Je travaille depuis pas mal d'années sur le processus qui a vu l'appareil judiciaire français s'émanciper de la tutelle politique qu'il subissait traditionnellement.
J'ai assisté de l'intérieur à cette émancipation et à cette conquête de l'indépendance vis-à-vis de la subordination infligée par l'exécutif. Le paradoxe est que la construction de cette autonomie a débouché sur le contraire de ce que l'indépendance est chargée de permettre : l'impartialité. La magistrature française pour différentes raisons, dont la moindre n'est pas la lâcheté des politiques, a ainsi acquis une position dominante vis-à-vis des deux autres pouvoirs séparés. Cela lui a aussi été permis grâce au soutien, au moins dans un premier temps, d'une opinion publique exaspérée par la médiocrité, voire la corruption de ses élus incapables de régler ses problèmes. Étonnant contresens de laisser ainsi le seul pouvoir sans légitimité démocratique directe dicter leur politique aux deux autres. L'idéologie de « l'État de droit », moyen évident de priver le peuple de sa souveraineté pour la confier au juge, et ce toujours au profit de l'oligarchie dominante, a fait le reste. Parce qu'il ne faut pas se tromper. Les magistrats français, des quatre ordres de juridiction, constitutionnel, judiciaire, administratif et financier, armés de l'idéologie de la petite bourgeoisie à laquelle ils appartiennent, passent leur temps à faire de la politique. Et ils le font au service du système, quand ils liquident judiciairement la candidature de François Fillon pour permettre l'élection d'Emmanuel Macron, fondé de pouvoir du néolibéralisme. Ils le font quand ils répriment massivement et férocement les mouvements sociaux qui s'y opposent comme le mouvement des gilets jaunes. Ils le font quand ils veillent soigneusement à éviter tout désagrément judiciaire aux amis et soutiens de Macron. Et enfin quand ils veillent à poursuivre sans faiblesse ceux qui peuvent présenter pour celui-ci un danger politique quelconque. Comme vient de le démontrer la disqualification de Marine Le Pen, et comme le démontrera bientôt ce qui attend Jean-Luc Mélenchon, lequel avait déjà goûté on s'en souvient à ce « law fare » à la française. À la suite duquel, il m'avait d'ailleurs sollicité pour participer à la création Lawfare : Le cas Mélenchon (Documentaire) . Lui sait bien aujourd'hui qu'il n'a, de ce point de vue, aucune illusion à se faire.
J'ai été sollicité pour traduire en anglais certains de mes précédents articles, afin leur permettre une diffusion internationale. Il semble en effet que ce qui vient de se produire a suscité surprise et intérêts à l'étranger. Y compris d'ailleurs avec l'utilisation directement politicienne qui en est faite aux États-Unis ou en Russie.
J'invite évidemment de mon côté au partage de ce texte. La dérive illibérale que connaît notre pays sous l'égide d'Emmanuel Macron, mérite qu'on la fasse connaître et qu'on l'explique.
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The Paris Criminal Court's decision to impose a heavy sentence on Marine Le Pen and her party, and above all to impose a provisional sentence of ineligibility, preventing her from standing in the next presidential election in 2027, has provoked a storm of reaction.
This decision was inevitable, and it is incomprehensible that the leaders of the rassemblement national should have been surprised. The severity of the main sentence (four years in prison, two of which are firm) and above all the ineligibility with provisional execution were not difficult to foresee for anyone following the political excesses of the French justice system. Particularly since the advent of Emmanuel Macron, who, it should be remembered, was elected to the Élysée by this same justice system.
Three reasons for the democratic scandal
- The first and foremost is the political ideology professed by the judiciary. Sociologically, the judiciary is overwhelmingly drawn from the urban petty bourgeoisie, whose lifestyles, culture, political positions and societal values it shares. This is accompanied by a genuine aversion to the working classes (as we saw at the time of the ferocious repression of the yellow vests) and the conviction that it must take advantage of its place in the institutions and the powers that are its own to impose its morality on society and in particular for the case at hand, by demonstrating a shoddy anti-fascism too.
