The Pass Sanitaire in France and French Constitutional Law

The ‘Pass Sanitaire' in France and French Constitutional Law

What just happened:

In July 2021, new Covid-19 related measures had been briskly introduced in France in order to curb the crippling and seemingly relentless spread of the ongoing pandemic. Those novel restrictions, or indeed safeguards, will remain in place for the foreseeable future, assuming that Marine’s Le Pen’s ‘Front National’ does not succeed in its pursuit of a consequential backstairs intrigue. Those measures are known as the ‘Pass Sanitaire’ or Health pass, dictating that one may not be admitted into certain venues, or enjoy the provision of certain services or engage in some events without proof of vaccination, a negative PCR test within the last 72 hours or a positive antibody test demonstrating natural immunity through a recent infection with coronavirus.

What does that mean:

The details published by the government relevant to the clauses of the health pass truly indicate that they have moved to veritably and firmly restrict, for those who choose to take leave on the opportunity of receiving the jab, elements of what may be deemed as freedom of movement, yet certainly, the enjoyment of the usual pleasures of life, particularly as it relates to French cultural norms and, in some cases, essential services. Such acts are unprecedented on this scale and show themselves far more problematic and controversial when introduced under a democratic system of governance, characterised by personal liberty, the sovereignty of a person’s body or the common law doctrine of ‘habeas corpus and the inviolable supremacy of individual choice. The reign of those principles is coming into question and has been put to the test for the length of this global crisis when draconian restrictions have been imposed upon entire populations throughout the globe, restricting movement and many activities deemed integral to the regular enjoyment of life, or essential to one’s profession.

Impact on the legal realm:

The French constitution is firmly based on the french revolutionary ideals of ‘Liberté, Égalité, Fraternité’, or liberty, equality and fraternity. It is equally rooted in the enlightenment principle that an individual’s freedom is absolute, until such time that their freedom encroaches upon that of the other.

The most pertinent section of the French constitution is in this case the ‘Déclaration des Droits de l’Homme et du Citoyen’, a declaration dating from 1789, listing rights which the French revolution and its leaders had deemed natural and essential to all citizens of the prospective Republic, and which comprised the elaborate set of demands of the revolution and its aftermath, in accordance with the abolishment of the monarchy.

Article 10 of the declaration states, in rough translation, that one must not fear for the reason of their held opinions...as long as their manifestation does not disturb the public order. This is very much in line with the qualifications, or indeed potential compromises of the right to freedom of expression in Article 10 of the European Convention on Human Rights, which allows for the rights granted to citizens under this clause to be compromised proportionately and to a reasonable extent, as long as there is a requirement relating to the protection of public safety.

The point of intersection between public health and safety and personal liberties that stem from the constitution, in relation to the health pass, rises by virtue of the interaction between the incentivisation for immunisation, which amounts to practical coercion, and the dangers of a ‘free’ unvaccinated population amidst a global pandemic vis à vis the unpalatable nature of state mandates and restrictions on constitutional rights. The breakdown here, resting on the principles and exemptions of the French Constitution and accordingly the ECHR, is that this is in principle a transgression of constitutional rights of freedom of opinion or thought and freedom of movement. The critical question remains whether this seeming transgression is justified, as those rights are, by law, qualified and not absolute, as opposed to the constitutional right to life for instance.

It is the science that ultimately offers the answer to such a question. The facts demonstrate that the vaccines currently approved and available to the public offer certain direct protections to the recipient, yet those are by nature insufficient to form the basis of a mandate, coercion scheme with the threat of withdrawal of rights, or an incentive to continue their guarantee. The basis of such legislation stem from the social protections offered by immunisation. Those incorporate the fact that vaccines offer around a 50% reduction in transmission of Covid-19. This comes in addition to the reality asserted by a study at Imperial College, concluding that infections are three times lower in vaccinated people than their unvaccinated counterparts, meaning they are likely to be safer to those they come into direct contact with. Overall, the vaccine leads to over 80% reduction in the propagation of the virus.

The crucial point within the lines is the element of social responsibility, and civic duty one owes to those who are too vulnerable to receive the jab, and to the public in general. Those also possess a right to conduct their daily lives with as safe an environment as modern medicine and governance could render possible. Since an unvaccinated person is more likely to become infected with the virus and more likely to transmit it, the choice an individual might make to refuse the jab, will have direct and potentially severe consequences on the health of other individuals, and indeed that of the public, creating a situation where one’s practice of their liberty will transgress upon the liberty of the other. There is therefore a clear mandate to protect the realm of public health, providing a constitutional incentive, resting on both the ECHR and the national constitution for such restrictions on constitutional rights. In addition, the words of Article 10 of the constitution clearly dictate that manifestations of a person’s held views are beyond reproach, so long as they do not disturb the public order. It is the disturbance of public health, and thereby public order through the social and economic threats posed by the pandemic, that the right of individuals to manifest their perceived right to refuse the vaccine comes into question, and is liable to scrutiny from both a moral and legal standpoint.

I would argue that the French Revolution did not rise, nor did its pioneers fight, or its martyrs perish, simply for contrarian individuals and groups to assert their perceived right to reject the fruits of modern medicine.

 

Written by Mohammad Matar Al Khateeb

1 Sylvie Corbet, ‘France’s virus pass now required in restaurants, trains’, Associated Press (AP News), August 9th 2021

2 Silvia Amaro, ‘Marine Le Pen’s far-right party falls short in France’s regional elections’, CNBC, June 21st 2021

3 ‘Passe Sanitaire’, Info Coronavirus Covid 19, gouvernement.fr

4 ’Pass sanitaire : ce qu'il faut savoir sur l'obligation étendue lundi à 1,8 million de salariés en France’, Franceinfo, August 29th 2021

5 Brian Duignan and the Editors, Habeas Corpus, Britannica

6 ‘Guide on Article 10 of the European Convention on Human Rights’, European Court of Human Rights - Updated December 31st 2020

7 One dose of COVID-19 vaccine can cut household transmission by up to half, Public Health England, gov.uk, April 28th 2021

8 Justine Alford, ‘Coronavirus infections three times lower in double vaccinated people’, Imperial College London, August 04 2021

9 Smrity Mallapaty, ‘COVID vaccines slash viral spread – but Delta is an unknown’, Nature, July 27th 2021

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