“Let’s not expect anything from the Constitutional Council.”

Dominique Pomppointe is a lawyer at the Paris Bar.

Sometimes a confusing short movie is shown during driving license points redemption courses. Teens gathered in a circle are shown throwing a ball at each other. Trainees are invited to count the number of passes. While in this mission none of them will see, in the middle of the film, an actor appearing in a Yeti costume who will slowly cross the stage from right to left, and will pass between the players, forcing them to veer in their direction. passes. Stopping in the middle of the circle, you will go so far as to greet the spectators with a wave of the hand.

This experience shows that a person whose attention is focused on a particular target may not notice a glaring event occurring at the same time in his sensory field. The same phenomenon occurred, but at the national level, in connection with a decision of March 26, 2020 of the Constitutional Council, which was shocked by the first imprisonment issued on March 17, 2020, and almost all the French did not notice after that that it had come, nothing more, nothing less, to destroy the foundations of our democracy.

With this unprecedented decision, the Constitutional Council agreed to allow the entry into force of a law passed in flagrant violation of the Constitution. Since this law was of an organic nature, the Constitution required a waiting, even in the event of initiation of accelerated adoption proceedings, for a period of fifteen days between the introduction of the bill and its first examination by Parliament (Article 46, al. 2). In this case, only 24 hours have passed. Violating the constitution was undeniable, but the Nine Guardians decided.”In view of the special circumstances of the case, there is no [avait] There is no reason to judge that this stat [avait] It was adopted in violation of the procedural rules stipulated in Article 46 of the Constitution(Decision No. 799-2020).

The law, the adoption of which was considered by the Constitutional Council as a justification for trampling on the Constitution, was intended to dissuade citizens, until June 30, 2020, from appropriating it in priority constitutional matters.

Dominic Pompon

«procedural rules“A period of fifteen days, when these concepts are mentioned, the observer, insensitive to the importance of respect for forms, is automatically inclined to think that if the Constitutional Council sacrificed these technical provisions, it was because it had no other choice, be it a law whose adoption was vital to the nation In the context of the epidemic bombing in March 2020 – eg to suspend elections or to allow the government to overcome temporary operating difficulty. only if.

The law, the adoption of which was considered by the Constitutional Council as a justification for trampling on the Constitution, was intended to dissuade citizens, until June 30, 2020, from appropriating it in priority constitutional matters. These questions, allowed since 2008, constitute an essential tool for protecting individual rights and freedoms guaranteed by the Constitution, by allowing any litigant (and no longer just parliamentarians) to challenge after it has been adopted (and not just before) the conformity of a law to the Constitution. We owe it to him, among other things, to eliminate the unequal treatment of pensioners from countries and territories formerly under French sovereignty (Decision No. 2010-1 QPC of May 28, 2010), and to improve the rights of police detainees. (Decision No. 2010-14/22 QPC of July 30, 2010) or more recently the affirmation of the principle of fraternity as a guarantee of the freedom to help others, for humanitarian purposes, regardless of the legality of their stay on the national territory (Decision No. 717/718 of 2018 of July 6, 2018) .

This is how the guardian of the constitution helped in its violation, ignoring the mechanism of protection of individual rights and freedoms guaranteed by (…)

Dominic Pompon

The deterrent effect sought by the law ratified on March 26, 2020 was obtained by suspending the three-month period that the Council of State and the Court of Cassation enjoy in normal times to decide whether a matter of priority regarding constitutionality is merited. The Constitutional Council. This deadline is necessary, if the question posed is not respected, it is automatically sent to the Constitutional Council. His suspension amounts to a loss of interest in any priority constitutional question which would, in particular, relate to laws relating to a state of health emergency, since these laws had their effects on history, which has become indeterminate, which question.. ultimately to the Constitutional Council.

Thus the Guardian of the Constitution assisted in its infringement, setting aside the instrument of protection of individual rights and liberties which it guaranteed at the exact moment when these rights and liberties were, in the first instance, a more serious challenge than at any other time in V.^e Republic, that is, at a time when citizens, precisely, desperately needed protection from possible excesses.

The government had no intention of obstructing its efforts to suspend our rights and freedoms. With his bill, he asked the Constitutional Council to temporarily take itself out of the game; which assumed that the latter not only agrees to withdraw, but also tramples on the Constitution; Unbelievable as it sounds, that’s what he did.

