ER Editor: French independent magazine Basta! interviews a judge and member of the magistrates’ union below, Sarah Massoud. The state of health emergency, extended to July in France (and beyond?), allows all sorts of exceptional legal powers that violate civil liberties in normal times.
But when does the exceptional case, abusive as it already is of individual freedoms, become normalized?
France had its lockdown lifted on May 11, but there are still some restrictions of movement in place, with a requirement to wear a mask on public transport, to limit large gatherings, etc., etc. Further, the state is still allowed to impose isolation and quarantine on citizens on medical grounds. At ER we have documented how imprecise testing for the coronavirus is, how relatively non-lethal the disease is anyway, how weak a virus it is (it dies at 18 degrees celsius), that herd immunity may have been largely acquired, that antibody testing is highly unreliable, &etc. That any such restrictive measures are being implemented for something of no more consequence than the flu is very worrying. The French health minister is now bending science beyond recognition to say that the virus is still continuing, i.e. that it is not seasonal despite the pre-summer weather.
Below, Judge Sarah Massoud notes with concern the vagueness and the mission creep of the state of medical emergency, that it isn’t proportionate to the actual health situation at hand, and that following the normal Public Health Code would be entirely sufficient. Legal reforms, she notes, have favoured ‘public order’ over civil liberties during the last 20 years, and that Parliament has lost its monitoring capacity.
State of emergency measures taken in 2015 to combat terrorism were abused by being applied to normal protestors, such as the Gilets Jaunes. She now fears that the new ‘terrorist’ may become the asymptomatic covid patient.
Which is basically any one of us.
State of health emergency: “The figure of danger was the terrorist, tomorrow it will be the sick man.”
The state of health emergency in France has been extended until July. It allows the government to limit authorized movements and impose isolation and quarantine measures. This new state of emergency is reminiscent of the 2015 state of emergency against terrorism. These emergency provisions are in danger of becoming permanent,” warns Sarah Massoud of the Judiciary Union. Interview.
Basta Magazine: Does the law extending the state of health emergency as finally adopted on 11 May seem to be less dangerous for liberties than the initial draft?
Sarah Massoud : The final text is less harsh in terms of attacks on individual liberties than the initial bill. But there is still in the final law extending the state of health emergency a philosophy that remains, and which we contest, that of the tropism of the exception (ER: we take it to mean the privileging of the exceptional situation, to the point that it becomes dangerously normalized over time). The text has been amended in a rather favourable direction on the question of the Covid patient follow-up file, but we must remain very vigilant on its implementation .
With regard to isolation and quarantine, which already existed in the law establishing the state of health emergency , these measures take on a different and increased scope in the context of deconfinement. These are measures involving deprivation of liberty, as recalled by the Constitutional Council in its decision of 11 May on the law extending the state of emergency . As such, they are accompanied by a control by the Judge of Liberties and Detention [JLD], on which we fully agree. Deprivation of liberty requires the intervention of the judicial judge. The text provides for possible intervention by the JLD as early as 72 hours after the decision to place a person in isolation or quarantine. The JLD must then intervene if the measure is extended beyond 14 days.
Q. Do the liberty and custody judges know exactly what they are going to have to rule on? Do they have the means to do so?
We are concerned about the implementation of this new power insofar as the public service of justice has been asphyxiated for ages and operates in degraded conditions. For the moment , there is no information on how these provisions will be implemented, with what additional means or not, knowing that the resumption of activity of the courts is already very difficult. The period of lockdown has led to numerous postponements or cancellations of hearings, which justice personnel will have to make up for in still limited conditions. Moreover, we have no idea how many people will be affected. Isolation and quarantine are already applied in the overseas territories and departments, moreover without any judicial control before 11 May. In the French Overseas Departments and Territories, in just a few weeks, 1,500 people were affected.
Decisions to place people in quarantine or isolation will be taken by prefects, on a proposal from the regional health agencies, on the basis of a medical certificate which will be submitted to the judicial authorities. Apart from this medical certificate, it is not clear what will constitute these procedures. If we draw a parallel with care without consent in psychiatry [where the judge of liberties and detention intervenes after 12 days of hospitalization without consent], a non-negligible part of the hospitalization measures are finally lifted by the judges for lack of sufficient elements. With these health measures, the JLDs are still in the dark.
Q. Did your union believe from the outset that a state of emergency was unnecessary, that applying the public health code was enough?
When we made our first comments on March 25, we questioned the legitimacy of introducing such an exceptional regime. After several weeks of a state of health emergency, we noted an activism on the part of the administrative authorities, which had issued a plethora of prefectoral decrees and municipal decrees infringing on individual freedoms, often with disproportionate content and disconnected from the health objective. This unjustified normative productivism has confirmed our initial fears. Hence our opposition to the extension of this “crisis legality”. We believe that the provisions of ordinary law, in the Public Health Code and in other texts, are sufficient to organize the response to the health crisis, including reversing the lockdown. Our main fear today is that these exceptional provisions could contaminate ordinary law. We have bitterly experienced this in the past. The Human Rights Defender and the National Consultative Commission on Human Rights have also said so .
