, French administrative law encom- passes not only a separate system of jurisdiction, but also a separate legal scholarship. For example, Dalloz, the largest publisher on French legal practice, recently published: MARIE AUBY, DROIT PUBLIC: DROIT CONSTITUTIONNEL, LIBERTS PUBLIQUES, DROIT ADMINISTRATIF (12th ed. 1996); THIERRY DAL FARRA ET AL., LES GRANDS AVIS DU CONSEIL D'ETAT (1997); CHARLES DEBBASCH & JEAN-CLAUDE RICCI, CONTENTIEUX ADMINISTRATIF (6th ed. 1994); PHILIPPE GEORGES, DROIT PUB-

Critique of Tribunal 5/12/97 Decision 7

law." 3 4

Although absent from the Constitution 35 and limited to a few significant legislative sources, 36 a distinct administrative system evolved largely through the jurisprudence of administrative courts during the Third French Repub- lic. 37 Historically, two principles shaped administrative law: the concepts of "public power"38 and "public service."' 39 In very many ways, the evolution of

these concepts follows the changes in the role between the State and individuals.

40

LIC (10th ed. 1996); MARCEAU LONG ET AL., LES GRANDS ARRPTS DE LA JURISPRUDENCE ADMINIS-

TRATIVE (1 th ed. 1996); JEAN RIVERO & JEAN WALINE, DROIT ADMINISTRATIF (16th ed. 1996). 34 BROWN & BELL, supra note 1, at 3 (pointing out that this "developed system" of administrative

law not only forms the basis of many other systems in the world, but also the basis of such interna-

tional institutions as the Administrative Tribunals of the United Nations and the Court of Justice of

the European Union). 35 See DE LAUBADPRE, supra note 3, at § 433 (indicating that neither the Constitution of October

27, 1946 nor the Constitution of October 4, 1958 mention the existence of administrative jurisdic-

tion). But see Cons. const. Jan. 23, 1987, D. 1988, 86-225 DC (basing dual jurisdiction system

upon fundamental constitutional principles). The Constitution of the Fifth Republic established the

current political system during the Algerian crisis. See CONST. (1958) (Fr.), reprinted in 7 CONsTi-

TUTIONS OF THE COUNTRIES OF THE WORLD (Gisbert H. Flanz ed., Oceana Publications 2000). The

1958 Constitution adopted, by direct reference, the basic constitutional norms and values of the key

constitutional text of 1946 (by adopting the preamble) and 1789 (although the Declaration of the

Rights of Man is not formally a Constitution). See generally KAHN-FREUND, supra note 16, at 25

(explaining that the key constitutional texts of 1958, 1946, and 1789 form a single "constitutional

bloc," and therefore form primary sources of constitutional law). 36 See, e.g., Law of August 10, 1871 (organizing the departments); Law of April 5, 1884 (organiz-

ing the communes); Ordinance of October 23, 1958, J.O., Oct. 24, 1958 (expropriation for the

public good); Law of July 11, 1979, J.O., Jul. 12, 1979 (motivation of administrative acts). 37 In the Blanco decision, the Tribunal de Conflits declared "the responsibility that the State may

be endowed with for the damages caused to individuals by the people it hires in the public sector

cannot be resolved by the principles established by the Civil Code for individual to individual

relationships .... this responsibility falls under special rules. See Trib. conflits, Feb. 8, 1873, S.

Jur. 111, 153, concl. David. 38 See DE LAUBADPRE, supra note 3, at § 510 (explaining puissance publique as matters concern-

ing acts of authority, acts of State management and acts specifically defined by law). 39 See DE LAUBADiRE, supra note 3, at § 511 (noting service public encompasses all that concerns

organization and function of administration either by contract or other authority). 40 See CHOUVEL supra note 5, at 113-14. For example, the Conseil Constitutionnel has attributed

to the duality of the system the value of "a constitutional principle." Cons. const. Jan. 23, 1987, D.

1988, 86-225 DC (basing affirmation upon art. 62 of Constitution). This decision corresponds to

the Court's expanding jurisprudence.

8 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

The administrative system encompasses three levels of courts. 4' First, the tribunaux administratifs42 are the trial courts of administrative justice. Second, the cours administratives d'appel,43 recently created to lighten the heavy case load on the other courts, forms an intermediate level of review. Finally, the Conseil d'Etat44 forms the highest administrative court. It serves a dual function of providing general counsel for the government 45 and acting as the court of last resort in administrative matters. 46

The boundaries between public and private law are often ambiguous. 47

Generally, the judicial system encompasses litigation involving private par- ties.4 8 The administrative order's jurisdiction covers litigation involving ac- tivities of the administration. 49 Within this arena, administrative jurisdiction applies to the framework of public service activities. 50 Nonetheless, the judi- ciary maintains jurisdiction in certain specific areas which, by statute 5' or tradition, 52 exclude the administrative courts. Where there is a question of

41 In addition to these three levels, there are tribunaux ei compdtence spiciale, including: cour des comptes, conseils universitaires, conseils de I'aide sociale, and tribunaux des pensions militaires.

42 The Decree of September 30, 1953 established the present form of the tribunaux administratifs. Each tribunal constitutes a trial court with limited territorial jurisdiction.

43 See Law No. 87-1127 of Dec. 31, 1987, J.O., Jan. 1, 1988 (initiating major reform in adminis- trative law by creating intermediate courts of appeal). In 1989, courts in Bordeaux, Lyon, Nancy, Nantes and Paris began to hear cases on appeal from the lower courts. See Decree No. 89-641 of Sept. 7, 1989, J.O. Sept. 10, 1989. 44 See Ordinance of July 31, 1945, J.O., Aug. 1, 10, Sept. 6, 1945 (providing foundation for

Council). 45 The Conseil d'Etat advises the government on future legislation as well as on perspective regu- lations. See BROWN & BELL, supra note 1, at 59 ("[T]he Conseil d'Etat... [is] both advisor and judge of the administration.").

46 The Council maintains an important judicial role either as the highest court of appeal or as the

court of first and last jurisdiction in certain defined areas. See KAHN-FREUND, supra note 16, at xx. 47 See AGATHE VAN LANG, JUGE JUDICIAIRE ET DROIT ADMINISTRATIF 333 (1996) (concluding

that the judicial judge has the power to tightly regulate administrative action encroaching upon individual liberties).

48 Id. at 10.

49 This involves the executive branch only; administrative courts have jurisdiction neither over the legislature nor the judiciary. See DE LAUBADPRE, supra note 3, at 327-29.

50 Id. at 337.

51 See e.g. Law No. 57-1424 of Dec. 31, 1957, J.O., Jan. 5, 1958, p. 196; JCP 1958, I1 22839 (attributing judicial competence in actions involving damages caused by traffic accidents). The judicial courts have statutory jurisdiction in cases involving indirect taxation, postal transportation, social security, and damages from traffic accidents. See DE LAUBADtRE, supra note 3, at 351-52.

52 The judicial courts traditionally protect individual civil liberties; either cases involving the "sta- tus" of a person-nationality and voter registration-or cases involving an infringement on freedom or private property. See DE LAUBADPRE, supra note 3, at 354-55.

Critique of Tribunal 5/12/97 Decision 9

jurisdiction between the two systems, the Tribunal des Conflits decides competence.

53

B. Tribunal des Conflits

The Tribunal des Conflits5 4 decides whether the judicial or administra- tive courts hold jurisdiction in a given matter. The Tribunal des Conflits is composed of members from the Cour de Cassation and from the Conseil d'Etat in equal numbers. 5 5 In case of deadlock, the Tribunal's president, the Garde des Sceaux, breaks the tie.56 Historically, this tie-vote procedure has proved controversial, albeit rare.

57

The Constitution of 1848 created the first Tribunal des Conflits.5 8 It was not until 1872, however, that the Third Republic firmly established the Tribu- nal. 5 9 The idea consisted of creating a separate jurisdiction that depends neither upon the judicial nor administrative orders so as not to privilege one or cause detriment to the other.

