It only took a few moments, on March 16, for the Head of State and his government, in the name of the fight against the coronavirus pandemic, to place the French under house arrest and deprive them of most of their freedoms civil, political and social that we thought inalienable: freedom to come and go, freedom of assembly, freedom to undertake, freedom to work, etc. Justice has almost been brought to a halt, lawyers confined, provisional detentions automatically extended, the police (understood in a very extensive sense since they include municipal police officers and the like) invested with full powers apply these custodial measures.
Containment without legal basis
This suspension of the rule of law was done without legal basis. Indeed, the decree of March 16 restricting the movement of citizens does not fall within the powers of the executive, since only a judicial judge, the liberty judge, can normally decide on an individual basis. Nevertheless, administrative justice, in this case the Council of State, validated it on the basis of the jurisprudential theory of “exceptional circumstances”, which is probably not its most inspired decision.
It was only on March 23 that Parliament gave a legal basis to the measures announced on March 17 by hastily passing the law creating a “state of health emergency” which authorizes the government to trigger it “in the event of a disaster. health endangering, by its nature and gravity, the health of the population ”, a particularly vague definition. This whole law cultivates vagueness, the offenses it provides for example leaving a large part to police interpretation and therefore to arbitrariness. Renewable by Parliament – possibly for a period longer than two months – it gives full powers to the executive, Parliament being stripped of its powers and reduced to the role of mere spectator. If the Assembly has not changed the government’s plan, the majority being what it is, the Senate, dominated by the classic right, has fortunately managed to introduce some safeguards in this improvised text and poorly put together in providing in particular that it will cease to apply in any event on 1er April 2021, unless a law to the contrary is passed. A fundamental clarification which the government services had curiously not thought of.
Not quite a dictatorship
It is remarkable that this exceptional legislation, justified by the use of a warlike language unique in Europe (“We are at war”) was not the subject of a referral to the Constitutional Council, the opposition, all as forbidden from terror as public opinion, having given up exercising its rights, an unprecedented fact, when it is a particularly serious attack on the rule of law. The constitutional judges were only seized on one point of detail, the suspension of the time limits to judge the questions preliminary of constitutionality (QPC), a provision which it moreover validated.
As long as the state of health emergency applies (until the end of July we have just learned), France is no longer a democracy, even if it is not quite a dictatorship. In his time, François Mitterrand denounced the “permanent coup” that were the institutions of the Fifth Republic. The coronavirus has made it possible to carry out this institutional logic. The head of state, relying on a submissive majority and facing non-existent opposition, seized all the levers of power by invoking the need to preserve the health of the French and a health emergency that he does did not want to see it coming, he who ten days earlier encouraged the French to continue living as before.
This parenthesis of the rule of law was accompanied by the brutal halt of a large part of the economy, a logical consequence of confinement. Above all, the government decided, without any consultation, which businesses could remain open, forcing companies to lay off more than 11 million private sector workers.
Lack of debate
It is truly staggering that these exceptional powers entrusted to the State to apply a brutal and without nuance confinement to an entire country, one of the hardest in Europe with those of Spain, Italy and Belgium , did not give rise to any debate, as if there was no other choice. However, never a democracy used in the past this method to fight against a pandemic (there was only partial confinements at the beginning of the previous century), in particular during the Spanish flu of 1918-1919, of the Asian flu of 1959 or of the Hong Kong flu of 1969. The fact that containment was a solution invented by China, a totalitarian regime, to contain the coronavirus pandemic should at least have questioned its legitimacy. However, it imposed itself almost naturally, all playing in reality when Italy took the decision to confine the whole of its population from March 10, which caused a domino effect, each wanting to show that he was also keen to protect its population: Spain imposed it on March 15, France on March 16, Belgium on March 18 …
However, there was room for debate and on all fronts. On the principle of containment itself first. Because it is only a stopgap aimed at slowing the spread of the virus and avoiding congestion in hospitals which could result in additional deaths. Clearly, the virus will continue to circulate and kill those it must kill after the containment is lifted – in a proportion that no one knows – since it does not exist and will not exist for one or two years a vaccine and that treatments are still in the experimental stage.
