KREDDHA AUTONOMY MAPPING PROJECT a project of the Kreddha research and analysis department FRENCH POLYNESIA / FRANCE Prepared by Tony Angelo Tony Angelo Professor, School Of Law Victoria University of Wellington New Zealand December 2007 The Kreddha Autonomy Mapping Project commissioned case studies from experts and academics throughout the Asia-Pacific region (or experts on the region). Each case study gives information about the specific arrangements and the formative processes that define the governance relationships between autonomous regions and the states within which they exist. The information is presented online in the project database in a number of formats. This paper represents the original case study drafted for this research project by the author named above. The purpose of the project is to provide comprehensive information about the many options for and models of autonomy arrangements that satisfy the needs of specific population groups for protection and respect of their distinct identities, as well as their desire to govern themselves while equally satisfying the states interests, including the preservation of territorial integrity. The division and sharing of powers and responsibilities at different levels and through various governmental structures is at the core of these autonomy arrangements. We gratefully acknowledge the contribution of this author and others who provided case studies to the Kreddha Autonomy Mapping Project. Funding for this project was provided by Cordaid. All materials copyright Kreddha Europe - 2007
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 2 OF 8 Table of contents CURRENT STATUS 3 BASIC GEOGRAPHIC AND DEMOGRAPHIC FACTS 3 DOCUMENTS THAT DEFINE THE AUTONOMY ARRANGEMENTS 3 IMPLEMENTATION AND ENTRENCHMENT OF THE AUTONOMY ARRANGEMENT 3 DIVISION OF COMPETENCIES BETWEEN NATIONAL AND AUTONOMOUS GOVERNMENTS 4 BASIC POLITICAL STRUCTURES OF THE AUTONOMOUS GOVERNMENT 5 FINANCIAL AND ECONOMIC STRUCTURES AND INSTITUTIONS OF THE AUTONOMOUS GOVERNMENT 6 SOCIAL AND CULTURAL STRUCTURES 6 INTERNATIONAL RELATIONS 7 SECURITY ARRANGEMENTS AND STRUCTURES 7 INTERGOVERNMENTAL RELATIONS AND POWER SHARING AT THE NATIONAL LEVEL 7 DISTINCT FEATURES 8 ADDITIONAL INFORMATION RESOURCES 8
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 3 OF 8 CURRENT STATUS French Polynesia (la Polynesie Francaise) is by the Constitution a collectivite territoriale (a geographically defined community) of France. It is an overseas community with a unique constitutional status which identifies it as a pays d outre-mer (overseas country). The most recent law relating to its status is the Organic Law 2004-192 of 27 February 2004. That Organic Law was made under the authority of Article 74 of the Constitution of France. No major future amendments are anticipated, but some changes to the electoral system may be expected. Major change is unlikely until there is a clear political view in French Polynesia on the question of future of independence from France. BASIC GEOGRAPHIC AND DEMOGRAPHIC FACTS Population: 278,963 (July 2007 est.) Ethnicity: Polynesian 78%, Chinese 12%, French 10% Religion: Protestant 54%, Roman Catholic 30%, Other 16% Languages: the official language is French. Tahitian is also widely spoken Culture: Polynesian French Polynesia is an archipelagic country in the South Pacific Ocean made up of 5 island groups: the Marquesas; the Tuamotus; the Society Islands (includes Tahiti and Papeete the capital); the Austral Islands; and the Gambier Islands. Map of French Polynesia Other territories in a similar situation are New Caledonia and Wallis and Futuna DOCUMENTS THAT DEFINE THE AUTONOMY ARRANGEMENTS The key documents defining French Polynesia are the Constitution of France and the Organic Law, more specifically: Constitution of France: Title XII chiefly Article 74 Organic Law No 2004-192 of 27 February 2004 relating to the self-governing status of French Polynesia There has been no defining document in relation to the autonomy arrangement. The process of development of internal self-government accelerated from 1984. The present Organic Law is the latest in a series of French laws (1984, 1996, 2003) which have resulted in the strengthening of government autonomy in French Polynesia. The 1992 Pacte de Progres was adopted in French Polynesia in 1994. It provided for a 10-year plan for social, economic, and political development. IMPLEMENTATION AND ENTRENCHMENT OF THE AUTONOMY ARRANGEMENT The development of autonomy is the result of constitutional developments within the framework of the French Constitution of 1958. The amendments to Title XII in 2003 provided much more
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 4 OF 8 flexibility for the development of autonomous government arrangements within a state conceptually identified in Article 2 as indivisible. The Constitution of France reserves certain powers to the nation. Responsibility for protecting those interests is with the representative of the nation. In the case of French Polynesia this the High Commissioner of the Republic. The High Commissioner has administrative oversight of the country and of respect for the law. In those areas of reserved authority such as citizenship matters, guarantees of human rights, laws on personal status, judicial organisation, criminal law and criminal procedure, foreign policy and defence, public order and currency, staffing is by public servants of the nation. Complementary to that is the public service of French Polynesia which is responsible for all those matters within the competence of the government of French Polynesia. The two public services are separate. The High Commissioner for the Republic has specific oversight in the area of French national control and a more general oversight of the administration of the territory. The French Polynesia government through its own constitutional arrangements under the Organic Law has accountability mechanisms of its own. An important element of the accountability system is the existence of the French administrative court system with the Conseil d Etat at its head and the courts of general jurisdiction, with the Court of Cassation at its head. The autonomy arrangement is entrenched by Article 72-4 of the Constitution of France, which requires the consent of the voters in French Polynesia for any change in the present status. Change would be implemented by an organic law. Some commentators suggest that the present