60

A case reaches the Tribunal after a simple procedure affirming a conflict of jurisdiction between the administrative and judicial orders. 6' Where both the judiciary and administrative systems claim jurisdiction, the conflict is positive. 62 Where both the systems deny jurisdiction, the conflict is nega-

53 Set aside from this dual system is the Conseil Constitutionnel, France's constitutional court. See generally BELL, supra note 13, at 34-35 (explaining that the Constitutional Court was originally meant "to be [an] independent guardian[ ] of the republican constitutional tradition, freed from

vagaries of partisan politics."). See also Ordinance No. 58-1067 of Nov. 7, 1958, J.O., Nov. 9, 1958, JCP 1958, II 23636 (establishing court). 54 See CHOUVEL, supra note 5; JEAN VINCENT ET AL., LA JUSTICE ET SES INSTITUTIONS 170-78

(3d ed. 1991). 55 More precisely, nine members compose the Tribunal: the Minister of Justice; three from the

Conseil d'Etat (elected by their collegues); three from Cour de Cassation (elected by their col- legues); and two other members (elected by the seven previous members). See DE LAUBADPRE,

supra note 3, at § 587. Members of the Tribunal serve three-year renewable terms. Id. 56 See CHOUVEL, supra note 5, at v. The Garde des Sceaux, as the Minister of Justice and the

head of the judiciary, serves as President of the Tribunal des Conflits. See id. The Minister of

Justice exercises no other judicial function. In reality, the Minister is an administrator more than a

legal expert. See PERROT, supra note 6, at § 55. 57 See generally CHOUVEL, supra note 5 (tracing the history of tie-vote decisions of Tribunal). 58 See CONST. art. 89 (1848) (Fr.). Napoleon III suppressed the Tribunal shortly after his coup

d'etat. See PERROT, supra note 6, at § 38. 59 See Law of May 24, 1872, D.P. 1872, IV, 88. 60 See PERROT, supra note 6, § 38. 61 See Decree No. 60-728 of July 25, 1960, J.O., July 28, 1960, p. 6960; JCP 1960, 11, 25894

(reforming procedure concerning conflict of jurisdiction between administrative and judicial

courts). 62 See id. (imposing the Tribunal's decision upon both judicial and administrative orders).

7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

tive. 63 Where, on the same fundamental issue, a judicial court renders one decision and an administrative court holds the opposite, the conflict is one of decisions. 64

Several general principles govern the Tribunal's decision-making pro- cess. In general, administrative courts hold jurisdiction where the litigation involves the administration or where the administration's involvement con- cerns the service public. More specifically, an administrative judge does not hold jurisdictional power over litigation involving only individuals as par- ties.65 Administrative courts neither hold jurisdiction over the legislative

66

nor the judicial branches 67 of government. Administrative courts do not hold jurisdiction where designated by law6 8 or by tradition. 69 Where administra- tive acts involve a taking (emprise)70 or a flagrant irregularity (voie de fait),7 ' the judicial order holds competence.

The major criticism of the Tribunal stems from the Garde des Sceaux's tie-breaking role. Critics contend that the Garde des Sceaux is a political appointment, and may therefore not retain the expertise necessary to solve complex legal issues. 72 Tie-vote decisions, however, remain rare. From 1873 to present the Minister of Justice has only intervened 12 times to break dead-

63 See id. (directing the Tribunal to declare respective court's decision denying competence null

and void). The Tribunal commonly acts early to preempt a negative conflict before it arises. See BROWN & BELL, supra note I, at 303.

64 See DE LAUBAOtRE, supra note 3, at § 582. Conflicts of decisions are rare. See BROWN & BELL, supra note 1, at 303. The Tribunal may also decide jurisdiction at the request of either the Conseil d'Etat or the Cour de Cassation where the issue is of "serious difficulty." See id. 65 See DE LAUBADPRE, supra note 3, at § 516 (explaining that administrative judges limit their

jurisdiction to cases where one litigant is a public official). 66 See id. § 517.

67 See id. § 518. The administrative order, however, retains competence in matters involving

judicial organization and the status of judges. See id. §§ 5 19-22. 68 See id. § 544. For example, statutes designate the judicial order's competence in litigation

involving indirect taxes, postal transportation, social security, and all damage caused by vehicles. See id. §§ 545-48. 69 See id. § 549 (specifying that judicial judges reserve power in matters concerning status of

individuals, liberty questions and private property). 70 See id. § 554 (defining emprise as "the administrative undermining of private real property

under the form of a regular or irregular taking of possession, temporary or definitive"). 71 See id. § 563 (defining an occurrence of voie defait where "in the accomplishment of a mate-

rial activity of execution, the administration commits a gross irregularity involving property rights or a public liberty.").

72 See CHOUVEL, supra note 5, at 3 (indicating that where judges are split on question underscores

the delicate nature of the legal issue). See also PERROT, supra note 6, at § 55 (explaining that the Minister of Justice exercises no other judicial function).

Critique of Tribunal 5/12/97 Decision

locked cases. 73 Moreover, in respect to tie-vote decisions, the voting pattern of the Tribunal des Conflits has followed the historical evolution of the French administration .7 In its early period, the Garde des Sceaux partici- pated in the construction of an administrative order by defending administra- tive jurisdiction. 75 After World War I, the Tribunal's president has voted to restrict administrative jurisdiction; a position that corresponds with the State's evolution as a dominant force within French social and economic life.76

II. IMMIGRATION: POLITICAL QUESTIONS, LEGAL ISSUES

Immigration has become a focal point of political and social contention in France. 7 7 The underlying significance of the debate involves a wide array of social, political, and legal issues specific to France. For example, what the French label as immigration is commonly known as "race relations" in the United States.7 8 Considering that attention is focused upon certain immi- grants,79 the "question of immigration" often serves as a catchphrase for the question of Islam in France.8 0 From this perspective, the "problems" associ-

73 See CHOUVEL, supra note 5, at 113-14. 74 See id. 75 See id. 76 See id.

77 For example, the televised presidential debates in 1995 included issues relating to immigra- tion-from controlling illegal entry to fighting xenophobia. See Gilbert Rocu, Du contr6le des fronti~res au racisme ordinaire, LE MONDE DIPLOMATIQUE, June 1995, at 19. See also ALAIN BATTEGAY & AHMED BOUBEKER, LES IMAGES PUBLIQUES DE L'IMMIGRATION (1993) (analyzing the increased visibility of new immigrants in public discourse from the perspective of the media); HAR- GREAVES, supra note 9, at 177 (contrasting the politicization of immigration in recent years to its marginal position in the post-war years). 78 HARGREAVES, supra note 9, at 2. French social scientists view French society as a universal

entity with no room for permanent distinct groups such as ethnic differentiations. In contrast to the U.S., where "race" and "ethnicity" remain prevalent terms, French discourse emphasizes "integra- tion" of immigrant groups. Id. See, e.g., DOMINIQUE SCHNAPPER, LA FRANCE DE L'INT8GRATION: SOCIOLOGIE DE LA NATION EN 1990 (1990) (proclaiming integration as a "fact, value and necessity" in order to dispel the threat to national integrity posed by the breakdown of the French integration

machine). 79 See SIMMONS, supra note 10, at 144 (specifying that for the extreme right, "the term immi-

grants always refers to immigrants from North Africa and Africa"). 80 See NEIL MACMASTER, COLONIAL MIGRANTS AND RACISM: ALGERIANS IN FRANCE, 1900-62 1

(1997) (identifying "Arabs" as particular objects of hatred and discrimination in France because of a widespread dislike of cultural differences and the historical legacy of the Algerian War). Three particular vectors channel anti-Algerian racism: banal racism, the Extreme Right, and the legacy of the Colonial system. See id. at 210-15. Muslim immigrants often find integration into French society difficult. See generally Milton Viorst, The Muslims of France, FOREIGN AFF., Sept.-Oct.

7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

ated with immigration cannot be disassociated from the decline of the French colonial empire8' and the subsequent migration of many people from former- French colonies.

82

A. Immigration in French Society and Politics

Over the course of this past century, immigration significantly contrib- uted to the French population, 83 leaving a lasting social and cultural impact on French society. 84 According to the 1990 census, over ten percent of the population is of foreign birth. 85 Three-fourths of the foreigners 86 in France

1996 (describing the problems of France's second largest religion, Islam, and the French govern-

ment's difficulties in finding legitimate representative of Islam).

81 See, e.g., DIDIER LAPEYRONNIE, L'INDIVIDU ET LES MINORITtS: LA FRANCE ET LA GRANDE- BRETAGNE FACE A LEURS IMMIGRtS 130 (1993) (tracing the differences in treatment of immigrants in France and England to different colonial experience); MALEK ATH-MESSAOUD & ALAIN GIL- LETTE, L'IMMIGRATION ALG8RIENNE EN FRANCE 108 (1976) (linking development of French capital- ism and Algerian immigration with colonial situation). 82 Immigrants from the former colonial empire differ from other immigrants in that they not only

embody the "other," but also entertain an intrinsic link to the national culture. See LAPEYRONNIE, supra note 80, at 132. Decolonialization, especially the traumatic civil war in Algeria, has scarred

the collective memories of both colonizer and colonized. See generally BENJAMIN STORA, LA GAN- GRPNE ET L'OUBLI : LA MtMOIRE DE LA GUERRE D'ALGftRIE (1991) (examining both the negation of the Algerian war in France and the occultation of political differences within the liberation move-

ment in Algeria). The night of October 17, 1961 provides a stirring example of how the trauma of war escapes reconciliation through the process of collective amnesia. Police repression of a peace-

ful demonstration in Paris left over 200 Algerians dead. The French public remains largely unaware

of this event. See generally JEAN-Luc EINAUDI, LA BATAILLE DE PARIS: 17 OCTOBRE 1961 (1991). 83 According to the official national demographic institute, France's population would be about 12

million fewer than today's estimated 59 million without a steady influx of immigrants. See Paul Webster, France Reveals Foreign Secret, GUARDIAN (Manchester), Feb. 7, 1997, at 14.

