INTERVIEW – On July 4, the mayor of Nice, Christian Estrosi, adopted a municipal decree aimed at imposing the wearing of a mask in the city’s public transport. On July 8, the administrative court of Nice examined the appeal for interim relief filed by 27 citizens of the territory of the Nice Côte d’Azur Metropolis against this decree. The court ruled in favor of the applicants represented by Maître Martine Baheux.
See also: Nice: the administrative court suspends the wearing of masks in transport
Can you explain to us the context and the stakes of the decision of the administrative court of Nice?
The decision of the mayor of Nice first appeared as completely incongruous, as it seemed obvious that it was not intended to meet a public health imperative. Indeed, nothing in the health situation in Nice justified the imposition on the entire population of new obligations of this type and new restrictions of freedom.
Indeed, we must never lose sight of the fact that wearing a mask is not a trivial gesture. All of the government’s communication for two years has consisted of convincing us that it was right ” a small citizen gesture, an object that is easy to wear, that can be found everywhere and that does not cost much “. But this is a pernicious, fallacious argument. The mask is neither insignificant nor natural and we must never accept that this exceptional measure enters our daily lives.
Fear has been an incredibly effective argument to get citizens to accept anything (confinement, self-authorizations, bans on walking in the forest or on the beach, surveillance by drones, loudspeakers for you regularly called to order, the dynamic beaches where it was forbidden to sit, then the bars where it was forbidden to stand, the students forbidden to study, the tradesmen forbidden to work, the students masked all day including during recreation, the children locked in circles from which they were not allowed to leave, the curfews with these citizens herded to force them to return to their homes, the fines which fell on automobiles that had the misfortune of being stuck in traffic). The list of what has been done to the population on the pretext of protecting it is very long. Too long.
Some have understood this and will no longer accept that they are mistreated in this way again, nor that their children are mistreated ” for their good “. But others, unfortunately, continue to think that these constraints are essential, that not accepting them is selfish, that freedom is a luxury that we cannot always afford and that between freedom and security, we must choose Security.
To those, it must be remembered that States which deprive citizens of their freedom always do so in the name of security. But a state where there would be 100% security and 0% freedom would no longer be a state, but a prison. A State in which the citizens would demand that they be protected from the slightest risk would be a State in which the citizens would have given up living, because there is no life without risk.
So what happened to us collectively that led us to ask the state to impose ever more constraints on us, ever more restrictions? Two years ago, when there were regular flu epidemics, we took crowded public transport, without the idea of putting on a mask.
It is in this context that this appeal fits: the refusal of the trivialization of coercive measures, since they do not appear to be absolutely essential and that, obviously, they are totally disproportionate. It is worth remembering that almost the entire population is now vaccinated and therefore no longer at risk of developing a serious form of the disease, it is said. Also, at the height of the pandemic, the virus that was circulating was the Delta virus. Today, we are dealing with the Omicron virus which is certainly more contagious, but much less virulent. Moreover, you will observe that we no longer speak of patients but only of “cases”. Why choose to communicate on a number of cases if not to continue to keep the population under pressure?
What might be the consequences of this decision?
The court rendered a decision that was perfectly justified in law, since it was not within the competence of the mayor to take such a measure. The court also considered that the measure was not justified and seriously impaired the freedom to come and go. This is an essential principle that it was important to remember.
I hope that this decision will make the authorities aware that measures restricting freedom can only be taken and maintained with the utmost care. We can never stress enough that in a State governed by the rule of law, freedom is the rule and that the restriction of freedom must always remain the exception. We live in a society of freedom and it is happy. In our society, everything that is not forbidden is allowed.
It is a chance, and even an immense privilege, if we compare ourselves to other countries on the planet in which everything that is not expressly authorized is prohibited. But it is a privilege for which our ancestors fought and which it is up to us to preserve and defend with all our might. To renounce it, to compromise, would be to pass from a society of freedoms to a society of authorizations.
I hope the French understand that it would not be good to live in this type of society.
But, you have to be very careful. We can move very quickly, very insidiously from a society of freedoms to a society of authorizations.
Should we see in the decision of the administrative court of Nice a shift in the position of the judges, hitherto favorable to the so-called health policies of the government?
I will not return to the decisions of the Constitutional Council validating the health pass, then the vaccination pass which plunged all the lawyers into perplexity and incomprehension. At the height of the health crisis, the administrative courts recognized that the decisions taken by the government were very seriously infringing on public freedoms. However, they nevertheless considered that they were taken for legitimate reasons of preserving health.
In my view, this position was open to criticism, because it recklessly sacrificed the well-being of citizens in the name of health. However, to be in good health is not only not to be sick.
Nevertheless, let us recognize that little was known about this virus at the time and that the courts have always taken care to recall that decisions were made “ in the state of scientific knowledge “. Today, we know much better how to treat this disease, we also know that it has an objectively low lethality, that it spares almost all young and healthy people and affects the very old, fragile or affected. of comorbidities.
Therefore, undifferentiated measures that apply indiscriminately to the entire population can no longer be justified.
This was recalled by the administrative court of Nice in its decision.