Version aimablement traduite en anglais par une amie britannique (que je remercie) des deux articles écrits il y a quelques jours à propos du caractère doublement illégitime de la présidence d’Emmanuel Macron. Cette démarche vise à faire si possible de ce texte un produit d’exportation…

I) There is no legitimacy to the power held by Emmanuel Macron

France and the Macron Issue

The French Republic faces a major problem, which takes the form of the individual now acting as President.  The people see him as utterly lacking in legitimacy to hold the position that currently enables him to rule.

Such is the state of affairs which explains why the people reject him, above and beyond his policies, the corruption surrounding him and his own political ineptness, not to speak of his insufferable, overbearing personality.  His every utterance on whatever topic, is brushed aside with a surprising intensity of anger.  Nor can he rule without ferocious repression, wielding the Courts, the police and laws destructive of our liberties, voted up without demur by a rump Parliament.

Very recently, as someone tried to raise the matter of these abuses, Macron lashed out “Give dictatorship a try – you’ll see!”, meanwhile presuming to define dictatorship as opposed to democracy.  The bad news is that his description of dictatorship happens to fit his own system like a glove. While any relationship between democracy and Macronism would appear to be purely coincidental.  When he blurts out “A dictatorship, that’s a régime where the laws are made by an individual or by a clan”, one can but retort:  “You’ll have to excuse me, but that’s precisely what goes on in your rump Parliament, steered by hacks who blithely trample – at your behest – on public liberties.  And when the Senators attempt to wield their oversight powers, feeble as they are, you and your entourage insult and even threaten them”.

Before analysing why, and how, this President has lost all legitimacy, one should first perhaps explain to what the notion of republican legitimacy refers.

Again, our source is Max Weber who has defined the concept’s political dimension:  legitimacy has to do with its acknowledgement by the body politic, and is defined not legally, but in human society.  Although in a democracy, power (Macht) resides with rational, lawful dominion (Herrschaft), legitimacy flows above all from respect for the law, which is a necessary first condition, though not a sufficient condition.  De facto, the Macron régime is light-years away from that requirement. Everywhere one looks, unconstitutional, unlawful incidents abound, nor can that bald reality be altered by the hymns of praise of followers invoking the allegedly formal lawfulness of his accession to the Presidency.

First of all, because there is no truth to it – the elections were tampered with, replete with unlawful events.  Whether consciously, or pre-consciously as it were, the French are aware of this, which explains why they so massively object to this individual’s presence in the Elysée Palace.  The other reason behind that disgust, is that after an election, democratic legitimacy remains to be confirmed from one day to the next, as power is exercised in suitably-regulated fashion, within institutions that operate properly.  That the opposite now occurs has become perfectly plain.  As one sees from the outcome of the latest European elections – presented by the President’s propagandists as a major victory (11% of the registered voters) – this minority regime is not acknowledged by the body politic …

How did Macron take power?

Macron’s path to power was carved out by a remarkable series of manoeuvres, blessed, if that is the term, by a curious set of circumstances unlikely to reoccur.  One of the underlying reasons is the 2005 Referendum, where the people rejected the European Constitutional Treaty.   The gauntlet, or so thought the élite, the YES-faction, had been thrown down.  And so popular sovereignty fell victim to treason in March 2008, as François Hollande brought the Socialist Party’s vote to Nicolas Sarkozy on a silver platter, at a Congress without which the Lisbon Treaty would never have been ratified.  Although the French by then had come to despise their politicians, nevertheless, to get rid of Sarkozy in 2012 they went out and made Hollande President – the very man who had made that piece of treachery possible.  What became of THAT President is all-too-well known.  Or, as Emmanuel Todd writes in his latest book “François Hollande couldn’t even stand for election in 2017.  I suppose one could say that the country simply vomited him up”.