This is how Law No. 365 of 2020 dated March 30, 2020 was adopted, which despite the fact that it is entitled “Emergency response to the COVID-19 pandemicIt was, in fact, the complete opposite of the necessity imposed by the epidemic. Building on this momentum, it is not surprising that the Constitutional Council has been so accommodating of laws that, after the first enumeration, dictated by the government in the context of the continuing state of health emergency.

And so our nine chief justices, however able, in ordinary times, so much to weigh contradictory necessities, feel, before a mist of white coats, any power to judge.

Dominic Pompon

Thus, in its decision of July 9, 2020 (No. 803-2020), it ratified a law on the same day known as Exiting the State of Health Emergency that empowered the Prime Minister to restrict the freedom to come and go. Essentially, the Constitutional Council was satisfied with the temporary nature of these measures—something, in retrospect, that makes us smile bitterly—and declared itself incapable of assessing the opinions of the Scientific Council raising the great danger of an epidemic, which had already caused the epidemic to spread. This law inspired. Thus, our nine senior judges, however capable, in ordinary times, of so much to balance contradictory necessities, feel, before a mist of white coats, any power to judge.

twice repeatedly About the health pass, in its version that must retroactively qualify as soft, which was introduced under the May 31, 2021 law known as Emergency Exit Management. In its decision No. 819-2021 issued on this law, the Constitutional Council did not initially consider that the government, before submitting a bill, must submit an impact study (imposed by Law No. 2009-403 of April 15). , 2009) and the State Council opinion poll (imposed by Article 39 of the Constitution), the introduction of this device, with regard to “large” gatherings, has been circumvented by a government amendment. The scheduling is barely five days after the bill. He ruled that these obligations do not apply to the amendments, that’s all.

The thread was thick.

Then, on the merits, the Constitutional Council basically indicated the reasons for its decision of July 9, 2020: the health permit was set for only three months, so the measure is temporary (we can easily guess, today, what it will be. ) and is based on an opinion The Scientific Council estimates that there is still a significant risk of an epidemic spreading, a view the Council says it does not have the capacity to assess.

Temporary character and scientific board support, this is the acid in which our liberties fade, including the principle of the inviolability of the human body which can be considered insurmountable.

Dominic Pompon

With the approach of a law that, only six weeks after this moment of societal change that shaped the invention of the health card, will indeed reform this system to expand it by making it a condition of access to essential activities, by tightening its conditions to the goal of enforcing the vaccination obligation in fact it must be hypocritical Intolerable until it is denied, 180 degrees of assurances made by the Head of State at the end of last year (Emmanuel Macron’s tweet of December 27, 2020: “I’ve said it and I’ll say it again: the vaccine will not be mandatory. Let’s trust our researchers and doctors. We are the land of enlightenment and shepherd, we must be guided by reason and science”), a law that goes so far as to compel parents to vaccinate their children even if they are not exposed to serious forms of the disease, and we have no illusions whatsoever about the decision that the Constitutional Council will make if this provision is referred to. The provisional nature and the support of the Scientific Council, this is the acid that In him our freedoms fade away, including the principle of the inviolability of the human body which we may think is insurmountable.

Unfortunately, let’s not expect more from Parliament: since it is sure of its adoption, the government presents the development of the health passport announced on July 12 as obtained on its website, even before it is presented to the national representation. The law is supposed to allow this.

Perhaps most interesting is the opinion of the State Council, because last July 6, this eminent jurisdiction, in a brief action limiting its power to intervene to establish clear illegality, rejected a request to suspend health passage (Resolution No. 453505, La Quadrature du Net). He noted, among other things, that its use was not of concern to the matter “Daily activities, exercise of freedoms of worship, assembly, or demonstration“. Will he face the facts that from now on everyday life is reserved only for vaccination, or invent a reason that supports access to cafes, restaurants, shopping malls, hospitals and homes? Retirement and other medical and social institutions do not fall under “Daily activitiesWe shall soon find out, unless the Government yields to the stimulus given to it by the Constitutional Council’s decision of May 31, for the Government to re-maneuver the State Council’s avoidance of introducing, by amendment, the most questionable provisions of its Bill.