Containment is a political trap
Obviously, no one realized that it was going to be very difficult to get out of the containment once decided without political damage, a part of the public opinion risking to be self-persuaded over the days that it is in eradicating the disease. If the pandemic continues to kill, and it will, the government will be automatically accused of endangering the health of its citizens to save “the economy”, a swear word for some French people as if working for a living was secondary to health… In other words, the temptation will be strong to return to blind confinement to silence the controversies or to get out of them as late as possible, the path chosen by France after six weeks of state of emergency sanitary.
This is also why countries like Sweden, Switzerland, Germany or the Netherlands either have not adopted this strategy, letting life take its normal course, or have applied it with much more finesse, which made it possible to avoid passing through the box of exceptional powers entrusted to the executive and especially to break the economy.
Why confine an entire country?
This total foreclosure of a country is all the more questionable since whole regions were and are almost untouched by the virus: why impose the same treatment in Creuse as in Ile de France, in Puglia as in Milan ? Why not have it confined to the extent of the pandemic, just like Germany, where the Länder are competent in public health, has done with the success we know? Thus, from the start, two foci were identified in France: the Oise and Mulhouse. However, rather than reacting immediately by isolating these two regions and deploying military medical means to relieve hospitals, the government procrastinated, allowing the virus to spread. It remains staggering that it was not until March 24, a week after the decision to confine the country, that the military medical service was sent to reinforce Mulhouse! From there to think that total containment was also motivated by the inability of the authorities to anticipate the crisis, there is only one step that I will be careful not to take.
Similarly, the choice of companies to close and the precautions to be taken would also have been a possible area of discussion. For example, it quickly became known that air conditioning allowed the virus to circulate more than a meter and contaminate many people. So does closing shoe repair shops, art galleries or florists and leaving supermarkets open make medical sense? Likewise, was school closure necessary? All this was left to the discretion of a bureaucracy without control and without any consultation with all economic and social actors.
Why place an entire population under residence?
Finally, it appeared very early on that the disease was overwhelmingly fatal for people over the age of 70 (average age of death in Italy or France: 80) and those with serious pathologies, in particular clear the weak. Was it therefore rational to confine all assets and plunge the country into recession? Perhaps we should have focused on protecting these at-risk groups rather than putting a whole country under wraps without thinking of tomorrow, especially since we know full well that the virus is here for a long time.
The debate becomes, at this point, particularly emotional, because it refers to our relationship to death. Why has such a pandemic, which is not the first the world has faced and which is especially far from being the most deadly in history, led states to decide on unprecedented measures while knowing that they were not a cure? Why such a panic, especially when you compare the mortality caused by the coronavirus with that of other diseases? Although we must still be careful, since five months after its appearance, we still know very little about covid-19, which should warn us about the scientism that seized us, the doctors having said everything and its contrary to this pandemic, making political decision particularly difficult. However, let’s remember that 400,000 new cancers are diagnosed each year in France and that 150,000 French people die from it, and yet tobacco and alcohol are still not banned, while that would avoid much of it. If all life deserves to be saved, why be so casual about cancer? Similarly, seasonal flu (while there is a vaccine that a large majority considers dispensable) kill each year between 3,000 and 15,000 people (not to mention the more than 30,000 deaths from the Hong Kong flu in 1969 in a country of 51 million inhabitants or the equivalent number of deaths in 1959 in a country of 45 million inhabitants), seasonal respiratory infections 68,000 people, road accidents 3500 people to which must be added the disabled for life. And yet, no one has thought of banning the car (and every measure aimed at strengthening safety has its share of protests, remember the 80 km / h) or to make the fight against pollution or junk food a categorical imperative.
If we look at the statistics of mortality in the world, we see that hunger (yet easy and inexpensive to eradicate), malaria, AIDS or even wars (often made with the weapons produced by our industries) kill infinitely more than the coronavirus will ever kill.
Choose your comrade side, but there is only one good side, that of containment!
It would probably be necessary to question the responsibility of the audiovisual media in this panic which has taken hold of Western public opinion (with a German exception, German televisions having voluntarily decided to treat covid-19 in the place it deserves). Announce every morning the number of dead without putting them in perspective (compared to the usual average of the dead, their age, the comorbidity from which they suffered, etc.), devote entire newspapers to the pandemic can only shake even the best made heads … Imagine that every morning the number of deaths in France is truncated for all causes and that all the newspapers are devoted to it: who would still dare to simply live?