Given the Front National’s results in the European elections in 2014, Marine Le Pen would evidently make it through to the second round of the Presidential elections in 2017, while whoever stood against her would most likely be elected.  The high-ranking civil servants thereupon picked out one of their own, and trotted him out before the oligarchy – French and otherwise – for approval.   On 23^rd April, Emmanuel Macron, clutching the ballots of a mere 16 % of registered voters, found himself in the second round, and, played as the Bulwark against imaginary Fascist hordes, swept in easily.  The details of the hold-up appear in three books I would strongly recommend “Les réseaux secrets de Macron » by Marc Endeveld and « Opération Macron » by Eric Stemmelen; they describe the charming methods of the Macron gang, and the massive backing afforded by French capital via financial and press networks.  One might also wish to peruse Jérôme Sainte-Marie « Bloc contre bloc », for analysis of the specific political features of this President’s immediate entourage. 

That being said, this particular unknown satellite could never have been launched into orbit without – smack in the midst of the presidential campaign – the judicial manoeuvres instigated against an individual on the Right, then expected to become President.  In earlier articles, we analysed this bizarre episode, where judges and reporters whom we shall politely describe as misguided, collaborated in wheeling and dealing designed to skew an election that lies at the core of the Fifth Republic.  My intent is scarcely to defend François Fillon himself – his conduct throughout was rather disgraceful – but simply to stress the thing’s flat-out abnormality, from a strictly legal and judicial standpoint.

It is no exaggeration to assert that, in order to place Emmanuel Macron in the Elysée Palace, a gaggle of interests pulled together to set up what one may well call a type of coup d’état.  Nor can one object to that term by arguing that from a formal standpoint, the election was quite legal.  First of all, history relates indisputable coups d’état covered by a veil of formal lawfulness, such as the 18th Brumaire of Napoleon.  Secondly, one need only scrutinise the circumstances under which the 2017 elections were held to conclude that they were outright illegal.  Bearing in mind that illegality, in legal terms, does not mean that the elections were ipso facto null and void.  In other words, although one may conclude that the elections took place under unlawful circumstances, the Courts alone, duly apprised, may take that into account and impose sanctions, or strike down the elections themselves.  Not only have there been no such procedures, but various oversight bodies have refused to perform their duty.

Did you say Unlawful Elections?

Why can one assert that Macron was unlawfully elected?  Well, there are several reasons, but without going into detail here, the French Electoral Code sets out strict rules designed to ensure an honest poll.  In the main, those rules pertain to how campaigns are financed, and to propaganda during the electoral period.  There can be no doubt whatsoever but that the financial backing for Macron’s campaign was  extremely dubious, starting with absolutely-forbidden reliance upon means provided by public (State) and local authorities to back the candidate. 

Next, we have contributions from natural persons who, as pointed out by MP Olivier Marleix, would appear to be remuneration for services rendered, and corruption.  Not to speak of an avalanche of propaganda in all the mass-media, in the grip of the French oligarchy, which did away with any semblance of democratic debate and thus polluted the polls.  And there is much more.

Not only does the law forbid such flat-out commercial promotion:  the costs incurred for this propaganda-hailstorm should have been worked back into the Macron campaign account – which would then, of course, have grossly overshot the cap on campaign expenses.  In local elections, anywhere, such offences would lead to the elections being struck down, with the offenders barred from standing for election, and doubtless prosecuted as well.  And again, the François Fillon business, with the law wielded as a weapon for purposes of distorting the elections, was decisive.

Now, some might ask, “Well, if it’s all so crystal clear, why no oversight, why have the authorities been sat on their hands?”   Simple question, simple answer:  the authorities have fallen into line behind the Macron solution.  The Magistrates tasked with financial investigations along with the reporters who played the game against Fillon, may well have done so because they wished to dispose of a candidate whom they believed to be a “Right Wing Catholic”.  Without of course being in the slightest disturbed by what might happen if Macron took over.  As for the Conseil Constitutionnel and Conseil d’État, they are stacked with the new President’s chums, and as for the Commission Nationale des Comptes de Campagne, the body tasked with scrutinising electoral expenses, well, its Chairman’s remuneration was increased by a whopping 57% within a few short weeks of the election … one wonders why.