84 See generally MICHELE TRIBALAT ET. AL., CENT ANS D'IMMIGRATION, tTRANGERS D'HIER FRAN- CAIS D'AUJOURD'HUI: APPORT DMOGRAPHIQUE, DYNAMIQUE FAMILIALE ET tCONOMIQUE DE

L'IMMIGRATION tTRANGPRE (1991). In fact, for much of the twentieth century, France was the most important country of immigration in the world. See GtRARD NOIRIEL, THE FRENCH MELTING POT:

IMMIGRATION, CITIZENSHIP, AND NATIONAL IDENTITY 6 (Geoffroy de Laforcade trans., 1996). 85 In 1992, of a total population of 56,651,955, 3,596,602 foreign nationals resided permanently in

France, 1,307,926 French nationals were born abroad as foreign nationals, and 1,718,608 French

nationals were born abroad. See HARGREAVES, supra note 9, at 26. "Not all immigrants are for-

eigners; nor are all foreigners immigrants; significant numbers of people are neither foreigners nor immigrants but are often perceived and treated as such." Id. at 3. The same census reports nearly a quarter of the population is of recent foreign origin (either immigrants, children of immigrants or

grandchildren of immigrants). 86 Foreigners are "all those without French nationality." Ordinance No. 45-2658 of Nov. 2, 1945,

D.L. 1946, 24. Legal rights of foreigners in France correspond to the rights of the French in the respective country. See C. Clv. art. II ("[Tihe alien will enjoy the same rights as those that are or will be accorded to the French by the treaties of the nation to which the alien belongs."). See

Critique of Tribunal 5/12/97 Decision 13

are from seven nations: Portugal (20%), Algeria (16.7%), Morocco (13%), Italy (7.7%), Spain (7%), Tunisia (5.1%), and Turkey (4.2%).87

Historically, 88 the French model of immigration assimilates new popula- tions into French society. 89 Once naturalized, an immigrant becomes a citi- zen with full and equal standing without distinction. Official French statistics ignore the ethnic and national origins of naturalized citizens. 90 The changing nature of the French immigrant population therefore remains diffi- cult to decipher.9'

The French model of integration emphasizes assimilation; 92 newcomers are expected to acquiesce into the French mode de vie. Early immigration attracted very little attention either from the government or the public eye. During the trente glorieuses,9 3 successive governments on both sides of the political spectrum encouraged immigration, ignored clandestine entry, and eventually granted amnesty to many illegal aliens. The subsequent economic

generally Etranger, R P. PtNAL, Jan. 1, 1984, at 1-3 (providing historical background on place of foreigners in theory of French law); Etranger, RAp. PROCEDURE CIVIL, Oct. 1995, at 2-4 (same); Etranger, ReP. PtNAL, Apr. 1997, at 483-89 (same). 87 See ANDRt LEBON, MINISTRE DES AFFAIRES SOCIALES, DE LA SANTt ET DE LA VILLE, SITUA-

TION DE L'IMMIGRATION ET PRtSENCE IPTRANGPRE EN FRANCE: 1993-94, at 59 (1994) (citing figures for 1992). 88 Until quite recently very little historical research addressed issues of immigration. See GPRARD

NOIRIEL, LE CREUSET FRAN(;AIS: HISTOIRE DE L'IMMIGRATION XIXE - XXE SIPCLES 17 (1988) (noting that only thirteen theses in history between 1951 to 1983 concern immigration). 89 The French model of nationalism sees all persons as equal and individual members of society.

It therefore tends towards integration rather than separation. See, e.g., EMMANUEL TODD, LE DESTIN DES IMMIGRIfS: ASSIMILATION ET SIGRtGATION DANS LES DIMOCRATIES OCCIDENTALES

(1994) (contrasting accommodations of Algerians in France and Turks in Germany).

90 See HARGREAVES, supra note 9, at 3-4. State refusal to categorize population groups by ethnic

origins renders certain conceptual frameworks impossible. Id. 91 Once an immigrant acquires French nationality, statistics no longer follow him individually.

See Mich~le Tribalat, Les immigris et les populations lijes b leur installation en France au recen-

sement de 1990, 6 POPULATION 1911 (1993). Naturalizations have been quite common: from 1925- 1939, 643,655 naturalizations took place; between 1945 and 1959, 550,758 foreigners became

French; from 1960-1974, 398,800 were naturalized; from 1975-1989, 602,483 new citizens came

into existence. See Jean-Claude Labat, Etrangers et Fran(ais par Acquisition au Recensement de

1990: les changements intervenus depuis 1968, in DROIT & POLITIQUE DE LA NATIONALITt EN

FRANCE DEPUIS LES ANNtS 60 61 (1993).

92 See generally MICHPLE TRIBALAT, FAIRE FRANCE (1995) (providing an in-depth sociological

analysis of tendencies towards assimilation among immigrants in France).

93 Literally, "the 30 glorious [ones]," this term refers to the period of economic expansion follow-

ing the Second World War that tripled the French standard of living. See generally JEAN FoURAS-

TI, LES TRENTE GLORIEUSE OU LA RtVOLUTION INVISIBLE DE 1946 A 1975 (1979).

7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

downturn and the changing immigrant population 94 brought new tensions to the French model. 95

In 1974, the government promised an 'end' to immigration. Since the early 1980s,96 Jean-Marie Le Pen's 9 7 National Front party has successfully exploited the French malaise with immigration. Le Pen's central argument contends that expulsion of all foreigners would provide a solution to France's high unemployment. 98 On this point, Le Pen has influenced the political de- bate in France. 99 Since his rise to the forefront of the political scene, several government officials have called for "zero immigration."00 Finally, move- ment towards full European integration has further exacerbated the issue. 10 1

94 Whereas Belgians, Poles, Italians, and Spanish comprised the largest immigrant groups in the first half of the century, by 1975 Algerians, Portuguese and Moroccans became the most significant new immigrant groups. See NOIRIEL, supra note 88, at 409. 95 The French model accepts the other by rejecting specific minority claims. This form of radical

assimilation, however, remains difficult with new culturally distinct communities, such as Muslims. See generally ROBERT BISTOLFI & FRAN(;OIS ZABBAL, ISLAMS D'EUROPE: INTIGRATION OU INSER- TION COMMUNAUTAIRE? (1995) (comparing the legal status and sociological composition of immi- grants in France, Belgium, Great Britain, Holland, Germany, Spain, Italy and Greece).

96 The Front National first became a significant party during the European elections of June 1984. For the past thirteen years, it has shown continued progress in the polls. See Alain Bihr, En France, desespdrance populaire et demagogie politique, LE MONDE DIPLOMATIQUE, Dec. 1995, at 4-5 (not- ing that although Le Pen's popularity has hovered around 15%, the sociological composition of his electorate has transformed significantly). 97 Jean-Marie Le Pen founded the National Front in 1972, over which he has since presided. In

1988, he ran in the presidential election for the first time receiving 4,375,894 votes, or 14.3%, in the first round. In 1992, he was elected to the regional counsel of Provence-Alpes-Cotes d'Azur. See Jean-Marie Le Pen: Biographie, LE MONDE, Apr. 5, 2002, at http://elections.lemonde.fr/presiden- tielle/clefs/candidatslepen/0,,898594,00.html. See also SIMMONS, supra note 10, at 71-119 (tracing Le Pen phenomenon between 1981 and 1995). 98 Unemployment in France hovers at about 12% of the working population.

