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Sarkozy dismisses the French constitution

by linca Sun Feb 24th, 2008 at 12:18:01 AM EST

The French parliament has recently voted a government proposal instituting the possibility of keeping in jail, after the end of their imprisonment sentence, "particularly dangerous" criminals presenting a particularly high risk of recidivism : the rétention de sureté or safety retention.

This law, making jail terms infinitely extensive, is shameful and frightening in itself. It was passed after such a recently released criminal kidnapped a kid. It means, essentially, punishing people for crimes they might commit. But Sarkozy wants it to apply to already condemned criminals - notwithstanding the fact that the French constitution, indeed the Declaration of the Rights of Man and Citizen, explicitly forbids it :

8.  The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.

It seems Sarkozy has a problem with this paragraph, and is ready to forget France's institutional rules to avoid it.

France has a mechanism for preventing unconstitutional laws from being promulgated : the Conseil Constitutionnel has to approve them, if 60 MPs ask for it.

And it didn't approve : the law can only apply to crimes not yet committed.

Sarkozy is claiming he wants to "defend the victims" (of crimes not yet committed...) and wants the law to apply to those already in jail. As the people subjected to this law would be condemned for grave criminal offences, the law only applies to people sent to jail for at least 15 years ; if the law only affects crimes yet uncommitted, it will only have effect 15 years from now - something that doesn't satisfy a President who wants everything, right now. So he is trying to circumvent it :

Elysee.fr | Présidence de la République | Porte parole | Déclaration du Porte-parole suite à la validation par le Conseil Constitutionnel de l'introduction de la rétention de sûreté dans notre droit Declaration of the spokesman concerning the validation by the Conseil Constitutionnel of the introduction in our laws of the safety retention
Le Conseil Constitutionnel a accepté toutes les mesures d'accompagnement de la sortie des criminels actuellement détenus que contenait la loi. Pour autant l'application immédiate de la rétention de sûreté aux criminels déjà condamnés, qui présentent les mêmes risques de récidive, reste un objectif légitime pour la protection des victimes. The Conseil Constitutionnel has accepted all the measures on following the release of criminals currently in jail that were introduced by the law. Yet the immediate application of the safety retention on already condemned criminals, who present the same risk of recidivism, remains a legitimate aim for protecting the victims.
    Le Président de la République a demandé au Premier Président de la Cour de Cassation d'examiner la question et de faire toutes les propositions nécessaires pour l'atteindre. The President of the Republic has asked the First President of the Cour de Cassation to examine the question, and to make all proposals necessary to reach that aim.

A bit of French constitutional law : the position equivalent to that of the US Supreme Court is divided in two Courts in France : the Conseil Constitutionnel validates laws according to the Constitution before they are promulgated, whereas the Cour de Cassation is the court of last resort (before the EU justice system) ; the Cour de Cassation is not supposed to interpret the constitutional validity of laws.

In effect, Sarkozy is not recognising the validity of the decision of the Conseil Constitutionnel. Which is contrary to the French Constitution, obviously :

The French National Assembly - Constitution of October 4, 1958

Article 62

A provision declared unconstitutional shall be neither promulgated nor implemented.

No appeal shall lie from the decisions of the Constitutional Council. They shall be binding on public authorities and on all administrative authorities and all courts.

What happens when the President dismisses the constitution, in effect staging a coup d'état ?

Thankfully there have been some protests :