Although radio, television and the press generally seethe with Politologists and Editorialisto-crats chanting : “Emmanuel Macron is legitimate because he’s legitimate”, the fact remains.  The French now regard Macron as lacking in all legitimacy because he owes his power to an unlawful, irregular process.  As we have just seen, in a representative democracy, for one to enjoy the political legitimacy to hold a mandate and implement a programme, there are two requirements and they are cumulative.  First of all, one’s power must have been obtained lawfully and by the rules, through an election above all suspicion.  Secondly, the body politic must acknowledge the wielding of that power.  The first requirement will not suffice to retain political legitimacy, as Guy Mollet and his hangers-on learnt at their expense.  Regularly elected in 1956, Mollet succeeded in pushing France to the brink of civil war, and had to bow to De Gaulle’s legitimacy.  While the latter promptly looked to setting up an adequate legal and juridical framework for the power he had come to hold.  Because if the first requirement be lacking, i.e. lawfulness, the second will de facto evaporate.

In order to rule, should the initial requirements of legality have been met (and that is most definitely not the case for Macron as we have seen), for the second requirement to hold, namely acknowledgement by the body politic, one must build and safeguard not only one’s own legitimacy, but that of the entire framework within which that legitimacy is to be exercised.

Seen in that way, as Macron plows through the mandate, its unlawfulness pokes out at every bend in the road.   Grinding into dust a legitimacy that was already from the outset, very much a moot point.

This will be dealt with in Part Two.

2) Illegitimacy of the exercise of power by Emmanuel Macron.

Whither the Separation of Powers?

In a representative democracy, as we saw in this essay’s first instalment, for a majority’s view to prevail over that of the minority, the circumstances through which the people’s elected representatives have come to enjoy their powers must be regular, and the elections themselves must have been entirely above board.  Whereupon, the body politic will so acknowledge.  That is the first branch of a ruler’s “legitimacy”.  We have just seen how the egregious illegality and irregularity of Macron’s accession may rightfully be compared to a type of coup d’état.  Which is why, from the outset of his reign, the view has been widespread that this particular individual “should never have got where he now stands”.

Even assuming that one have acceded to power by entirely lawful means, in a representative democracy legitimacy – along with the attendant arrangements for actually exercising power – must needs be built, stone by stone, day by day.  That is legitimacy’s second branch, and to say that Macron no longer has a shred of legitimacy, is a crass understatement.

Representative democracy is a pragmatic, punctilious institutional arrangement:  one arranges for the majority’s will to prevail over that of the minority, PROVIDED the latter so consent.  And what might the absolute requisites for such consent be?

Firstly, I repeat, the majority representatives’ power must flow from elections of indubitable probity.  Secondly, that power’s time-span must be limited, in order that whatever have been done during a given mandate may be challenged in the following elections, should a reversal occur.  And thirdly, that power must be wielded within a very narrow framework, namely the Constitution and arrangements that ensure that there be separation, balance and oversight of said powers.  This, to ward off all manner of abuse and to ensure that the “defeated” minority’s consent not be or have been withdrawn at some point. 

Behind the theory of the separation of powers as put forward by Locke and Montesquieu lies a purpose, namely to keep the State’s various functions well apart, so as to check arbitrary rule and prevent abuse in the exercise of sovereign missions.  Such has been the way of organising governmental powers since the Third Republic was instituted in France.

We shall now see that after gaining power by means unlawful and therefore illegitimate, Macron now exercises that power within a framework that bears little or no resemblance to the institutional legality that would characterise a representative democracy.

In Shreds and Tatters:  the French Constitution

Stripped of all that once made of it a coherent body of thought, the Constitution dated 19^th October 1958 lies in a parlous state.  Our country’s sovereignty has been hobbled here by the European Union; there by a series of “reforms” all designed to traduce its meaning; here by a non-stop campaign to amend the Constitution – the essential tool for guaranteeing that our institutions operate – , and withal, constantly upping the ante.  Pardon my French, but the Constitution has become a tattered rag with which our politicians wipe up the latest demagogic fad.  While to the ruling class, it’s a flimsy scrap of muslin.  Further to thirty (!) or so amendments, there now remain but thirty of the Constitution’s 92 original articles.  Kitted out with 108 articles, it bears faint semblance to what Charles de Gaulle had proposed in 1958, as approved in October of that year by 82% of the French electorate.

