François Hollande is the first left-winger to be elected French President since Mitterand’s second term in 1988. In a semi-presidentialist constitutional system, Hollande will wield considerable influence over domestic policy, particularly if, as expected, the forthcoming two-round parliamentary elections enable him to appoint a socialist Prime Minister and Government. While the current focus of international scrutiny is primarily on fiscal policy, here I discuss the manifesto and ideology of the Socialist Party with regard to human rights in the broad sense, as well as its past record in office in this respect. This is particularly interesting given the recent rightward drift of French politics – notwithstanding the Left’s victory – on matters such as immigration and security, as well as the cultural politics of halal meat, street prayers, and – bizarrely – foreign flags. I will outline how the emancipatory ambitions of French socialism have shifted from the economic to the social and cultural realms, over the course of an anguished and ambiguous reconciliation with liberal economics.
The prevailing perception of the PS (Parti Socialiste) is often that of a relatively “unreconstructed”, “unreformed” centre-left party, the antithesis of Blair’s New Labour. This is only partly true. While this image is borne of policies such as the 35-hour week introduced during the Jospin government of 1997-2002 – and of course, Hollande’s recent campaign promise of a 75% tax band – the broader historical reality has been a marked evolution away from traditional socialist tenets on public ownership and control of the economy.
An alliance of human rights groups has spoken out against the forced sterilisation of women with mental disabilities in France. See here and here. Last week the Center for Reproductive Rights, European Disability Forum, Interights, International Disability Alliance and Mental Disability Advocacy Center; submitted written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08). A copy of the written comments is available here. Gauer and Others v France is a case involving five women with intellectual disabilities who were forcibly sterilised. The decision of the European Court of Human Rights will be an important statement on the reproductive rights of persons with disabilities and the positive obligations on the States in safeguarding persons with disabilities against abuse.
The European Court of Human Rights has used the UN Convention on the Rights of Persons with Disabilities (CRPD) as an interpretive aid to the European Convention on Human Rights and it is clear that the ECHR has been edging closer to the philosophy of legal capacity as set out in Article 12 of the CRPD. In Shtukaturov v Russia the ECtHR stated “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation”. This was an important statement by the ECtHR acknowledging that there was a lack of proportionality in the legal response to the person’s capacity in that case. Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the deprivation of legal capacity constitutes a serious intrusion into a persons right to respect for their private and family life under Article 8 and domestic legislation has to provide “a tailored-made response” in this area. So this case will provide an invaluable opportunity for the Court to engage with the CRPD and further develop its jurisprudence on the right to legal capacity. Other human rights that will be engaged under the European Convention on Human Rights include:
Article 3 (prohibition of torture)
Article 8 (right to respect for private and family life)
Few are willing to make comparisons between this past year’s radical political activity in the UK – from the student protests to the major TUC demonstration – and the Tottenham riots. The reasons for this are fairly obvious: there is no unifying political goal of these ‘looters’, ‘hooligans’ and ‘thugs’. Theirs instead appears to be a ‘consumerism of the excluded’ – as someone quipped recently. But there is a common denominator – that is the role of the police in patrolling the fringes of ordered liberal society.
The response to every and any hint that the police might have behaved badly is remarkably similar in so many instances. Firstly, denial: ‘he shot first’, ‘he moved towards me’, ‘he was being restrained for his own safety’. Then, if the pressure is great enough and the evidence obvious enough: acceptance and repentance. This comes with promises that any bad apples will be sought out, plucked from the tree and binned. Then finally, when the fury has dissipated, charges and complaints are dropped, or one person takes the hit – rarely anything beyond a slap on the wrist. As Alex Wheatle says, for instance, no police officer has ever been convicted for the death of a black person in custody. This should not surprise us. The police will close ranks in an attempt to protect their own. The political and legal establishment will tolerate this to a certain extent. They recognise ‘the difficult job that officers do’. Yet, this type of reasoning misses the everyday and ordinary violence of the police, and by extension that of the state (and the law). A different way of looking at this emerges when we refuse to accept, for a moment, that police violence is automatically or necessarily legitimate. Continue reading “Violence at the Edge: Tottenham, Athens, Paris”→
Against the backdrop of much fanfare and polemic, France’s controversial prohibition on face-veiling comes into force today. The law has met with derision and scepticism internationally, and internally, from a surprising source, in the guise of a police union which “denounced” the law as “unenforceable”. The law, which was passed by the Senate in September, was motivated by a number of political concerns. First, it was rationalised with reference to the value of gender equality, and the concern that the republican state should take a stand against the symbols of gender oppression in the public square. Second, it was motivated by an idea that the much-cherished principle of laïcité, or secularism, should preclude “ostentatious” or threatening displays of religious affiliation in the public square. Third, it was thought that the imperative of republican civility, or what feminist Elisabeth Badinter bizarrely termed the “obligation of fraternity”, precluded the practice of hiding one’s identity in public. Fourth, and far from least, the recent populist turn of the French government and president, under pressure from the new leader of the resurgent National Front, has fed a parallel discourse surrounding the imperative of integrating Islam in French society. By this light, the “full” veil was perceived as an ostentatious marker of difference or segregation, an indication of creeping “balkanisation” or “communautarisation”of French society.