99 See generally CATHERINE WIHTOL DE WENDEN, LES IMMIGRtS ET LA POLITIQUE: CENT CIN- QUANTE ANS D'tVOLUTION (1988); see also EDNEY PLENEL & ALAIN ROLLOT, L'EFFET LE PEN (1984) (presenting the early reaction to Le Pen's surge during the European Elections of 1984). 100 Former Interior Minister Charles Pasqua commented that his objective while in office was

"zero immigration." See Sean MacCarthaigh, France to Restrict Migrant Intake, TIMES (London), June 2, 1993, at 10 ("Zero immigrants, clearly, is impossible because our economy may need at one time or other this or that category of foreigners, but that should be our aim."). Pasqua later qualified his remarks, stating his objective was "zero illegal immigration." Robert Sole, France, pays d'immigration fixd de manire ambigue" par Charles Pasqua l'objectif "zero immigr" est un mythe, LE MONDE, June 8, 1993, at I. 101 The Treaty of Schengen suppressed systematic controls on the borders of member States (cur-

rently France, Belgium, Luxembourg, Germany, Holland, Spain, Italy and Portugal). Belgium- France-Federal Republic of Germany-Luxembourg-Netherlands: Schengen Agreement on the Grad- ual Abolition of Checks at Their Common Borders and the Convention Applying the Agreement, June 19, 1990, 30 I.L.M. 68 (1991) (entered into force March 26, 1995). France, however, chose to

Critique of Tribunal 5/12/97 Decision 15

This politicization of immigration issues has raised more fundamental ques- tions: those of nationality, citizenship, and political rights.l

0 2

B. Recent Reform Efforts

With the exception of one law on racial discrimination, the French par- liament passed no legislation concerning immigration between 1945 and 1980.103 In 1981, the parliament altered the conditions of entry for foreigners in France. ° 4 1 However, it was not until 1993 that Interior Minister Charles Pasqua introduced major reform legislation with the stated goal of "zero immigration." 105

The immigration aspects of Pasqua's bill provide for measures to facili- tate integration of foreigners, limit procedural loopholes, and prevent illegal immigration. 10 6 In particular, the reforms targeted the politically divisive is- sue of asylum law.' 0 7 Before promulgation, however, opposition members of parliament referred the reform project to the Conseil Constitutionnel for con- stitutional review.

10 8

continue identity controls within 20 km of its borders. See Contr6les d'identitW defines 6i 'article

78-2, 4e alinga, du Code de procidure pnale et contr6les de titre defines t l'article 67 quarter du

Code des douanes, BULLETIN OFFICIEL DU MINISTLRE DE L'LNTtRIEUR ET DE L'AMENAGEMENT DU TERRITOIRE, Dec. 11, 1995, at 3.

102 See WIHTOL DE WINDEN, supra note 99, at 337 (determining the new question to be "the

legitimacy of the presence of immigrants in the French political space at a moment where the

economic and social opportunities of immigration are seriously contested."). 103 See id. The Administration, however, enacted modifications to the laws concerning foreigners

and immigration. See, e.g., Decree No. 76-56 of Jan. 15, 1976, J.O., Jan. 22, 1976, p. 595; D.S.L. 1976, 96 (modifying certain dispositions relative to stay of alien in France).

104 See Law No.81-973 of Oct. 29, 1981, J.O., Oct. 30, 1981, D.S.L. 1981, 361 (concerning condi-

tions of entry and stay for foreigners in France). See also NICOLE GUIMEZANES, LE DROIT DES tTRANGERS: L'ENTRIE ET LE SbJOUR 121 (1987).

105 See Sami Nair, Dibats Immigrations: Oif va la France?, LE MONDE, June 18, 1993, available

at LEXIS, News, France file. In fact, the proposed reforms encompassed broader changes that went

beyond "zero immigration" to include as well stricter police identity controls, naturalization proce-

dures and nationality. See id. 106 See Soltesz, supra note II, at 275-76. 107 See generally Michael Boyd, Note, Jaws of the Crocodile: 1993 Asylum Reforms in France,

10 GEO. IMMIGR. L.J. 257 (1996) (arguing that Pasqua reforms actually hinder their purported goal of increasing national sovereignty).

108 See Soltesz, supra note 11, at 278. Article 61 of the French Constitution provides that 60 deputies or senators may refer a bill to the Conseil Constitutionnel before promulgation. See CONST. art. 61. (1958) (Fr.) ("Organic laws, before their promulgation, and rules of procedures of

the parliamentary Assemblies, before their entry into force, must be referred to the Constitutional

Council, which shall rule on their conformity with the Constitution. To the same end, Acts of

Parliament may be referred to the Constitutional Council, before their promulgation, by the Presi-

dent of the Republic, the Prime Minister, the President of the National Assembly, the President of

7 UCLA J. INT'L L. & FOR. AiF. 1 (2002)

In a landmark decision,' 0 9 the Conseil Constitutionnel struck down sev- eral provisions of Pasqua's bill on constitutional grounds. 1 10 The Court cen- sured provisions that addressed police identity checks, administrative detention, judicial detention, marriages of convenience, and political asy- lum."I The Court's holding provoked wide-scale controversy and debate,'

12

though the Parliament eventually enacted much of the bill after making ap- propriate revisions. '3 For the first time, contention surrounding immigration crossed the line to include such issues as the role of the judiciary and the balancing of powers.' 14

Although reform efforts and the ensuing debate continued,' 15 transfor- mation on the scale of the Pasqua Laws regained vigor after the nomination of a conservative government by newly-elected President Jacques Chirac. On November 6, 1996, Jean-Louis Debrd presented a major reform of immigra- tion policy. The Debr6 project, designed to close the loopholes in the Pasqua laws, granted sweeping reforms intended to strengthen the government's fac- ulties against illegal immigration. To this effect, the Debrd project encom- passed many controversial provisions: requiring administrative certificates for lodging foreigners in private homes;' 16 extending police powers to con-

the Senate, or by sixty deputies or sixty senators."). Note that only the last provisions-"sixty

Deputies or sixty Senators"-allows the political opposition to act effectively. 109 See Con. const., Aug. 13, 1993, D. 1993, 93-325.

110 While the Conseil d'Etat may advise the government on pending legislation, the Conseil Con-

stitutionnel is empowered to review constitutional questions. See Cynthia Vroom, Constitutional

Protection of Individual Liberties in France: The Conseil Constitutionnel Since 1971, 63 TUL. L. REv. 265, 270 (1988) (noting that constitutional review of statutes operates only prior to promulga-

tion in France).

III See Soltesz, supra note 11, at 278-300. 112 See, e.g., Michel Ameller, Au Courrier du Monde: Conseil Constitutionnel, LE MONDE, Sept.

18, 1993, available at LEXIS, News, France file (evoking anti-democratic implications where small

group of wise men sanctions the will of people as exercised by their representatives).

113 See Soltesz, supra note 11, at 313 (noting that Interior Minister Pasqua subsequently revised

annulled provisions in order to pass constitutional muster). 114 Id. at 311 (pointing out that the Conseil's decision went against widespread public support and

the majority in Parliament). 115 For example, in the spirit of the Pasqua project, the government centralized efforts to curb

illegal immigration and the employment of illegal immigrants. See Decree No. 96-691 of Aug. 6,

1996, J.O., Aug. 7, 1996, p. 11971; D.S.L. 1996, 381 (creating a central office for repression of illegal immigration and employment of illegal aliens).

116 This provision requires all persons who lodge a foreign guest to register and inform municipal

officials of the arrival and departure dates of the guest. See Dispositions modifiant lordonnance N'

45-2658 du 2 novembre 1945 relative aux conditions d'entrde et de srjour des 6trangers en France,

art. 1 (1996) (modifying article 5-3 of the Ordinance of Nov. 2, 1945) [hereinafter Projet Debrf],

available at http://www.bok.net/pajol/projloi.html (last visited Apr. 4, 2002).

Critique of Tribunal 5/12/97 Decision 1/

fiscate passports;" 7 granting new police powers in vehicle searches; 1 8 creat-

ing a temporary alien identity card;"1 9 eliminating administrative

procedures; 2 0 granting jurisdiction to the cours administratives d'appel;' 2'

amending asylum procedure; 122 extending administrative detention 23 as well

as judicial detention;' 24 and expanding police powers in identity controls.

25

Although the legal reforms do not constitute institutional discrimina-

tion,' 26 they have engendered increasing criticism on the part of those con-

cerned with civil liberties. The Debr6 project, especially the measure

117 Article 3 envisions police confiscation of the passport of illegal aliens. In exchange, police will

distribute alternate forms of identity. See id. art. 3 (adding to article 8 of the Ordinance No. 45-

2658 of Nov. 2, 1945), available at http://www.bok.net/pajol/projloi.html (last visited Apr. 4,

2002). 118 Within 20 kilometers of the border of countries that signed the Treaty of Schengen, French

police may engage summary searches of vehicles in search of illegal immigrants. See id. art. 3

(adding to article 8 of the Ordinance No. 45-2658 of Nov. 2, 1945), available at http://

www.bok.net/pajollprojloi.html (last visited Apr. 4, 2002).

119 This measure creates a temporary alien resident card for certain categories of immigrants. See

id. art. 4 (replacing article 12 bis of the Ordinance No. 45-2658 of Nov. 2, 1945), available at http:/

/www.bok.net/pajol/projloi.html (last visited Apr. 4, 2002).

