Opinion on the future constitutional bill

The APROFED association is back with you again this week following the upcoming vote in France on the constitutional bill concerning New Caledonia , which you can find at the following link: ANALYSIS. New Caledonia Agreement: What does the constitutional bill say?

Upon reading it, the association first notes that the word PROJECT appears in bold and in watermark on each page of the document, unlike the Bougival draft text. Has the State learned its lessons, or on the contrary, was this omission deliberate last July?

Secondly, it is possible to read the notion of the State of New Caledonia as agreed, but without further details . This raises questions. Would the metropolitan Executive be afraid, by detailing this notion in more detail, of the rejection of the entire text by the French Parliament? Or, on the contrary, does it expect the censorship of a part of the text, in this case of this State of New Caledonia, by the Constitutional Council in order to blame this institution, while retaining the rest of the text aimed at unfreezing the electoral body, which in this case is very well detailed for its part.

Was this not the will of the State from the start, namely to unfreeze the electoral body , which is what the independentists oppose and which led to the insurrection of May 2024.

To sum up, the electoral body will become sliding and will be open to all persons having at least 15 years in the territory, or even 10 years once they have acquired Caledonian nationality, and even 5 years if the person is in a civil partnership or married to someone in the territory.

So goodbye not only to the electoral freeze but also to the law on local employment which in any case does not protect local people in any way.

It should be noted that this notion of an electoral body will come into force before the special organic law and the famous fundamental law which must detail the entire future architecture of the institutions of New Caledonia.

In this regard, as already mentioned in one of our previous articles, the association questions the fact that the special organic law addresses more numerous and important subjects than the future fundamental law (Constitution) of New Caledonia . We can even read in it in matters of employment and customary civil status which are competences of the territory and which the French State should normally no longer legislate on. Does this mean that the State does not want a fundamental law, a Caledonian Constitution?

In any case, reading the weak content of this fundamental law, it would at most be clearly nothing more than a simple internal regulation, nothing more and nothing less.

The proof is in the content of this constitutional bill, which provides that the Special Organic Law (LOs) will be able to set the rules in the absence of a fundamental law. While the laws of the countries of New Caledonia will have to comply with the future fundamental law, the latter will have to comply with the LOs. Whereas for the association, the fundamental law, once adopted, should be superior to the French organic laws. Unfortunately, as confirmed by Carine David, professor of public law, ”  New Caledonia remaining a collectivity of the Republic, its fundamental law will logically be subject to the Constitution. But it will also be inferior to the statutory organic law whereas one could have imagined that it would be at an equivalent rank”  (cf. Bougival Agreement: the difficulties of finding the path towards the “us” in New Caledonia – Jean-Jaurès Foundation ).

However, for the association, the creation of a State is accompanied by a Constitution. Therefore, it is this fundamental law in which the electoral body would have been included which should have been presented within the framework of this future constitutional bill and not the other way around , demonstrating the priority of the French State, namely to formalize in the electoral lists of the territory all the metropolitan residents present there as well as their descendants.

It should be noted that the Congress of New Caledonia will only have a consultative opinion on the future LOs. That the future fundamental law, if it sees the light of day, will be submitted to the Constitutional Council, which is normal, but its amendments it seems also, which in this case is not. Indeed, this fundamental law must be established in order to allow New Caledonia to be able to modify some of its institutions and rules without the approval of the centralizing State.

It is also noted that the future LOs may plan to reinstate the provisions of the Noumea Agreement, dear to the independence supporters who consider it a given. However, the verb is important here since it suggests a possibility, not an obligation. It would seem that only 50% of the ADN will be reintroduced (see Manuel Valls in Caledonia. The minister reveals a very tight timetable to legally implement the Bougival Agreement ), contrary to the statements of certain local non-independence representatives who claimed its almost complete reintroduced (see New Caledonia Agreement: for Philippe Dunoyer, “95% of the Noumea Agreement remains in force” in the Bougival compromise ).

If the association could have welcomed the reinstatement of articles 78, 79, 80 of the French Constitution of 1958 (cf. Constitution of October 4, 1958 – Légifrance ), as we requested , which was equivalent to the French Community set up by General de Gaulle with a view to establishing a sort of French-style Commonwealth.

We nevertheless regret once again the turn of these said articles which are to establish the Constitution, nationality and the future Caledonian electoral body because they are still under the predominant and exacerbated control of the State. This had led in 1958 to the death of the Community barely 3 years later in 1961. Let us hope that this does not take the same path for New Caledonia, with a possible new revolt by the next presidential election in 2027, due to a new passage in force of the State to impose Bougival remained at the stage of draft agreement for the independentists.

The association would have preferred that these articles be reinstated not only for New Caledonia but also for all French overseas territories (see Federalism in the history of France and the American case – APROFED ; Speech by Dick UKEIWE to the Senate in 1985 and Rock PIDJOT’s proposal for autonomy status in 1976 – APROFED ; Agreements and responses generated by AI to the Caledonian problem – APROFED ; The principles of federalism – APROFED ) with a view to creating for them a federal system which, after evaluation, could have been generalized to the entire French territory. Unfortunately, we are once again seeing the true face of the State which, through its project of territorial differentiation, particularly for the overseas territories, actually aims to retain power and control over its territories, dangling progress in front of them while wasting time which is no longer measured in years but in decades.

We wish you a good read and remind you that federalism is the only solution to reconcile unity in diversity.