2023-07-05 16:30:19
The summer months or the period between Christmas and New Year’s Day are times of relaxation for most of the population, the controversies and oppositions suddenly disappear like snow melting in the sun. We must therefore be wary of the laws passed at these times which are opportune for governments to discreetly pass projects. The conflagration of the suburbs which frightens citizens and politicians has the ideal characteristics to pass texts of a liberticidal nature. Under cover of an increased demand for security for fear of a general conflagration, certain draconian texts can easily be voted on discreetly. What does the new military programming law hide?
An unusual procedure
The new military programming law (LPM) 2024-2030 currently under discussion includes surprising and worrying provisions in terms of requisitions, deeply prejudicial to public freedoms left to the discretion of the executive, provisions which are beginning to cause reactions here and there.
The LPM is an exercise that recurs every five years since the end of the 1990s which saw the suspension of national military service and the establishment of the professional army. The programming laws, provided for in article 34 of the 1958 Constitution, ” determine the objectives of State action “. Unlike ordinary laws or organic laws, programming laws normally have no effect other than indicative. The LPM is therefore not intended by the Constitution to be an imperative law, it is not intended to set in stone permanent provisions. Essentially a budget forecasting tool, the LPM, in its findings and forecasts, intends to provide medium-term visibility to allow the preparation and voting of annual finance laws and, consequently, to provide the armies with the means necessary to fulfill their mission.
The specificity of the LPM is moreover to be rarely respected in practice, always to the detriment of the armies.
Current Project law relating to military programming for the years 2024 to 2030 and laying down various provisions relating to defence, includes, in application of the second part of its title, legislative riders modifying in a profound and lasting way the Defense Code by attacking public freedoms head-on.
This procedural facility to modify permanent legislative provisions on the occasion of a text not intended for this, has appeared since the three previous LPMs (LPM 2009-2014, LPM 2015-2019 and 2018-2025). But until now, these permanent provisions only concerned technical or statutory situations directly linked to the armies, which could modify certain articles of the Defense Code, in particular in terms of HR management of the armies or even to authorize the government to take prescriptions (LPM 2015-2019) in certain very specific fields and not concerning civil liberties.
The current situation is therefore unprecedented. The text passed its first reading in the National Assembly at the beginning of June, in accelerated procedure, therefore with a minimum of debates and voted without difficulty by the Senate after the addition of amendments. Back to the assembly, a next final vote will allow the adoption of the text after a passage in committee, for a promulgation planned during the month of July. It is easy to suspect that this vote will take place at night with a sparse hemicycle as is often the case, especially for this type of text deemed technical and of no interest to anyone except a few parliamentarians who are members of the Defense Committee. And that is how, if nothing is done, one more fundamental attack on private property and individual liberty will be perpetrated. One more, we should start to get used to it, since the Covid crisis.
The current government is accustomed to these abuses of procedure, the pension reform having been passed by an amending finance law for social security. However, he can count on the leniency of a Constitutional Council which seems to him totally acquired and has not played its role of counter-power for a long time, particularly in terms of civil liberties.
An “extraordinary” power entrusted to the executive without control or authorization from Parliament
Article 23 of the draft LPM proposes a new wording of article L.2212-1 of the Defense Code, authorizing requisitions.
In its current wordingthis Code is quite restrictive and provides for the possible requisition of services necessary to meet the needs of the defence. It sets the conditions by a reference in article L.2212-1, to the provisions of articles L.1111-2 and L. 2141-3 of the same Code. These provisions concern the threats and risks likely to affect the life of the Nation, in particular with regard to the protection of the population, the integrity of the territory and the permanence of the institutions of the Republic, and to determine the responses that the public authorities can bring » . We do not know of any recent examples and this requisition process, in theory known in the armies, could have been applied in rare cases, unknown to the author of these lines. Among these responses, article L.2141, to which reference is also made, provides for general mobilization and warning, which ” consists of certain measures designed to ensure the freedom of action of the Government, to reduce the vulnerability of the populations or the main equipment and to guarantee the security of the operations of mobilization or implementation of the armed forces and formations attached ».