Q. Is this the parallel you see with the 2015 anti-terrorist state of emergency?
Totally. With the Silt law [law of 30 October 2017 “strengthening internal security and the fight against terrorism”], ordinary law has been completely contaminated by the provisions of the “anti-terrorist” state of emergency. The adoption of the Silt Act has enormous consequences in terms of individual liberties. Take the example of perimeters of protection. These are areas around and within which police checks are authorized, because there is a risk of terrorism-related offences being committed. However, we have found that these controls have in fact been carried out as part of social mobilisations, be it the May Day demonstrations, the Yellow Vests or the climate protests. These protective perimeters and police checks have been used to suppress social protest outside of any terrorist objective. The consequence is disastrous in terms of infringements of fundamental freedoms, such as the constitutionally guaranteed right to demonstrate.
This Silt Act is due to be reviewed by 31 December 2020. We are concerned that it will be further strengthened on that occasion. It is important to be aware that the reforms that have been taking place over the last twenty years or so have given precedence to the notion of public order over that of individual liberties. The public authorities’ dogma is security, even if it means using fear-based rhetoric. The figure of danger used to be that of the terrorist; today it will be that of the patient who has tested positive. In a few months’ time, the person to be checked and tracked down may be the asymptomatic Covid patient. There is always a target that allows the public authorities, under the guise of potential danger, to implement provisions that are highly prejudicial to civil liberties. And the risk, already rampant, is that of becoming accustomed to legislation of the worst kind.
Q. Nevertheless, there is resistance from various groups and associations, in particular the magistrates’ union…
But are we heard? Our positions centred on the defence of fundamental rights are too little taken into account in legislative work. Moreover, parliamentary control over these exceptional laws has completely dried up. It is even weaker today than it was under the anti-terrorist state of emergency. No evaluation is planned. There are only two fact-finding missions, to the Senate and the National Assembly. They do not have all the information enabling them to effectively assess the consequences of the state of health emergency, particularly in terms of infringements of freedoms. It is because this institutional evaluation is non-existent that we have set up a monitoring network, forced to make up for a dramatic deficiency in our institutions.
Q. Within this monitoring network, you dispute in particular the offence of non-compliance with containment?
We contest this offence in every respect. We already consider that repression is futile in order to enforce the rules established by the state of health emergency, especially in a context as specific as that of the current epidemic. Moreover, the fact of incurring a prison sentence because one is not able to provide a certificate, because one has forgotten the certificate or because one has left the house perhaps not for the right reason, seems to us to be totally disproportionate . 7] We challenge the legal construction of this offence. It is a legal UFO. The Court of Cassation, moreover, transmitted on May 13 to the Constitutional Council priority questions of constitutionality concerning this offence, on the grounds that it could undermine the principle of the legality of offences and penalties, and the presumption of innocence.
It should be remembered that more than 15 million inspections were carried out during the containment period, resulting in more than one million reports. This offence also revealed social inequalities that had already been noted elsewhere. Seine-Saint-Denis (ER: a large, heavily populated area to the north-east of Paris, with a large immigrant population) was the subject of far more inspections than other territories. This affected people who, economically, sociologically, were perhaps not able to respect the confinement as well as other categories of the population. This offence was further aggravated under the law extending the state of public health emergency, as the list of persons entitled to be reported was extended. This is not to implicate the law enforcement agencies, they may also be in difficulty because not all of them are trained in this type of control. It is difficult to know what is prohibited and what is not. There are a lot of texts that come out regularly, and government communication is very erratic. How can a rule be respected when the rule is so imprecise and fluctuating? Moreover, today, the rules are not the same in different regions. The fact that this state of health emergency is accompanied by a new health police force is of great concern to us.
Q. You also point out the risk of seeing the exception become generalized in the very way justice works?
These are dangers that citizens do not necessarily perceive. In civil or criminal proceedings, for example, derogatory (ER: i.e. exceptional) measures are nowadays justified in exceptional times: hearings by videoconference, an increase in the number of written procedures. We understand this as long as it is transitional, in response to health emergencies and the need for barrier measures. But we are very worried about seeing these derogatory methods of jurisdictional activity contaminate our usual operations. The more we practice these degraded methods, the more we risk getting used to them. The more we get used to them, the easier it is for the authorities to validate them later.
For example, we expect many of our colleagues to argue that videoconferencing is not that bad, and that, in the end, in the name of profitability, and faced with a chancellery that is deaf to our calls for help, dehumanised justice is required. It must always be borne in mind, and this has been proven in the past, that exceptional regimes serve as laboratories for the perpetuation of derogations. Derogations are an attack on individual freedoms.