Law and democracy during pandemics: take I

This week the DA has launched two applications. One in the High Court, challenging the legality of specific regulations, and a second in the Constitutional Court, challenging the constitutionality of the Disaster Management Act.

High court application

In the application in the High Court, the party asks that four regulations be declared unconstitutional and invalid, and be set aside.

In the founding affidavit, Glynnis Breytenbach challenges the curfew, certain transport restrictions, the exercise restriction and the e-commerce restriction.

The argument is that these restrictions are unconstitutional and unlawful because they are disproportionate, irrational, unreasonable and unjustified limitations of fundamental rights.

The e-commerce challenge is moot because the regulation has been amended, and the President in his speech hinted that the exercise restrictions would also be adjusted. If the other regulations and directions are not amended, and it goes to court, the state will have to give for the regulations. Based on the reasons offered, the court will then have to decide if the measures are rational and proportional.

In the recent Khosa case, the judge hinted that some of the regulations are irrational. This is now law because it was not the issue in front of the court, but it seems to support some the DA’s case. This should be a warning signal for the government that it should revisit some of the rules.

Constitutional Court application

The Constitutional Court application is not based on the merits of the lockdown or the legality of the regulations. Instead, it focuses on the constitutionality of the Disaster Management Act.

The DA questions the lack of Parliamentary oversight in the making of delegated legislation. The DA argues that the constitutional principle of separation of powers that might not be adhered to in the Disaster Management Act. This is because the Act confers extensive powers on the executive to legislate; it permits something like a state of emergency, without the oversight role of the Parliament during such a state of emergency. It also does not enable the National Assembly to scrutinize and oversee executive action, as is required by section 42(3).

The remedy asked for is that the court must “reading-in” certain requirements of section 37, into the Disaster Management Act. This will ensure that the Minister of Cooperative Governance and Traditional Affairs retains the power to make the regulations, and it will keep the regulations intact, but it will require that the declaration of the national state of disaster, its extension and the regulations made in terms of the declaration be tabled in Parliament. Doing so will enable the National Assembly to amend or invalidate these, if so required.

The law on an edge

With Covid-19, we have reached a new frontier as far as our Constitutional democracy is concerned. It is the first time that our country has to deal with a national emergency that affects us all.

It is not unusual for an Act, passed by Parliament, to delegate powers to an executive to make regulations. It is often needed, as it makes it possible to respond quickly to situations (like a disaster). It leaves sussing out the finer details of legislation to departments that have specific knowledge about the area to regulate it more effectively.

At the time of drafting the Act in the early 2000s, the lawmakers arguably did not foresee a disaster of this magnitude and uncertain timespan, when it delegated vaguely formulated powers to a minister, who can extend her powers without the oversight of Parliament.

The State of Emergency provision in the Constitution understands this dilemma: that there might be extraordinary circumstances where law-making must happen fast, and that in managing an emergency, there will be greater restrictions of fundamental rights, and that the executive will do this.

Fundamental rights may be restricted, but there must be good reasons and accountability when this happens. Restrictions done in terms of the Disaster Management Act must comply with section 36 of the Constitution. It boils down to a proportionality test and includes questions such as whether there are less invasive means to reach the end.

The analysis in section 37 when rights are derogated is whether this was done only to the extent that it is necessary to address the emergency.

The other safeguard in the case of a state of emergency is the oversight of Parliament. It also guarantees the involvement of courts. This is based on the knowledge that states of emergency are often used by politicians to harness political power and make sweeping changes with long term consequences. 1933 Germany serves as a grave warning.

The writers of the Constitution were aware of this when they drafted section 37. That, and the then-recent traumatic memory of 1980 style states of emergency. Section 37 of the Constitution has the necessary safeguards to avoid such situations. The Disaster Management Act does not.

I don’t suspect malice in the choice of action by the State. The one requirement for section 37 to be applicable is that it must “restore peace and order”. The argument against using it, is that there is nothing to restore.

The other argument is that a state of emergency seems to be aimed at conflict and threats from outside.

And these are good arguments against a state of emergency although an interpretation in line with international and foreign law can overcome that.

Since a state of emergency cannot be declared retroactively, the point is somewhat moot unless the progression of the virus forces us to a national level 5 again.

The choice of the DMA also makes sense: it allows for the effective management of disasters. It puts in place mechanisms for co-operation, although it is unclear if these mechanisms were implemented.

Covid-19 is so peculiar, so unpredictable, so ever-evolving and uncertain. And conferring powers to the executive, without an expiry date, and without parliamentary oversight, then becomes dangerous.

Unfortunately, it had to be a political party, and not a civil society organization, for instance, that challenged this aspect in court. It gives a political flavour to the challenge and might detract from the essential legal principles at play here.

Let’s hope not.

We remain a Constitutional Democracy

We remain a Constitutional democracy during times of crisis. Values and principles that remain intact, unless we collectively give them up or change them. But the fundamental principles contained in the Constitution, as well as our Constitutional goals, should be guarded at these times.

The way we make decisions during these times has a lasting impact, and the rules themselves might remain long after the thread of the virus dissipates. Our Constitution requires a balance of interests and rights. We are negotiating that balance between individual freedoms and responsibilities. This is new for all of us.

In that sense, we should celebrate every challenge in court. Because, like Parliament, the courts also have a role to play in ensuring accountability, in aiding to clarify uncertain principles. We should celebrate the fact that these matters can be taken to court, and that they can be debated in public.

That is democracy at play. Democracy is not always clear-cut rules and kumbaya moments. Law-making is often a messy process, and democracy is about contestation of ideas, even bad ones.

But it remains vital that when we do this, we present our arguments respectfully, we provide reasons, and we explain our positions. Not necessarily with the aim of convincing others that we are right, or that we know better. But in the way of promoting a better understanding of where we come from, and what informs our decisions.

Because once we understand that, it opens up the opportunity to work together.

And the enormity of the challenge that lies ahead will require us to work together, rather than pull each other apart.

* This was published on on 18 May 2020.