120 Article 5 eliminates the commission du sijour. See id. art. 5 (deleting section 3 of chapter 2 of

the Ordinance No. 45-2658 of Nov. 2, 1945), available at http://www.bok.net/pajol/projloi.html

(last visited Apr. 4, 2002). The elimination of the commission terminates procedural guarantees

envisioned by European Community directive 64/221. See Council Directive 64/221/EEC on the

Co-ordination of Special Measures Concerning the Movement and Residence of Foreign Nationals

which are Justified on Grounds of Public Policy, Public Security or Public Health, 1964 J.0. (56)

850. 121 The cours administratives d'appel now have jurisdiction to hear appeals, rather than a direct

line to the Conseil d'Etat. See Projet Debrd, art.6 (1996) (adding to article 22(c) of the Ordinance

No. 45-2658 of Nov. 2, 1945), available at http://www.bok.net/pajol/projloi.html (last visited Apr.

4, 2002); see also supra notes 41-42. 122 Several measures modify asylum procedures, rendering application more difficult. See Projet

Debr6, art. 8 (modifying article 35 bis of the Ordinance No. 45-2658 of Nov. 2, 1945), available at

http://www.bok.net/pajol/projloi.html (last visited Apr. 4, 2002).

123 Article eight extends powers of the administration to detain illegal aliens. See id. art. 8, avail-

able at http://www.bok.net/pajol/projloi.html (last visited Apr. 4, 2002). 124 Illegal aliens may now face a prison sentence, a 25,000 FF fine, and a three-year ban from

French territory. See id. art. 8, available at http://www.bok.net/pajol/projloi.html (last visited Apr.

4, 2002). 125 Two articles authorize police identity controls at the work place. See id. arts. 2, 10, available

at http://www.bok.net/pajol/projloi.html (last visited Apr. 4, 2002). 126 In modern times, France has known two moments of institutionalized racism: during the Vichy

period, largely against the Jews; and, in the three French Departments of Colonial Algeria. See

generally RICHARD H. WEISBERG, VICHY LAW AND THE HOLOCAUST IN FRANCE (1996) (examining

the legal status of Jews and the role of lawyers in Vichy France); Colloquy, Le Droit Antisemite de

Vichy, LE GENRE HUMAIN, Summer-Fall (1996) (analyzing the legal measures of Vichy France

against Jews).

18 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

requiring certificates to lodge foreigners, 2 7 provoked wide-scale public reac- tion including street demonstrations128 and intellectual manifestos. 2 9 When the Tribunal des Conflits rendered its decision on May 12, 1997 the question of immigration had already been hotly contested in the courts, the legislature, as well as in the streets. Successive French governments enacted increas- ingly restrictive legislation towards immigration and placed limits on immi- gration rights. The government's divisive role in the court's decision cannot be separated from the larger political context. The Tribunal's decision, not only had consequences concerning immigration law and civil liberties, but also involved far reaching implications concerning judicial independence.

III. IN RE BEN SALEM & TAZNARET

Said Ben Salem and Abdallah Taznaret secretly boarded the Felix, 130 a cargo ship in Cueta (a Spanish city located on the Moroccan peninsula), dur- ing the Summer of 1996. From the North African port, the German-owned boat sailed north via Spain to France where it was to rest before continuing north to England and Germany.' 3' Sometime underway, the ship's crew dis- covered the two stowaways. The commander of the ship, Captain Marek

127 These provisions provoke the historic collective conscious, reminding the French of similar measures brought against Jews during the Vichy government. See generally HENRY Rousso, THE VICHY SYNDROME: HISTORY AND MEMORY IN FRANCE SINCE 1944 (Arthur Goldhammer trans., 1991) (exploring the vivacity of French memory of Vichy period in popular culture). 128 Over 100,000 demonstrated in Paris on February 22, 1997. See Janice Valls-Russell, Les

Intellectuels Wake Up, NEW LEADER, Mar. 10, 1997, at 5, 6. 129 See id. at 6. Sixty-six filmmakers admitted having lodged illegal immigrants, demanded to be

arrested, and openly called for civil disobedience. See Manifest des 66, at http:\\www.bok.net\pajol\manifeste66.html ("We are guilty, each one among us, of having recently lodged - for personal or professional reasons - illegal aliens .... We ask to be investigated and put on trial") (last visited Apr. 4, 2002). More than 400 actors, 300 writers, 400 senior theatrical figures, 700 psychoanalysts and 1,200 journalists and lawyers joined the protest. See Ben Maclntyre, French Elite Steps up Fight Against Immigration Law, TIMES (London), Feb. 17, 1997, at 10. French intellectuals have traditionally publicly protested political events. In 1960, 121 intel- lectuals invoked their support to resist the war in Algeria. Id. at 662. A further 343 intellectuals protested their support for abortion rights in 1971. See MICHEL WINOCK, LE SICLE DES INTELLEC- TUELS 540 (1997).

130 See Bernard Philippe, Le tribunal des conflits arbitre en ddfaveur des droits des etrangers face 6 'administration, LE MONDE, May 14, 1997, available at LEXIS, News, France file. Baum and Company GmbH (Baum), a German company, owns the cargo ship. Baum brought suit along with Mr. Ben Salem and Mr. Taznaret. See Trib. conflits, May 12, 1997, JCP 1997,1122861, note Pierre Sargos.

131 See Trib. conflits, May 12, 1997, JCP 1997, 11, 22861, note Pierre Sargos; Albert Viala, La Voie de Fait, LES PETITES AFFICHES, Jan. 21, 1998, at 9.

Critique of Tribunal 5/12/97 Decision 19

Zalewshik, informed French authorities at the port of Honfleur 132 of the pres-

ence of the two clandestine passengers during the night of August 8-9,

1996.133

French immigration police refused entry and detained Mr. Ben Salem

and Mr. Taznaret onboard the Felix. 134 Both individuals and the German

company that owned the ship brought suit at the Tribunal de grande instance

de Paris.135 Contesting the administrative action, they requested an injunc-

tion forcing the administration to allow the two Moroccans to disembark and

enter a statutorily-defined "waiting zone."' 36

The Tribunal de grande instance de Paris 137 only has jurisdiction in

administrative matters where the Administration commits a voie defait (fla-

grant irregularity) 138 or a violation of individual liberty. If the administrative

actions constituted a voie de fait, the Tribunal de grande instance would

have jurisdiction. If there was no voie de fait, the administrative system would hold competence.

The road to the Tribunal des Conflits took several weeks.1 39 On Novem-

ber 15, 1996 the Minister of the Interior issued a report confirming the juris-

dictional conflict. On January 13, 1997, the Tribunal des Conflits

deadlocked without rendering a decision. On May 12, 1997 the Tribunal des

Conflits met and rendered its controversial decision.

The intensity of the row, however, stemmed more from the manner in

which the decision was taken, rather than the substantive issues of the

case.14 0 In exceptional proceedings, the Garde des Sceaux, Jacques Toubon,

132 See Philippe, supra note 130.

133 id. 134 See Trib. conflits, May 12, 1997, JCP 1997, II 22861, note Pierre Sargos. In such cases, the

police refuse to let the two prisoners enter French territory. 135 Id. 136 Id. The Ordinance No. 45-2658 of Nov. 2, 1945 established "waiting zones" (zones d'attente).

Ordinance No. 45-2658 of Nov. 2, 1945, J.O. Nov. 4, Dec. 13, 1945. After four days of detention,

the case is brought before a judicial judge who decides whether detention should be prolonged. See

id. at art. 35 quater. 137 A trial court in the judicial order. 138 See infra Part IV.A text and notes. 139 See Trib. conflits, May 12, 1997, JCP 1997, II 22861, note Pierre Sargos. On August 9, 1996

the Prefet de police requested that the Tribunal de grande instance declare itself incompetent to

hear the case due to the absence of a violation of individual liberty and voie defait. The same day,

the Magistrate representing the President of the Tribunal de grande instance de Paris refused to

decline jurisdictional competence. On August 28, 1996 the Prifet de police raised the conflict to

the Greffe of the Tribunal de grande instance de Paris. On September 3, 1996 the Magistrate of the

Tribunal de grand instance ordered a sursis 6 toute procidure judiciaire. 140 See Philippe, supra note 4.

20 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

presided over the session. 141 The controversy arose when he cast the deciding vote for the deadlocked court in favor of the administrative order. French magistrates interpreted his action as politically motivated intervention in le- gal matters. One member of the Court even resigned in protest.142 Toubon, however, defended his decision.1

43

Aside from the question of judicial independence, the Tribunal ex- pressed its reasoning in a straightforward manner. The high court determined jurisdiction by strictly interpreting the conditions necessary to constitute a voie de fait. 44 The administrative authority's refusal to allow the two Moroccans to disembark from the ship and enter French territory created the alleged voie de fait. 45 Even if illegal, the Tribunal did not consider the act constitutive of a voie de fait.

The Tribunal des Conflits held:

in principle, the legislature attributed to the administration the power to proceed with the forced execution of expulsion decisions (iloignement) and decisions pronouncing a refusal of entry brought upon the immigra- tion police even where such decisions are supposed illegal ... the deci- sion, by which the administration refuses entry on national territory to clandestine passengers and consigns them to the boat, is not manifestly unsusceptible to be attached to a power belonging to the administration and will therefore not be seen as constituting a flagrant irregularity (voie de fait)... jurisdiction therefore belongs only to the administrative order to decide litigation relevant to this issue.'

