As a French lawyer, as a PhD holder, I am appalled by the fading of the democratic flame which I have observed for several years in a nation which wants to be the fatherland of human rights – and more particularly since ten days. The flame has now turned into a glow.
If I try to summarize the facts for our foreign friends who must be wondering what is happening in France for some time, here is where we are: the government of Elisabeth Borne presented on January 23, 2023 a bill to reform the pensions, the most important measure of which is to raise the retirement age from 62 to 64.
The bill has from the start received a strong opposition in France and numerous strikes and demonstrations have punctuated the last few weeks. The main French unions, which had formulated proposals since the end of 2022 to reform the pension system without affecting the retirement age, formed a common front against the government and organized the strikes and demonstrations so that they take place in a peaceful and safe manner.
Faced with popular protest, the government used all possible constitutional resources to get its bill passed as quickly as possible and with as little debate as possible.
Its first movement of constitutional strategy was to pass the bill under the heading of a finance bill. Why is this important? Because the use of Article 49.3 of the French Constitution (which will be discussed in detail below) is limited to a single text of law per session, except for the finance bills for which the use of Article 49.3 is unlimited.
In addition, as the pension reform bill is passed under the category of a finance bill, the time limits for debate are limited under Article 47.1 of the French Constitution. This means that the National Assembly had 20 days to examine the text of the bill and that on the 21st day, the government seized the Senate which had 15 days to examine it. Several deputies had asked for an extension of the 20-day deadline – which is absolutely possible if the government so wishes in order to preserve what is called “the clarity and sincerity of the debates”, but – second movement of constitutional strategy – the government did not want it.
Did the large number of amendments proposed by the deputies drown out the debates? The answer is not certain, but the fact remains that the debates did not even reach article 7 of the bill, which concerned the postponement of the retirement age. The most important measure of raising the retirement age was not even discussed before the National Assembly.
The National Assembly was stripped of the text on February 17, 2023 without having really debated it and without having voted on it and the pension reform bill went to the Senate.
The third strategic movement was activated before the Senate. The latter was constrained by (i) the use of Article 44.2 of the Constitution, which makes it possible to set aside the amendments proposed to the bill in order to accelerate the process of debates and (ii) the use of Article 44.3 of the Constitution which allows the government to ask the Senate to decide in a single vote on the entire bill, retaining only the amendments proposed or accepted by the government. This is called the “blocked vote”.
And in fact, the bill was adopted by the Senate on March 16, 2023 before returning in the same afternoon to the National Assembly.
At this point, a last strategic movement came from the government: in order to avoid the risk of a rejection of the bill in front of an assembly having a relative majority, the government activated Article 49.3 of the Constitution.
The Prime Minister may, after deliberation by the Council of Ministers, engage the responsibility of the Government before the National Assembly on the vote of a finance or social security financing bill. In this case, this project is considered adopted.”
Article 49 of the Constitution
This means that the pension reform bill was adopted with no real debate and without any vote in front of the deputies – traditionally closer to their voters (as they are elected by direct universal suffrage) than senators (elected by indirect universal suffrage).
One can always argue that the democratic mechanisms have been respected – and that will be true. It is nonetheless true that these mechanisms have been totally twisted. The avoidance of a national debate and the sovereign vote has de facto deprived the pension reform text of democratic legitimacy.
The adoption of the pension reform comes in a social context that has deteriorated from year to year with the Yellow Vests crisis, the Covid, galloping inflation and declining purchasing power. The anger rose from week to week and the government’s bill which was forced through, blew everything up.
Because, to the problem of pension reform, the government has now added a second problem: that of the denial of democracy. Make no mistake, it is this last issue that has brought people out into the streets every night since March 16, 2023.
The activation of article 49.3 of the Constitution (the eleventh in 10 months) on a reform which should have included a real national debate on the concept of work, constitutes the forcible way of a government which does not have the absolute majority in the National Assembly and which deliberately ignores the results of a recent presidential election representative of a deep political fragmentation of the French population.
This very questionable “democratic journey” (as our Prime Minister calls it) explains the numerous demonstrations that have punctuated the whole territory since March 16, 2023.
And so I come to the second problematic point with regard to democracy: the current treatment of demonstrations and the police violence that accompanies them.
The right to demonstrate is a fundamental right enshrined in article 11 of the French Declaration of the Rights of August 26, 1789, which has constitutional value.
The right to demonstrate is the corollary of democracy, it is one of the strongest means of expressing a collective conviction outside political forums.
Demonstrations can be of three types: declared in advance three days before the event with the concerned town hall, undeclared or prohibited. Unlike prohibited demonstrations, it is not illegal to participate in undeclared demonstrations – as long as the order to disperse is not given in case of disturbance of the public order. As you will have understood, everything lies in the assessment that is made of the notion of “disturbance of public order” since it is appreciated on a case-by-case basis by the police – who are mentally and physically exhausted and who sometimes face complex circumstances to manage.
