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PARLIAMENTARIANS URGED TO REFER GENOCIDE DENIAL LAW TO CONSTITUTIONAL COUNCIL
Reporters without borders
http://en.rsf.org/france-parliamentarians-urged-to-refer-26-01-2012,41771.html
Jan 26 2012
Dear Parliamentarians,
Reporters Without Borders would like to reiterate to you its concerns
about the proposed law aimed at combating "denial of legally recognized
genocides," which the Senate has just approved.
The substance of this law has been much debated but there are grounds
for questioning its constitutionality as well. The exchanges between
the law's supporters and opponents, involving leading figures and
going to the very heart of our fundamental rights, have been so
heated that even its supporters must realize that the Constitutional
Council's opinion is indispensible. We therefore urge you to demand
its referral to the Council.
There are four key aspects of the law that disturb us: a conflict
with the principle of the right to free expression, a lack of
proportionality between the offence and penalty, a violation of
parliament's competence and a lack of clarity in the wording.
We fully share the desire for justice expressed by our friends who
have campaigned for this law's adoption and we fully understand the
grief of victims' descendants. Combating genocide denial and the
hatred it fuels are obviously necessary and praiseworthy goals. But
we must stress that they cannot be achieved at the price of violating
the constitutional principle of free expression. Turning historical
fact into an unassailable dogma imposed by the state opens the door
to dangerous excesses. This is precisely what the Turkish authorities
do when they punish those who refer to the existence of the 1915
Armenian genocide.
What safeguards protect us from future excesses? Many genocides
clamour for attention and if legislators "recognize" a dozen of them
tomorrow, historical research will be turned into a minefield. Is
genocide denial in the process of becoming "the new blasphemy,"
as the jurist Henri Leclerc said ?
Contrary to another constitutional principle, the penalties envisaged
by this law are neither necessary nor proportionate. Envisaging
a prison sentence for abusing freedom of expression contravenes
the European Convention on Human Rights, the principles of the
Organization for Security and Cooperation in Europe and other
international obligations.
There is another issue that justifies submitting this law to the
Constitutional Council. As one of the Council's previous presidents,
Robert Badinter, said : "The French Parliament has not been empowered
by the Constitution to determine historical fact." Are parliamentarians
really doing the job they are supposed to do when they try to issue
judgments on world history? Does this comply with the principle of
separation of powers?
Finally, we note the arguments of the parliamentarian who said judges
should be allowed to distinguish between genocide denial that is
a deliberate action bordering on incitement of hatred and genocide
denial that simply stems from ignorance and propaganda. This is an
important distinction. But these nuances have unfortunately not been
reflected in a clear and precise way in the law.
How is a journalist, blogger or historian to decide when a comment
begins to constitute the "outrageous denial or minimization" that is
punishable under this law? A law's clarity is a quality cherished by
the Constitution because it makes its implementation predictable. If
a judge is not limited to strict interpretation of the law, he has a
degree of leeway bordering on the arbitrary, especially on an issue
in which there could be considerable social pressure.
Just as democracy cannot be imposed at gunpoint, so an evolution in
attitudes and national reconciliation cannot be imposed by a repressive
and draconian law, especially one adopted in another country.
I thank you in advance for the attention you give to our request.
Sincerely,
Jean-Francois Julliard Reporters Without Borders secretary-general
Reporters without borders
http://en.rsf.org/france-parliamentarians-urged-to-refer-26-01-2012,41771.html
Jan 26 2012
Dear Parliamentarians,
Reporters Without Borders would like to reiterate to you its concerns
about the proposed law aimed at combating "denial of legally recognized
genocides," which the Senate has just approved.
The substance of this law has been much debated but there are grounds
for questioning its constitutionality as well. The exchanges between
the law's supporters and opponents, involving leading figures and
going to the very heart of our fundamental rights, have been so
heated that even its supporters must realize that the Constitutional
Council's opinion is indispensible. We therefore urge you to demand
its referral to the Council.
There are four key aspects of the law that disturb us: a conflict
with the principle of the right to free expression, a lack of
proportionality between the offence and penalty, a violation of
parliament's competence and a lack of clarity in the wording.
We fully share the desire for justice expressed by our friends who
have campaigned for this law's adoption and we fully understand the
grief of victims' descendants. Combating genocide denial and the
hatred it fuels are obviously necessary and praiseworthy goals. But
we must stress that they cannot be achieved at the price of violating
the constitutional principle of free expression. Turning historical
fact into an unassailable dogma imposed by the state opens the door
to dangerous excesses. This is precisely what the Turkish authorities
do when they punish those who refer to the existence of the 1915
Armenian genocide.
What safeguards protect us from future excesses? Many genocides
clamour for attention and if legislators "recognize" a dozen of them
tomorrow, historical research will be turned into a minefield. Is
genocide denial in the process of becoming "the new blasphemy,"
as the jurist Henri Leclerc said ?
Contrary to another constitutional principle, the penalties envisaged
by this law are neither necessary nor proportionate. Envisaging
a prison sentence for abusing freedom of expression contravenes
the European Convention on Human Rights, the principles of the
Organization for Security and Cooperation in Europe and other
international obligations.
There is another issue that justifies submitting this law to the
Constitutional Council. As one of the Council's previous presidents,
Robert Badinter, said : "The French Parliament has not been empowered
by the Constitution to determine historical fact." Are parliamentarians
really doing the job they are supposed to do when they try to issue
judgments on world history? Does this comply with the principle of
separation of powers?
Finally, we note the arguments of the parliamentarian who said judges
should be allowed to distinguish between genocide denial that is
a deliberate action bordering on incitement of hatred and genocide
denial that simply stems from ignorance and propaganda. This is an
important distinction. But these nuances have unfortunately not been
reflected in a clear and precise way in the law.
How is a journalist, blogger or historian to decide when a comment
begins to constitute the "outrageous denial or minimization" that is
punishable under this law? A law's clarity is a quality cherished by
the Constitution because it makes its implementation predictable. If
a judge is not limited to strict interpretation of the law, he has a
degree of leeway bordering on the arbitrary, especially on an issue
in which there could be considerable social pressure.
Just as democracy cannot be imposed at gunpoint, so an evolution in
attitudes and national reconciliation cannot be imposed by a repressive
and draconian law, especially one adopted in another country.
I thank you in advance for the attention you give to our request.
Sincerely,
Jean-Francois Julliard Reporters Without Borders secretary-general