Constitutional rights during disaster

When the cabinet gave its big press conference on the coronavirus on Monday, Justice Minister Ronald Lamola read out loud the whole of section 36 of the Constitution. South Africans needed to know, he said, that the measures that had been announced by President Cyril Ramaphosa on Sunday would limit their constitutional rights.

But, he said, the limitation of rights is permissible under the Constitution — if the limitation is done in terms of section 36, known widely as “the Limitations Clause”.

The measures announced by Ramaphosa and the regulations published on Wednesday do indeed affect a number of rights in the Constitution. Gatherings of over 100 people are prohibited. Gatherings of over 50 people at places selling alcohol are prohibited. The army has been brought in to enforce this — the regulations say an “enforcement officer” (including soldiers) must order these gatherings to disperse immediately. If they do not, enforcement officers must “take appropriate action”, which can include arrest and detention.

People with Covid-19 or those suspected of having it or who have been in contact with a person who had it may not refuse to be tested, or admitted to a quarantine or isolation site. They may not refuse treatment. If they do, they might be placed in isolation or quarantine for 48 hours while a warrant is being applied for to test the person.

All visits to prisons, holding cells, remand detention centres and even child and youth care centres — where children in conflict with the law have been detained — have been suspended for 30 days. And this may be extended for “any period” while the disaster lasts.

Restaurants and taverns that sell alcohol “must be closed with immediate effect” or only let in 50 people at a time. And with those 50 people — there must be “adequate space in all directions in respect of hygienic conditions”. Restaurants, bars and taverns will be subject to mandatory closing times as will bottle stores.

The regulations also make it an offence to publish — including on social media — statements that intentionally deceive another person about Covid-19 — fake news in other words. It is also an offence to intentionally lie that you or any other person has Covid-19.

These are strong measures. The prohibition of gatherings of over 100 people infringes on the right to freedom of movement and assembly. As does forced quarantine, isolation and testing. Forced testing affects the right to security in— and control over— one’s body.

The effect on incarcerated people is severe. No visitors for 30 days affects the right in section 35(f) of the Constitution, for example.

Though this is not a state of emergency, there are elements of the regulations that will feel reminiscent for those who have lived through one. The army will be on the street and breaking up gatherings, for example.

But Lamola was clear it all must be done within the law. “What the law permits us to do, we are going to do it,” he said.

The regulations mitigate some of the harshness of enforced testing by catering for people to refuse, pending an application to a magistrate and the magistrate may impose restrictions on the powers of the enforcement officer. But they may still be held in isolation for 48 hours while the warrant is sought.

But it is unclear how the disaster regulations are to be read with those already in place under the National Health Act relating to the “surveillance and the control of notifiable medical conditions”.

The Health Act regulations also deal with the forced testing, treatment, isolation and quarantine of people who have come into contact with the virus. Under these regulations, if a person refuses, a high court order must be obtained. In the meantime, while the court is being approached, the person can forcibly be kept in isolation.

They are different to the new regulations, which make it easier for the government to force matters. It also seems that, under the new regulations, there is no resort to a court (magistrates or other) available if a person refuses quarantine and isolation — only if they refuse testing. Perhaps the two could be read together, to mean a warrant from a magistrate is necessary when a person refuses testing, and when it comes to a person refusing quarantine or isolation, a high court order must be obtained.

The way the health regulations were drafted acknowledged the inherent tension between individual rights and public health, and the supervision of the courts is one of the ways that they seek to find a balance between the two. Given the severity of what we are facing, however, it may be that a different balance is appropriate at this time.

The Disaster Management Act also says that any regulations or directions made under it must only go as far as is necessary to assist, protect and give relief to the public, protect property, prevent disruption and deal with the effects of the disaster.

Then there is section 36(1), which for once is worth quoting in full:

“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”

The courts have said this involves a balancing in proportionality: What is the right being limited? How badly is it being limited? What’s the reason for the limitation? How important is that reason? Is there a less intrusive way to achieve the same thing?

When faced with a pandemic, the balancing would probably weigh in favour of allowing the government strong powers. Yet the regulations must nonetheless be proportional to what they are seeking to achieve. In a constitutional state it can never be a free-for-all, pandemic or not. If these regulations do not find the appropriate balance, they may be challenged in court.

State of Emergency

Lamola said that, so far, the government really thinks it can do what needs to be done under the laws already in place. But “all options are on the table”. If necessary, a state of emergency could be declared, said the minister, and the necessary regulations to do so are currently being drafted.

Those who lived through the states of emergency in the 1980s know that it should, in a constitutional state, be the very, very last resort. The difference between a national disaster and a state of emergency, is that under an emergency the government is allowed to suspend people’s rights, albeit temporarily — “derogate” is the word used by the Constitution.

Suspending rights is qualitatively different to limiting them in a way that must still be justified under section 36.

It is for this reason that a state of emergency may only be declared in the strictest of circumstances. Not only must the “life of the nation [be] threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency”. There must also be a necessity to “restore peace and order”.

Think riots in quarantine facilities.

Crucial to the state of emergency provisions is the supervisory role of the courts. The courts may decide the validity of any declaration of a state of emergency and whether any extension of such a declaration is lawful. This is markedly different to the emergency regimes of the 1980s when the aim was always to oust the jurisdiction of the courts.

A state of emergency is also strictly limited in time — it lapses after 21 days. Parliament can extend it. But if it wants to suspend it more than once, it needs an increased majority to do so.

So, apart from being drastic, a state of emergency may not be the most practical or effective way to address a pandemic when it is unclear how long it would take to address it.

The Constitution also places strict limits on the extent of the derogation of rights: any derogation has to be “strictly required by the emergency” and must comply with South Africa’s obligations under international law.

And even a state of emergency cannot derogate from all rights. The Constitution contains a list of non-derogable rights. These include the right to life and the right to dignity. They include the right not to be tortured. Emergency measures cannot derogate from the right not to be unfairly discriminated against “solely on the grounds of race, colour, ethnic or social origin, sex, religion or language”.