Le Monde.fr : Rétention de sûreté : levée de boucliers contre l'initiative de Nicolas Sarkozy - Politique Le Monde.fr - Safety retention : Strong criticisms against Nicolas Sarkozy's initiative.
Pour les syndicats de magistrats, Nicolas Sarkozy tente bel et bien un contournement du Conseil constitutionnel. Dans un communiqué, le Syndicat de la magistrature (SM), classé à gauche, s'élève contre "un coup de force inacceptable", demande à Vincent Lamanda de refuser de donner suite à la demande présidentielle et appelle à manifester le 20 mars à Paris pour une "nuit de défense des libertés". Même indignation du côté de de l'Union syndicale des magistrats (USM), majoritaire au sein de la profession : "C'est une décision ahurissante, unique dans l'histoire de la Ve République", a estimé son secrétaire général, Laurent Bedouet. For the judges' unions, Nicolas Sarkozy is indeed trying to circumvent the Conseil Constitutionnel. In a press release, the Syndicat de la magistrature, which has a left bent, protests against an "unacceptable show of force", asks Vincent Lamanda [the First President of the Conseil Constitutionnel] to refuse following on the presidential question and calls for a demonstration on March 20th in Paris for a "night for defending freedoms". The same indignation is to be found in the majority union, Union syndicale des magistrats : "this is an amazing decision, unique in the history of the Fifth Republic", its secretary general, Laurent Bedouet, has estimated.
Les superlatifs son également de rigueur au Parti socialiste. Jean-Marc Ayrault, président du groupe socialiste à l'Assemblée nationale, a dénoncé une "stupéfiante atteinte à l'état de droit". "Le président de la République n'est plus le garant de la Constitution dans notre pays", écrit le député-maire de Nantes dans un communiqué. Superlatives are also used in the Parti Socialiste. Jean Marc Ayrault, president of the National Assembly socialist group, has denounced "a stupefying hit on the rule of law". "The President of the Republic is no longer upholding the Constitution in our country", writes the mayor and deputy of Nantes in a press release.

This is not the first time Sarkozy is taking liberties with the Constitution ; after he sent his (now former) wife in Libya to free the hostages there, a inquiry was started by the parliament, and Sarkozy said Cécilia would not testify in front of the commission - a claim of executive privilege that doesn't exists in France.

What happens now ? The institutional defence against a President not upholding the constitution is the Parliament impeaching him - but as the French National Assembly has a right wing majority, this is not going to happen. Compare and contrast with the liberties George W. Bush is taking with the US constitution.

In the end, there aren't going to be mass demonstrations against the President stepping out of his limits, even in France. Particularly not on the pretext the President has chosen : keeping evil murderous paedophiles in jail ! The opposition is going to gesticulate a bit, but the majority won't withdraw its support. Sarkozy will get his way. What guarantees the Constitution will be respected ? nothing. The good will of political actors is always necessary.

Some claimed Sarkozy would just be another Chirac - but it seems this new President will try to break the institutions standing in his way, and that is why he is very dangerous.

It is the worst act he's yet done, breaking the fundamentals of the "République"... I'm afraid it won't be his last !

Next step, Guantanamo sort of camp in Lozère ?<shuddering>

"What can I do, What can I write, Against the fall of Night". A.E. Housman

by margouillat (hemidactylus(dot)frenatus(at)wanadoo(dot)fr) on Sun Feb 24th, 2008 at 06:12:26 AM EST
His treatment of illegal aliens is hardly better ; regularly deporting some to places where they'll get persecuted and potentially killed.

Also, the mass arrest recently in a foyer, the aftermath of which included policemen trying to get illegals to sign a paper renouncing all rights of apealling the decision, can only recall our darkest hours...

The Pétain comparisons are sounding more and more apt by the week.

Un roi sans divertissement est un homme plein de misères

by linca (antonin POINT lucas AROBASE gmail.com) on Sun Feb 24th, 2008 at 06:58:05 AM EST
[ Parent ]
The sanctity of the Conseil Constitutionnel isn't helped by the fact that its current President, Jean Louis Debré, has been attacking Sarkozy in the media, complaining that he should uphold the sanctity of the function... The Constitution mandates that members of the Conseil Constitutionnel should abstain from publicly commenting on politics. Sarkozy will be able to present him as a political opponent.

Jean Louis Debré has been a Chirac faithful until the end, and thus was a bit anti-Sarkozist. He was president of the National Assembly, and also is the son of Michel Debré who wrote the French Constitution...

