On Tuesday the 3rd of October, the French National Assembly adopted the bill strengthening internal security and the fight against terrorism. By bringing a state of emergency into the common law, a majority of deputies, including Socialists, has chosen to take France out of the rule of law.
A rule of law is one whose law protects any of its residents from arbitrariness of the State. It is a State sheltered from administrative or police absolutism. It is a State in which the State is subordinated to rules of law which are superior to it, and which impose themselves on its action. It is a state whose citizens are safe because they are assured of not being handed over to the abuse of state power. It is, in short, a State in which the State does not make the law.
By this yardstick, France, since the 3rd of October, 2017, has no longer been a state subject to the rule of law. With the entry into the jurisdiction of common law of the main exempting provisions from the fundamental rights and freedoms which characterised the state of emergency, the exception became the rule. From now on, the State, in other words its prefects, its administration, its police, may at any time, anywhere and against anyone, on the pretext of terrorism, call into question our freedom of movement, our right to the inviolability of the home, our right to equality before the law. And could do so without having to justify or answer to an independent judge, whose decision could hinder or sanction it.
With this overwhelming vote in the National Assembly, a majority of fear (415 votes against 127, read the text of the adopted law and the parliamentary file), there is now a law of suspects in France. On mere police suspicions which, in a genuine state of law, would be totally inadequate for them to do so, the state administration and its armed police officer can henceforth attack an individual, immobilise them, impede them, target them, isolate them, set them apart, in short persecute them. As sole judges of the pretext, terrorism, they can, tomorrow, the day after tomorrow, extend the notion, without any restrictions, according to popular emotions and dominant ideologies.
The law voted on authorises the State, its administration and its police, outside of any judicial control, to compel an individual to "reside within a designated area", that is to say to be unable to move, to issue them with a "prohibition to enter" a specific place, to subject their domestic and family intimacy to "home visits", or searches allowing seizures, to extend identity checks, searches of luggage and vehicles to vast "protection perimeters", to close a place of worship for the sole reason of the "ideas and theories" which would be disseminated there, etc. And this is only a succinct summary of a law, the twelfth security law in fifteen years, which intensifies the corruption of the law by the police and evidence by suspicion.
As unconscious as they are selfish, blind to others and ignorant of the past, the sorcerer's apprentices who opened this freedom-killing Pandora's box reassure themselves by saying they are not personally concerned by these laws. After all, is it not a question of fighting terrorism, its crimes and its networks? It is the argument of urgency which, taken for the essential, always causes us to lose sight of the urgency of the real essentials - also known as principles. It's an argument as cowardly as that of the end which justifies the means, in the name of which, in any case, under every regime and every epoch, freedoms have always been written off.
"I do not have to be afraid of the means of fighting terrorism because I do not feel myself to be a terrorist", said the spokesman of the government, the former socialist Christophe Castaner, whose former party (with five cautious abstentions) wholeheartedly supported this perdition which he himself had initiated under the presidency of François Hollande. A terrible sentence, which summarises this sacrifice of the democratic ideal on the altar of terrorism. A blind sentence, of rulers ready to trample the freedoms of others in an attempt to justify their power.
"We cajole the foul beast", warned lawyer François Sureau, an intransigent defender of fundamental freedoms, in a recent interview with Mediapart (read here). Under the state of emergency extended by the government of Manuel Valls since the end of 2015, he recalled, "There have been 6,000 administrative searches for 41 indictments. And of the 41 indictments, 20 were indictments for the apology of terrorism, that is to say crimes of the intellectual order. During these 6,000 searches, you sometimes destroyed peoples lives, you interfered with their individual freedoms in a brutal way for an extremely poor result".
And who doesn't remember the use of the state of emergency in 2015 and 2016 against society as a whole, first the environmental activists at the COP21, then the protesters against the El Khomri law? Who would dare to guarantee that, under this power or, after it, under another, adding ideological, authoritarian, identity, xenophobic, discriminatory, etc. obsessions to the obsession with security, it would not be the militants of all the minority causes, dissenting and new, those in which new rights are invented and claimed, who would be the indistinct victims of this state of emergency which shows no sign of coming to an end? Who could promise that, tomorrow, they will not be the new "enemies of the nation", potential or theoretical terrorists, according to the infernal logic of conservative and retrograde forces, determined to wage war on society, its wealth and diversity, its autonomy and its struggles?
