Respect for principles, or adaptation to the context? In this debate as old as politics, Gérald Darmanin chose his side. Landing in Mayotte this Sunday, February 11, the Minister of the Interior and Overseas Territories announced the government's project, a ” radical decision: the inclusion of the end of land law in Mayotte, in a constitutional revision that the President of the Republic will choose. »
It is, of course, a matter of responding to an emergency : the small island in the Indian Ocean, which became a French department in 2011, is overwhelmed by waves of immigration from the Comoros and Africa. Since it decided to remain French by referendum in 1974, Mayotte has seen its destiny diverge considerably from the neighboring Comoros archipelago, which is seven times poorer. Every day, Comorians come to try their luck, boarded kwassa-kwassa (fishing boats) to disembark in Mayotte. One in two inhabitants of the island is not French, which represents the highest rate of foreigners in a national department.
Jacobinism in danger?
Foreign women come to take advantage of French infrastructure to give birth in good conditions. INSEE estimates that mothers born outside France gave birth to nearly 70% of babies in Mayotte in 2022. These Comorian women also hope to give their children the benefit of land rights. This principle, established by the Civil Code in 1804 but already in vogue under the Ancien Régime in other forms, allows a child born on national soil to foreign parents to become French upon reaching the age of majority, provided they have sufficiently resided.
The asylum and immigration law of 2018 has already modified land law in Mayotte to counter the migratory phenomenon, by requiring children born on the island that one of their parents has been regularly present on the territory for more than three months. A measure that is clearly insufficient to discourage population flows, which is why Gérald Darmanin announces the end of land rights in Mayotte.
This shocking decision certainly responds to a concrete emergency, as the Mahorese population is exasperated by the explosion of insecurity and the inability of the State to enforce its borders. But it seems to contradict a principle so essential that it appears in article 1 of the Constitution: the indivisibility of the Republic. Behind this complex word hides a simple reality, the essence of Jacobinism: in France, the law, voted by the representatives of the people in the National Assembly, is the same for everyone.
A state of affairs incompatible with the abolition of land rights in the territory of Mayotte alone. The indivisibility of the Republic is, however, already more of an ideal than a reality. Articles 72, 73, 74 and 75 of the Constitution authorize the adaptation of the law to take into account particular situations. The cuts to Jacobinism are thus numerous in practice: if decentralization has not (yet) gone so far as to allow local authorities in mainland France to enact their own laws, the persistence of the Concordat in Alsace-Moselle, the special statuses granted to Corsica and Alsace or the very specific rules which govern the government of New Caledonia, Wallis and Futuna or French Polynesia, bear witness to this.
A constitutional revision to put an end to land rights in Mayotte is still something new. “ Gérald Darmanin does not propose territorial differentiation, allowing Mayotte to modulate the applicable law or to have extended powers.notes public law lecturer Benjamin Morel. There, the application of a fundamental right, in this case land law, on part of the territory is suspended, citing specific circumstances. In some ways, it's a very colonial reflex: we believe that equality is good… but not there. » Basically, the Macronists already seem to have renounced the indivisibility of the Republic: the “3DS” law on territorial differentiation already outlines the idea of an “à la carte” France, where the law changes according to the specificities of this or that local context.
Consistent left and right
Faced with this displayed pragmatism, left and right brandish two opposing purisms, which have the merit of coherence. “ Accepting the end of a right in a French territory is opening a breach on the whole of Francethunders Sandrine Rousseau. The laws of the Republic are one and indivisible », adds the ecologist, despite being a member of the most federalist party in France, while the socialist Boris Vallaud judges that “ land rights are not negotiable “. For the left, this principle is inseparable from republican identity from France.
The right and the far right, on the contrary, see in Gérald Darmanin's proposal an opportunity to demand the general abolition of land law. “ You don't have to stop in Mayotte, it must be removed throughout Franceurges Eric Zemmour. This is one of the major reasons why millions of Africans dream of coming to France, so that their children will be French. » The RN also spoke out for the abolition of land rights throughout the territory: Let's not wait until every other department looks like a war zone! », said Laure Lavalette, spokesperson for the nationalist party.
The law of the soil, engraved in marble?
Is a constitutional revision necessary to resolve the question? The government would need to obtain a three-fifths majority in Congress, which appears possible with the support of the right and the extreme right. But for certain jurists, it would be possible to take the legislative route, including to eliminate land law in Mayotte as in mainland France: “Nothing is written in the Constitution or the Declaration of the Rights of Man and of the Citizen on the right of landnotes Benjamin Morel. The only way to engrave it in stone would be for the Constitutional Council to make it a 'fundamental principle recognized by the law of the Republic'in its jurisprudence. »
However, a precedent exists: in 1993, then Minister of the Interior, Charles Pasqua put an end to the right of soil as we know it by removing the automaticity of obtaining nationality for the children of foreigners born in France , who therefore had to apply themselves between the ages of 16 and 21. The Constitutional Council then considered that although land law had been applied in France since the Revolution, its implementation had been decided for cyclical reasons, particularly military ones.
Ultimately, the entire range of positions on the law of the soil is represented through this Mahorese controversy. Like Robespierre once on slavery, the left proclaims “ Our colonies perish, rather than a principle! » and seems to refuse to save Mayotte at the cost of land rights. Macronia sacrifices the indivisibility of the Republic and desecrates land rights in the name of efficiency. As for the most right-wing, they exclude the right of soil from French republican identity in the name of preserving the nation in the face of migratory peril.