There are of course thugs who take the opportunity offered by the demonstrations to degrade public and private property and harm cops but the fact remains that police violence is exercised repeatedly against ordinary citizens since the Yellow Vests crisis. The demonstrations that have punctuated Paris since March 16, 2023 – date of use of Article 49.3 of the Constitution – are either declared or undeclared and the police violence that accompanies them is very real – just open Twitter, you will witness truly terrifying scenes.
It is now becoming complicated to exercise your right to demonstrate, simply because fear seizes anyone wishing to demonstrate. Telling yourself that you need a crash helmet, rubberized goggles, a lawyer’s name and a phone number of a loved one written on the arm brakes more than one is a first and overwhelming violence.
If you want to stay alive, you go home”
A policeman to a peaceful young man
The second violence that results from this is quite simply physical violence. I understand that police officers are injured during demonstrations, but they must be exemplary because they have the monopoly of public force.
In addition, the arsenal of personal protections and weapons available to the police is impressive, especially in comparison with the demonstrators’ lack of body protection. Defense sticks, disencirclement grenades (which must be thrown towards the ground and which release rubber projectiles) and defense bullet launchers (intended to neutralize violent people) are used arbitrarily, in a disproportionate and untargeted way and therefore cause serious injuries and mutilations. Concealment of the “RIO” (the individual identification number that each member of the security forces must carry) is common practice and offers total impunity.
“Here, pick up your balls, asshole”
A policeman after ejecting the casing from the LBD
The traps, which have been banned since June 10, 2021, are thriving everywhere, putting demonstrators in great danger.
Above all, the traps allow arbitrary arrests which obviously cancel any right to demonstrate. They last 4 hours if we are talking about identity verification or 24 hours if we are talking about police custody. The taking of IDs, photos or fingerprints makes it possible to add the demonstrators to official databases on a massive scale and to dissuade them from returning to a demonstration.
Finally, the numerous arbitrary arrests make it possible to inflate the figures of arrests issued by the Ministry of the Interior (292 arrests on the Place de la Concorde during the night of March 16, 2023, for 283 classifications with no follow-up of any type).
The Human Rights League, the Judges Union, the National Consultative Commission for Human Rights, the Defender of Rights, Amnesty International and Reporters Without Borders are concerned about the recent police violence and say they are concerned by the indignity of such violence in a State governed by the rule of law.
Here it is a young man who takes a punch in the face, falls and does not get up.
There, it is a homeless man who is hit and who falls to the ground and who is called a “big fat bag of shit”.
Here, four young women are subjected to sexual touching and sexist insults (a complaint has been filed).
Here, they are threatened and brutalized journalists.
There, it is a policeman on a motorcycle who knowingly rolls over a protester on the ground.
Here, demonstrators are ordered to sit on the ground, hands on their heads. Here, it is a photographer and journalist for an independent media (Samuel Clauzier) who is tageted by an LBD while another policeman rushes at him with a baton in hand. “I don’t give a fuck about your press thing”. He will just have time to take a picture and run away.
Violence is not acceptable on either side.
However, if we put things into perspective and leave aside the problem of thugs and talk only about ordinary citizens, demonstration is often one of the last resorts of a people who feels unheard. Nobody criticizes the Iranian women who demonstrate, in a more or less violent way (they also set fire), following the recent conflagration of their country. On the contrary, everyone applauds. Some will argue that their fundamental freedoms have been violated by a dictatorship, which is not the case in France. It is true. However, it is perhaps precisely to send a warning about anti-democratic excesses – not in the letter but in the spirit – that these demonstrations are taking place.
Now, and from a personal point of view: particularly sensitive as an administrative lawyer to questions of democracy, I joined the procession of the demonstration of March 23, 2023, from Saint-Antoine street to the Opera place.
The atmosphere was good-natured but as I am always afraid of crowd movements, I stayed on the side at the head of the procession, between the demonstrators and the policemen who were obviously present to ensure the security of the demonstration.
Arrived at Opera place, I realized that all the converging avenues were blocked by police trucks and moving walls and that any exit from the place would become more and more complicated. And in fact, a few minutes after my departure, the demonstrators were trapped and gassed.
And during the night, Paris became a huge battlefield dotted with fires.
The pension reform law is now before the Constitutional Supreme Court, which will have to examine its constitutionality. From a legal point of view, the risk of seeing the law declared unconstitutional for (i) invalid use of article 49.3 for a law which is not a finance law and (ii) for lack of “clarity and sincerity of parliamentary debate” is not zero. Let’s see how it goes.
March 24, 2023
