Emmanuel Macron portrait smashed by protestors in Poitiers
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From August 9, France will enforce the use of Covid health passes in bars restaurants and trains. Amid outrage of Mr Macron’s laws forcing vaccination for certain workers, a top lawyer has warned the President’s new rules “can’t play with the Constitution”.
The controversial bill was adopted on Sunday July 25 by the National Assembly, but it must still receive the green light from the Constitutional Council by August 5.
However, the text contains measures that risk being challenged, according to constitutional lawyer Dominique Rousseau.
He suggested the pass could be stopped “because in the text we find what is called, in law, in constitutional case law, a negative incompetence”.
The lawyer added: “The legislator, according to article 34, must lay down the rules concerning the activities which may infringe on freedoms.
“However, in this case, the legislator has delegated this power to the Prime Minister since he will be responsible for setting the threshold from which one can oblige to present a health pass to enter a shopping centre.
“That is the first unconstitutionality, but in addition, there is a possible delegation to the prefects who will be responsible for deciding themselves on the access restrictions for such or such shopping centre.”
Speaking to France Inter, Mr Rousseau said the Covid pass “is an abandonment by the legislator of each jurisdiction in favour of administrative authorities”.
He added to the outlet: “This abandonment of powers, moreover, is not framed since the terms are vague.
“The law is imprecise since it speaks of different ‘characteristics’ of shopping centres and ‘seriousness of contamination risks’. How will the prefects assess these characteristics and this risk?
“The legislator should have been much more precise to frame the power of the prefects and the power of the Prime Minister.
“There is here an indeterminacy of the law and therefore a strong risk of unconstitutionality.”
Mr Rousseau also said the proposed dismissal of French workers that are not vaccinated is a “disproportionate sanction” and argued it is an “infringement of the labour right” of employees.
He pointed out there is again “a strong risk of unconstitutionality on this provision”, and was then asked whether “the government is aware of this risk of unconstitutionality”.
He then told France Inter: “I think that the Prime Minister himself seized the Constitutional Council in order to eliminate any criticism. It has already been done.
“Several Prime Ministers have already referred matters to the Constitutional Council to check their constitutionality. Is the government confident? Has it received assurances?
“In this case, the government took a risk of unconstitutionality. However, respecting the Constitution is not a risk that the government takes, it is a duty.
“The government, when drafting the law, should have been much more attentive to constitutional requirements relating to the guarantees of freedoms. It had already been, in a certain way, called to order by the Council of State, the Senate and the joint committee.
“The government has wanted to maintain this provision which involves a risk of unconstitutionality, but we can’t play with the Constitution.”
On Monday, after the French Parliament approved the Health Pass Bill, Mr Macron said the measures are needed to protect vulnerable populations and hospitals as infections rebound and to avoid new lockdowns.
About 160,000 people protested around France on Saturday against a Covid pass for restaurants and mandatory vaccinations for health workers.
In response, Mr Macron said at a hospital in French Polynesia: “What is your freedom worth if you say to me ‘I don’t want to be vaccinated,’ but tomorrow you infect your father, your mother or myself?”
He accepted protesters are “free to express themselves in a calm and respectful manner,” but warned demonstrations won’t make Covid go away.
Additional reporting from Maria Ortega.
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