This is not to say that a death is immaterial, but simply that any public policy must be subject to a cost-benefit assessment. If we do not ban the sale of weapons, tobacco, alcohol, cars, trucks, thermal power stations, it is because collectively we believe that the cost would be greater than the benefit we would derive from it. But this debate, in the emotional surge that has been going on for two months, is in fact prohibited. Those who dared to question the chosen strategy and especially on its duration were pilloried by the most radical, those who are heard. To be opposed to the prolongation of confinement is to be for the “sacrifice” of those who are sick, “to spit in the mouth of the dead” and so on. In short, choose your comrade side, but there is only one good side, that of containment! I have even been threatened with death, myself and my family, by good people who believe that all life must be saved at any cost without the contradiction of their words touching their minds for daring to me. question in two tweets from April 9, three weeks after the start of confinement: ” It’s crazy when you think about it: plunging the world into the worst recession since the Second World War for a pandemic that has so far killed less than 100,000 people (not to mention their advanced age) in a world of 7 billion inhabitants. Seasonal flu, which kills especially young children, is between 290,000 and 650,000 per year worldwide. And everyone fucks, but serious. “
The worst recession of all time outside of the war (and more)
However, confinement will lead to an unimaginable recession by its violence: it should reach between 8% and 15% of GDP, an unprecedented decline in activity in peacetime (we must go back to 1942 to record a recession of -10 %). We have never brought an economy to a complete halt as we have just done, we must be aware of this. Partial unemployment now affects nearly twelve million workers (one in two private workers!) And the layoffs caused by thousands of business bankruptcies will number in the hundreds of thousands or even millions once the partial unemployment scheme supported by the state will expire (because it costs a fortune). And the longer the shutdown, the more difficult it will be to restart. The cost generated by the establishment of a social safety net and by economic plans will lead to an unprecedented deterioration in public accounts and the young generations who will have to pay twice for confinement: by the loss of their jobs and by raising taxes for those who will keep it.
It should not be forgotten that unemployment is also a health catastrophe, but more diffuse and therefore socially more acceptable: we thus estimate at 14,000 the deaths which it causes each year in France by induced diseases. And how not to speak of its procession of misery, hunger, social downgrading, etc. The effects of confinement are also going to have terrible consequences on the minds of French people, on violence against women and children, on their health (for example, early screenings for cancer, stroke, heart attack are suspended and nothing is known about suicides, etc.), about dropping out of school (how many children have simply disappeared from the system? ).
A lastingly weakened rule of law
Finally, to believe that public freedoms, democracy, will come out intact from this episode is just a sweet dream. The state of health emergency will remain enshrined in our law for a long time exactly as the state of emergency, launched in 2015, was finally incorporated into ordinary law. It is rare for a state to give up on its own the powers gained over the legislature and the justice system. The tracking of individuals, via smartphones, which some consider to be a necessity, could well become the rule in the name of safeguarding our health which has become THE priority, privacy being reduced to the rank of concern of another age. Having chosen total containment and the state of emergency will leave lasting traces in French democracy.
I do not pretend to provide an answer here. Simply, the first elements of the deconfinement show that another way would have been possible: confinement not department, wide discretion left to local authorities, referral to the judicial judge to register the carriers of the virus, etc. I just regret the absence of democratic deliberation before the establishment of the state of health emergency and its extension. As if sacrificing generations under the age of 60 and suspending the rule of law were obvious facts.
In provisional conclusion, I think that we should not be mistaken about the meaning of the unimaginable event that we are experiencing: it is the triumph of individualism, that of the immediate health of the individual in the face of well-being current and future collective. The terms of the debate are in reality identical to those of climate change: should we accept to sacrifice our immediate well-being to ensure the survival of the human species?
Some reading tips:
Note from the magistrates’ union on the state of health emergency
“Let us beware of falling into a sickly, viro-induced, social and political reactivity”
The catastrophic cost-benefit of containment
Breaking out of blind confinement
Dare to discuss confinement (a Belgian point of view)
Will the remedy ultimately be worse than the coronavirus? (a Swiss point of view)
“Let us die as we wish” and “I prefer to catch covid-19 in a free country than to escape it in a totalitarian state”
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