4 6

The measures taken in regards to the two Moroccans, even if they were illegal, are "not manifestly unsusceptible to be attached to a power belonging to the administration"'147 and will no longer constitute a voie de fait. The Tribunal reasoned Article 5 of the Ordinance of November 2, 1945 grants the Administration, at least "in principle," the power to execute decisions of ex- pulsion (iloignement) and refusal of entry.

141 The Garde des sceaux, who represents the government as the minister of justice, intervenes only to cast a tie-breaking vote when the members of the Tribunal des conflits are deadlocked. See supra Part I.B text and notes. 142 See Philippe, supra note 4.

143 See Jacques Toubon, Jacques Toubon conteste avoir arbitrd en ddfaveur des droits des

dtrangers, LE MONDE, May 16, 1997, available at LEXIS, News, France file.

144 See infra Part IV.A text and notes. 145 See Trib. conflits, May 12, 1997, D. 1997, 567-68.

146 Id. at 568.

147 See id. (citing the classic definition of voie de fait announced by the Conseil d'Etat).

Critique of Tribunal 5/12/97 Decision 21

IV. CRITIQUE OF THE TRIBUNAL'S DECISION

In the case of Ben Salem and Taznaret, two opposing precepts give rise

to the conflict of jurisdiction. The first principle holds the judicial judge

guardian of individual liberties.' 48 The second grants the administrative

judge competence to nullify administrative decisions.' 49 Here, the Tribunal

des Conflits favored the latter, rendering its decision in support of govern- ment policy rather than for judicial protection of civil liberties.

French courts have applied the respective rules differently even where

the facts appear indistinguishable. 50 Although commentators have criticized

decisions favoring the administration,' 5' no statute or regulation clearly de-

termines jurisdiction. 152 As the administrative and judicial systems often

work together,153 arguments exist favoring delineation in one direction or the

other. The Tribunal's decision, however, fails to articulate a sufficiently strong

argument for granting jurisdiction to the administrative order. On the one

hand, the administrative action constituted a voie de fait, imposing judicial

competence. On the other hand, the French Constitution and statutory re-

gime compel judicial courts to hold authority where, as in this case, adminis-

trative action seriously affects fundamental individual liberties. Considering recent wrangling between the judiciary and other branches of government on

the issue of immigration and fundamental rights and liberties, the decisive

role played by the Minister of Justice in the High Court's decision appears as

148 See CONST. art. 66 (1958) (Fr.) ("No one may be arbitrarily detained. The judicial authority,

guardian of individual liberty, ensures the observance of this principle under the conditions speci-

fied by law."). 149 See Ordinance No. 45-2658 of Nov. 2, 1945, art. 22 bis, 35 bis.

150 Compare Trib. adm. Versailles, 8e ch., June 21, 1996, D. 1997 somm. 5, note Franqois Julien-

Laferri~re (applying article 66 of Constitution to grant jurisdiction to judicial judge where the State

detains a foreigner outside an administrative penitentiary), with Conseil d'Etat, May 26, 1995, D.

1997 somm. 218 (holding administrative jurisdiction proper where the State detains a foreigner

outside an administrative penitentiary). 151 See, e.g., Conseil d'Etat, May 26, 1995, D. 1997 somm. 5, obs. Franqois Julien-Laferri~re

(predicting the Conseil d'Etat's Mine. Yilmaz decision would not become jurisprudence).

152 Neither article 35 bis of the Ordinance No. 45-2658 of Nov. 2, 1945, nor any other legislative

directive expressly grants jurisdiction to either the administrative or judicial authorities where the

government detains a foreigner outside of an administrative penitentiary and this decision is con-

tested. See Trib. adm. Versailles, 8e ch., June 21, 1996, D. 1997 somm. 5, note Franqois Julien-

Laferri~re. 153 See, e.g., Lutte contre l'immigration clandestine et iloignement du territoire fran~ais des

itrangers condamnis, BULLETIN OFFICIEL DU MINISTPRE DE LA JUSTICE, Dec. 31, 1991, at 44 (coor-

dinating authority of both administrative order and judicial order where the administration expels

illegal alien and judiciary prosecutes criminal activities of alien).

22 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

an encroachment upon judicial independence. In light of rising anti-immi- grant sentiment, weakened judicial oversight over the protection of civil lib- erties threatens to undermine the long tradition of human rights in France. 154

When political pressures target distinct minority populations, democratic val- ues require the reinforcement of judicial protections, and not the protection of political expedience. The Tribunal's decision illustrates an important, al- beit uncommon, need for structural reforms in order to adequately protect fundamental individual liberties from political whims.

A. Administrative Action Constituted a voie de fait

The Tribunal des Conflits wrongly held the administrative action- maintaining stowaways onboard the ship without access to the statutorily re- quired "waiting zone"I 55-did not constitute a voie de fait. If the Tribunal found a voie de fait, the judicial order would hold jurisdictional compe- tence. 156 The high court, however, decided the administrative action, albeit illegal, did not amount to a voie defait. The Court therefore deemed judicial intervention unnecessary. 157 In sum, the court's judgment eliminated habeas corpus for foreigners. 1

58

The Tribunal des Conflit's holding directly addressed the issue of whether administrative consignment of the two stowaways on board the Felix constituted a voie de fait.159 The government contends the placement of a foreigner in a statutorily-defined "waiting zone" is only obligatory where the living conditions onboard or the health of the individual at question require such transfer. 160 The administrative action, however, constitutes a voie de fait because consignment onboard may potentially infringe upon fundamen- tal individual liberties.'

6 1

154 French human rights have expounded the values of individualism and universalism since La D&cIaration des Droits de I'Homme et du citoyen du 26 aot 1789. See GILLES LEBRETON, LIBERT S PUBLIQUES FT DROITS DE L'HOMME 68, 74-96 (1995). The French view human rights as stemming from natural law and encompassing four fundamental rights: liberty, property, security and the right to resist oppression (although the latter cannot be guaranteed by law). See id. at 71-72.

155 See supra Part I1, text and notes. 156 See supra Part 1n, text and notes. 157 See Trib. conflits, May 12, 1997, JCP 1997, II 22861, note Pierre Sargos. 158 See Philippe, supra note 4.

159 See Trib. conflits, May 12, 1997, JCP 1997, II 22861, note Pierre Sargos. 160 Id. 161 Foreign nationals on French territory benefit from the same general civil liberties as French

citizens.

Critique of Tribunal 5/12/97 Decision 23

The theory of voie de fait (flagrant irregularity)' 62 disqualifies an ad- ministrative act, placing full competence in the judicial order.

163 A voie de fait occurs with the culmination of two conditions: 164 (1) a seriously illegal act 165 by the administration (2) that violates either a fundamental liberty or property right.' 66 The doctrine of voie de fait places jurisdictional compe- tence in the hands of judicial courts where administrative action comprises a flagrant irregularity.' 67 The administrative system loses jurisdiction because these acts are "manifestly incapable of being connected with the exercise of a power belonging to the administration." 1

68

French law requires police to hold aliens unable to justify their presence on French territory in a "waiting zone."' 169 In practice, such action depends entirely upon an administrative procedure relative to the application of the "Joxe Law."' 70 The law clearly stipulates that police may hold a foreigner entering French territory illegally in an administratively-defined "waiting zone" until expulsion or an initial asylum review.' 7' The Conseil constitu- tionnel upheld the placement of illegal aliens in a "waiting zone." In its decision, the Constitutional Court reasoned that detention in a "waiting zone"

162 See BROWN & BELL, supra note 1, at 135. Voie defait translates literally to "way of fact." In

the administrative context, voie defait indicates a gross and flagrant irregularity on the part of the

government stripping administrative privilege and thereby granting jurisdiction to the judicial sys-

tem. See id. 163 See ARLETrE HEYMANN-DOAT, LIBERTtS PUBLIQUES ET DROITS DE L'HOMME 183 (2d ed. 1992)

(noting theory of separation of powers no longer applies where administration commits a voie de

fait).

164 See GEORGES VEDEL & PIERRE DEVOLVE, LE SYSTPME FRANCAIS DE PROTECTION DES AD-

MINISTRIS CONTRE L'ADMINISTRATION § 610 (1991). 165 A voie defait constitutes more than a simple illegality; it is a governmental action outside the

bounds of assigned administrative power. See id. § 611.

166 Such a violation permits judicial intervention. See id. § 616.

167 See BROWN & BELL, supra note 1, at 135.

168 See VEDEL & DEVOLVf, supra note 163, at § 609 (citing Conseil d'Etat, Nov. 18, 1949, Lebon

1950, 172, note M. Waline).

