Et if it was necessary to include in the text of the Constitution of October 4, 1958 the freedom to demonstrate so that its social apprehension changes? The disproportionate use of force by the public authorities during the various demonstrations that took place at the start of the year has been denounced by the Defender of Rights, the National Consultative Commission on Human Rights, the Union of the judiciary, the Commissioner for Human Rights of the Council of Europe, or even by the special rapporteur of the United Nations Organization on environmental defenders.
In this context, it should be remembered that freedom of demonstration is not only a matter of managing public order, it is above all the expression of political liberalism. As such, the path of constitutionalizing the freedom to demonstrate deserves to be considered.
In the current state of constitutional law, the freedom of demonstration results only from an indirect jurisprudential consecration. The Constitution of October 4, 1958 is silent on the matter. Neither the Declaration of the Rights of Man and of the Citizen of August 26, 1789 nor the preamble to the Constitution of October 27, 1946, which formalize, in the Constitution, the rights and freedoms of the citizen, consecrate this freedom.
Very general outline
However, this has already been recognized in French constitutional history: the Constitution of September 3, 1791 devotes, in its title 1is“Fundamental provisions guaranteed by the Constitution”, “the freedom of citizens to assemble peacefully and without arms, by satisfying the police laws” ; the so-called “mountain” Constitution of 24 June 1793 provides, in its article 7, “the right to manifest one’s thoughts and opinions, either through the press or in any other way, the right to assemble peacefully, the free exercise of worship, [qui] cannot be prohibited” ; Article 8 of the Constitution of November 4, 1848 provides that “Citizens have the right to associate, to assemble peacefully and without arms, to petition, to manifest their thoughts through the press or otherwise. The exercise of these rights is only limited by the rights or freedom of others and public security.. According to article 16 of the draft Constitution of April 19, 1946, which was not adopted, “the right to parade freely on the public highway and the right of assembly are guaranteed to all”.
Under the Ve Republic, the freedom to demonstrate has only been recognized through case law, belatedly and indirectly. It was only in 1995 that the Constitutional Council − basing itself on article 11 of the Declaration of 1789, according to which “The free communication of thoughts and opinions is one of the most precious rights of man: every citizen can therefore speak, write, print freely, except to answer for the abuse of this freedom in the cases determined by law”and interpreting it constructively − deduced a “right to collective expression of ideas and opinions” (decision of 18 January 1995, Orientation and programming law relating to security).
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