Sunday, February 24, 2008

Circumventing the Constitutional Council

I've said my piece on the merits of the security retention proposal, on which the Constitutional Council has just ruled. Although the CC in essence approved the Dati law, which allows repeat offenders deemed under specified procedures "unrehabilitated and incurable" to be held beyond the expiration of their legal sentences, it refused to allow retroactive application to offenders convicted before the law was passed. Sarkozy wants to circumvent this ruling by appealing to the Cour de Cassation. Critics say that this maneuver is not allowed by the Constitution.

I am not by any means an expert in French constitutional law, but the appeal does seem to contradict the popular (though perhaps erroneous) notion that the CC plays a role analogous to that of supreme constitutional courts in other countries. It will be interesting, in any case, to see how this institutional ambiguity is resolved. I recall the somewhat ominous words of Carl Schmitt: "The sovereign is he who decides on the exception." Sarkozy, by raising the specter of an impending emergency if currently held dangerous offenders are released, is bidding to make himself the Schmittian sovereign. In a democracy, of course, the people are supposed to be sovereign, but since the voice of the people is always open to interpretation, and since the people speak at any given moment with the many tongues defined by the existing institutional structure, it remains to be seen who in this case will speak the loudest, and which proxy for the people will prevail.

Of course, in fairness to Sarkozy, it should be said that there is something disturbingly inconsistent in the ruling of the Constitutional Council. Once the principle of security retention is admitted on the grounds that some repeat offenders are too dangerous to release back into the population, and that this dangerousness can be ascertained objectively by competent authorities, then it is hard to understand why the ex post facto determination should become an obstacle to enforcement. It is hard to escape the conclusion that the CC is motivated mainly by the wish to save appearances, to establish itself as an independent entity rather than a rubber stamp for the executive, but unwilling to articulate a principled ground for its mild and very partial dissent. It has conceded the major point but quibbled about a minor one. Its decision is hardly a monument of constitutional jurisprudence.

A real dissent could have been built around the Badinter position: that punishment is reserved for acts, not conditions, and that confinement for a condition is an invitation to tyranny. But the CC was not willing to go that far. My feeling is that it was right not to do so but that the distinction it invokes utterly fails to draw the kind of bright line between permissible and impermissible confinement necessary to meet the concerns properly though hyperbolically raised by Badinter. To do that would have required some examination of the actual procedures envisioned for evaluation of the "dangerousness" of prisoners. If the CC had imposed procedural safeguards not currently required by the Dati law, it might have served a positive purpose with its dissent, but perhaps it lacked, or thought it lacked, the power to do so. Since the CC has so little history, however, it is still in the process of staking out its territory. The powers of the US Supreme Court were not only given in the Constitution; they were also won in combative practice. But Jean-Louis Debré is no John Marshall, and Jacques Chirac is not Oliver Wendell Holmes Jr.

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