169 See Law No. 92-625 of July 6, 1992, J.0. July 9, 1992, p. 9185; D.S.L. 1992, 362 (applying to "waiting zones" at ports and airports and modifying Ordinance No. 45-2658 of Nov. 2, 1945).

170 See Law No. 89-548 of Aug. 2, 1989, J.O. Aug. 8, 1989, p. 9977; D.S.L. 1989, 272.

171 See Ordonnance of Nov. 2, 1945, art. 35 quater ("A foreigner who arrives in France by rail,

sea or air transportation, and either is not authorized to enter French territory, or requests admission

by applying for asylum, should be maintained in a waiting zone situated in the train station open to

traffic and designated by decree, a maritime port or an airport during the period strictly necessary

for his departure, and, if he requests asylum, until a review towards determining if his application is

not manifestly unfounded.").

24 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

remained comparable to the alternative, which required placement in a deten- tion center. 1

7 2

Consignment onboard, however, is clearly distinguishable as several im- portant rights become unavailable to the individual held in detention. Con- fined on board, the detainee is held without access to counsel, translation services, medical care, and public information. 173 Moreover, consignment prevents notification of legal rights, the opportunity to obtain a visa or apply for asylum, and the right to judicial control with a written and reasoned decision. 174

Further, consignment effectively denies stowaways habeas corpus and prevents application for asylum. Here, administrative action detains the for- eigner, confining the individual as a prisoner offshore, aboard a boat without the right to challenge the detention in person before a judicial court.

Finally, consignment provokes humanitarian concerns and human rights questions. Changing conditions raise very real concerns for potential abuses regarding hygiene, nutrition and individual space. Consignment involves, as well, a penalty upon the boat and its crew, and may therefore lead to tragic solutions upon otherwise helpless passengers. 175 In this sense, French offi- cials provoke detention, but can not assure responsibility for the well-being of their prisoners.

In sum, consignment onboard, rather than placing stowaways in a "wait- ing zone," constitutes more than an "illegal" act. 176 Such administrative ac- tion involves a clear violation of individual liberties, and consequently results in a voie defait. In such a case, the judicial order holds competence to decide the matter.

The Tribunal's decision, in deciding for the administrative order, has drained the notion of voie de fait of any meaningful significance where ad- ministrative action restricts the individual liberty of a foreigner. Henceforth,

172 See Con. const., Feb. 25, 1992, D. 1992, 92-307 ("[T]he maintenance of a transit zone - since

become a waiting zone ... does not bring about, with respect to the interested party, a degree of constraint on his person comparable to that which would result from his placement in a detention center in application of article 35 bis of the previous ordinance.").

173 See Trib. conflits, JCP 1997, 11, 22861, note Pierre Sargos. 174 Id. 175 See, e.g., Corinne Touret, Embarquement Clandestin, Rtp. PtNALE, Apr. 1996, at 1 (indicating

in 1992, eight of nine stowaways from Cameroun and Ghana were shot and killed by Ukrainian

crew off coast of Portugal; in 1985, 11 clandestine passengers from Africa were thrown overboard by Greek crew off the coast of Somalia).

176 Trib. conflits, May 12, 1997, JCP 1997, II 22861, note Pierre Sargos.

Critique of Tribunal 5/12/97 Decision 25

the administrative order holds exclusive competence where once judicial judges provided protective oversight.

1 7 7

B. Judicial Authority Should Hold Competence

Even if the administrative action-detaining stowaways on board the ship of arrival-fails to pass the muster of a voie de fait, the judicial order retains jurisdictional authority. Both the French Constitution and Code of Criminal Procedure require the judicial authority's oversight in order to pro- tect individual liberties. French courts have repeatedly reiterated this impor- tant judicial function. Despite the strength of these arguments, the Tribunal des Conflits, presided by the Minister of Justice, denied judicial authority.

Article 66 of the 1958 Constitution provides that the judicial order act "as guardian of individual liberty" 78 to protect fundamental rights. 17 9 In this respect, the judicial order places certain legal prescriptions upon police (ad- ministration) powers to stop or detain individuals. 180 These limits remain well within the judicial order as defined by the Constitution' 8 1 and long- standing legal tradition.'

82

However, this does not assure judicial competence. The judicial judge does not intervene to decide a number of measures that limit individual lib- erty.' 83 Moreover, the Conseil d'Etat has affirmed administrative authority over actions relying upon administrative competence in situations involving illegal immigration.'184 Unfortunately, the Tribunal did not address the appli-

177 Commentators have expressed regret for this development. See, e.g., Trib. conflits, May 12,

1997, D. 1997, 567, note Andrd Legrand ("The reference to the flagrant irregularity ... has become a purely stylistic clause; this notion, involving the law of foreigners, is made of a tissue where there remains less and less skin, and more and more distress.").

178 See Dominique Turpin, L'autoritijudiciaire, guardienne de la liberte individuelle, A.J.D.A,

Dec. 20, 1983, at 653. 179 See CONST. art. 66 (1958) (Fr.) ("No one may be arbitrarily detained. The judicial authority,

guardian of individual liberty, ensures the observance of this principle under the conditions speci- fied by law.").

180 See HEYMANN-DOAT, supra note 162, at 179 (specifying primary area of concern as judicial

control of police activities). 181 The first paragraph of Article 66 explicates: "No one may be arbitrarily detained." CONST. art.

66 (1958) (Fr.). 182 This refers to Article 7 of the Declaration of the Rights of Man of 1789. See LEBREON, supra

note 153, at 70. 183 See HEYMANN-DOAT, supra note 162, at 180 (including, but not limited to, identity controls,

administrative internment and "Terry stops"). 184 See, e.g., Conseil d'Etat, Sept. 25, 1984, D. 1984, 307 (permitting administrative competence

in granting extradition decrees); Conseil d'Etat, Jan. 24, 1986, D. 1997, 280 (allowing administra- tive jurisdiction in issuing expulsion decrees). The Constitutional Court has also granted adminis-

7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

cation of article 66 in its decision. 185 Nonetheless, the scope of infringement upon individual liberty involved in this case go well beyond the necessity for administrative convenience and expedience. The administration clearly has the competence to detain the stowaways; the question at hand pertains specif- ically to the type of detention. The alternative interpretation creates two sys- tems of protection: administrative for immigrants, judicial for all others.

Furthermore, French law directly addresses such conflicts. In the situa- tion of a conflict of jurisdiction, article 136 of the Code of Criminal Proce- dure states that "in all cases of threats to individual liberty, the conflict can never be raised by the administrative authority, and the judicial courts always have exclusive jurisdiction."'' 86 This clear and unequivocal language applies to civil suits as well.

187

Although it ignored article 66 of the Constitution, the Tribunal des Con- flits founded much of its reasoning on article 136.188 Here, the Tribunal se- verely restrained its interpretation of article 136. Other French Courts, however, have reiterated the judicial order's authority as the guardian of civil liberties. Historically, the Conseil constitutionnel does not establish substan- tive judicial review. ' 89 In recent years though, both the judicial and adminis- trative systems have increasingly relied upon the Conseil constitutionnel's constitutional decisions.' 90 In this respect, the Conseil has firmly established the constitutional principle of the judicial authority as the guardian of civil liberties.' 9' The Cour de cassation has also repeatedly pronounced the func-

trative jurisdiction in cases involving escorts back to the border. See Con. const., July 28, 1989, D. 1990, 161, note Pr~tot. 185 See Trib. conflits, May 12, 1997, JCP 1997, I1 22861, note Pierre Sargos. 186 C. PR. PtN. art. 136 (38th ed. 1996-97) ("[I]n all cases of attack on the liberty of the individual,

the conflict may never be raised by the administrative authority and the tribunals of the judicial order always have exclusive competence."). The Tribunal des conflits, however, has always inter- preted article 136 in favor of the administrative courts. See Vroom, supra note 109, at 311 (citing C. PR. PN. art. 136).

'87 See C. PR. PN. art. 136 ("The same [principle of judicial control] applies to all civil suits based upon act constituting an infringement of individual liberty or the integrity of the domicile as established by articles 432-3 to 432-6 and 432-8 of the Penal Code."). 188 See Trib. conflits, May 12, 1997, JCP 1997, 11 22861, note Pierre Sargos. 189 See Burt Neuborne, Judicial Review and Separation of Powers in France and the United

States, 57 N.Y.U. L. REV. 363, 377 (1982) (noting that until recently French courts have "vigor- ously rejected substantive judicial review"). 19( See VROOM, supra note 109, at 309 (building upon the constitutional reform of 1974, the

Conseil Constitutionnel has developed its jurisprudence which both the Cour de cassation and the Conseil d'Etat have expressly followed). "91 See, e.g., Con. const., Dec. 29, 1983, J.O., Dec. 30, 1983, p. 3871 ("the intervention of the

judicial authority must be anticipated in order for [the judiciary] to preserve all the responsibility and all the power of control that it retains"); Con. const., Jan. 9, 1980, 1980 D.S. Jur. 249 (striking

Critique of Tribunal 5/12/97 Decision

tion of the judiciary to protect individual liberties. 192 In fact, the Court has affirmed this role even where it refuses to apply its power. 93 Even the his- tory of article 136 suggests that the legislature sought to overturn previous jurisprudence, affirming the competence of judicial judges.

