For the creation of a Defender of the Republic
The new plan to combat radicalization is due to be announced in December. This announcement comes against a double backdrop: the constant shadow of jihadism and reports of radical right-wing militants turning to terrorism.
Nicolas Lebourg, University of Montpellier
This innovation had the advantage of responding to a legal situation: in this area, established sanctions have long since shown their limits, as the same offenders have been able to commit repeated offences, and even incorporate communication strategy visit they were prosecuted. Nevertheless, the system chosen by the legislator was not without its flaws, as the lack of harmonization with previous systems could lead to serious democratic dysfunction.
A few days ago, the French Constitutional Council censured this provisionThe International League against Racism and Anti-Semitism (Licra) protested strongly. There is, however, a way out of this situation, respecting freedoms and reinforcing public order, aware that between censorship and license, there is the Republic.
The example of the Défenseur des droits
The democratic problem created by the July law lies less in its principle than in its application. In particular, it should be noted that the Délégation interministérielle à la lutte contre le racisme, l'antisémitisme et la haine anti-LGBT(Dilcrah), an organization attached to the Prime Minister, has taken the plunge and referred cases to the courts on these grounds, on the basis ofarticle 40 paragraph 2 of the Code of Criminal Procedure. The risk is obvious: with the text as voted, such referrals could have excluded convicted personalities from political life. Such procedures would have been denounced ipso facto as illiberal and illegitimate in terms of the separation of powers.
However, it turns out that not only can this problem be avoided, while preserving the sense of parliamentary will as well as that of the Constitutional Council, but that this correction can form part of a scheme to simplify and rationalize various provisions that have accumulated without harmonization over the last few decades, while at the same time contributing to the renewal of radical control. The idea is to create a Défenseur de la République to complement the Défenseur des droits established in 2011.
Christophe Amet - Kiki Factory/Wikimedia, CC BY-SA
The results of the creation of the Défenseur des droits are unanimously acclaimed. Not only has the new institution enabled the rationalization of the grouped mechanisms, but it has also brought the defense of citizens' rights to the forefront of public opinion. This process should serve as a model for a new institution, this time to protect the duties of citizens towards the Republic, and the Republic itself, from subversive activities, particularly when it comes to incitement to hatred and discrimination based on gender, sexuality, religion or ethnicity.
Opposing the Republic and subversion means building a constructive rallying force, defending social cohesion and secularism against identity-based competition, and building a concrete response to radicalisms that have gone against the law. This can be achieved without reducing freedom of expression, and by modernizing the State.
The existing legal framework in the face of "subversion
The "definitive regime of France", in the words of the 1884 constitutional law, is certainly deeply rooted in French society. But this Republic has never been simply an open political market. Under French law, political parties are governed by the law of July 1ᵉʳ, 1901, which stipulates that associations may not "aim to undermine the integrity of the national territory or the republican form of government".
Their role is recognized under theFifth Republic byArticle IV of the Constitution, which states:
"Political parties and groupings contribute to the expression of suffrage. They form and operate freely. They must respect the principles of national sovereignty and democracy".
The law of January 10, 1936, which has been supplemented on several occasions and whose provisions are now enshrined inarticle L.212-1 of the Internal Security Code, sets the limits of admissibility by stipulating the grounds for dissolution by decree.
These established grounds make it possible to standardize and objectify "political radicalism" - intention to use force; undermining the republican form of government; undermining territorial integrity; links with the Collaboration or efforts to rehabilitate it; incitement to hatred, discrimination or violence - as much as "political violence" - armed demonstrations; paramilitary character; terrorism; serious breach of public order. All of these can be considered to constitute "subversion".
The role of the Défenseur de la République would be to intervene in these areas at the appropriate level, with independent authority. It would complement, on a different scale, the anti-discrimination action of the Défenseur des droits, which citizens can refer to individually.
New forms of "subversion
The philosophical principle of the Defender of the Republic would be to defend popular sovereignty by protecting the Republic from subversion. This opposition between the two terms was widely used during General de Gaulle's first term as President. However, the concept of subversion was not limited to the years of the Algerian War.
