;)
Is the transfer of judicial and police powers back on the table?
Hello everyone,
The APROFED association is contacting you again at the end of this week to share with you a report from a listening and advisory mission spanning nearly 10 years, supervised by former High Commissioners Yves Dassonville and Alain Christnacht, concerning the institutional future of New Caledonia, which you can find in full at the link below:
In this report, we learn for example on page 26, that the State, loyalists and separatists discussed the possible transfer of judicial jurisdiction to the territory.
The report states that civil procedure is already a matter of local jurisdiction ; only criminal procedure and contentious administrative procedure remain governed by national law.
Discussions also touched on New Caledonia’s exercise of jurisdiction over the organization of courts of first instance , the establishment by New Caledonia of specific procedural rules within its areas of competence, and the regulation of the legal profession and other legal professions. However, there was no agreement on these points, nor on the return of the public prison service to New Caledonia .
While there is consensus on increasing the number of Caledonians in various judicial professions, those opposed to independence are united in their opposition to a complete transfer of sovereign powers to New Caledonia. Even so, some believe that New Caledonia should be more closely involved in these sovereign functions .
In the event of achieving full sovereignty, pro-independence groups do not rule out organizing the justice system in partnership with France. This could include the secondment of French judges to New Caledonian courts . Some also do not rule out the possibility that, as was the case in the Commonwealth, the French supreme courts—the Council of State, the Court of Cassation, or even the Constitutional Council— could continue to play a role in adjudicating disputes within their jurisdiction, reviewing New Caledonian laws, or overturning decisions of its courts.
On this last point, we note the federal suggestion . The association has, however, already expressed its opinion on the matter. Namely, that while this solution seems good to us, we believe that this measure could only be temporary. New Caledonia must first and foremost have, like each of the American federated states, for example, its own supreme court, which will assume final authority over the interpretations of the territory’s laws and its Constitution (fundamental law). The metropolitan supreme courts would thus play the role of the American federal supreme court, deciding, during a transitional period, whether the laws of New Caledonia are consistent with the French Constitution.
It is also interesting to note that, despite the opposition of those opposed to the complete transfer of this power, all political groups have a positive view of the current participation of customary law in the justice system, particularly with regard to the presence of customary assessors. They all wish for customary authorities to have a greater role in crime prevention, criminal mediation, and restorative justice, and for them to be more effectively mobilized by magistrates.<sup>4</sup> Subject to the powers granted by Article 27.<sup>27</sup>
As mentioned in one of our previous articles, to finalize the establishment of a federated state of New Caledonia, it is necessary to recover jurisdiction over justice (cf. For a federated state, jurisdiction over justice must be recovered – APROFED ) which turns out to be one of the 3 pillars constituting any state in the world along with the legislative and the executive.
The French state’s intention to create a state of New Caledonia within the framework of its proposed agreement with the pro-independence movement can therefore only be seen as allowing the territory to regain at least some of its internal sovereignty, while leaving France to manage its external sovereignty, thus establishing genuine shared sovereignty. Any other choice made by the state would demonstrate the insincerity of its proposal to create a Caledonian state and the deceptive game that many have already pointed out.
It would therefore seem that this competence, as well as that which stems from it, namely internal security (law enforcement), will again be the subject of discussions in 2026 , and we welcome this.
This point was also discussed in the said report, particularly on page 29, where it is mentioned that ensuring public order and security is a sovereign power, which is however often partly shared : existence of municipal police forces or, in federated states, of state police forces, intervening separately or concurrently with the federal police.
It is specified that although this development is possible within the current institutional framework, there is no consensus among those opposed to independence on the creation of Caledonian security forces. Conversely, this is a demand of the pro-independence movement. The exercise of public order powers would be possible, within certain limits, without institutional change. Nevertheless, those opposed to independence have expressed their opposition to any transfer of powers in this area, even though, within the framework of the Bougival Agreement, they had raised the idea of a provincial police force.
The APROFED association