Against the backdrop of the health crisis and while spirits are heating up around the proposed law on global security, Laurent Fabius ensures that the Constitutional Council he chairs ensures that the rule of law is always respected.
A concert of voices rises to denounce the drifts towards a police state. What do you think ?
LAURENT FABIUS. Whether it is the laws on the fight against terrorism or on the state of health emergency, the role of the Council, precisely, is to control their conformity with the Constitution and in particular with the rights and freedoms which the Constitution guarantees. We do exercise this control.
Doesn’t the global security project, however, denote a climate harmful to public freedoms?
One would have to be naïve to deny that terrorism is a major problem. In order to fight against it, the legislator may therefore have to modify existing texts. But, if we can change the rule of law, we cannot change the rule of law that protects each individual and society.
Does Article 24 of the Comprehensive Security Bill restrict freedom of the press?
Despite its name, the Constitutional Council does not give advice, it takes decisions that are binding on everyone. We therefore do not intervene upstream. Obviously, freedom of opinion, freedom of the press, freedom of demonstration are, for the Council, fundamental freedoms. We will see, after the final vote in Parliament, what will be the exact content of this article that the Prime Minister has announced he wants to submit to us.
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The rule of law is therefore not threatened in France?
I repeat, the rule of law is sometimes debated, sometimes it is changed and it must be monitored. But the rule of law, that is to say an independent justice, the main principles of freedom, equality, association, the separation of powers, must always be respected.
Right-wing personalities would like to change this rule of law in the name of the war against terrorism …
The Council expressly decided that “the objective of combating terrorism is part of the constitutional objective of preventing attacks against public order”. It is therefore clear and clear: the fight against terrorism constitutes an essential action which can justify the adoption of new texts and the adjustment of certain freedoms. We admit it perfectly, as does the European Court of Human Rights. This does not mean that we can call into question fundamental rights and freedoms. We must not sacrifice the principles which, precisely, differentiate us from those who advocate and handle terrorism. Respect for these fundamental principles is not an eclipsing topic. And in our decisions we do not show any naivety.
Sovereignist Philippe de Villiers believes that Article 36, providing for a state of siege, should be implemented. Does that make you jump?
With age helping, I confess that I jump less and less… The Constitutional Council defends freedoms and the rule of law. On the other hand, there is another school of thought which flourishes especially in Eastern Europe, according to which parliamentarians, because they represent a majority elected by universal suffrage, could legislate without any limit of any kind. In France, until the Fourth Republic, the law could do everything. General de Gaulle and the Constitution adopted by the people decided otherwise: the law can do anything but with respect for the Constitution, except to revise it while respecting the limits and the procedure provided for as such. It is the basis of our democratic system.
In terms of health, you are not alarmed by certain measures that limit our freedom of movement or assembly?
We are obviously very attentive to it. So far, the government and Parliament have reacted in a binary fashion, that is, either an epidemic exists and there is an emergency, or it does not. It seems that we are unfortunately heading towards a time when various epidemics could occur concurrently, with different stages requiring detailed responses. Each time we will exercise our control over the exercise of freedoms and the adequacy between the defense of freedoms and the measures taken. We are first and foremost the guardians of freedoms. At the same time, we recognize the protection of health and safety as major objectives. Our role therefore consists in verifying whether this reconciliation has been carried out in a proportionate and appropriate manner. When this is not the case, we censor the challenged provision.
What do you think of the announcement by the President of the Republic of isolation of the sick?
It is not an easy subject. We will see what the lawmaker, if any, decides. We must reconcile different principles and objectives, health, of course, but also freedoms. That is why we must expect the institution that I chair and its members to have competence of course, independence and wisdom.
Why have you censored almost all of the Avia Act that provided for further incitement to online hatred and some provisions of which should be included in the future Republican Values Defense Act?
In short, this law left operators so little time to withdraw suspicious comments that they were forced to refuse everything. However, there is no question of denying the reality of the problems posed. The legislator will therefore probably resume his project, but taking into account our decisions. We hold the eraser, he the feather.
What do you think of the establishment of an ecocide offense?
The courts are increasingly dealing with environmental issues. At home as elsewhere. Here, we will soon rule on the issue of neonicotinoids. In a previous decision, we had already ruled that the protection of the environment was part of the “common heritage of humanity”, and as such prohibited the export of pesticides. The Environmental Charter, launched by Jacques Chirac, is part of the constitutionality block on which we rely in our decisions. The new offense envisaged is part of this movement.
You are celebrating 10 years of priority questions of constitutionality (QPC), what has that changed?
This is an important step forward on at least two points: previously, we could only challenge the constitutionality of future laws. It was quite strange. Now, we can challenge the entire stock of existing laws. Before, only a few high personalities (Editor’s note: the President of the Republic, the Prime Minister, the presidents of the assemblies or 60 deputies or senators) could apply to the Constitutional Council; henceforth any litigant before any jurisdiction can consider that the law that one wants to apply to him is contrary to the principles of law and ask for its annulment. We judge in three months maximum. And our decision applies to all citizens. This changed the functioning of the Constitutional Council since, apart from the control of the elections, approximately 80% of our activity now consists of judging these famous QPCs.
Do you want to further democratize this QPC device?
When the trial judge refuses to send a QPC to the next level, everything stops. However, we do not have visibility on what is refused at first instance, whereas it could be interesting. We are therefore going to build, with the support of the Ministry of Justice, the Council of State and the Court of Cassation, a database on the Constitutional Council website, so that all QPCs, accepted or rejected, are listed. This will give legal professionals and the general public more complete information on this relatively young and very useful procedure, which is the QPC.