To the question: "
Do you know people who are eligible for vaccination but who are not?"
", The deputy Aurore Bergé answered this Thursday at the microphone of France Info:"
Unfortunately there are some in the National Assembly
".
This statement by the elected LREM aroused serious questions among journalists and sowed doubt among their listeners.
So the health pass would not be compulsory for the deputies when they exercise their functions within the Hemicycle?
This question was in fact already clarified last July.
Read also Health pass: the challenges of a text affecting freedoms
During this period, LREM deputy Stéphanie Rist proposed an amendment to apply the health pass to the National Assembly. His argument is simple: it is a “
concern for exemplarity
”. “
It is normal that we are also subject to the same rules as our fellow citizens. Moreover, the National Assembly being a place of mixing of hundreds of people coming from different regions, it is a place particularly sensitive to contamination
”, argued Stéphanie Rist then, as well as about fifty other deputies in favor of this amendment.
However, the measure does not see the light of day since it is not even presented in public session. In question, the unconstitutionality of the measure, which would prevent the deputies to carry out their parliamentary work freely. When this amendment was announced, the LREM president of the Assembly, Richard Ferrand, warned the deputies at the origin of the text: the application of the health pass in Parliament cannot pass the control of the Constitutional Council. .
In fact, the "
free exercise of the parliamentary mandate
" is guaranteed by a decision of the constitutional judges of 2008 which is based in part on Article 6 of the Declaration of the Rights of Man and of the Citizen (DDHC) as well as the Articles 26 and 27 of the Constitution.
In fact, requiring the presentation of a health pass to vote in the National Assembly or the Senate would violate these constitutional rights and therefore undermine democracy.
Read alsoCovid-19: why conditioning the health pass to the third dose is not easy
It is therefore a respect for sanitary rules through self-discipline that applies to the Palais Bourbon. Until July 1, a half-gauge within the Hemicycle was thus established to limit the spread of the virus. It can also happen to Richard Ferrand to challenge a deputy to ask him to put his mask back on, for example. The situation also occurred a few days ago when the President of the Assembly invited François Ruffin to respect this rule, which did not fail to make the deputy smile. "
Sorry, we are not at the Élysée
», He quipped. The elected LFI here referred to a video posted on the Instagram account of the Variétés Club de France where we can guess the President of the Republic, Emmanuel Macron, singing, without a mask, during a party at the Elysee after a charity football match.
However, the so-called "
relaxation
" places of deputies and senators are subject to the verification of the QR Code: they are not considered to be protected by the Constitution. The deputy Martine Wonner (not registered) for example, muse of the anti-ax movements, is often in the forefront of anti-sanitary pass demonstrations. Without a pass, she can therefore be refused access to the Assembly refreshment bar, the cafeteria or restaurants if she is not tested beforehand. “
I was quite surprised to see that a health pass was requested in these places internal to the Assembly. As I am being tested to take the train and come to Paris, I have a QR code, and this measure does not prevent me from going for a coffee for example
".
Regarding the Hemicycle, the member for Bas-Rhin, follower of controversial outings on the subject insists: “
I have eccentric colleagues who would like to impose the pass in all companies or in all possible places, including the Assembly.
But it is a constitutional right, nothing can prevent parliamentary work
”.
More moderate in its vision of the vaccine and in that of the health past, the vast majority of deputies nevertheless come to the same conclusion.
This is the case of Dimitri Houbron (Agir Ensemble), deputy from the North: “
The right to access the Hemicycle is inalienable and it is therefore impossible for us to have recourse to a restriction such as the health pass.
The question is not to agree or not: it is just constitutional
”.
Balance and proportionality
The Palais Bourbon is not the only one to be protected from the health pass by the Constitution.
This is also the case for places of worship, for example, during religious ceremonies and worship activities.
Indeed, article 47 of the decree of June 1, 2021 provides that access to “
masses, prayers, celebrations, weddings, etc.
” cannot be subject to the possession of a health pass.
Like Parliament, these places also enjoy constitutional protection as well as protection by the European Convention on Human Rights.
In fact, the State undertakes to make the exercise and practice of worship possible, even in the event of a health crisis.
"
The criterion which is verified by the Constitutional Council like the Council of State in this situation, it that of the proportionality between the freedom in question and the general interest, in this case the management of the epidemic
," explains Benjamin Morel. , lecturer in public law at the University of Paris-II.
Freedom of worship is enshrined in fundamental texts, which is not the case with discotheques, for example.
It is therefore this fairly classic reasoning which makes it possible to impose or not the health pass ”.
Read alsoThe day when the National Assembly became a "
cluster
"
The same reasoning concerns the freedom to come and go, and therefore the freedom to take the metro or public transport. “
People often wonder why the health pass is required in restaurant terraces and not in the metro. In reality, if the pass in restaurants can impact freedoms such as that of trade, imposing it on transport would have a much greater impact on coming and going or working
”, which are therefore protected by the Constitution. .
The principle is roughly the same for demonstrations, although they are less protected by the Constitution than places of worship or Parliament.
“
The right to demonstrate is recognized in case law by the Constitutional Council under the name of“ right of collective expression of ideas and opinions ”and the European Convention on Human Rights is very clear on this subject”
, continues Benjamin Morel .
If, in theory, this right can be moderated for questions of public order and in particular of health, "
the criterion of proportionality also takes into account the current health situation and the risks of the virus spreading.
".
As it stands, therefore, it seems unlikely that the balance between the freedom to demonstrate and the general interest tilts against freedom.