Worse than the sound of the boots, the shuffling of slippers
We obviously know the answer, both the rulers and the elected officials who today sacrifice our freedoms are purely transitory. Irresponsible, they sacrifice the long duration of a living democracy, consequently demanding with itself, for the short term of their survival. Chairperson of the National Consultative Commission on Human Rights (CNCDH, read here its opinion on the bill), Christine Lazerges had taken date, as of last July, in a meeting at Mediapart: "If this bill is passed and the extreme right comes to power one day, France will be in an extremely difficult situation in terms of freedoms. Such a power would have absolutely nothing to add to this text. »
History teaches us, and notably that of circumstances - the war in Algeria, both a colonial and a civil one- in which, 1955, we can find the origin of the state of emergency, which is now definitively legalised and trivialised: the introduction of liberty-killing provisions is a gangrene that ends up contaminating the entire legal body, institutions, administrations, governments. We have just lived through it, in only two years: just as yesteryear the state of emergency of 1955 led to the special powers of 1956, when a torturing Republic was dishonoured, now a prolonged state of emergency of 2015 gives birth under our bewildered eyes to an unprecedented challenge to the rule of law.
In his plea Contre l’état d’urgence("Against the state of emergency", Dalloz, 2016), the jurist Paul Cassia (see here his blog on Mediapart) recalled this lucid warning from a member of the Council of State, Roger Errera: "As soon as an infringement of the freedoms appears, it is an oil stain, it is gradually applied beyond the limits fixed at the beginning, whatever the promises, the barriers and the hesitations, and to people other than those who were initially targeted. It even becomes institutionalised and, as a result of the emergency, it becomes permanent." This is how it was in 1975, more than forty years ago, and here we are again, alas!
Moreover, with a State that can no longer even count on the generation of these high-level officials who, having memories of Vichy or Algeria, knew that the trivialisation of the state of emergency was the breach by which totalitarianism, or at least its practices of denying human rights, had made its way under the guise of a republican administration or regime. In his interview with Mediapart, Francois Sureau emphasised this terrible renunciation which for three decades has gradually gained almost the entire political spectrum: "The great voices of the past carried a collective project of freedom, not just an individual project. »
For how can we not question the heavy, abyssal silence that accompanies this leap into the unknown? "Worse than the sound of the boots, the shuffling of slippers": attributed to the Swiss writer Max Frisch, this observation has never been more relevant. All the defenders of human rights, gathered on its premises by the CNCDH (read here), as well as official experts at the United Nations (read here), have solemnly set themselves against this drift. These human rights experts mandated by the United Nations have been rather harsh, estimating that "several provisions of the bill threaten the exercise of the rights to liberty and personal security, the right of access to justice, freedom of movement, and the freedoms of peaceful assembly and association, as well as freedom of expression, religion or belief " (read here their press release and their letter to the French Government).
In vain, it didn’t help. Not an echo, not a regret, not a nuance, not a reserve, not a setback. Worse, in the National Assembly, a devout majority devoted to the president who had elected him hastened to strengthen the most controversial provisions that the Senate, with the wisdom of age, had attempted to lessen. This so-called civil society, which, rising from nowhere, pretended to renew politics, via the dynamics of the movement En Marche! and by its claimed parliamentary "dégagisme" [from “dégage”, buzz off!], is revealed to be deaf and blind to society. Only the left of the left - Communist and France Insoumise’s deputies taking the torch of the six frustrated socialists (Pouria Amirshahi, Barbara Romagnan, Gerard Sebaoun) and isolated ecologists (Isabelle Attard, Sergio Coronado, Noël Mamère) who, yesterday, said no to the state of emergency - will have saved the honour but without successfully mobilising society.
Hence we cannot content ourselves with blaming those who committed this attack on liberties. We must also address the indifference, this massive passivity, which allowed it. Is it not of the same order as that which accommodates the distress of migrants, refugees and other exiles (read my previous statement, "The duty of hospitality")? This more essential indifference, to the other, to they who are different, to the suspect, to the Muslim, in short to the distant, while we retreat into ourselves? As if we were not concerned, or are only concerned by the desire to protect ourselves, at all costs.
In this way, not many people have been surprised to discover that this so-called anti-terrorist law aims to facilitate, extend, generalise, in short further trivialise police controls, this daily discrimination that strikes the diversity of our people, and notably our youth (read here). Even the historian Patrick Weil, a moderate man by conviction as much as by profession, could not awaken opinion and parliamentarians by showing them that "the anti-terrorism bill is reminiscent of the Code for indigenous people" because, in fact, he intended his police system to supervise a particular population, the Blacks and the Maghrebians, aggravating the field of the discriminations that damaged equality (read here his platform in Le Monde).
Great philosophical wisdom has taught us, notably after the European catastrophes of the last century, that the best way to become closer to those near to you is concern for those who are distant. That concern for the other brings you closer to yourself. If I cannot permit the freedoms of others, I cannot ensure my own freedom. If I allow fundamental rights to be called into question, on the pretext of preventing a threat that would be foreign to me, I shall discover, some day or other, that I have thus renounced my own rights.