Politics
On trial for the crime of being wrong
Published 12 February 1999
A manslaughter charge against a former PM could cripple French politics. By David Lawday
It is time to worry when the judges at a special trial devise new robes to enhance their dignity. One wonders where the law's splendour is straying. Too far, by the look of it, in the trial in France this week of a former prime minister and two of his ministers. The event is exceptional because of the status of the defendants and the crime they are charged with: manslaughter. It is also a travesty.
The state holds extraordinary power in France. Not only does it decide most things, the French look to it to decide most things. The other side of the coin is that they blame the state when things go wrong. Who else is there to blame? The way to confront government failure, in France as in Britain, is to vote a government out of office. But the familiar sanction has taken an ominous turn in the case of the Socialist former prime minister Laurent Fabius. He may go to prison because the state at whose helm he stood in 1985 knew too little about Aids to confront the disease effectively.
The affair is a horror story. France's transfusion bloodstocks had become tainted by the Aids virus in the early 1980s because there was no pre-testing of donors. More than 5,000 people, including hospital patients and fully half of France's haemophiliacs, became infected. Hundreds have died. Victims and their relatives have received compensation, albeit belatedly, but the whole affair has left such ugly scars that public opinion demands a designation of responsibility. Only the pinnacle of the state will do.
There are, to be sure, some sinister corners that need peering into. It seems clear that arrogant health service bureaucrats mistook their ministry for the commerce department. Action to clean up blood supplies was delayed because they preferred to wait until a French Aids-testing system became available rather than use an American one already on the market. Bully for French protectionist instincts. A pair of bureaucrats have served prison terms for letting these demons get the better of them. A further score of state health officials will soon be in court charged with having a part in "poisoning" victims.
The larger issue - because France's political being is at stake - is Fabius and his social affairs and health ministers. The victims' resentments are more than understandable, but it takes a cynical turn of mind to suggest that Fabius, a capable young Socialist leader out of the classic French political-administrative mould and these days a deeply withdrawn speaker of the French National Assembly - used his office to kill his compatriots. If this isn't what the involuntary manslaughter charges against him suggest, then they pretend at the very least that his government's policy was to turn a blind eye to the Aids carnage.
The accusation confuses criminal responsibility with political responsibility. Here is the travesty. The unique role of the Court of Justice of the Republic before which Fabius stands is to try public officials for misdeeds committed while in office. Neither it nor its predecessors have sat to try ministers for half a century. It is composed of 12 members of parliament and three professional judges, all fitted with the same new black robes created to lend politicians and professionals alike the right judicial gravitas. This case, though, is not akin to Pinochet and his misdeeds. It is more like Gorbachev and the horror of Chernobyl. Policy that falls disastrously short. Policy that doesn't work out. Policy that is (but only with hindsight) flawed.
Your crime, the former premier is being told, is to have been wrong. This is not far different, as Fabius' defenders argue, from Leon Blum, a prime minister of the 1930s, being charged by the wartime Vichy regime with failing to avert France's military defeat. Or, to bring things closer to home, suppose autonomy for Scotland led one day to a sharpening of swords either side of Hadrian's Wall and blood were to flow. Should Tony Blair the constitutional reformer be in court for manslaughter?
The danger is obvious. The conviction of Fabius could cripple government in its essential task, which is making policy. Relax speed limits, say, with the goal of keeping traffic flowing and the PM will land in jail if the death toll rises.
Even with the Aids-test delays, France under Fabius applied mandatory testing to ensure clean blood supplies before Britain or America got round to it. And even supposing Fabius himself sanctioned delays, which he may or may not have done, medical uncertainty and plain ignorance about the Aids virus in those early days offered what seemed like legitimate reasons for doing so.
Medical opinion was (again with hindsight) laughably divided on the dangers. Since most countries, Britain included, failed to take immediate measures that we now realise could have helped combat the disease, France's chief distinction is that it alone has called its political leadership to legal account.
Why? First the paramount position of the state and a consequent popular hankering to make it carry the blame. But the trial also coincides with the emergence from "hiding" of France's judiciary, as examining magistrates - the derided "little judges" long known for doing as they were told - strike out for independence and enjoy having the last laugh over corrupt and hitherto unassailable politicians and business leaders. This is the corps that has forced the state into the dock. Their theory is Lord Acton's, that there is no worse heresy than that high office sanctifies the holder. The trial could serve some purpose if it curbs the arrogance of an overbearing state. That, unfortunately, is small compensation for the threat to the political process.
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