Of course, Emmanuel Macron alone can scarcely be held responsible for a disaster to which De Gaulle’s successors all blithely contributed.  However, the wave of “reforms” now being rammed through reveals an intention to hammer the last nails into the coffin.  Where Montesquieu wrote of the ordinary rules of law, “the hand that would alter a law, shall stay itself and hesitate” … what would Montesquieu not say of altering the Constitution?

Thanks to this whittling-away of the Constitution’s normative implications, Emmanuel Macron has freed himself to fiddle new arrangements, that actually qualify as a new regime, one egregiously remote from the legitimacy of a representative democracy.

“Legislative Powers” embodied in a Rump Parliament

The institutional disaster unleashed by the five-year Presidential term Chirac forced through, alongside Lionel Jospin’s decision to “flip” the electoral calendar, has turned legislative power in France on its hand.  One of the main grievances raised against the 1958 Constitution was that the Executive enjoyed too much power, and Parliament too little (bearing in mind that Parliamentary rule under the Fourth Republic had left a very bad taste).  True no doubt, but there was stability, and a new balance struck that allowed three coalition Governments to work. 

The aforesaid, thoroughly irresponsible reform, transformed what was to be a separate power into a technical tool in the hands of the freshly-elected President to Act at Will.  A staggering 60% of the French electorate having declined to cast a ballot in the June 2017 Parliamentary elections, Parliament henceforth reflects neither the political, the sociological nor the socio-economic makeup of this country. 

To illustrate:  blue-collar workers and lower-echelon service-industry employees account for 40 % of the country’s labour force – but have not a single representative in Parliament.  Although the Front National candidate Madame Le Pen garnered almost eleven million votes in the 2017 Presidential elections, her Party has but six MPs, an outcome most unhealthy for a democracy. 

Although one may concede that it was wrong not to vote, wrong to swallow the way the 2005 Referendum’s result was trampled upon, wrong to go out and elect the tramplers themselves, wrong to swallow the May 2017 coup d’état, NEVERTHELESS, and no matter how passive the average Frenchman may have been – although his passivity would now seem to be a thing of the past!  – this will not suffice to cloak the aforesaid train of events in legitimacy.

Bad enough that we have a non-representative Parliament, but the real issue is its make-up.  The MPS representing the Presidential party, La République en Marche (LREM), were recruited by Jean-Paul Delevoye (!) unbelievably, on the basis of their CV; one finds a pack of failed shopkeepers, buccaneers of every ilk, unprincipled opportunists, flaming nit-wits and poodle-dogs, who Roll-Over on command.  And if they disobey … they get the big stick.

The President, however, has learnt to make good use of this Rump Parliament, which itself has turned France into the world’s laughing-stock.  One need only peruse the way the Parliamentary Agenda is defined, the way Bills that shred our liberties are waved through without debate.  Despite the Senate’s lack of direct normative powers, it has indeed occasionally objected – only to find itself the brunt of insults issuing from the President himself and his pack of hounds, in flagrant breach of the separation of powers.

The facts speak for themselves:  there is no longer a legislative power deserving of that name in France, while our faint semblance of a Parliament has been swallowed up by the Executive.

To restate the point:  there no longer exists a separation between legislative and executive power in this country.

The Judiciary Powers fall into Line

 In France, the matter of a Third separate Power is rather vexed, as there are four judiciary orders that make up “judiciary power”:  constitutional, administrative, financial and the Courts.  On top of each of these institutions sits a kind of Supreme Court.  Why go for simple, when one can make a thorough mess of it?

In the Constitution, the only “judiciary order” which qualifies as “judiciary authority” is the French Supreme Court (Cour de Cassation).  But all four have been designed to exercise oversight, and can be described as “judiciary powers” that exist to ensure the balance required by the separation-of-powers principle.  That these four jurisdictional orders have willingly slithered in under Macron’s banner, makes for an extremely serious problem.

The Courts have failed us

And now for a remarkably well-documented item of Bad News.  For all kinds of reasons – ideology, class-consciousness, political faction …. the Courts and Magistracy sprang, virtually as one man, to Macron’s support.  Although a tiny frisson of dissidence may be stirring in the Appeals Courts over the past few weeks, the people have by now lost all trust in the Courts.  Nor will that trust be restored overnight.

