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French democracy was lucky this time - but Marine Le Pen only has to be lucky once

The upwards progression of the far-right is now a permanent feature of the French political landscape. The constitution is vulnerable. 

Anne Applebaum, in her book Gulag, recounts an old Soviet joke about the trepidation felt by Ivan and Masha upon hearing a nocturnal knock at the door. Fearing that the NKVD, the dreaded Soviet secret police, has come for them, they open fearfully – only to breathe a sigh of relief when they learn that it is fact only the neighbours, come to let them know that the building is on fire.

The collective relief felt following Emmanuel Macron’s surprisingly decisive victory yesterday rather resembles the Muscovite couple’s reaction. Macron beat back Marine Le Pen’s Front National by a margin surpassed in modern French history only by her father’s 2002 humiliation. But the upwards progression of the far-right is now a permanent feature of the French political landscape. In the 2015 regional elections, the FN attracted 6.8m votes, its highest ever absolute total; this time it won a cool 10.6m.

For the time being, France has dodged the bullet, but there is no telling where the Le Pen clan will be at the next election, or the one after that. To paraphrase Margaret Thatcher’s wannabe assassins, the republic has to be lucky always; its enemies only once. The fact is that the constitution of the Fifth Republic is a deeply autocratic document, which maintains its veneer of democracy only as long as a democrat occupies its top office. And no provision in the constitution better reflects this unsettling truth than its most liberticidal provision, Article 16.

Article 16 is so rarely invoked that the aura surrounding it has been described by its leading scholar, Michèle Voisset, as “constitutional archaeology”. It is so obscure that, astonishingly, it barely features in the political debate at all. But it holds the key to understanding how the worst-case scenario of a Le Pen presidency could play out.

The text of Article 16 is vague. It authorises the president to take “the measures required by circumstances” in the event that France’s public services should cease regular functioning, in addition to one of France’s state institutions, national independence, territorial integrity, or international commitments having been compromised. To be invested with full powers, the president need then only broadcast “a message” to the nation, informing them that Article 16 has been invoked.

It is an astonishingly dictatorial and centralising provision. It is solely up to the president to determine whether the conditions for its activation have been met, and for what period they continue to be met. There is no legal limit to the length of time it can be maintained.

The Constitutional Council is notionally asked for its opinion on the matter, and again after 30 days, should parliament request it, but has no formal authority to limit its application. It has traditionally been argued that ignore an unfavourable opinion from the Constitutional Council would be politically difficult for a president.

But Le Pen has shown dismaying laxity in conforming to the rule of law. She threatened a purge of civil servants who aid a corruption probe against her, and refused to attend police hearings about alleged illegal use of European funds. It is certainly well within the bounds of possibility that she could, entirely legally, snub a critical ruling by the Constitutional Council as just another establishment conspiracy to undermine a legitimately elected president.

Then there is Article 16’s vague wording. Where do “the measures required” begin and end? It’s not up to the judiciary to decide: a 1962 ruling by the Council of State, France’s highest administrative court, defines decisions taken under Article 16 as “acts of government,” unsusceptible to legal recourse.

As for checks from the legislature, the balance of power is again heavily in the president’s favour. For as long as Article 16 remains in force, parliament’s usual legislative role is severely limited, with no ability to amend or repeal legislative measures passed by the president. Censuring the government, usually its prerogative, is likewise made a much tougher task.

If this all sounds rather dictatorial, that’s because it is. Voisset describes Article 16 quite simply as temporary dictatorship, with an ideological lineage which can be traced back to the Jacobin salut public committee, France’s executive government during the revolutionary Terror of 1792-94. The Jacobin belief that the duty of safeguarding the state exempts the government from normal notions of legality, justifying extreme inflexibility and authoritarianism, was later taken up by Charles de Gaulle as he was drafting the Fifth Republic’s constitution.

Article 16 has only been triggered once, by de Gaulle himself, following a 1961 attempted military coup by partisans of French Algeria. He was relatively restrained. Most of his decrees concerned minor reorganisations of the civil service; probably the most authoritarian was a tripling of the duration during which someone can be held on suspicion of having committed a crime, from five to fifteen days.

But de Gaulle was restrained only because he chose to be. The putsch was doomed to failure from the start, enlisting the support of barely 1,000 of 360,000 total troops. Their cause, in any case, lacked significant public support, a January 1961 referendum having overwhelmingly endorsed self-determination for Algeria.

A far-right president would be in a quite different position. As the record vote against the FN (rather than for Macron) shows, the far-right still viscerally repulses. But if Macron’s time in office fails to the degree that his predecessor’s did, perhaps just enough voters will be convinced to jump ship for Le Pen to coast to victory next time. But should she win, it would be due to a record low turnout and high abstention rate. She would be an untested and resented leader, with no parliamentary majority. Confronted with a hostile civil service, she would grasp for tools with which to impose her authority.

Faced with social unrest, riots against her government, and further terror attacks, who can predict with how Le Pen’s fondness for authoritarian leadership would push her to behave? For all we know, if she does trigger Article 16, her message to the nation might even take the form of a tweet.


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Britain's commemoration of Partition is colonial white-washing in disguise

It’s much easier to focus on the indigenous perpetrators of religious violence than on the imperialist policies that facilitated it.

