Alliance des Démocrates Indépendants en Europe

I – Towards the downfall of democracy?

According to the traditional concept inherited from Jean-Jacques Rousseau, democracy is the political system in which sovereignty belongs to the people. President Abraham Lincoln summed it up in an excellent turn of phrase which is today included in a number of constitutions: ‘government of the people, by the people, for the people'. Therefore, in order for democracy to exist, it is not sufficient to make technical provision for the ‘right to vote and to stand as a candidate' (Articles 39 and 40). First we need a ‘people', i.e. a community of men and women who feel that they are heirs to the same history and who adhere to the same values and same political project to form a nation. But the Charter itself admits in its Preamble that there is no European ‘people', but ‘peoples of Europe'. So why then proclaim that the European Union ‘is based on the principles of democracy'? Can there be a supranational democracy? Can there be a democracy without a people?

A depoliticised super-State

In actual fact, the EU ideal is not ‘government' but ‘governance' and the ‘rule of law', in the sense of a depoliticised State, removed from the vagaries of popular will and successive majorities. Rather than being a sovereignty of peoples it considers itself ‘democratic' because it is based not on peoples but on that much-vaunted transnational ‘civil society' – i.e. various middlemen and pressure groups proclaiming themselves to be ‘representative' – which was officially invited to take part in the drafting of this Charter.

The shift began in Strasbourg, with a judgment of 31 July 2001, in which the European Court of Human Rights stated that ‘Democracy requires that the people should be given a role' (ECHR 31 July 2001, Refah Partisi, RD publ. 2002, p. 1493). So the people now have only a mere ‘role' which they are magnanimously ‘given'? Of democracy as a ‘government of the people, by the people, for the people' there is nothing left but a ritual reference to a reality deemed to be outmoded. That is probably why the democratic ‘Nos' of the French and Dutch in 2005 are now being circumvented, on the quiet, by a Treaty of Lisbon which is being presented as absolutely marvellous for citizens, but which our leaders are taking great care not to put forward for public approval via a referendum.

II – Towards new definitions of our fundamental rights

1) A disregard for freedom

The Charter of Fundamental Rights devotes an entire chapter to Freedom (Articles 6 to 19). From a philosophical point of view, up to now freedom has been regarded as a power of self-determination. The Charter, on the contrary, confuses it with “claiming rights”, i.e. simple powers to demand a service from others, such as the right to the ‘protection of personal data' (Art. 8) or the ‘Right to education' (Art. 14). We are seeing the citizen as the driver of his or her destiny being transformed into a passive consumer and the public powers as a service provider.

This Charter thus shows a certain disregard for freedom, which, according to legal tradition, has always been synonymous with ‘human dignity'. Now, Article 1 makes it into a higher, rival principle. In place of a liberating dignity the Charter is establishing a liberticidal dignity, making it, in its Preamble, subject to some rather odd ‘duties … to the human community'. According to this redefined principle of dignity, there is apparently an abstract ‘human nature' which has to be defined by the ruling classes and judges according to their own subjective assessments, to restrict the exercise of each freedom.

2) Public space and religion

The principle of the separation of the State from religion, which in France we call laïcite (secularism), is a fundamental, constitutional principle. French judges regularly enforce it, for example, by prohibiting civil service officials from manifesting their religious beliefs in the course of their duties (CE, opinion, 3 May 2000, Miss Marteaux, AJDA 2000, p. 602). However, Article 10 of the Charter appears to affirm the contrary, by proclaiming that freedom of religion ‘includes … freedom ... in public or in private, to manifest religion'. This is in fact taken from Article 9 of the 1950 European Convention on Human Rights, which we know is incompatible with the principle of secularism, following a judgment that was delivered by the Court of Human Rights in Strasbourg (ECHR, 15 February 2001, Mrs Dahlab v Switzerland, AJDA 2001, p. 480). In this case, the Court appears to accept, by converse implication, that public officials may wear a veil, arising from their religious beliefs, when in contact with adult users.

3) A Pandora's box of claims by “minorities”

The principle of equality, meanwhile, is the subject of Articles 20 and 21, which proclaim that ‘Everyone is equal before the law' and that any discrimination based, inter alia on ‘ethnic origin' or ‘membership of a national minority', shall be prohibited. However, this principle of non-discrimination does not exclude ‘positive' discrimination, i.e. that demanded by groups which consider themselves to be at a disadvantage because of a specific characteristic. The following Articles – 22 and 23 – give them the right to ‘specific advantages', pointing out that ‘the Union shall respect cultural, religious and linguistic diversity' (Art. 22) as far as national minorities are concerned. This apparently laudable principle of ‘non-discrimination' is worded in such a way as to brush aside the principle of equality before the law without distinction, and now concerns not only gender but also skin colour, religion, opinions...genetic features, disability, age and sexual orientation.

One can imagine what a Pandora's Box this is opening: ‘communities' of all kinds will now be able to go to court to call into question national structures and laws under the pretext of an attack on this or that specific feature. What is more, the Charter no longer protects ‘national or social origin', as the European Convention on Human Rights did, but rather ‘ethnic or social origin'. Communautairisms rather than political Nation, the origin of individuals rather than the wish of those individuals to live together : that appears to be the ideological matrix of this Charter. It is a budding challenge to the traditional concept of the nation state, the defining feature of which is that, on the contrary, it unites citizens who are equal before the law, with no distinction of race, origin, gender or religion, around that which they have in common, viz., a political project and a desire to live together, over and beyond any kind of specific characteristic, which is a matter for private life.

In spite of the activism of the lobbies which act in their name, let us remember that these so-called communities do not really want different treatment, but on the contrary, want a right to equality in indifference. Let us take the example of the famous ‘Proposition 227', through which the Latin American immigrants of California had to fight to obtain, by referendum, the abolition of the bilingual education imposed on their children. In their view, such education delayed their children's integration into US society by depriving them of equal opportunities… What an ironic backlash for the champions of communautairism !

Conclusion

Democracy and republican values are therefore at the dawn of a silent and unprecedented legal revolution. But does the Union really have the means to fulfil its ambitions? Nineteen out of 54 articles are taken almost word for word from the 1950 European Convention on Human Rights. This Convention was drawn up not by the European Union but by the Council of Europe, which has some 40 Member States and its own court, the European Court of Human Rights in Strasbourg (ECHR). In order to try to avert the risks of differences in interpretation between the courts of Luxembourg and Strasbourg, each court has been asked to bring its case-law into line with that of the other, so that the Member States of the two organisations are not split between the Charter and the Convention in a case of jurisprudential schizophrenia. The Union's accession to the Convention is therefore the solution that has been found to remedy this risk. But this accession will inevitably place the CJEC under the authority of the ECHR, since the Luxembourg Court's interpretation of the Charter will thus be subject, as far as these 19 ‘common' articles are concerned, to the Strasbourg Court's interpretation of the Convention. Does that mean that with regard to fundamental rights the EU will be dependent on another organisation? Is it not capable of inventing its own values, on which its political legitimacy should be founded? Does the Union not have any plausible justification that is not purely economic ?

CB