‘A magnificent piece of civilised fiction …”
This is how former chief justice Ismail Mahomed described the concept of reasonableness in administrative law during a seminar in the late 1980s. Reasonableness was central in many court battles against rules aimed at restricting movement and suppressing protest. As a senior advocate, Mahomed argued several such cases. In vintage Ismail fashion — perhaps with a touch of mischief and deconstructionism — he added to the above phrase: “… out of which I make a living”.
Is the concept of human rights a magnificent piece of civilised fiction, out of which we can live with dignity? Did humankind — after millennia of colonisation and conquest through bloody wars, waged with fire, stones, deadly germs, steel, guns, kidnapping, enslavement and rape — invent human rights in order to survive and live better? Or did we discover in religious or rational morality that people all along had inherent and inalienable fundamental rights?
For any proper discussion of the philosophical, religious, political or other origins of human-rights thinking, and criticism thereof, there is no space here. But whether we invented or discovered it, the fact is that after two world wars in the previous century world leaders attempted to establish a new world order, based on the recognition of human rights. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations, is the most basic and famous documentation of human rights. On 10 December this year it will be 73 years old.
Human rights also became law, internationally, through agreements between states; and domestically in the constitutions of numerous countries, supplemented by legislation. After lagging behind much of the world for long, South Africa boasts a detailed, progressive and admired Bill of Rights, as part of the supreme law of our constitutional democracy.
What is the state of human rights in the world today? My question does not refer to civil wars, migrating refugees, human trafficking, dictators like North Korea’s Kim Jong-Un, military regimes in Myanmar and elsewhere, or terrorism. It focuses on a few specific rights in the globe’s two most powerful countries.
The US regards itself as “the leader of the free world”. Its Bill of Rights has exemplified democracy for more than two centuries. Yet, 66 years after its adoption the supreme court ruled (in Dred Scott v Stanford) that the US Constitution did not include citizenship for African Americans, regardless of whether or not they were slaves. According to American philosopher Noam Chomsky, the founding fathers deliberately drafted the Constitution to exclude those who threatened the powerful.
False propaganda and the abuse of the right to free expression are not new. When tobacco companies eagerly relied on their protected free expression to avoid health warnings in advertising, we regarded it as a small price to pay for freedom.
In the Trump era blatant lying and lunatic conspiracy theories became the flag-bearer for freedom of expression though. Through distortion and lies the far-rightwing radio host, Alex Jones, tried to profit from the pain of parents, by calling the deadly 2012 Sandy Hook Elementary School shooting a hoax.
Congress member Marjorie Taylor Green acted similarly and harassed survivors of a school shooting on the steps of Congress. To elated cheers of followers, another Congress member, Lauren Boebert, loudly implied that a colleague may be a suicide bomber … because she is Muslim. QAnon preaches that liberal politicians are satanists, paedophiles and cannibals.
The leader of the lying world, Donald Trump, undermines the very basis of democracy by insisting that he won a presidential election which he decisively lost. Almost half of America believe it. If he says that the earth is flat, or that “Nambia” (his word for Namibia) is an island in the Pacific, his cult followers will believe him. Even former German Chancellor Angela Merkel expressed dismay when social media platforms prohibited his claims and insults. And, of course, some who have never respected the rights of others rely on their freedom of conscience for their anti-vaccination propaganda and even Covid denial.
America does not recognise that rights can be limited to protect other rights. Teenager Kyle Rittenhouse is too young to vote or buy liquor, but has the right to bear arms and may legally carry an AR-15 rifle to an anti-racism street protest. America is divided and seems sick, perhaps terminally so.
Does China pose an alternative? Since the 1970s it has successfully lifted millions of people out of poverty and thus met considerable social and economic rights demands. It sometimes claims to have its own “narrative of democracy”. Not having participated in making the rules for the present world order, it is not bound thereby, one also hears. When its human rights record is criticised by others in the world, the response comes out of the playbook of apartheid South Africa: do not interfere in our domestic affairs.
So, it is hard to know the truth about the alleged genocide of Muslim Uyghurs in Xinjiang. The Communist Party has uplifted backward people and fights terrorism there, we hear from Chinese Global Television Network. This, apartheid administrators also claimed to do.
In America centuries of women abuse by powerful men started to crumble when sex offenders like Harvey Weinstein, Roger Ailes and Jeffrey Epstein were exposed and fell. Former president Bill Clinton was publicly impeached for lying about an affair with intern Monica Lewinsky.
We do not know what happened to Chinese tennis star Peng Shuai after she had claimed to have been raped by a party leader. She is apparently not allowed to communicate freely, news about her is not available to the Chinese public and the World Tennis Association is concerned about her safety. As far as we know, the man accused of this crime has neither come out to defend himself, nor been held to account.
Repulsed as we are about American sexual predators, we may never know how many are freely on the prowl in China. For Me Too there is no space.
Hollywood films have exposed America’s diseases, like profit-driven failed wars and dishonest power-hungry leaders. Comedians constantly mock every president. Could this happen to President Xi Jinping, allegedly the most powerful man on earth, in a country with virtually no freedom of expression?
So then, where to? The world should take human rights seriously and tell those who don’t that we will not do business or play sport with them. In doing so, we must realise that rights can and must be limited in the interest of competing rights, provided that the limitation is reasonable and proportional to its legitimate purpose.
Freedom of expression cannot protect hate speech and blatant lies that damage democracy, destroy human dignity and threaten lives. Freedom of conscience and movement cannot be used to avoid having to wear a crash helmet on a motorcycle, or a seat belt in a car; or not driving under the influence of alcohol. Similarly, it should not be used to justify the desire — of whatever sinister psychological origin — not to wear a mask or be vaccinated … until science tells us otherwise.
Alternatively, we could look for a new magnificent piece of civilised fiction to achieve human well-being. But, this might have to result from new waves of horrendous wars, atrocities and misery.