Antoine Vauchez on the State of Emergency in France and the Dual Role of the Conseil d'Etat as Advisor to and Judge of Administrative Action

Network member Antoine Vauchez (CNRS) has alerted us to a post on his blog Do You Law? at the Paris daily Libération.  Entitled "Le Conseil d'Etat ou le verrou du Palais royal" ("verrou" meaning "deadbolt" or "safety lock" and the "Palais royal" being the location of the CE in Paris), in this piece Antoine poses the perennial question: "Can the French administrative judge pronounce on the law and also advise those who exercise power?  The question presents itself with acuity as the government prepares to seek a new extension of the state of emergency."  A translation of the opening lines is below and the remainder may be read (in French) here.

* * *

The state of emergency has placed the Conseil d'Etat at the forefront of the antiterrorist response. With the unprecedented expansion of administrative powers and the marginalization of the ordinary courts, the administrative judge has the delicate mission of giving voice to the demand for rights and freedoms at the heart of a counter-terrorism policy whose excesses have already been noted in many respects. With its position at the heart of the administrative machinery, however, the Conseil d'Etat seems poorly misplaced to fully accomplish this essential task.

In the current phase of the antiterrorist struggle, the members of the Conseil d'Etat occupy a pivotal position.  Placed all along the chain of state action, from its policy conception to its legal control, these members form both the state's infrastructure and its safety lock (verrou) ... 

[continue reading here]