Consultant and political analyst, Mathieu Slama works for several media, notably Le Figaro and Le Huffington Post. He has published
The War of the Worlds, Reflections on Putin's Crusade Against the West
, (ed. De Fallois, 2016).
In the endless crisis that has overwhelmed us for a year and a half, there is an intangible, almost comforting landmark: the consistency with which the government has never ceased to withdraw and to hysterize the debates. We are now used to broken promises, to actions taken without any real basis, to provocative little phrases, to permanent reversals. The current sequence, where yet another extension of the state of health emergency is being discussed, is therefore no surprise to anyone.
From the start of the pandemic, a very clear political choice was made: the fight against the virus will not be done democratically. It is this assumption, undoubtedly inspired in part by the countries which had put in place the first containment measures such as China and then Italy, which dominated the entire political response to the health crisis. Hence the establishment of a state of health emergency, which gave the government the opportunity to decide on measures seriously undermining the rule of law such as confinement or even curfews. The state of health emergency is a state of exception, that is to say that it derogates from the rules of the rule of law on the grounds of exceptional circumstances.
The trivialization of the state of emergency is perhaps the biggest fault of the government of Emmanuel Macron.
Mathieu slama
The “health vigilance” bill currently under discussion is based on the same principle. Beyond the fact that it leaves the executive the possibility of using the health pass until July 2022, this bill includes something even more serious: the possibility for the executive to declare by decree a state of health emergency for a period of one month (period after which its extension can only be decided by Parliament). In the context of this state of health emergency, the measures most detrimental to our fundamental rights and freedoms can therefore be taken by simple decree, without any control by Parliament. This law therefore gives,
de facto
, almost full powers to the government.
The trivialization of the state of emergency is perhaps the biggest fault of the government of Emmanuel Macron. Safety and health laws have considerably weakened the rule of law, instituting measures that would have been unthinkable just five years ago. Freedoms are constantly on the decline, demonstrations are more and more supervised, surveillance mechanisms have become generalized (the law for global security provides, for example, for widening access to images from security cameras. video surveillance and the authorization of the capture of images by drones), while punitive and disciplinary measures constituted the normal mode of government during the health crisis. Essential taboos have fallen,such as medical confidentiality or the principle of non-discrimination.
To read also Mathieu Slama: "The government plans to extend the health pass for electoral reasons"
The health pass, which the Italian philosopher Giorgio Agamben described, during a recent hearing before the Italian Senate, as a "
legal monstrosity
", is indeed a discriminatory measure unprecedented in our democratic tradition, which consists in punishing social death. any citizen not adopting the behavior expected of him (in this case: getting vaccinated).
This disciplinary logic is not totally new (behavioral taxes, for example, are based on a similar principle), but never has it been expressed in such a brutal way.
The trivialization of the state of emergency contributes to this softening of minds, and this deleterious climate in which this type of measure appears, in the eyes of the majority, as acceptable and even desirable.
At the same time, the checks and balances have collapsed. The National Assembly has been reduced to a simple registration chamber, the opposition is guilty of weakness, and the constitutional judges have betrayed their mission by validating all the measures taken by the government. Ironically, a few weeks before validating the bill currently under discussion in Parliament, the Council of State released a report worrying ... about the trivialization of the state of emergency. We will also note the indefensible lightness of the deputies, who were not even 200 to vote for article 1 of the bill on health vigilance (the most important article). If we measure the quality of a democracy in the existence and the effectiveness of checks and balances,so ours is in bad shape.
We are therefore witnessing in a way the birth of a new concept, the “state of vigilance”, which justifies the most liberticidal measures in the name of prudence and precaution.
Mathieu slama
Let us add to this that the government invented a state of emergency without urgency, since the epidemic situation is now under control, and the vaccination rate of the population is very high. What justifies the exceptional measures taken is the prospect of an epidemic rebound, and what Olivier Véran calls "vigilance". We are therefore witnessing in a way the birth of a new concept, the “state of vigilance”, which justifies the most liberticidal measures in the name of prudence and precaution. Here again, the government trivializes the state of emergency by justifying it not by the urgency of the current situation but by the hypothetical urgency of the future situation. In the name of vigilance, power therefore prolongs the state ofexception and even plans to make the validity of the health pass conditional on obtaining a third dose of vaccine, while at the same time putting an end to free tests, condemning even more the unvaccinated to the social ostracism.
A majority deputy even tabled an amendment to the health vigilance bill which opens the possibility for employers to set up the health pass in their company, regardless of the sector concerned.
This amendment will be
rejected
a priori
but there may be, in this personal initiative, a trial balloon launched by the government to test public opinion on the generalization of the health pass in companies (as is the case today 'hui in Italy).
It would not be the first time.
What we would like is for this crucial question to become a subject worthy of interest for the various presidential candidates.
Mathieu slama
Ultimately
, it
does not matter
whether the health pass is extended or abrogated. It will be repealed sooner or later, by force of circumstances. What matters, much more fundamentally, is the major paradigm shift that we are witnessing. When the exception becomes the norm, and when the rule of law becomes, in the eyes of our leaders, a secondary thing and worse, an obstacle to be circumvented in order to lead the country in times of crisis, then we must recognize that a turning point considerable policy is taking place.
Before the Italian Senate, Giorgio Agamben described this paradigm shift in these very apt terms: “
The model that is being undermined is that of parliamentary democracies with their rights, their constitutional guarantees. And in their place takes over a paradigm of government in which, in the name of biosecurity and control, individual freedoms are doomed to face increasing limitations. Security and urgency are not transitory phenomena, but constitute the new form of governmentality
”.
What we would like is for this crucial question to become a subject worthy of interest for the various presidential candidates who are now focusing on issues that are undoubtedly important, but basically quite secondary in the face of the serious democratic crisis which overwhelms us for years and which seems to have no end.