position is irreversible and that the effect of the constitutional provisions is to confer power on the people of French Polynesia. The alternative view is that the power to confer autonomy can also be exercised by the French nation to reduce that autonomy. The current situation in practice appears to be that there will no change to this regime except with the agreement of French Polynesia. DIVISION OF COMPETENCIES BETWEEN NATIONAL AND AUTONOMOUS GOVERNMENTS The laws list the powers that are exercised by the nation, by the country, or jointly. The underlying principle is ius regale which means that the key public law powers relating to the identity of the nation are reserved to the nation. The areas reserved for the national government are citizenship, civic rights and guarantees of personal freedoms, laws on personal status, judicial organisation, criminal law and criminal procedure, foreign affairs, defence, public order, currency, foreign exchange and electoral laws. In principle the autonomous country has all powers not vested expressly in the nation. Expressly the Organic Law states that the autonomous country may have missions in other countries or to international organisations. There is an express power to have affirmative action in employment in the private sector of the autonomous country based on length of residence. Additionally, there are express provisions in relation to measures to protect local land ownership and tenure. There are also powers to tax, impose administrative penalties and criminal penalties under locally enacted laws. The French Polynesia government can establish its own rules for casinos and gambling, and has some special powers in relation to the production and broadcast of audio visual programmes. The legal basis is in the Organic Law and in the lois du pays (local legislation) empowered by the Organic law. An important example of what might be identified as shared, relates to foreign affairs. This is however a power reserved to the nation by Article 14 of the Organic Law, where there is
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 5 OF 8 provision for the participation of the autonomous country in relation to the exercise of that power. The establishment of missions abroad or with international agencies is a power exercised by the autonomous country subject to a duty to inform the nation. Where the nation has made international commitments, French Polynesia may negotiate the administrative arrangements which will support the economic, social, and cultural development of the autonomous country; these are effective on notification to the High Commissioner of the Republic (the representative of the nation). The nation may additionally authorise French Polynesia to negotiate or sign agreements on its behalf at an international level. The nation may also be accompanied by a delegation from French Polynesia when negotiating international agreements of relevance to the autonomous country. Article 72-4 of the Constitution of France requires the consent of the voters in French Polynesia for any change in the present status. That change would be implemented by an Organic Law. BASIC POLITICAL STRUCTURES OF THE AUTONOMOUS GOVERNMENT The autonomous country has a parliamentary representative democracy headed by the President of French Polynesia under a multi-party system. Legislative power is exercised by the Assembly of French Polynesia. The Assembly makes local laws, known as lois du pays. The main subject areas are identified in Article 140 of the Organic Law. Broadly the enumerated areas are civil and commercial law, tax, labour law, public health, social welfare, family law, environmental and planning law, and conditions of employment of public servants of the autonomous country. Formal enactment of the country laws is by the President of the autonomous country. There is a Council of Ministers and the President may make regulations to implement Council decisions. The French Polynesia government and the Assembly may also seek advice on proposed legislation from the Economic, Social and Cultural Council. The Council is an advisory group made up of 51 members who represent a cross-section of French Polynesia s society (Article 147 of the Organic Law). Executive power is exercised by the government of French Polynesia. The government is headed by a President who is chosen by the Assembly from amongst its members or exceptionally from outside the Assembly membership. The President appoints a Council of Ministers from among the Assembly members. The President is head of the local administration and makes appointments to the public service of the autonomous country. The President is the authorising officer for the country s budget. The Assembly has its own President, Speaker and standing committees. The judicial structures are those of the nation. The Assembly of French Polynesia is elected by direct universal suffrage (Article 103 of the Organic Law). The Assembly is made up of 57 members who are elected for five years. There are six electoral districts which each have a minimum number of three representatives. The electoral districts are based on island groups. The Assembly controls the actions of the President and Council of Ministers and has financial oversight of the budget. There is also provision for petition by members of the public to the Assembly on any matter within the powers of the Assembly. A high council has an advisory role to the president and government. This High Council of French Polynesia must be consulted in respect of all draft proposals for local laws. The High Commissioner of the Republic (the representative of the Nation in French Polynesia) has a responsibility to ensure that the autonomous country operates in accordance with the law. The High Commissioner may refer any decision of the autonomous country which is considered