While in London a couple of weeks ago, I couldn’t help but notice a curious trend in the British media’s coverage of the upcoming 70th anniversary of the end of British colonial rule in the Indian subcontinent. It wasn’t the familiar think-pieces about "the jewel in the crown", thinly disguised nostalgia for empire masquerading as critiques of colonialism (see for example, The Conversation’s piece on how colonialism was traumatic for, wait for it, officials of the British Raj). It wasn’t the patronising judgements on how India and Pakistan have fared 70 years down the road, betraying the paternalistic attitude some of the British commentariat still harbours towards the former "colonies". It wasn’t even the Daily Mail’s tone-deaf and frankly racist story about 92 year old countess June Bedani and her “loyal Indian houseman” Muthukanna Shamugam, who doesn’t even speak a word of “Indian” (that’s just classic Daily Mail). What got my attention was the British media’s raging hard-on for Partition - a flurry of features, documentaries and TV specials about one of the biggest and bloodiest mass migrations of the 20th century.

Just take a look at the major headlines from the past couple of weeks - "They Captured And Forced Him Out Of His Home: This Isn’t Syria In 2017, It Was India In 1947" (Huffington Post UK); "Partition: 70 Years On" (The Guardian, BBC and Independent, each with a different subhead); "The Real Bloody Legacy Of Partition" (The Spectator); "Remembering Partition: 70 Years Since India-Pakistan Divide" (Daily Mail) and many more. It isn’t that - unlike some of my more reactionary compatriots - I believe that the Partition story shouldn’t be documented and spoken about. On the contrary, I think India and Pakistan have failed to grapple successfully with Partition’s scars and still festering wounds, and the way it still haunts both our domestic politics and our relationship with each other. But the overwhelming focus on the grisly details of Partition by the British press is deeply problematic, especially in its unsubtle erasure of British culpability in the violence. Even the Guardian’s Yasmin Khan, in one of the few pieces that actually talks about the British role in Partition, characterises the British government as “naive and even callous” rather than criminally negligent, and at least indirectly responsible thanks to its politics of "divide and rule". Of course, it’s much easier to focus on the indigenous perpetrators of religious violence than on the imperialist policies that facilitated it. That would require the sort of national soul-searching that, even 70 years on, makes many British citizens deeply uncomfortable.

Rose-tinted views of empire aside, the coverage of Indian and Pakistani independence by the British press is also notable in its sheer volume. Perhaps, as some commentators have suggested, this is because at a time of geopolitical decline and economic uncertainty, even the tainted legacy of colonialism is a welcome reminder of the time when Britain was the world’s reigning superpower. There is certainly some truth to that statement. But I suspect the Brexit government’s fantasies of Empire 2.0 may also have something to do with the relentless focus on India. There is a growing sentiment that in view of historic and cultural ties, a post-Brexit Britain will find natural allies and trade partners in Commonwealth countries such as India.

If that’s the case, British policy-makers and commentators are in for a reality check. The truth is that, despite some simmering resentment about colonialism, most Indians today do not care about the UK. Just take a look at the contrast between the British and Indian coverage of Independence Day. While there are a handful of the customary pieces about the independence struggle, the Indian press is largely focused on the here-and-now: India’s economic potential, its relationships with the US and China, the growing threat of illiberalism and Hindu nationalism. There is nary a mention of contemporary Britain.

This is not to say that modern India is free of the influence - both good and bad - of colonialism. Many of the institutions of Indian democracy were established under the British colonial system, or heavily influenced by Britain’s parliamentary democracy. This is reflected both in independent India’s commitment (in theory, if not always in practice) to the ideals of Western liberalism and secularism, as well as its colonial attitude towards significant sections of its own population.

The shadow of Lord Macaulay, the Scottish legislator who spent four eventful years in India from 1834 to 1838 and is considered one of the key architects of the British Raj, still looms large over the modern Indian state. You can see it in the Penal Code that he drafted, inherited by both independent India and Pakistan. You can see it in Indian bureaucracy, which still functions as a paternalistic, colonial administrative service. And you can see it in the Indian Anglophile elite, the product of an English education system that Macaulay designed to produce a class of Indians “Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect.” It was this class of Anglophile Indians who inherited the reins of the Indian state after independence. It is us - because I too am a Macaulayputra (Macaulay’s child), as the Hindu right likes to call us. We congratulate ourselves on our liberalism and modernity even as we benefit from a system that enriched the few by impoverishing the many. This class of brown sahibs is now the favourite punching bag of a Hindu nationalism that we have allowed to fester in our complacency.

Still, ghosts of the past aside, the UK no longer holds sway over young India, even those in the Anglophile upper classes. Today’s young Indians look to the United States for their pop culture references, their global aspirations and even their politics, both liberal and conservative (see the Hindutva fringe’s obsession with Donald Trump and the alt-right). We still want to study in British universities (though increasingly strict visa rules make it a less attractive destination), but we’d rather work in and emigrate to the US, Canada or Australia. We drink coffee rather than tea (well, except for the thoroughly Indianised chai), watch Veep rather than Yes Minister, and listen to rap, not grime.

Macaulayputra insults aside, the British aren’t even the bogeymen of resurgent Hindu nationalism - that dubious status goes to the Mughal Empire. Whether this cultural turn towards America is a result of the United States’ cultural hegemony and economic imperialism is a topic for another day, but the special "cultural links" between India and the UK aren’t as robust as many Brits would like to think. Which is perhaps why the UK government is so intent on celebrating 2017 as the UK-India year of Culture.

Many in the UK believe that Brexit will lead to closer trade links between the two countries, but much of that optimism is one-sided. Just 1.7 per cent of British exports go to India, and Britain's immigration policy continues to rankle. This April, India allowed a bilateral investment deal to lapse, despite the best efforts of UK negotiators. With the Indian economy continuing to grow, set to push the UK out of the world’s five largest economies by 2022, the balance of power has shifted. 

The British press - and certain politicians - may continue to harbour sepia-tinted ideas of the British Raj and the "special relationship" between the two countries, but India has moved on. After 70 years, perhaps the UK will finally realise that India is no longer "the jewel in its crown". 


Bhanuj Kappal is a freelance journalist based in Mumbai.