To fall in with Macron, there were four major steps taken:

•            the criminal justice system has come down like a hammer on political opponents, such as, Marine Le Pen, Jean-Luc Mélenchon and Gérard Collomb…

•            the President’s entourage has been shielded either by refusing to prosecute, or by a sickening indulgence vis à vis Alexandre Benalla, Richard Ferrand, Muriel Pénicaud, Patrick Sztroda, Alexis Kohler, Ismael Emelien, Lionel Lavergne, François Bayrou, Isabelle Goulard, I could go on …

•            the worst, beyond all doubt, is the ruthless onslaught on the Yellow Jackets movement:  an unprecedented wave of unlawful arrest, detention and prosecution, summary trials (in a single six-month period, judgment was passed on 3,000 individuals, with over one thousand sentenced to gaol(!), sometimes under circumstances that can only be described as grotesque.  Carried out with perfervid zeal, the Powers-that-Be had doubtless no need to spur on this judiciary violence.

•            As for the unchecked violence unleashed by the police forces – incidents that have horrified foreigners are borne out by the evidence contained in hundreds of videos – this ghastly turn of events has only been possible because the Courts decline to fulfil their mission, which is to check the State’s “sole right to wield physical violence”.  By systematically covering for such wrongdoing, it is in the main, the Prosecution Service which bears the brunt of responsibility for the disgrace.

The Conseil constitutionnel

Here we have a body instituted by the 1958 Constitution to ascertain whether the Laws voted up by Parliament fit with the Constitution.  At the instigation of the President, Speaker of Parliament or of the Senate, no law could be promulgated without the Conseil constitutionnel’s oversight.  Giscard d’Estaing however, put through a reform allowing 75 MPs to apprise the Conseil constitutionnel, whilea ludicrous Sarkozy reform now allows any citizen to do so AFTER promulgation, thereby casting a cloud of uncertainty over the country’s entire legal structure.

Over a period of thirty or so years, the Conseil constitutionnel has arrogated to itself ever-broader powers over the laws voted by the country’s MPs.  A vast body of case law has been built up, creating, step by step, a parallel law-making power that waves the fig-leaf of constitutional principles. 

At the end of the day, the issue has become, not whether a Law be coherent with the Republic’s organising principles which the Constitution is designed to safeguard, but merely to ascertain whether that Law be compatible with a hold-all, referred to as a bloc de constitutionnalité (sic), into which any old thinggie can be stuffed.  Parliament thus finds itself under the thumb of a body made up of nominees appointed by the President and by the Speakers of the Senate and Parliament.  Macron having shut down even the mere pretence of a Right-Left change-over, the Conseil constitutionnel is now a homogeneous body, chaired by Laurent Fabius and boasting the presence of Alain Juppé who has replaced Lionel Jospin.  There is nothing these agencies will not grant Macron, the guardian angel of their caste of senior civil servants.  Furthermore, another peril lurks in the shadows:  any succeeding government will find it awkward to issue new legislation without a terrific struggle with the aforesaid bodies, and more especially with the Conseil constitutionnel – not to speak of the risk that judicial officers who identify body and soul with the financial clique now in power, file lawsuit upon lawsuit to stymie the new Government’s action.

The Conseil d’état

The Conseil d’état, a bodyspecific to France,is the highest jurisdiction tasked with oversight of the public domain.   The administrative jurisdictions seek to ascertain whether the Executive, whether central or local authorities, have not exceeded its powers; they apply French administrative law, referred to as prétorienne, i.e. founded upon a considerable mass of case-law interpretation. 

Two centuries’ relative independence, authority and prestige would now appear to count for nought with this Conseil d’état, stacked with senior civil service representatives, Ecole nationale d’administration graduates such as Édouard Philippe.  In general, this lot swings back and forth between Ministerial Cabinets depending on which side happens to be in power when.  Whether operating from within the Conseil d’état, or from within a Cabinet, they act as logistics-managers on behalf of the European Union’s drive to confiscate the Republic’s sovereignty.  The Conseil d’état has been much exercised to impose upon the French juridical system an apparatus for encrusting neoliberalism, by transposing into domestic law European-law notions, notably the “free and undistorted competition” straitjacket.