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 6 OF 8 to be not lawful to the administrative court system within two months. Budgeting and accounting control mechanisms are dealt with specifically in Articles 182 to 185 of the Organic Law, which refer to the national Code of Financial Controls. There are two separate public services. In principle, the national public service deals with the matters reserved to the Nation, and the public service of French Polynesia is responsible for all those matters within the competence of the government of French Polynesia. Articles 68 and 168 of the Organic Law provide specifically for coordination between the government activities of the Nation and the autonomous country. FINANCIAL AND ECONOMIC STRUCTURES AND INSTITUTIONS OF THE AUTONOMOUS GOVERNMENT The Assembly of French Polynesia approves the budget and accounts of the country (Article 102 of the Organic Law). The President is the authorising officer in respect of the budget. Audit and accounting procedures are dealt with Articles 182 to 185 of the Organic Law. Financial support from the national government represents at least 30% of national revenue. There is heavy dependence on the national government. Local production capacity is limited. Tourism, natural resources (pearls), and local taxation and customs are the main revenue sources within the autonomous country. Other smaller exports include coconut oil, fish and noni juice. There is a special relationship between the autonomous country and the European communities by virtue of the nation s membership of the European Union. The Assembly of French Polynesia approves the budget and accounts of the country (Article 102 of the Organic Law). The President is the authorising officer in respect of the budget. Audit and accounting procedures are dealt with Articles 182 to 185 of the Organic Law. The currency is the French Pacific Franc (franc CFP). Its value is fixed at 1000 franc CFP = 8.38 euros. SOCIAL AND CULTURAL STRUCTURES French Polynesians are French citizens. Citizenship policy is regulated by the national government. Local immigration polices are regulated by the Council of Ministers in consultation with the national government or the High Commissioner of the Republic. The French Polynesia government administers the issuing of local work and residence permits to foreigners. Primary school and secondary school education is regulated by the autonomous country (Article 90 of the Organic Law). Education is compulsory between 6 and 16 years old. The local school system is primarily based on the national system. Tertiary education is jointly determined by the autonomous country and the nation (Article 37 of the Organic Law). The French University of the Pacific is located in Papeete, Tahiti. Language policy is dealt with specifically in Article 57 of the Organic Law. A distinction is made between French as the official language and Tahitian as an element of cultural identity. Four Polynesian languages are identified in the Organic Law which may be freely used in private law matters. The Polynesian languages are to be preserved. Tahitian is taught during normal school hours as a subject and may be replaced in specified schools, by decision of the Assembly, by one of the other Polynesian languages.
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 7 OF 8 A college of experts, appointed by the Assembly, provides specialist advice on land matters in the autonomous country (Article 58 of the Organic Law). The French Polynesia government and the High Commissioner may consult the college on issues relating to land ownership and tenure. The college also recommends people for approval as court assessors in land ownership and tenure matters. Human rights and other personal freedoms in French Polynesia are those set out in the Constitution of France. The French Polynesia government is responsible for the regulation and administration of public health in the autonomous country. Medical facilities are reasonably good on the main islands but limited on the others. In Papeete (the capital) there are two major hospitals. French Polynesia is home to many species of tropical seabirds and other Polynesian flora and fauna. The Assembly enacts local laws for the management and protection of the environment of French Polynesia. French Polynesia has an official flag, coat of arms, and local anthem Ia Ora O Tahiti Nui (Long Live Tahiti Nui). INTERNATIONAL RELATIONS International relations competencies are primary at the sub-treaty level and with respect to states, territories, and organisations within the Pacific region. Articles 38 to 42 of the Organic Law address the manner of exercise of these powers and relationship of the activity of the autonomous country to the nation in respect of that exercise. French Polynesia is an associate member of the Pacific Islands Forum and is represented in a number of Pacific regional organisations such as SPC, ESCAP, SPREP, FFA, and SOPAC. French Polynesia can open representational offices (without diplomatic status) in the Asia- Pacific region. There is an overseas representative in China. SECURITY ARRANGEMENTS AND STRUCTURES There are local government policing agencies but in respect of law and order generally and internal security matters, provision is made for information to be given by the nation to the President of the autonomous country and for there to be coordination in relation to civil security matters (Article 68 of the Organic Law). Article 34 of the Organic Law makes express provision for participation by the autonomous country in the exercise of national police duties such as road traffic policing. The national government in turn is responsible for security and defence. INTERGOVERNMENTAL RELATIONS AND POWER SHARING AT THE NATIONAL LEVEL The autonomous country has representatives (one senator and two deputies) in the National Assembly. The primary mechanism is consultation between the President of French Polynesia and the High Commissioner of the Republic.
TONY ANGELO FRENCH POLYNESIA / FRANCE DECEMBER 2007 / KREDDHA / PAGE 8 OF 8 DISTINCT FEATURES French Polynesia is geographically isolated from the metropolitan nation. The special interest of the arrangement is that it has developed within a constitutional system that was traditionally seen as unitary, free and indivisible. In order to accommodate self-government aspirations the national constitution was amended. It now provides for the possibility of inequality of citizens, a high-level of local autonomy, and special provisions for the autonomous country to participate in the exercise of national powers such as international relations. The system does not preclude the possibility of further evolution nor of independence should the autonomous country wish to have it. ADDITIONAL INFORMATION RESOURCES The official website of the President of French Polynesia is www.presidence.pf. The Revue Juridique Polynesienne is available at www.upf.pf. It has regular articles on political, economic, and social development in French Polynesia.