- The second reason has to do with the unfathomable stupidity of the political class. Terrorized by the populist accusation that « everyone is rotten », and anxious to be forgiven, they spend their time passing repressive laws against elected representatives, convinced that they will only fall on their neighbor. The possibility of provisional execution of ineligible accessory penalties, in violation of the principle of presumption of innocence, is the most appalling example of this.
- The third is the determined determination of the judiciary to transform itself into a political power, by establishing perfectly abusive jurisprudence that places politicians at the mercy of the justice system. The latter intends to control not only their probity (which would be normal), but above all their political activities. The Marine Le Pen case is exemplary in this respect, as the possibility of conviction for « misappropriation of public funds » of members of parliament is a legal heresy created from scratch by the Cour de cassation. The political activity of an elected representative should be subject to the control and appreciation of the electorate. This is now confiscated upstream by an autonomous and biased body that has become a political power, without having the democratic legitimacy to do so.
The judge is there to arbitrate between conflicting interests. In criminal matters, it is between society, represented by the prosecuting authority, and the person being prosecuted.
The judge is not there to decide who can solicit the votes of the sovereign electorate, according to his own political ideas, with the help of texts solicited for the occasion and jurisprudence that he has concocted for himself.
« French law fare »
The author of these lines has the immodesty to say that he knows what he's talking about, since after a fifty-year career as a practicing university lawyer, he published a copious work at the beginning of 2020 entitled: « Une justice politique » with the subtitle: « des années Chirac au système Macron » (« from the Chirac years to the Macron system »). We're obviously going to encourage you to read it, which foreshadowed what has just happened, by recalling what the back cover said: « the final picture, heavily documented, is that of a judiciary that chose its ideology over the common good. » The decision handed down by the criminal court on March 31 is the perfect expression of this reality. And the reasons for this democratic catastrophe, which sees the leader of France's leading party barred from standing as a candidate in the presidential election. Unlike in Romania, where the leading candidate in the first round of a presidential election was disqualified, it was not necessary, as in Bucharest, to give orders to the members of the Supreme Court. French judges did not need any instructions to spontaneously infringe the freedom and sovereignty of the French voter.
In the space of 48 hours, we have witnessed the production of a festival of nonsense, crass ignorance, hypocrisy and lies, accompanied by cynicism and bad faith taken to new heights. All of which feeds on the legal and judicial illiteracy traditional in our country's strong administrative culture.
Forbidden to criticize justice?
- Hand-on-heart declarations by political leaders who put on airs to stigmatize criticism of a court decision (cuckoo Boris Vallaud), accompanied by a threatening communiqué from the Conseil Supérieur de la Magistrature on the criminal risk to which such criticism exposes them. It's simply an imbecility.
The entire judicial system is based precisely on mistrust of the « man as judge ». That's why a whole series of rules have been drawn up, designed to weaken his inevitable subjectivity and to achieve IMPARTIALITY in the search for JUDICIAL truth. Intangible fundamental principles of criminal law, rights of the defense, strictly formal adversarial debate, collegiality, dual jurisdiction, control by the Cour de cassation, etc. etc. etc. I've always taught my students that they shouldn't « trust justice » (a stupid phrase) because « it's rendered by people like me«. So criticism of a judicial decision is consubstantial with the regular functioning of the institution.
A political leaflet, not a judgment
- Precisely, the astonishing reasoning behind the decision to exclude Marine Le Pen from the presidential election, using provisional execution, is the expression of a directly political subjectivity. « The court took into consideration the major disturbance to democratic public order that would be caused in this case by the fact that a candidate, for example and in particular the presidential election, or even an elected candidate, would have already been sentenced in the first instance, in particular to an additional penalty of ineligibility for misappropriation of public funds which could subsequently be definitively sentenced.