194

C. Question of Judicial Independence

Judicial independence comprises a major issue in contemporary French politics. 195 Today, political forces have recognized the importance of an in- dependent judiciary, 96 and judicial reform remains an actual political pro- ject. In fact, French President Jacques Chirac has delineated the hierarchical structure linking the Garde des Sceaux and the government as a primary area of concern. 1

97

Historically, the presidency of the Garde des Sceaux has proved to be an important but rare influence in which way the Tribunal swings. 19 8 His role as the determining vote in deadlocked proceedings became a contentious is- sue even in the early elaboration of the Tribunal. 99 The major criticism lay in the fact that the Garde des Sceaux is not necessarily a legal scholar.

20°

Although the actual need for his vote remained rare, 20 ' his intervention often

down expulsion of foreigner after seven days as unconstitutional where no judicial judge authorized detention within 48 hours).

192 See, e.g., Cass. 2e civ., June 28, 1995, D. 1995, 94-50.002 (expressing role of judicial judge as

"guardian of individual liberty" where police action seeks to expel illegal alien). 193 See, e.g., Cass. 2e civ., June 11, 1997, D. 1997, 96-50.050 (affirming role of judicial judge to

guard individual liberties). 194 See LEGRAND, supra note 176. Article 136 effectively overturned the Tribunal des Conflits'

decision in the Climent decision on this issue. See id. (citing Trib. conflits, Nov. 16, 1964, D. 1965, 668, note Demichel).

195 See PIERRE TRUCHE, COMMISSION DE RPFLEXION SUR LA JUSTICE, SYNTHIPSE DU RAPPORT DE LA

COMMISSION (1997), http:\\juripole.u-nancy.fr/reflexion-justice.html#TI (last visited Apr. 4, 2002). 196 The independence of judicial judges is assured by article 64 of the Constitution ("The Bench is

irremovable."), and the oversight of the Conseil Supdrieur de la Magistrature. See HEYMANN- DOAT, supra note 162, at 176-78. In contrast, administrative judges enjoy less independence from the government. See id. at 192-93. 197 See Texte intigral de I'intervention du president Jacques Chirac sur la riforme de la justice le

20 janvier 1997, available at http://www.fmcp.org/propositions/dischirac, (expressing desire to render judicial authority completely independent of the executive and legislative branches).

198 See CHOUVEL, supra note 5, at xi. 199 See id. at 2 ("During the elaboration of the law, the essential debate revolved around the

problem of the presidence of the Tribunal: the government foresaw that the presidence would be

assumed by the Garde des Sceaux .... ). 200 See id. at 3 (explaining that the Garde des Sceaux's vote has with it the guarantee of half the

Tribunal's members). 201 See id. (enumerating deadlocked decisions from 1873 to 1969).

7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

came in matters of dispute where the legal questions proved delicate to solve.

20 2

The controversy surrounding the Tribunal's May 12 decision centered largely on the intervention of the Garde des Sceaux, Jacques Toubon. 20 3 Ad- versaries, 20 4 however, framed the question in regards to judicial indepen- dence rather than the competence of Mr. Toubon.2 0 5 They interpreted Mr. Toubon's vote as governmental encroachment on judicial functions.

20 6

In fact, Jacques Toubon heads an important ministry in the government. As Minister of Justice, he works directly in conjunction with other govern- ment officials, such as the Interior Minister, in putting government policy in place. It is therefore reasonable to associate Mr. Toubon's actions with the exercise of government policy. Although tie-breaking votes by the Garde des Sceaux have gone both ways, they have historically followed the evolu- tion of the state.

20 7

Several suggestions emerged as possible options for reform. One solu- tion involves the complete elimination of dual orders of jurisdiction. 20 8 Al- though such a radical response has the advantage of bringing France closer to other European legal systems, it remains unlikely that this controversy would lead to the elimination of many centuries of legal tradition.

More likely, several other reform options involve replacing the Garde des Sceaux as president of the Tribunal des Conflits. Either the President of the National Assembly 20 9 (an elected official) or the President of the Conseil

202 See CHOUVEL, supra note 5, at x ("And it is hardly by chance that these decisions have be-

come, for the most 'classics' in administrative law."). 203 See Philippe, supra note 4.

204 See id. In particular, Pierre Sargos, member of the Tribunal des conflits and advisor at the

Cour de cassation. Mr. Sargos resigned from the Tribunal des conflits as a result of the contested decision. See id. Further, the three major magistrates' unions all voiced their concern about the role of the Garde des Sceaux in the Tribunal des conflits. See id. (noting that the Professional Association of Magistrates (APM, politically close to government), the United Syndicated of Mag- istrates (USM, politically centrist), and the Syndicate of Magistrates (SM, politically left) all ex- pressed concern on the issue of judicial independence). For Mr. Sargos' interpretation of the Tribunal's decision, see JCP 1997, I, 22861, note Pierre Sargos. 205 Jacques Toubon shares the same qualifications as many of the members of the Tribunal des

conflits: a law degree (licence) and diplomas from both the Political Science Institute (IEP) of Lyon and the National School of Administration (ENA). Toubon also served as a member of parliament and Minister of Culture. 206 See Philippe, supra note 4.

207 See CHOUVEL, supra note 5, at 113 (concluding tie-vote decisions of Tribunal des conflits

have followed evolution of State). 208 See Philippe, supra note 4 (coming from APM president George Fenech).

209 See id. (coming from APM president George Fenech).

Critique of Tribunal 5/12/97 Decision

constitutionnel210 (an appointed jurist) would replace the Garde des Sceaux (a government-appointed minister).

Both options would eliminate direct government intervention in the ju- dicial process. The latter, however, presents several advantages over the for- mer. First, the President of the National Assembly remains a political position, prone to the sways of political consideration. Moreover, the Presi- dent of the National Assembly is not necessarily a legal expert. Third, the President of the Conseil constitutionnel is removed from the political pro- cess. Finally, the President of the Conseil constitutionnel holds the respect of the legal establishment.

Furthermore, according the presidency of the Tribunal des Conflits to the President of the Conseil constitutionnel corresponds to the growing im- portance of the constitutional court within the French judicial system.

Although the Tribunal des Conflits essentially decides jurisdictional questions, its holdings have a decisive impact upon substantive issues of liti- gation. In fact, the Tribunal's decision of May 12, 1997 settled a substantive matter of law: whether the administrative action constituted a voie de fait. The question of reform, therefore, is not just one of procedure, but pro- foundly impacts the independence of the judicial system. In this respect, the legitimacy and confidence in justice necessitate an independent court, free of political interference.

CONCLUSION

The decision rendered by the Tribunal des Conflits illustrates the in- creased need for a strong and independent judiciary when political expedi- ence threatens civil liberties. Although the tie-vote procedure remains a rarity, intervention by the Minister of Justice distorted the judicial process, overtly introducing a political agenda into judicial reasoning. One solution would entail placing the President of the Conseil constitutionnel at the head of the Tribunal des Conflits.

Constitutional reinforcement of judicial independence remains at the heart of the issues raised by this case. Rising anti-immigrant sentiment places enormous pressures on all governments to favor law enforcement over individual liberty. This is especially true where the rights encroached upon belong to a politically-weak minority. Upholding the structural integrity of

210 See Pierre Sargos, La survivance d'uneforme de "justice retenue," LE MONDE, May 16, 1997,

available at LEXIS, News, France file (calling for legislative reform to replace the Garde des Sceaux as President of the Tribunal des conflits with the President of the Conseil constitutionnel).

Pierre Sargos made this suggestion to Pierre Truche, President of the Commission of Reflection on

Justice and First President of the Cour de cassation (the highest judicial magistrate in France).

30 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002)

the judiciary safeguards democratic traditions and human rights, especially in regards to asylum law and immigration. The range of action for the courts, however, remains limited. Ultimate responsibility lies with the political

forces that promulgate laws and regulations of a country.

Ultimately, from a comparative law perspective, this Article exemplifies a larger phenomenon. Increased political interdependency and economic globalization have created reactions that threaten local democratic traditions. France, like other countries with a long-standing history of human rights, must consider institutional safeguards that reinforce constitutional protection of individual liberties and civil rights. Otherwise, political pressures will weaken judicial protections of individual liberties, especially those of small- insular minorities. This not only undermines fundamental democratic values

and individual liberty, but also seriously affects the prospects of political stability and economic integration.