The duty to protest

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Last week the French authorities banned a planned march in Paris by trade unions opposed to labour law reforms, before eventually backing down partially and allowing a more limited demonstration. Here Mediapart's editor-in-chief Edwy Plenel argues that demonstrating is a constitutional right and that, by banning the march that the trade unions wanted, the government violated the fundamental law that guarantees all our freedoms. It is, he writes, our duty to resist this unlawful act in order to defend our common ideal: democracy.

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In its headlong rush the Hollande presidency, with its armed wing in the shape of the government headed by prime minister Manuel Valls, is compromising that most fundamental of things: democracy. Democracy as an ideal, inspiration and a requirement. That common language that allows us to exchange views, deliberate and decide above and beyond our diverse leanings. That shared culture that enables us to bring people together with respect for opponents, even adversaries.

An unprecedented move, the banning of a union demonstration on public order grounds, dressed up as authorisation for a more restricted gathering around Paris's place de la Bastille and the port that extends from it, is the latest episode in the unending descent into the hell of political surrender and intellectual debasement. It comes after the attempts to strip convicted terrorists of French nationality, a move of pure discrimination borrowed from the racist and xenophobic ideologies of the extreme right; after the state of emergency, this permanent police state brought in with no regard for all the authoritative views of those involved in defending human rights; it comes amid the ongoing attempts to reform employment law, an abrupt step taken without prior consultation that attacks head on the rights won by employees through decades of union struggles; it follows police violence, a rare addiction to excess and abuse in the maintaining of law and order through a provocative and aggressive strategy. Now, after this series of snubs, which have been compounded by arrogance and scorn, comes this sidelining of the most basic principle of a democratic society: the right to protest publicly, in the street and through the street, against the government of the day.

The right to vote and the ability to govern do not themselves represent democracy. Those are just two fleeting instruments that stem from the sovereignty of the people: the act of choosing representatives and then temporarily delegating governance to them. But unless we want them to become the means by which power is seized for the private use of a wealthy elite, these instruments are only legitimate on condition that they respect all the other fundamental rights that guarantee a vibrant, shared and inventive democracy. These are freedom and plurality of the press, freedom of expression and opinion, freedom of thought and criticism, freedom to meet and to protest, and so on.

Without these full rights in their entirety we cannot be free, independent, conscious and active citizens. Without their free exercise there will be no true democracy but instead what the French thinker and historian Alexis de Tocqueville and the late prime minister Pierre Mendès France called “soft tyranny” under which the people have just one right, that of choosing their masters at intervals of varying lengths, before retreating back to lasting servitude and silence, to being uninvolved. We must conclude that this is the dream of our current leaders and that is why they have become our nightmare. They've been in power for four years, a period in which they have continually sought to serve notice on democracy, brandishing ideological pretexts – the Palestine situation in 2014 during the Gaza war – or security reasons – fears of terrorism in 2015 during the COP21 climate summit – to acclimatise us to the prior banning of demonstrations, and thus to deprive us of a fundamental right, that of protesting in the street.

These current leaders are now confronting the whole of society in all its depth and diversity. From workers to employees, from the young to pensioners, from supervisors to bosses of small businesses, from students to the hard-up, from the shop floor to management, the proposed legislation on labour reforms has mobilised against it all those who have no other wealth than their work, no other protection than to act in solidarity with others. Coming from nowhere, or as part of a hidden agenda that has never been approved by the voters (see Mediapart's article here on the European Union's influence on the legislation), having never featured in either the president's manifesto or that of his Parliamentary majority, this law is not acceptable, neither in the country, nor in Parliament, where it is already being forced through by the government with the use of article 49-3 of the Constitution, which allows a bill to bypass many Parliamentary procedures. The use of this article interrupted debate on the measure before it had really started – the members of Parliament were only on the first of the bill's 54 articles.

Any government that respects the popular will from which it gets its mandate in the first place would take note of all this, and understand that not only does one not reform a country against its people but that, moreover, a reform imposed against democracy is necessarily bad, illegitimate from conception, discredited by its very nature. Disoriented in its ideological distress, confined inside its singular weakness, closeted inside its administrative state bubble, this government no longer even has the modicum of sense of those governments who care about the general interest and, as a result, who are able to see beyond the blindness of their certainties. And so it is that, sawing the electoral branch on which it is temporarily sitting, it chooses to abuse our country, to spread violence and venom there, playing the arsonist while failing to convince anyone that it is the fireman.

Demonstrating, like being able to gather together, is a fundamental freedom, a constitutional right, one that involves being able to express and share ideas and opinions collectively. Only respect for this right can guarantee direct expression by the people outside election periods. “Individual freedom, the freedom to come and go and the right of collective expression of ideas and opinions” are “freedoms guaranteed by the Constitution”, said the country's Constitutional Council in a ruling handed down on January 18th, 1995. This right is so essential that any abuses arising from it can under no circumstances justify its suspension, as our law bears witness.

Thus any damage caused on the margins of a demonstration cannot be blamed on its organisers, as the state is in charge of public order and as a result is accountable for any damage and violence that it is unable to foresee or stop. Article L.2216-3 of the General Code on Local Authorities is quite categoric on this: “The state has civil responsibility for injuries and damage resulting from crimes and offences that are committed, through force or violence, by crowds or gatherings, armed or not, whether committed against the person or property.”

This legal point was reiterated by the top appeal court the Cour de Cassation in a verdict handed down on October 26th, 2006, in relation to damage caused by farmers during a protest called for and organised by the farmers' union the FNSEA. “Given that a union does not have as its object or mission the organising, managing or supervision of its members' actions in the course of movements or demonstrations in which these latter take part, the errors committed personally by them are not the legal responsibility of the union to which they belong,” said the court.

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