Translation: I don't want Marine Le Pen to be a candidate, or even elected, because we don't like her political ideas. So, to hell with dual jurisdiction, to hell with the Court of Appeal, to hell with the Court of Cassation, to hell with principles, I'm using my power to deny voters their freedom of choice. And so much the worse if, in the process, I trample on a decision by the Constitutional Council which stated, as recently as three days earlier: « Unless the right to stand for election guaranteed by article 6 of the Declaration of 1789 is disregarded, it is up to the judge, in his decision, to assess the proportionate nature of the infringement that this measure (the provisional execution of the penalty of ineligibility) is likely to have on the preservation of the voter's freedom«. It's a fine, explicitly-motivated insult: to hell with the freedom of the electorate, the 12 million people who put their trust in them. Ban her for this reason alone, because she's a neo-Nazi who doesn't like Europe and eats grandchildren. A reading of the entire decision shows that this is not a legal decision, but unfortunately a political tract. If French justice didn't walk on its head, this judgment should not be overturned by the Court of Appeal, but annulled.
What misappropriation of public funds?
- Those who love politics through judges, sure that they are part of a judiciary essentially made up of people who culturally belong to the urban petty bourgeoisie and share its ideologies, rehearse the demagogic antiphon over and over again: « Can you believe they embezzled public money! It works every time: in public opinion, journalists and judges are certainly hated, but politicians even more so. So just think, stealing our tax money that we've been obliged to pay to the State, that's the worst of the worst. The problem is that this incrimination is a legal sham put in place by the Cour de cassation.
It is difficult here to go into the details of the jurisprudence established by the Cour de cassation, which, by violating the principle of restrictive interpretation of criminal law, has placed members of parliament, i.e. the legislative power, under the supervision of the judge to control the use of their political freedom. We refer you to our above-mentioned work, and in particular to chapter 6: « Quand la Cour de cassation aménage les chemins » (P172 to P193). The strict interpretation of the French Penal Code does not provide for the offence of misappropriation of public funds to apply to members of parliament. Democracy having a cost, parliamentarians have a certain number of material elements at their disposal to exercise their mandate. The way in which they do so, under the control of the Assembly to which they belong, is a matter of their freedom, protected by the separation of powers. By making it possible, thanks to a jurisprudential acrobatics, to incur the accusation of misappropriation of public funds, the Cour de cassation has thus enabled the judge to pronounce on the way in which these material means were used.
Of course, the use must be lawful and must not enable any OTHER offenses to be committed. In the Front National case, it was the POLITICAL activity of the RN parliamentary assistants that was examined. The court could only find that there was no personal enrichment, of course, but sorted out what fell within the scope of the mandate and what did not. And it is this direct and detailed control of political activity that violates the separation of powers. If an attaché had benefited from « fictitious » employment, i.e. was paid without having any political activity, this would have been a « breach of trust ». The judge could have punished him in May by NOTING the absence of work or its insufficiency in quantity, and that's all. But what the court did, using the irregular jurisprudence of the Cour de cassation, was to control the way in which members of parliament organize their activity in the service of their mandate. If we follow the logic of this approach, the judge will be able to check what they read (whether it's relevant or not?), where they go (whether it's relevant or not?), what meetings they attend (whether it's relevant or not?). And this is precisely what the separation of powers proscribes, i.e. the control of legislative power by the judicial judge. This control lies with the sovereign electorate.
We'll leave it at that, as there are so many elements in this judgement that have no place in a court decision, and so much nonsense and lies that have been uttered in recent days, that it would be tedious to go on. But let's not forget that justice is still a class justice, even if it's now the petty bourgeoisie that provides the service for the benefit of the system of which Emmanuel Macron is the proxy.
But it's also important to take stock of what French democracy had to offer on this occasion. A quick look at the international press, across all continents, is quite humbling, given the surprise, derision, mockery and contempt expressed at the anti-democratic drift of a country and a President who are generally quick to give lessons to the whole world.