We can ill afford to play fast and loose with civil liberties

Section 37 of the constitution puts it beyond question that some of our rights can be “suspended” subject to stringent safeguards, during a state of emergency. No state of emergency has yet been declared. But on March 15, the department of co-operative governance and traditional affairs promulgated “state of disaster” regulations under the Disaster Management Act, as part of its bid to combat the spread of the coronavirus and the surrounding panic.

These regulations represent significant infringements of South Africans’ constitutional rights and civil liberties. It might be argued that this is legally justifiable for the duration of the crisis, but we must always remember that consistent civilian vigilance on abuses of government power is an important part of constitutional democracy.

Government has indicated that it will consider declaring an emergency if the state of disaster measures prove inadequate. A state of emergency could see the inroads into our civil liberties increase tenfold. But until that time, all the limitations on our rights in terms of the coronavirus regulations must be tested against section 36(1) of the constitution, which allows for rights to be limited under certain strict conditions.

The power of government expands immensely, always at the expense of the freedom of the individual, during public crises. While these powers are usually reduced when the crisis abates, governments sometimes cling onto at least some of the new powers indefinitely. The existence of passports, for instance, is virtually unquestioned today, but were a “temporary” measure adopted during the World War 1 (1914-1918).

In the nineteenth century, people could move around the world virtually uninhibited by governments. Several “passport conferences” were held after the war ended to facilitate the abolition of this temporary system, but governments had grown fond of the control they now enjoyed over people’s movement. Passports stuck, and today are a pervasive, entrenched limitation on human freedom.

Realising that governments always take any opportunity to expand their power should give South Africans every reason to be alert as to how government uses its new powers under the coronavirus regulations, and to make sure it gives up those powers when the pandemic is brought under control.

What exactly do these regulations entail? 

The regulations prohibit gatherings of more than 100 persons; 50 persons where liquor is sold and consumed. Persons suspected of having contracted coronavirus may not refuse to be medically examined, admitted to a medical facility for isolation, or to be treated. Visits to inmates at prisons are suspended. Most notably of all, anyone who makes or publishes a statement “with the intention to deceive any other person” about the coronavirus or “any” action taken by government to address the virus, will be guilty of a crime. Violating any of these regulations carries liability for fines or even imprisonment.

The realm of civil liberty is not limited to overt liberties such as freedom of expression and freedom of association, but also extends to the commercial world. Hoping to spare South Africans some expenses during a period of uncertainty in the economy, the Independent Communications Authority (Icasa) has asked MultiChoice and data providers to lower their prices and even provide free services.

Laudable as this might be — and it is commendable that some of these companies have voluntarily done so — we must keep a close eye on Icasa after the virus has retreated, to ensure it does not use the pandemic as a pretext to achieve its questionable pre-crisis goals of forcing data providers to bend to its will.

The government has also imposed price controls on a list of products, including toilet paper, hand sanitiser, and certain food products. As economist Jacques Jonker notes, market prices are not simply a reflection of naked greed but play an incredibly important role in signalling to consumers, suppliers and other market participants that certain products are either becoming scarcer or more abundant. When something becomes very scarce, it makes perfect sense for its price to be raised considerably, otherwise we risk a shortage. If prices are kept artificially low by government price controls, the controlled products will fly off the shelves and a shortage will be induced.

While I am relatively confident that these intrusions into commerce and the economy will be undone once the crisis has abated, we must keep a watchful eye to ensure that this in fact happens. It might be appropriate to provide that all the regulations and directives issued in response to the crisis will themselves end when the crisis is declared to be over.

Our understanding and acceptance of the principle that the same rules that ordinarily apply do not necessarily apply in crises, should not mean that civil libertarians and constitutionalists can let their guard down. In fact, those who are committed to the primary purpose of the constitution and of constitutionalism — to define and limit the extent of government’s power over our lives — must be at their most vigilant during crisis situations. Even now, we must question whether the impositions of the coronavirus regulations are appropriate or justified.

Given our history, South Africans can ill afford to play fast and loose with our dearly won civil liberties. Crises have been used as the pretext for the gravest instances of government repression all over the world and throughout history. We live in an age when information is so abundant that ignorance of government’s centralising nature is not an excuse for lack of vigilance on the part of citizens. Keep a keen eye on government, ensure that it adheres to its proper role, and returns fully to the status it had before the crisis began. 

Martin van Staden is Head of Legal (Policy and Research) at the Free Market Foundation.

This article was first published on BDLive on 24 March 2020
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