Although the term "subversion" is absent from contemporary political dictionaries, Book IV of Aristotle's Politics is devoted to it, the term here covering the ideas of sedition and revolution. However, it is true that in recent decades, the state itself has struggled to clearly conceive the need to understand subversive phenomena and to interpret the feedback from its intelligence services in this field, as well as the need to allocate other information devices to it in a coordinated process.
Today, subversion covers phenomena that cannot be assimilated to one another, but which can be analyzed jointly, in accordance with the above-mentioned legal elements. Islamism comes to mind first, whose massacres have placed the country under a state of emergency since November 2015. Then there's the ultra-left, which has generated fixation points with Zones à défendre, where the rule of law has been placed in a state of suspension, and which has shown itself to be mobile in carrying out violence against property and the forces of law and order during social movements.
The extreme right, in its electoral form, has certainly come to accept republican government, but wishes to move it towards forms of illiberal democracy by undermining the values of egalitarian humanism on which the institutional system is founded, and whose radical and activist ranks have on several occasions led topublic concern on the part of the Director General of Internal Security.
In terms of public security, the affinity networks of right-wing and left-wing radicals now resolutely separate them from Islamists as an organized risk. What's more, the presence of extremist political forces in French politics is historically structural, enabling the integration of social groups into a stabilized political system.
By not inventing any new offences and separating the executive from the judiciary, the creation of the Défenseur de la République would in no way constitute a democratic regression for citizens, but would ensure their free expression within the framework of legal norms that have been consensually established for decades, while adapting institutions to the turmoil of recent years.
Partial and uncoordinated probe resources
When it comes to subversive circles, the state has partial and uncoordinated means of probing, as a few quick examples will show. The decree dissolving thewhite affirmationist organization Unité radicale on August 8, 2002 was motivated by its incitement to hatred and discrimination. The radical right-wing base had indeed reconfigured itself around Islamophobic themes between the Kosovo war (1999) and the post-September 11 period.
Nevertheless, it was not until 2015 that the Commission Nationale Consultative des Droits de l'Homme(CNCDH), attached to the Prime Minister, decided to fully integrate this theme into its issues, while the DILCRAH meanwhile rejected the simple use of the term. Similarly, the decree dissolving theblack supremacist organization Tribu Ka on July 28, 2006 claimed that it incited hatred and discrimination "against people who are not black".
But here too, 12 years on, the state and society have remained locked in a semantic quarrel over the expression "anti-white racism". And yet, we need to move away from a culture of discourse on discourse towards a coordination of action that will put an end to the never-ending suspicions of "double standards".
An independent and efficient administrative authority
In order to fulfil its mission, the independent administrative authority thus created would be a symbiosis of several institutions that have already demonstrated their qualities, but would now find themselves in a position to perform more effectively. The rapprochement between them is not due to their different natures and histories, but to their intellectual and practical complementarity:
- Commission nationale consultative des droits de l'Homme (CNCDH);
- Délégation interministérielle à la lutte contre le racisme, l'antisémitisme et la haine anti-LGBT (Dilcrah);
- Mission interministérielle de vigilance et de lutte contre les dérives sectaires (Miviludes);
- Observatoire de la laïcité ;
- the High Council for Equality between Women and Men ;
- the Interministerial Delegation for Assistance to Victims of Terrorist Attacks.
The Défenseur de la République would retain their functions of expertise and information for the benefit of society and the State. It would take over their respective functions of coordinating public action, but in a unified manner. It would assume the functions of referral to the courts that Dilcrah has traditionally been given, ensuring the neutrality of its actions, basing them on a global analysis, and including in its official functions this monitoring and referral to the courts of breaches of the fundamental principles of the Republic. Lastly, it would ensure the long-term, structural nature of assistance to victims of terrorist attacks.
To ensure the authority of the new institution, a statesman or stateswoman - who could, for example, be chosen from among former Presidents of the Republic, Presidents of the Constitutional Council, Prime Ministers or Guardians of the Seals - would make it possible to show how important it is to move beyond partisan quarrels and formal appeals to values, to demonstrate in practice how these prefigure State action and shape the daily lives of everyone under equal authority.
Nicolas LebourgAssociate Researcher CEPEL (Center for Latin European Political Studies), University of Montpellier
The original version of this article was published on The Conversation.