Last Friday, the French constitutional court handed down a judgment rejecting a challenge to the constitutionality of laws limiting marriage to persons of the opposite sex. This restriction was challenged as incompatible with the right to a “normal family life” contained in the preamble to the Constitution of 1946, and the principle of equality contained in the 1789 Declaration of the Rights of Man and the Citizen (both of these sources still have constitutional force). The applicants were denied their application to marry on the basis of references to “husband and wife” and “man and woman” in the Civil Code, which regulates the conditions of marriage. The essence of the judgment was that the regulation of the scope of the right to marry fell within the purview of the legislature, while the right to a “normal family life” did not imply the right to marry. The distinction between heterosexual and homosexual couples was held to be a legitimate one from the standpoint of the equality principle.
Below I have translated this quite brief ruling (please bear in mind that I am not a specialised legal translator. Also, official English translations of a small cross-sample of past rulings of the Conseil Constitutionnel are provided here).
The Conseil Constitutionnel, France’s Constitutional Court, handed down its ruling yesterday on the constitutionality of the legislative prohibition on the wearing, in public space, of “any dress intended to cover the face” . This does not directly refer, but is nonetheless broadly intended as encompassing, the Islamic burqa and niqab – the objects of much polemic in France over the past year. The prohibition is wider than that recommended by the Gerin commission report which had recommended a partial ban in schools, public transport, etc; furthermore, the validation of the Conseil Constitutionnel comes despite the earlier warning by the Conseil d’Etat, in its advisory capacity, that any such general prohibition might contravene the Constitution as well as the ECHR.
Following months of bruising polemic and debate, the French National Assembly – the lower house of parliament – has, as expected, overwhelmingly approved legislation prohibiting face-coverings in public spaces. Although phrased in facially neutral terms, the measure is broadly understood as being directed at the Islamic burqa and niqab. The bill will be debated in the Senate in September and is expected to be enacted shortly thereafter. However, in a response to concerns surrounding the constitutionality of the measure, the UMP majority has also announced that it will refer to the bill to the Conseil Constitutionnel, France’s specialised constitutional court (the Constitution allows the President of the National Assembly, amongst other political figures, to refer bills to the Conseil) . Concerns had been expressed in a recent report by the Conseil d’Etat that a full prohibition on Islamic face-coverings in all public spaces might raise several problems in terms of both the Constitution and the ECHR. Is it understood that the majority has referred the bill in order to remove any doubts as to its constitutionality, and therefore, has taken something of a political gamble on this front. The leader of the Assembly majority, Jean-François Copé, said “I want the measure to be submitted to the Constitutional Court before its promulgation in order that its application cannot be contested.” If the “sages” of the Constitutional Court adopt as liberal an approach to the issue as the Conseil d’Etat, it is conceivable that the government’s project may come unstuck.
Last month, a French-born convert to Islam (pictured left with Lies Hebbadj) was fined 22 euros in Nantes for driving while wearing a niqab on the basis that it was an impediment to her safe driving. This story has been elevated to the point where it threatens to prompt a change in French nationality law. Brice Hortefeux, the Minister of the Interior, called for her husband Lies Hebbadj to be stripped of his French nationality, complaining that Mr. Hebbadj was living in France with four wives and their children and defrauding the French state by having his wives claim welfare payments as lone parents. The Associated Press here raises the question of men ‘profiting’ from the welfare system by claiming benefits for multiple wives and children. It cites the experience of the organisation Nouveaux Pas which assists women who approach it seeking to leave polygamous marriages.
On International Women’s Day, the EU Commissioner for Human Rights, Thomas Hammarberg released a viewpoint which argued against restrictions on women’s religious dress. He stated that:
Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made proposals in such a direction even less convincing. Nor has it been possible to prove that these women in general are victims of more gender repression than others. Those who have been interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress themselves as they do. There may of course be cases where they are under undue pressure – but it is not shown that a ban would be welcomed by these women.
Hammarberg seems to be in something of an unfashionable minority.In the past fortnight, three significant stories have broken about the regulation, in France, Belgium and Quebec, of the niqab and burqa worn by some Muslim women.
The French Conseil d’État, in its capacity as advisory body rather than as administrative court of final appeal, yesterday issued a lengthy report, on the request of the Prime Minister, on the “legal possibilities surrounding the prohibition of the full veil.” This follows controversy and debate in France in recent months surrounding the wearing of the burqa in particular, the publication of the Gerin parliamentary report in January, and the report today that Belgium appears likely to become the first European state to legislate on this issue. In a measured, comprehensive and nuanced report, the Conseil concluded, somewhat predictably, that an outright prohibition on the wearing of the full Islamic veil would like contravene a number of provisions of the French Constitution as well as the European Convention on Human Rights (the report is published online here and the very useful summary here; it is unlikely, however, that either will receive an official translation into English).