Le Monde: the risk of a permanent State of emergency

We signal the editorial of Le Monde of September 13, 2017, on a government bill currently being discussed at the French National Assembly. The bill is set to transform the powers and prerogatives typical of the State of exception into ordinary law, to the detriment of individual freedoms and the rule of law.

Nobody ignores the disturbing string of terrorist attacks that have hit France in recent years. Our country is one of the main targets of jihadist violence that spreads its metastases from the Middle East. The defeats suffered by ISIS in Syria and Iraq do not mean its immediate end: the few thousand Frenchmen gathered under the black flag will somehow seek to regain ground and they still pose a threat. Both the President of the Republic and the Government know this better than anyone, as it is their responsibility to protect the French people.

Ultimately, it is democracy itself to be targeted, and it is legitimate to try to defend it. We did it. Since the massacres perpetrated by Mohamed Merah in Toulouse and Montauban in March 2012, four specific laws have been adopted with a view to strengthening the criminal arsenal against terrorism, and several other related texts (on intelligence, surveillance of communications, cyber-security…) have completed the picture. In addition, after the Paris bombings of November 2015, France introduced the State of emergency, which has been extended to date.

The State of exception, by definition, can not become permanent unless it challenges the rule of law. On July 3rd, the President of the Republic, addressing both chambers of the French parliament, said: “In autumn, I will restore the freedoms of the French people, because liberties are a condition for the existence of a strong democracy.” Emergency was extended for the last time until November 1st to allow the government to prepare the exit. That is the objective of the bill drafted in June, adopted by the Senate in July and now being discussed in the National Assembly.

In fact, this text seeks to transform – in a slightly amended version – the main provisions of the State of emergency in ordinary law: home arrest (extended to the municipality of the person concerned), administrative searches (upon authorization by the judge of liberty and detention, whose refusal is unlikely since it is about a terrorist threat), possibilities for Prefects to shut down places of worship considered dangerous… Other provisions transfer the prerogatives of justice to the executive and to the police. With regard to border controls reinstated in November 2015, by way of derogation from the Schengen agreements, the government want to make them permanent within an area of 20 km behind the borders and also around the places of entry for foreigners in France (airports, stations, etc.), enabling a strong extension of identity checks.

While the Council of State has validated this project, many lawyers, French Ombudsman Jacques Toubon and the National Human Rights Commission have warned against the risk of banalization of the State of emergency and against the reinforcement of what Mireille Delmas-Marty, a prominent lawyer, defined as a“society of the suspect”. Convinced of responding to expectations of public opinion, the government remains determined to vote for this text and even to uphold it. It is wrong. Deleting justice control weakens the rule of law. The imperative of security can not lead to the questioning of individual freedoms, which is the DNA of democracy.

Translation by Matteo Angioli. Read the original editorial on the website of Le Monde.

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