The extremization of the political landscape reflects the dismay of our compatriots in the face of the future, their loss of confidence in institutions, a rise in resentment and the breakdown of French society. Factors which manifest themselves through symptoms other than extreme voting: abstention, incivility, individualist withdrawal or community separatism.
We find ourselves, like never before, exposed to a Manichean confrontation, giving rise to a political landscape reduced to two radical poles crushing a central bloc. The Republic can fall into the hands of leaders without governmental culture (nor vocation) and without experience in the management of public affairs… The Macronian “at the same time” intended to substitute the golden mean for confrontation, and managerial reason for passion politics: the demons he claimed to exorcise come back at a gallop.
Powers to prevent
Our democratic system is, however, not devoid of immunities against abusive power. A paradigm shift like those that the extremes propose to accomplish requires reconfiguring our constitutional system. But any constitutional bill would face opposition from Emmanuel Macron. The path to a legislative referendum would also be closed to a National Rally (RN) or New Popular Front (NFP) government, because article 11 entrusts the initiative to the President of the Republic and not to the Prime Minister. Emmanuel Macron could also refuse to sign the orders, as Mitterand did during the first cohabitation with Chirac. Regulatory or individual decrees also depend on the goodwill of the Head of State when they take the form of simple presidential decrees or decrees of the Council of Ministers.
An RN government could also not denounce an international agreement, such as the Franco-Algerian agreement of December 27, 1968 on the movement and stay of Algerian nationals, against the will of the President of the Republic. Other powers of the President to prevent: master of the agenda of the Council of Ministers, he can delay the examination of a question (text or nomination) by the said Council; in legislative matters, he can refer the matter to the Constitutional Council (article 61 of the Constitution) or request a new deliberation from Parliament (article 10); he can also refuse to convene Parliament in extraordinary session. These weapons were used during the three past cohabitations (1986-1988, 1993-1995 and 1997-2002).
The courts could seriously hamper government policy. Laws passed by an RN or NFP majority would be subject to close scrutiny by the Constitutional Council. The president of the latter has warned us of this, if need be. The difficulty of governing by regulatory means or through individual acts would be no less great. The administrative judge would censure any encroachment of the decree on the law and would order (in particular by way of summary proceedings) the government authority to respect fundamental freedoms. The judicial judge would stand guard on the criminal level. When we see with what severity the administrative judge today controls requisition measures or with what restraint the criminal judge today sanctions vandals and perpetrators of refusal to comply, we can easily imagine what obstacles the jurisdictional power would erect against a State that had become authoritarian. The Magistrates’ Union has already warned that it would go to war against an RN government. Finally, the Court of Justice of the European Union and the European Court of Human Rights would sanction France if it took its ease with European law.
Powerful safeguards exist
Generally speaking, the jurisdictional power, like most other organs of the State (independent administrative authorities in the lead) would keep an eye on things in the event of the extremes coming to power. However, their vigilance would be more or less acute depending on the situation. Given the statistical distribution of political and ideological sensitivities among the different categories of judges and administrative officials, we can think that they would mount a more implacable guard against a right-wing populist power than against a union of the left dominated by its radicals.
“Our institutions are much better armed against legitimate authority than against the occult powers which make the law in the lost territories of the Republic.”
An RN government would be declared unapproachable on a diplomatic level, unless it quickly “melonized”. Pressure from abroad and European sanctions would keep him on a leash, as was the case for Greece. In addition to the ill will of the president, the jurisdictional censorship and the ukases of the European Union, an RN government would come up against the unleashed opposition of left-wing deputies, the union rumble, the inertia of the deep state, the hostility of the media and the fury of the streets. This would do a lot for a young head of government who has never held ministerial functions.
Powerful safeguards therefore exist, in our democracy, against an official power which would take too many liberties with our freedoms. There is also a formidable paradox here: if today there is a popular demand for strong power and we wonder if there will be enough institutional barriers to contain its authoritarian temptations, it is, at least in part, because the counter-powers which embody these barriers have so far constrained democratic power too strongly. Our institutions are much better armed against legitimate authority than against the occult powers which make the law in the lost territories of the Republic. It is moreover because the republican benchmarks are fading, because our compatriots feel delivered to insecurity (economic, cultural and physical) by the government parties, because they have the feeling of no longer being able to count on the public authorities to protect them that they turn, at the ballot box, to those they have never tried.
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