Un roi sans divertissement est un homme plein de misères

by linca (antonin POINT lucas AROBASE gmail.com) on Sun Feb 24th, 2008 at 06:53:55 AM EST
is best summarised in this video:


"casse toi, alors, pauvre con"
"piss off, wanker"

Our President.

In the long run, we're all dead. John Maynard Keynes

by Jerome a Paris (etg@eurotrib.com) on Sun Feb 24th, 2008 at 07:01:23 AM EST
Is Sarko heading to become Europe's GW Bush?

Have lately had some interesting talks with a French PhD student in political sciences. His take is pretty much that the Fifth Republic and its constitution can no longer operate in the 21st century - as it was specifically designed by De Gaulle to give the president far-reaching powers, specifically to solve the Algerian conflict. Sarkozy is evidently showing that a populist idiot can come by and exploit the presidency to maximum damage.

Unless parliament is dissolved and new elections are called for by Sarkozy -what will not happen soon I guess - nothing can obstruct the president for the next 4.5 years?

by Nomad (Bjinse) on Sun Feb 24th, 2008 at 10:44:32 AM EST
it was specifically designed by De Gaulle to give the president far-reaching powers, specifically to solve the Algerian conflict

I'd say rather, specially designed to by de Gaulle to give himself far-reaching powers, exploiting expectations that he as President would solve the Algerian conflict.

*Lunatic*, n.
One whose delusions are out of fashion.

by DoDo on Sun Feb 24th, 2008 at 12:01:06 PM EST
[ Parent ]
The episodes of "cohabitation" showed that Parliament had more power than generally thought (and that who won the parliamentary elections actually got to govern, even if the President still had a say on some things like foreign policy, military action or nominations of top level fonctionnaires.

With different timetables for presidential and parliamentary elections, you had the opportunity for votes that actually changed who was running the ocuntry.

The change of the presidential mandate form 7 to 5 years (by a referendum in which I voted "non", along with a small minority) has completely eliminated that dynamic, by handing over a compliant parliament to the president as elections for MPs come right after that for president and, so far, have always yielded a majority for the just-elected president.

In the long run, we're all dead. John Maynard Keynes

by Jerome a Paris (etg@eurotrib.com) on Sun Feb 24th, 2008 at 12:38:49 PM EST
[ Parent ]
Yes, that's my recurring theme: the American system has lots of faults, but if you're going to have a presidential system it is VITAL that parliementary elections follow a different timescale from presidential one.

What we have now in France is elective monarchy, however loud UMP screams when it is pointed out. We even get journalists explaining that is is absolutely compulsory to have parliement backing the president, that "we must never again go through cohabitation".

Well, it may be unpleasant for the people in charge, but I for one reckon that cohabitation periods are actually generally better for the country. And even if they weren't, well what is the point of parliementary elections if the only acceptable outcome was determined by the previous election?

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi

by Cyrille (cyrillev domain yahoo.fr) on Sun Feb 24th, 2008 at 04:20:33 PM EST
[ Parent ]
Incidentally, are there any voices in France for a move towards a parliamentary-only system? Where the PM is the top dog and the Prez is ceremonial?

*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Sun Feb 24th, 2008 at 05:17:29 PM EST
[ Parent ]
La Convention pour la 6e République (C6R) est un groupe de réflexion politique français fondé en avril 2001 par le socialiste Arnaud Montebourg. L'association a été créée suite au succès de La machine à trahir, un réquisitoire publié en 2000 par Arnaud Montebourg, député de Saône-et-Loire. Bastien François, universitaire à la Sorbonne, a élaboré avec Arnaud Montebourg et de nombreux conventionnels (c'est ainsi que se sont nommés les membres de la C6R) les Trente Propositions qui synthétisent les idées de l'association.

La C6R milite pour un changement de République. Elle considère qu'une des causes de l'abstention et de la dépolitisation réside dans les dysfonctionnements de la Ve République. Les conventionnels pointent l'absence de contrôle et donc de responsabilité politique pour tout ce qui concerne le Président de la République.

