Maxime Thiébaut is a Doctor of Law and author of
Gilets Jaunes, towards a real democracy?
, ed.
VA Press, 2019
“
Freedom is the rule, police restriction the exception
”.
These words of Councilor of State Corneille must guide any administrative authority attached to respect for our fundamental freedoms.
Thus, in administrative police matters, individual freedoms can only be limited to meet an objective of general interest or to be reconciled with other freedoms.
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Faced with the occurrence of Covid-19, the government reacted with the sole objective of preventing the saturation of hospital structures, yet well under way by decades of catastrophic policies carried out in terms of public health service.
He then took a radical solution: the confinement of the country.
The French then discovered an Institution hitherto unknown to the vast majority of them: the Council of State, and its competence as summary judge.
They understood that it could be seized by any citizen wishing to defend his rights and freedoms.
Some asked him for stricter confinement, which he refused, for lack of the executive power having sufficient means to ensure the supply of the population.
Others seized it to defend their individual freedoms.
History teaches us that he always shows a certain benevolence towards the action of our authorities when they undergo a crisis.
It is more interesting to dwell on the work of the Council of State after the summer period.
To understand it, it is important to bear in mind that its primary mission is to advise the government.
Everyone knows that when entering the Royal Palace where he sits, he is inscribed on the front door not the words "
Administrative judge
" but "
Council of State
".
And history teaches us that he always shows a certain benevolence towards the action of our authorities when they undergo a crisis.
This vigilant accompanist is obliged to espouse the philosophical conceptions of executive power.
He controls the legality of his action, striving not to appreciate the advisability of it, while having in mind the interest of the State.
In their office of summary judge, the members of the Royal Palace prescribe measures which, quickly implemented, allow a fundamental freedom to be safeguarded within a limited time.
To do this, they take into account the means available to the administrative authority.
The judge in summary proceedings is not intended to demand a public policy which would oblige the government to make significant investments or to achieve it over the long term.
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It is in the light of these details that I analyze the scope of its orders - this is how the decisions of the summary judge are called - with regard to the government's health policy.
I regret, however, that our State Councilors have followed the definition, both incomplete and unjust, made by the executive power of the right to respect for life.
Incomplete because life is not limited to physical health.
On the one hand, mental health has been particularly neglected.
Several reports do not fail to note the increase in the number of depressions or suicides, whether due to loneliness or the economic consequences.
We also abandoned our ancestors in their EHPAD during the first confinement, preferring their bodily survival to their happiness.
Is that what to show humanity?
I do not believe that.
Instead of admitting its mistakes and playing low profile, the Government preferred to impose its public policy through fear
On the other hand, life is not limited to the number of years added up.
Without going so far as to discuss the concept of life, to live is to accept the risk of dying in order to flourish and be happy.
Especially when the death rate from the coronavirus is less than 0.5% ...
This is why the definition made of the right to respect for life is unfair.
Unfair, because selfish.
Which civilization accepts to sacrifice its offspring?
To drown them in debt and abandon them to pauperization?
Our social contract is based on two foundations: ensuring the safety of the living and providing a better world for their children.
Here lies the ideal of progress which should guide us.
Our 14-year-old Fathers died for our Freedom.
Our generation is sacrificing its children.
These unborn beings also have rights and freedoms, which our individualistic society forgets even to conceive.
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With this mistaken conception of the right to respect for life, the Council of State must face the triptych of government action: fear;
infantilization;
nonsense.
It is expressed through antagonistic speeches, which discredited his words and actions, then through risky choices.
Difficult in these circumstances to maintain the bond of trust with the French.
Instead of admitting its mistakes and playing low profile, the government preferred to impose its public policy out of fear.
Like fickle parents in raising their children, the threat of the big bad wolf hidden in the forest was remembered every day.
Paralyzing his child with fear to make him obey, what parent has never used this last resort?
With great regret, of course, because it is synonymous with failure.
Failure in the pedagogical method used to impose its authority.
Fear paralyzes.
It paralyzes the intelligence.
It gives rise to a pressing need for security.
It is the ideal tool to infantilize the people
Our authorities have come to this: using fear to impose their restrictions.
The bad wolf hides behind every graph of the epidemic numbers.
We see the tail in the advertisements of the Ministry of Health.
