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Case:
CE, Ass., 30 octobre 1998, p.368 Case Sarran, Levacher et autres
Date:
30 October 1998
Translated by:
Professor John Bell FBA
Copyright:
Professor B. S. Markesinis

On the arguments relating to annulment of the challenged decree

Considering that art. 76 of the Constitution in the version set out in art. 2 of the constitutional law of 20 July 1998 declares: “Before 31 December 1998, the populations of New Caledonia shall be balloted on the provisions of the Agreement signed at Noumea on 5 May 1998 and published on 27 May 1998 in the Journal Officiel”; as under the second paragraph of art. 76: “Participants in the ballot shall be those persons fulfilling the conditions set out in art 2 of the Law n¿ 88-1028 of 9 November 1988”; as finally, under the terms of the third paragraph of art. 76: “The measures necessary for the organisation of the ballot shall be taken by decree made in the Conseil d’Etat and considered in the Council of Ministers”; as the decree of 20 August 1998 was taken on the basis of these provisions;

On the external legality
[Not reproduced here]

On the internal legality

In relation to the arguments directed to arts 3 and 8 of the challenged decree

Considering that article 3 of the decree of 20 August 1998 provides that “In accordance with art. 76 of the Constitution and art. 2 of the Law of 9 November 1988…electors enrolled at that date on the electoral lists of the territory and who have had their domicile in New Caledonia since 6 November 1988 shall be eligible to take part in the ballot”; as it is specified that “ persons shall be treated as having their domicile in New Caledonia even when they are completing their military service or pursuing their studies or further training outside the territory, if they previously had their domicile in the territory”; as art. 8 of the decree provides in its first paragraph that the administrative commission in charge of drawing up the list of persons eligible to vote in the ballot shall register on this list electors who fulfil the requirement of domicile of art. 2 of the Law of 9 November 1988;

Considering that, as has been recalled above; the second paragraph of art. 76: “Participants in the ballot shall be those persons fulfilling the conditions set out in art 2 of the Law n¿ 88-1028 of 9 November 1988”; as this latter article requires that the persons in question should have been domiciled in new Claedonia since 6 November 1988, apart from the exceptions which it enumerates in its second paragraph and which are reproduced in art. 3 of the challenged decree; as thus, arts. 3 and 8 of the said decree, far from misinterpreting art. 76 of the Constitution, have applied it exactly;

Considering that art. 76 of the Constitution having intended to derogate from other norms of constitutional value relating to the right to vote, the argument that the contested provisions of the challenged decree are contrary to arts 1 and 6 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble of the Constitution refers, or to art. 3 of the Constitution can only be rejected;

Considering that, even if art. 55 of the Constitution provides that “from the moment of their promulgation, treaties or agreements properly ratified or approved have an authority superior to that of laws on condition , for each treaty or agreements of its application by the other party”. the supremacy thus conferred on international agreements does not apply, in the internal legal order, to the provisions of a constitutional natures; as thus the argument that the challenged decree, in ignoring the provisions of international agreements properly introduced into internal law, should thereby be contrary to art. 55 of the Constitution cannot but be rejected;

Considering that, if the applicants are inviting the Conseil d’Etat to make the provisions of arts 2, 25 and 26 of the United Nations Covenant on Civil and Political Rights and art. 14 of the European Convention on Human Rights and art. 3 of the additional protocol n¿ 1 to this Convention prevail over the provisions of art. 2 of the Law of 9 November 1988, such an argument cannot but be rejected insofar as, by the effect of the reference made to it by art. 76 of the Constitution, these provisions have constitutional value in themselves;

Considering finally that, to the extent that arts. 3 and 8 of the challenged decree have made a correct application of the constitutional provisions which it was incumbent on the author of the decree to implement, there cannot be raised against them either failure to respect the provisions of the Civil Code relating to the acquisition of French nationality and civil status or breach of the Electoral Code relating to the conditions for registration as an elector on the electoral roll in a specific commune;

In relation to the arguments directed against art. 13 of the challenged decree

Considering that art 13 of the challenged decree applies the provisions of the Electoral Code relating to challenges to the annual revision of the electoral roll to challenges to the establishment of the list of person eligible to take part in the vote of 8 November 1998, but with some modification of the time limits;

Considering that it follows from a comparison of the provisions of the challenged decree and the other provisions of this decree that the administrative commission for enrolment created in each voting office chaired by a civil judge cannot refuse to enrol an elector on the list of persons eligible to vote in the ballot without having enabled that person to make observations; as it is also necessary to observe that the consultation of the affected populations involves an electoral body defined in principle by art.2 of the Law of t9 November 1988; as is provided in art. R 15-2 of the Electoral Code, which the challenged decree requires to be applied, the challenge to the decision of the court of first instance can be made by way of an oral or written declaration which any affected party or his agent has the power to address to the secretary-general of the court; as finally the challenged decree does not prevent the court receiving an application of the provisions of the 2nd clause of art. 47 of the Ordinance of 31 July 1945 on the Conseil d’Etat, which permits the claimant to present the appeal notice to the secretariat of the court;

Considering that, as regards these different elements and taking account of the nature of the challenged capable of being brought before the relevant courts, the periods within which a request must be made to the courts identified by the challenged decree, notwithstanding their shortness, do not breach the rights of the affected individuals to exercise an effective redress before a court consistently with general principles of law;

Considering that the nature of the questions submitted to the court of first instance, the period of 5 days which it has in order to decide does not, in itself, breach the principle of a fair hearing

Considering that the challenged of the claimants relating to enrolment on the list of persons eligible to take part in the ballot relate to the exercise of political rights and not to the civil rights and obligations within the meaning of the European Convention on Human Rights; as, in consequence, the argument based on breach of the provisions of art. 6 § 1 of the European Convention on Human Rights can only be rejected;

[Further alleged breaches of the Electoral Code were rejected]

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