La Convention pour la 6e République prône donc un régime primo-ministériel, où les pouvoirs de contrôle du Parlement seraient accrus. Le président de la 6e République aurait un rôle d'arbitre, garant du bon fonctionnement des nouvelles institutions et ne serait pas élu au suffrage universel direct.

My emphasis:
The Convention for the 6th Republic therefore advocates a regime centered around a Prime Minister. Le President of the 6th Republic would play the role of an arbiter, guarantor of the good functioninng of the new institutions, and would not be elected by universal direct suffrage.
(My translation)

We have met the enemy, and he is us — Pogo
by Carrie (migeru at eurotrib dot com) on Sun Feb 24th, 2008 at 05:24:48 PM EST
[ Parent ]
Good, thanks!

Hm, I recall mention of the C6R from the election diaries, I probably didn't read their proposals in detail back then.

*Lunatic*, n.
One whose delusions are out of fashion.

by DoDo on Sun Feb 24th, 2008 at 05:32:51 PM EST
[ Parent ]
Too late I've realized that with the alignment of presidential and parliamentary elections the demise of cohabitation is essentially fact, and with it, a vital check on an already powerful French presidency.

Perhaps you guys knew this all along, but it's nevertheless a worrying revelation, which, in my perspective, should become a cornerstone in the argumentation for change.

by Nomad (Bjinse) on Sun Feb 24th, 2008 at 05:09:50 PM EST
[ Parent ]
It was mentioned several times in Presidential election diaries last year, but you're right this brings the issue to the fore.

We have met the enemy, and he is us — Pogo
by Carrie (migeru at eurotrib dot com) on Sun Feb 24th, 2008 at 05:15:18 PM EST
[ Parent ]
Essentially, yes.

The only thing that could happen is if Sarkozy becomes much more unpopular, there might be a takeover of the UMP by a faction hostile to Sarkozy's - that of Villepin for example.

After all, during the current municipal electoral campaign, the right wing candidates are not mentioning their link to Sarkozy - if it becomes certain he'll lose them their MP positions, they may  revolt.

Un roi sans divertissement est un homme plein de misères

by linca (antonin POINT lucas AROBASE gmail.com) on Sun Feb 24th, 2008 at 04:03:24 PM EST
[ Parent ]
Not GWB, neocon vanguard. GWB is the destroyer, pestilence, considering the pattern of regime adjustment to turn-key economic policy since RR-MT. Sadly, the republic would not let either Mitterand or Chirac die peacefully. If anything, Sarko's purpose is to clear the remaining brush of the welfare state for his successor. In this respect perhaps his methods are Clintonian -- see how he wavers in popular gusts of disapproval. He was pronounced the 68th best dressed person by Vanity Fair magazine just last year. But Sarko has fallen far, fast in best of breed esteem. This is the price he willingly pays. His end 4 years hence forshadows Obama's more than Brown's enfeebled administrations (for UK democracy is moribund. Remember: peenackers always broadcast, to normalize, and their objective is always free capital flow.

Diversity is the key to economic and political evolution.
by Cat on Sun Feb 24th, 2008 at 06:01:07 PM EST
[ Parent ]
Yes - the "defending victims" line. Once they appeal to this kind of sympathy, they can get the most indefensible laws and policies, as no one wants to appear to be "soft on crime" and "against crimie victims." They also start with worst cases, like child molesters and work down to lessor offenses.

This spells also the rejection of criminal rehabilitation, as if one will be punished for crimes not yet committed, how can they be rehabilitated? Once the notion that criminals cannot be "rehabilitated," becomes acceptable by the public, then it becomes easier to undermine programs and policies, like job training and schooling. It them is palatable to discriminate against people with criminal records in employment, housing, schooling, and reject the offenders' efforts at rehabilitation.

