To curb the fifth wave of Covid-19, gauges will be restored for public gatherings, and standing concerts will be banned from January 3. These measures afflict a weakened cultural sector. To the point that artists have ironically announced their presidential candidacy – Grand Corps Malade, Eddy from Preto, for example – or, as Julien Doré, “Transformed” their concerts into political meetings, because these remain authorized.
“The exercise of worship (…) and political and electoral activities are subject[s] to specific provisions in our constitutional law, which ensures them (…) even stronger protection, so it is clear that the measures I have announced do not concern political meetings ”, specified, Monday, December 27, the Prime Minister, Jean Castex.
Since the onset of the health crisis, at the beginning of 2020, the Constitutional Council has pronounced itself on the subject on several occasions, insisting on each occasion on the particular case of political meetings.
- In May 2021, Parliament passed the law on ending the health crisis, notably establishing the health pass. Seized by 70 deputies, the Constitutional Council had finally validated the law on May 31. While some deputies considered the notion of “leisure activities” too vague, for which the health pass could be requested, the judges, on the contrary, estimated that this notion, “Which excludes in particular a political, trade union or religious activity, is neither imprecise nor ambiguous”.
- In November, after the passage of the law on sanitary vigilance, notably extending the sanitary pass, the Constitutional Council had validated the deadline of July 2022 and replied to the requesting deputies who considered that “The regulatory measures permitted by this regime could affect the conduct of the presidential and legislative elections which must be held” by then. “While these measures can take place during an election period, the presentation of the health pass cannot be required for access to polling stations or to political meetings and activities”, had insisted the institution of the rue de Montpensier. The law provides, moreover, that “no one can require a person to present” the health pass outside the establishments in which it is compulsory – the penalty incurred is one year of imprisonment and 45,000 euros. ‘fine.
According to Mr. Castex, a commission on the organization of the presidential election will “undoubtedly” be convened by the Minister of the Interior, Gerald Darmanin, in the presence of all political parties. And this, in order to reconcile democratic freedoms and health situation.
It is, in fact, this fair balance that takes precedence. Political parties are constitutionally protected … as is public health. A fair proportion must be respected between the political decisions taken to curb the epidemic and the danger caused by it. “During the first confinement, political meetings were banned without posing a problem of constitutionality, explains Jean-Paul Markus, professor of public law at the University of Paris-Saclay. There was an imminent danger of disease (lack of masks, no vaccine) which justified this. Today, the circumstances are not the same. “
Places of worship also avoid gauges
Also constitutionally protected, places of worship do not fall within the scope of the restrictions announced on Monday, as Mr. Castex explained.
This was already the case when the health pass was put in place in places of leisure and culture. In the decree “Prescribing the general measures necessary for managing the way out of the health crisis”, only places of worship organizing activities not related to worship are mentioned.
If the places of worship had indeed been closed during the first very strict confinement of March 2020, several decisions of the Council of State had subsequently reminded the government of the fundamental aspect of freedom of worship.
It was the case of a decision of the Council of State of May 18, 2020 ordering the government to lift the general and absolute ban on assembly in places of worship after the end of the first confinement:
“The freedom of worship has the character of a fundamental freedom. As governed by law, this freedom is not limited to the right of any individual to express the religious convictions of their choice while respecting public order. It also includes, among its essential components, the right to participate collectively, subject to the same reservation, in ceremonies, in particular in places of worship. Freedom of worship must, however, be reconciled with the objective of the constitutional value of protecting health. “
The Council of State thus asked the government to take proportionate measures, given the tolerance of gatherings of less than ten people in other public places during the same period.
In the same vein, the decision of the Council of State of November 30, 2020 ordered the government to review the limit of 30 people in places of worship, regardless of the size of the premises. The judge considered that this gauge was disproportionate and that the government had “Seriously and manifestly unlawful interference with the fundamental freedom of freedom of worship”.
If the health situation got out of hand, the government could very well decide to take action regarding places of worship or political gatherings. “We would again need a law that would come under the control of the Constitutional Council, and the latter would assess the proportion between the prohibition and the danger of an uncontrolled epidemic. But everything else would have to be closed to justify restricting these fundamental freedoms ”, summarizes Mr Markus.
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Why political meetings and religious services are not subject to gauges