More disturbing still is the recent trend towards questionable decisions, handed down on a platter as a service to the Powers-that-Be.

For example, the case-law reversal which enabled Bertrand Delanoë, former Mayor of Paris, to donate 160 million Euro of public monies and have the Jean Bouin Stadium built at the City’s expense. Or the “emergency” decision – handed down within two short months – to set aside the earlier Cour administrative d’appel decision striking down the (unlawful) sale by Emmanuel Macron of the Toulouse Airport to a Chinese consortium.  .  Only very recently, the Conseil d’état declined to forbid use of the Lanceurs de balles de défense or LBDs, a police weapon that has caused massive, irreversible injuries to demonstrators.  And so on and so forth.

The Cour des Comptes

This special jurisdiction’s purview takes in the public accounts; it heads a jurisdictional order where the Chambres Régionales des Comptes review the local authorities’ accounts.  However, it kow-tows to a sect holed out at the Finance Ministry, otherwise known as the Inspection Générale des Finances and has become notorious since Didier Migaud took over as its Chair – a Sarkozy appointment.  As a rule, it willingly targets whom- or whatever has strayed into the sights of the Powers-that-Be and acts as a conveyor belt for Maastricht-criteria obsessions and “debt”.  But when asked to put a figure on tax-fraud, the Cour des comptes threw in the towel!

And now for the press, the “Fourth Estate”

For centuries now, the press has been seen as a counterweight in a representative democracy, which explains its freedoms and privileges, and the status assigned it after WWII, at the Liberation, to wrest it from the grip of private economic cliques.  End of an era.  There are currently nine oligarchs with a stranglehold over all of France’s mass media; the role they played in placing Macron where he stands today is obvious enough to leave no doubt but that he is their front-man.

Not a single study but points to the distrust, indeed disgust, in which the mass media – seen as a mere mouthpiece for the ruling élites – are now held by the body politic.  A view reinforced by the mass-media’s approach to the Yellow Jacket- and pension-reform demonstrations.

With the “checks-and-balances” bodies come to heel, so have the major Administrative authorities, notably the Conseil supérieur de l’audiovisuel (CSA) which theoretically oversees the audio-visual media on behalf of the public weal, but in fact ensures that said media spew out propaganda for the Executive.

France no longer has a Fourth Estate.

TO SUM UP

The separation of powers and system of checks-and-balances has virtually ceased to exist in a France ruled by Emmanuel Macron.  The Three, or Four let us say, Estates have merged into one under the Executive’s authority and its behalf.  This unprecedented state of affairs places France squarely amongst those countries where there is no separation of powers.  The merger of the bloc élitaire to which Jérôme Sainte-Marie refers, “successfully” effected by Macron, has cut off the phony Right-Left change-over that has been operational since 1980.  Whatever one might think of the two camps, rival shopkeepers supplied by the same wholesaler as Philippe Séguin was used to say, this nonetheless allowed for a modicum of balance, albeit uneasy, and separation of powers.

Gone with the wind.

Article 16 of the Declaration of the Rights of Man and of the Citizen (1789) reads,

“In a society where neither is the observance of rights assured, nor the separation of powers defined, there is no constitution. »

One cannot but draw the conclusion that the juridical and institutional framework within which Emmanuel Macron currently exercises power, contradicts the Constitution.  On that head, there is a requirement of constitutional legality for Macron to enjoy legitimacy, and that requirement is lacking. Given his style of government and the régime he has set up, consent from the body politic on which legitimacy rests is lost to him.

By acceding to power and thereupon exercising it, by unlawful means, Macron is doubly disqualified to act as President of the French Republic.  He has rashly proffered a definition of dictatorship: “A dictatorship, that’s a régime where the laws are made by an individual or by a clan.” You’ll have to excuse me, but that’s precisely what goes on in France today.  Although it may yet be the case that the French do not believe that they are living under a dictatorship, they do know that the President is illegitimate, and have ceased to consent to his rule.

The French body politic longs to recover a republican, representative democracy.

Therefore, Emmanuel Macron and his pack must quit the scene.