The problem is that Sarkozy ran on the idea of doing something about immigration and the rioting young people. Presenting a "galvanizing issue" diverts attention from the ideology of the candidate and the real agenda once in office. This is the tactic that Republicans mainly use - and Bush used it in 2004 with "gay marriage" and "terrorism."

by euamerican on Sun Feb 24th, 2008 at 04:49:49 PM EST
Refusing to "understand" and "explain" has always been part of the Sarkozy discourse. Explaining is excusing ; criminals are criminals, pretty much a predestined status, and thus addressing root causes, and rehabilitation, are completely out of Sarkozy's agenda.

It is well known early parole helps diminishing recidivism ; but "letting criminals out" is a no-no.

The "victim" concept is so important to Sarkozy (All of us can be victims, which works very well for such a demagogue) that he is trying to introduce some sort of trial for the mentally insane who are thus criminally irresponsible. Quite an absurdity, an attempt to revert hundreds of years of moving the justice system away from the concept of revenge...

Un roi sans divertissement est un homme plein de misères

by linca (antonin POINT lucas AROBASE gmail.com) on Sun Feb 24th, 2008 at 09:36:54 PM EST
[ Parent ]
I think the time is now to start beating the drums for a sixième république. After 4+ years of that (and of Sarkozy) it is quite likely the leaders of such a movement would win a Presidential election on a platform of constitutional reform.

Waiting until 6 to 18 months before the next presidential election risks losing again.

We have met the enemy, and he is us — Pogo

by Carrie (migeru at eurotrib dot com) on Sun Feb 24th, 2008 at 05:13:21 PM EST
A problem is that the function determines the candidate ; people who become Presidential candidates are quite egomaniacal already, and are not the kind of people who will once elected decrease their own powers. See how Mitterrand was denouncing the coup d'état permanent in 1965, but was quite happy with being an elected monarch once he got the position. Royal had shown some autocratic tendencies too. See also Jospin who thought he could get elected himself, and thus agreed on the disastrous decision to hold the presidential election in 2002 before the parliamentary elections, and thus forever.

The presidential election is very personal and is not actually fought on a platform. All candidates promise constitutional changes more or less diminishing their powers, but will they actually follow through ?

There is a strong streak in the French electorate for the concept of the powerful single man, since Napoléon ; see De Gaulle, Mitterrand. Parliamentary blocks, coalitions, are quite far from the French political culture, and bad memories of the Fourth Republic are constantly reinforced.

Un roi sans divertissement est un homme plein de misères

by linca (antonin POINT lucas AROBASE gmail.com) on Sun Feb 24th, 2008 at 09:32:36 PM EST
[ Parent ]
Sarky really has been studying up on the Bush playbook, hasn't he?  Right down to throwing out the constitutional rights of the existing population in order to defend "victims" (who may never exist) of crimes that may never be committed.  (In the US, we call it the "war on terror.")  Perhaps he wants to show his mentor that he, too, can achieve a 19% popular approval rating--and a damned sight faster than Bush did, too!  And all in the serene confidence that nothing short of impeachment will stop him.
by keikekaze on Mon Feb 25th, 2008 at 03:48:25 AM EST

In the long run, we're all dead. John Maynard Keynes
by Jerome a Paris (etg@eurotrib.com) on Mon Feb 25th, 2008 at 09:03:11 AM EST
Excellent ! Xavier Gorce's strips are always witty and his utopias penguin's society is a marvel to read :-)

"What can I do, What can I write, Against the fall of Night". A.E. Housman
by margouillat (hemidactylus(dot)frenatus(at)wanadoo(dot)fr) on Mon Feb 25th, 2008 at 09:10:17 AM EST
[ Parent ]
The following being more in relationship with the original subject... :-)

For those who can read french (and don't read "Le Monde"), you can find some of those graphic jewels at Xavier Gorce's blog

"What can I do, What can I write, Against the fall of Night". A.E. Housman

by margouillat (hemidactylus(dot)frenatus(at)wanadoo(dot)fr) on Mon Feb 25th, 2008 at 10:03:19 AM EST
[ Parent ]

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