The conviction of Marine Le Pen banning her from political participation for five years is a death blow to French democracy. It fits a new European trend in which the leaders of (right-wing) opposition parties are gagged through EU-subsidised NGOs and courts. A slippery slope in which the judiciary becomes entangled in the political debate.

By Arthur Blok and Paul Cliteur
Tens of thousands of supporters of Marine Le Pen took to the streets of Paris on Sunday to cheer for Le Pen. A historic demonstration against a Paris court’s political decision to ban Le Pen from contesting for the presidency in 2027.

The Front National leader called the move to ban her from running for public office “a denial of democracy.” Le Pen denies charges that she embezzled European Parliament funds. She was also given a four-year prison sentence, including two years of probation, and a € 100,000 fine.

Excluding politicians who are unwelcome to the left in the EU through the judiciary is evolving from the exception to the rule. In March, to illustrate, the Romanian electoral commission denied participation in the presidential election to a second “radical” right-wing candidate. The candidacy of 49-year-old Diana Sosoaca was rejected, following the commission’s exclusion of Călin Georgescu.

Georgescu was barred from further participation in November after winning the first round of Romania’s presidential election. The Constitutional Court canceled his victory, alleging that Georgescu “presumably” benefited from Russian interference. Salient detail: Georgescu’s appeal against this decision was rejected. As a result, he was permanently barred from participating in the elections.

Even in the Netherlands, right-wing opposition parties are routinely taken to court. In the past, several cases were brought against PVV leader Geert Wilders and FvD frontman Thierry Baudet.

To name a few, the German right-wing politicians of Alternative für Deutschland (AfD), Alice Weidel, Belgium’s Filip Dewinter (Vlaams Belang), and Giorgia Meloni of Fratelli d’Italia are also affected by this phenomenon.

Let’s zoom out and look at the larger pattern. It is evident that the incumbent parties, generally center left or center right, seek to exclude the radical right (sometimes disqualified as “far right”). They achieve this through a cordon sanitaire, with the help of the mainstream media, which, without exception, are funded by them.

The so-called “moderate parties” exclude cooperation with radical right-wing parties in advance. This cordon sanitaire is a form of undemocratic behavior. While it does not directly violate democracy (you can cooperate with whomever you want), it does violate what could be called a “democratic ethos”: cooperation with all parties who represent the electorate.

The elimination of candidates by the judiciary

However, apart from the cordon sanitaire, the middle parties have recently been making increasing use of the judiciary, attempting to use the courts to convict a political opponent. This is also referred to as “lawfare.” Lawfare is a contraction of “law” and “warfare.” It denotes the use of legal means and procedures as an unconventional method of warfare or to achieve political ends

For example, Geert Wilders was convicted in 2016 for group insult and incitement to discrimination. Namely, he had wished for “fewer Moroccans” in the Netherlands. The court found him guilty but imposed no sentence. On appeal, the verdict was upheld mainly in 2020. Incitement to hatred lapsed, but group insult was reaffirmed.

Again, no punishment.

Then one may object: but indeed, group insult is punishable? And if a politician indulges in group insult, surely he should be punished like any other citizen? Absolutely, but that punishment and prosecution happen every time to people on the right side of the political spectrum. And that punishment is often disproportionate, as we now see with the conviction of Le Pen.

Disproportionate punishment and exclusion from the right to stand for election, also known as the right to be elected, are becoming increasingly common. This is a problematic development for any democracy.

Could it be that the judiciary is increasingly presenting itself as the great fighter of the “radical right” or what is more insinuatingly called the “far right”? As soon as the radical right wins elections (or threatens to win elections), the candidates of those types of parties are “kaltgestellt” by the judiciary.

What is the lesson to be learned from this? That lesson is that a democratic rule of law should strike a balance between the democratic element and the rule of law element. Today, however, the rule of law cannibalises the democratic element.

Democratically elected politicians (or politicians from whom a democratic victory is feared) are increasingly being removed from the political process through judicial proceedings. This threatens to turn democracies into sham democracies.

After all, a democracy in which the judiciary can eliminate contenders to win elections in advance is a sham democracy. The election winner is then not a “real winner.”

This leads us to conclude that the judiciary is in great danger. That danger is that the judiciary is seen as the fighter of the “extreme right.” However, in a democracy, the “extreme right” should be countered by the “extreme left” or the “moderate left” through political debate.