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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