In the announcements of "
war
" of the President of the Republic.
And its fangs threaten us with 400,000 deaths if “
nothing is done
”.
Fear paralyzes.
It paralyzes the intelligence.
It gives rise to a pressing need for security.
It is the ideal tool to infantilize the people.
Thus the restrictions can be wider, less precise, and therefore more liberticidal.
Wearing a mask is a good example.
It is even the symbol of this government's health policy.
First pointed out as useless, it was finally the subject of several restrictive measures.
Mayors who have made it compulsory around public buildings have seen their decrees suspended by the judge.
And this a few weeks before, finally, the government strongly recommends the prefects and the mayors to make it compulsory.
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Many then complied, taking general and absolute measures that two administrative courts, Strasbourg and Lyon, considered disproportionate in relation to the objective pursued.
We can only welcome these decisions in accordance with the classic proportionality test.
A control which aims to be objective and liberal, retaining the obligation to wear the mask only in the streets with high population density.
What is the point of forcing people to wear it at night or in almost deserted roads?
However, on appeal, the government explained to the Council of State that the French did not understand anything.
That they did not wear the mask where it was needed.
The executive branch argued that it was necessary to simplify the rules;
that it was necessary to accept the generalization of the obligation to wear a mask, so that the rule was correctly applied.
He never thought that his antagonistic speeches or the absence of appropriate signage at the entrance to the streets concerned could be the cause of these misunderstandings.
The government has actually defended infantilization of the French.
And the Council of State agreed with him.
Instead of making them responsible, (...) the Council of State admitted that it was not liberticidal to force them to carry it in deserted streets
Wrongly, in my opinion, the summary judge of the Palais Royal considered that the "
simplicity
" and "
legibility
" of a police measure, "
necessary for its good knowledge and its correct application by the persons to whom it is 'address, are an element of its effectiveness which must, as such, be taken into account
”.
Shamelessly, he operates here a subjectivization of his control.
Gone is the sacred freedom, the fetters of which must be solidly and objectively justified.
Simplicity and readability are essential.
So, to my great regret, he put his finger in the process of infantilizing the French.
Instead of making them responsible by telling them that they must wear the mask on their own initiative when they are in a busy street, he admitted that it was not liberticidal to force them to wear it in deserted streets ...
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An infantilization which then produces babies.
Thus, for sports halls, instead of prohibiting the practice of contact sports there, the Council of State considered that it was easier and more understandable to close them altogether.
To this infantilization are added the absurdities of the government when we look back at its restrictions.
We realize that the second confinement offers so many exemptions that it becomes less restrictive than a curfew supposed to be a deconfinement measure ... Likewise, we can crowd into the metro, the RER or the TGV, but it is forbidden to go to the cinema, the theater or the opera, places that are much more ventilated and where barrier measures can be easily imposed.
Also, the French congregate in department stores to buy their Christmas gifts, but restaurateurs cannot accommodate them in their establishments.
Faced with these absurdities, the list of which is by no means exhaustive, the Council of State comes to almost no longer justify its ordinances.
This is how he justifies the ban on the use of ski lifts by the sole "
persistence of strong pressure on the health system
" and the sole risk of "
epidemic rebound
".
As if the risk of falling ill on a chairlift or on a buttock was high ... The analysis is the same with regard to the request for urgent resumption of face-to-face courses in universities.
The gauges are allowed for businesses but prohibited for places of worship.
The God of Consumption had more rights than that of the Soul
Maybe our teachers should dress up as preachers of the Word of God Knowing.
So could they benefit from the gauge allowed at places of worship?
The Council of State had nevertheless shown on this subject a real revival of liberalism.
It must be said that the absurdity was more than glaring: the gauges being allowed for businesses but prohibited for places of worship.
The God of Consumption had more rights than that of the Soul.
They are now tied.
On the other hand, the God Knowing remains in pain.
The lawyer will reassure himself by telling himself that these ordinances will not be published in the Lebon collection;
this annual publication which references the major decisions of administrative case law.
This criterion of simplicity and readability will disappear - we hope - with the Covid-19.
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The fact remains that if there is a period during which our freedoms must be defended, it is during a period of crisis.
For now, the truce of freedoms has been announced, while that of the confiners will not take place.
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