Covid-19: is the defense council taking up too much space?
► “The defense council does not upset the institutional game”
Olivier Rouquan, political scientist and constitutional expert
“The defense council is provided for by article 15 of the Constitution. It is a tool that is being used in an unprecedented way in a field other than public security, but it should however be noted that, since 2015, defense and national security planning already includes risk management, including risks. sanitary facilities. It is also new that this tool is used so frequently and over such a long time.
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That said, does recourse to defense counsel mark an institutional break? We thus hear that he takes the place of the Council of Ministers, but that seems to me very exaggerated. On the one hand, these weekly government meetings are extremely formal. The Council of Ministers is a recording room but certainly not the heart of political decision-making. On the other hand, under Giscard’s seven-year term, the practice of interministerial committees developed in a logic, already, of seeking political efficiency.
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The particularity of the defense council is that it is placed under the regime of defense secrecy linked to crisis management, but it does not seem to me to upset the institutional functioning. Parliament retains its role of controlling political action. I note that the 2015 law establishing the state of security emergency had provided for granting certain specific prerogatives to deputies, such as information on the use of house arrest or administrative searches.
Why did parliamentarians not see fit to adopt provisions increasing their powers of control when the laws on the state of health emergency were adopted in the spring and this fall? The opposition could have tried to do so by amendment. The problem of our atrophied Parliament goes well beyond the simple case of a state of emergency and arises recurrently under the Ve Republic, especially since the establishment of the five-year term which has strengthened presidentialism. Finally, in recent years, transparency in terms of public health data with open data has clearly improved and, since the start of the health crisis, the contradictory debate seemed to me to be well fed, particularly in the media.
The management of the health crisis seems to me, on the other hand, to reveal a point of failure linked to the centralizing practice of power. Even though the government has been promising a bill for months to introduce a right to differentiate local authorities, how can we explain that mayors have so little room for maneuver in managing the crisis? How can we not see, for example, that the 1 km radius rule for travel does not have the same scope at all depending on whether we live in a large, dense urban area or a rural area? “
► “A justified response but which must remain exceptional”
Jean Garrigues, historian and chairman of the Parliamentary and Political History Committee (1)
“In view of the democratic ideal, the convening of a defense council should only be exceptional. On the one hand, this body duplicates the Council of Ministers by restricting the latter’s perimeter. On the other hand, it works with documents that can be classified as a defense secret, and therefore escape democratic control, whether it is Parliament or the media counter-power.
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In fact, this practice awakens traditional criticisms of the Ve Republic. Whether it is about the diminished place of Parliament or the preeminence, within the executive, of the President of the Republic over the Prime Minister. Emmanuel Macron also began to bring together defense councils when the popularity of his prime minister at the time, Édouard Philippe, began to overshadow him thanks to a less warlike and more protective speech.
Multiplying defense councils is also not necessarily a good idea in a climate of growing conspiracy. The more opaque the decision-making appears, the more the suspicion of conspiracy will indeed be fueled. However, one of the current democratic challenges is, on the contrary, to regain confidence and the re-legitimation of political power.
The fact remains that the practice of the defense council is a legal and justified response to a major crisis, which is indeed the case of a pandemic. By speeding up decision-making, it makes it possible to resolve the contradiction between the urgency required by circumstances and parliamentary time. It also refers to the will of Emmanuel Macron to call for general mobilization by presenting himself as the head of the armies in the context of a “war” against the virus.
The origin of the defense councils goes back to a decree of April 1906 creating, in a context of peace but of rising external dangers, a higher council of national defense. This will result in the “higher councils and committees of national defense” mentioned in Article 15 of the Constitution, the current General Secretariat for Defense and National Security and, from 1986 to fight terrorism, the homeland security advice.
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Since a decree of December 2009, these have become the defense and national security councils. While they usually met two or three times a year, François Hollande stepped up the pace after the attacks of November 13, 2015, then Nice in July 2016. At the same time, their domain gradually expanded, with urban riots in 2005 to the current health crisis. “