The wording of the new article L.2212-1 of the Defense Code in the current draft law, is completely rewritten, which is unusual because the practice of the legislator is to replace terms or parts of sentences. The first paragraph reads as follows: In case of threat, current or foreseeableweighing on the activities essential to the life of the Nation, to the protection of the population, to the integrity of the territory or to the permanence of the institutions of the Republic or of such a nature as to justify the implementation of the international commitments of the State in matters of defence, the requisition of any person, natural or legaland of all necessary goods and services to deal with it can be decided by decree in the Council of Ministers. This decree specifies the territories concerned and, where applicable, the administrative or military authority empowered to carry out these measures. ».
On a quick reading of these provisions, one would not find much to complain about, thinking that ultimately it is up to the State, in the event of imminent danger, to have recourse to all possible means to ensure the defense of the nation. But it is worth examining the reasons which led the legislator (in reality, the government administration which drafted this project) to completely revise an existing wording which nevertheless seemed to fulfill the desired objective. It should be noted first of all that the references to other articles, present in the current wording of the said Code, have been deleted: the article itself expresses the motivation authorizing the requisition. A careful reading of these new provisions thus opens up worrying prospects.
Possible law enforcement prospects
The motivation authorizing the requisition appears vague, very broad and allows the government (the president?) to put in it what it wants: the threat can be current or simply foreseeable (how to define that a threat is foreseeable? We have seen the monstrous discrepancies between Imperial College’s Covid IT forecasts and the observed reality) and fall under various areas listed in the article, including France’s international commitments. The process is triggered by a decree in the Council of Ministers which, it should be remembered, is chaired by the President of the Republic.
Let’s take four examples. First of all, on a strictly military level, the current Ukrainian conflict and the growing involvement of the EU and NATO are likely to lead France into a fatal spiral. The requisition of natural persons could allow the president, on a simple decree, to requisition, for example, people to send them to fight, according to physical and psychological criteria decided by the government. In practice, armies no longer have the capacity to manage mobilization and requisitioned personnel no longer have military training since the end of their service, but we often see that our leaders live more in the world of theory than in reality.
Another example: one could imagine a “climate emergency”, a threat considered foreseeable and also the subject of France’s international commitments, to requisition (= confiscate, in practice) energy-intensive housing classified G or even personal vehicles Crit’air 4, because their situation would seriously compromise the life of the Nation: it will be enough to affirm it with the usual media relay. A simple decree will then make it possible to despoil the people concerned.
A pandemic emergency, given the current agreements with the WHO, could have the same effects, especially considering that the government has classified Covid vaccines among dual-use items subject to export control. However, dual-use goods directly concern national defence. So this text, if adopted, could be applied during the next pandemic declared by the WHO. As the requisition applies to natural persons, one can imagine that in the event of a Covid-19 type pandemic, it is possible to move people refusing government-imposed vaccination to internment camps. It happened in Australia.
Last example: we have seen how the government (and the EU) confiscated Russian assets or shut down a company like RT France, under conditions of legality that would have to be studied. It will therefore be even easier and faster to do so, without predicting the detestable signal sent to foreign investors.
These examples may seem caricatural or excessive but this text will allow it, at the discretion of the President of the Republic. However, the management of the Covid crisis has accustomed us to such excesses, with its dynamic ranges monitored by overarmed police officers or self-exit certificates. We can now expect anything, even the improbable.
An amendment tabled by the government, adopted in the Senate, finally provides that the persons concerned opposing the requisition would be liable to an offense punishable of one imprisonment for one year and a fine of 15,000 euros (article L. 2211-5 of the bill).
The role of the Parliament is limited to the strict minimum, the place of the executive, already considerable by the Constitution of the Fifth Republic, increases every day. As regards the employment of the armed forces, it should be remembered that article 35 of the 1958 Constitution requires a vote by Parliament after four months of overseas operations: it has been over a year since French troops were deployed in Romania and in the Baltic countries (are there any in Ukraine too?), without any vote having taken place. Obviously this does not bother the opposition NUPES or the RN. In the presidential elections in 2017 and 2022 it was necessary to block… dam to what? Today France, failing democracy ” according The Economistin the throes of chaos, looks more and more like a democratorship where an all-powerful executive always wants more discretionary power and control over ordinary citizens but is not even able to ensure the safety of goods and people , the events of the past few days have clearly demonstrated this.
It would be urgent for the said opposition to wake up and hinder the permanent coup of the Macronian Republic.
Olivier Frot is a graduate of Saint-Cyr and holds a doctorate in law.
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