Lawyers may be accused of sweating the small stuff. Often with good reason. Because we are confronted daily with small stuff that became a big mess. Fine print becomes piles of court documents. And small things like drawing up a will in your immortal youth can become big contestations later.
So we see the bad stuff. Some days, we only see things go wrong. Lawyers make a living because things can, and do, go wrong.
So when COVID-19 came, many of us had to evaluate both the bigger picture and sweating the small stuff, when it came to the regulations. And as a legal nerd teaching (and loving) interpretation of statutes, my focus is specifically on the regulations from that angle: interpreting words, finding meaning and dissecting how they are made.
This post is not about the bigger picture. I will leave that for later. This post is sweating the small stuff on what constitutes “vigorous exercise” based on a principle that forms part of the rule of law: the principle that rule itself must be clear, as well as the justification for the rule.
In other words, the idea that citizens must know what the rules are and why they are there.
And this ideally must be done when the rules are promulgated, but in the absence, it needs clarification when clarification is sought.
The regulations on wearing of face masks during exercise
Scavenged through the regulations the rules on mask wearing states:
So, you must wear a mask in public, unless you do “vigorous exercise” And the Minsiter of Health will tell us what constitutes “vigorous exercise”.
Only, he hasn’t.
When asked at a press briefing what it means, the Minister said he will leave the definition of what is “vigorous exercise” to us. He added that walking probably isn’t. I presume yoga also not. Although doing pranayama (breathing exercises) during yoga might be.
If the regulations did not indicate that he will let us know, it would be up to us and our common senses to determine what it means. We will probably rely on guidelines by the World Health Organisation (WHO) and other experts on the matter to inform our understaning. This would be acceptable.
On a philosophical level I get excited with public recognition that interpretation is not only the work of the legislature or the judiciary, and that we as citizens form part of a community of interpreters. But then somethings gotta give – at the very least the reference in the regulations that the Minister will inform us what constitutes vigorous exercise needs to go. Or the regulations themselves can be amended, to indicate that no masks are required when doing exercise “and when breathing becomes difficult”.
Science helping in the interpretation process
In case of a dispute, the courts will help with an interpretation, where lawyers will bring in various experts to interpret, to give meaning, to the word “vigorous”.
When looking at the meaning, we might consult various studies. Here the trick will be to discern the meaning of he words from the justification for the rule.
Justifications, however, can help to try and understand what the purpose of the rule is (thereby helping us to find it’s meaning). Early studies indicated that face-covering is an effective way to prevent the transmission of COVID-19, provided that there is a relatively high compliance. But during exercise, this is not enough – there must also be the appropriate social distancing (and then, hand hygiene when home).
For those serious athletes – a study showed that the wearing of masks does not have an effect on performance in healthy individuals (other than, perhaps, being uncomfortable).
(And as a side, here I want to differ from Ferial Haffajee – definitions can be generic or principled based, and need not amount to “micro-management”.)
The World Healht Organisation does not recommend wearing a mask if it makes breathing difficult. BUT, adds the WHO, it is imporatnt to maintain a physical distance of at least 1m (our regulations says 3m) from others when exercising.
Most people will understand that we have different fitness levels, and therefore different toleration levels (think asthmatic people), for wearing a mask.
It is great that the Minister refers to the WHO guidelines, but these were not always adequately communicated or incorporated in the regulations. And in times of uncertainty, the public messaging must be clear, accessible and consistent.
Because ultimately we as citizens need to plan our actions, and for that the rules need to be as clear as can be.
To follow the rules, we need to know what they are
For me, the concern is twofold. One isrelated to the rule of law: knowing what is expected of us. The other is also the concern that not wearing a mask can land you in jail, or with a fine. Unless you were doing, well, vigorous exercise. It therefore has certain implications.
I do not wish to rat on, or shame people. Personally I would prefer if people could show common decency and mask up (if they can breathe) when walking past other people, whether it is in a park or on the street. But I do take solace in the fact that if I mask up, I am not a possible spreader to others, and there is at least some layer of protection protecting me.
And I am grateful that I am healthy enough to wear one when walking, even if I at times just want to dramatically pull off the mask on a Chariots of Fire soundtrack.
During my walkies in Emmarentia botanical gardens, I observe that most people are adhering to the rules and looking out for others. Which, perhaps, makes wondering about the meaning of “vigorous exercise” an exercise in sweating the small stuff.
But would I be a lawyer if I didn’t?