In response to the Covid-19 pandemic, almost every country in the world has resorted to unpopular and painful measures causing enormous upheaval. Worldwide, as in South Africa, the economic impact is severe and has resulted in rampant unemployment and social disruptions. Communities are affected by restrictions that has curtailed their incomes and limited their freedoms in significant ways. Most experts tell us that the complexity and dangers of this virus are not fully known. The result is to turn everyone into a pundit. In forming an opinion, the tendency is to engage in risk analysis based on our own assessments of the information that is transmitted in the news and social media platforms. One will be hard pressed to find societal consensus as to what measures are appropriate, reasonable, or proportionate. The usual legislative oversight is lacking given that many legislatures around the world are not fully functional.
Based on how the shoe pinches, many question the rationality of state policies. Some suggest alternate strategies to tailor the measures differently, which leads to the role of the courts. Judge Norman Davis of the Gauteng High Court invalidated the government’s lockdown regulations as irrational. His opinion rendered with such certitude lacks cogency and depth of reasoning with respect to each of the lockdown regulations. Several additional challenges are percolating through the courts. Judge Davis opinion is cast by many in the media as predicated on humanitarian concerns and protecting the vulnerable. Worldwide, many that resist government lockdown regulations such as the neofascist Forza Nuova in Italy, Alternative for Germany (AfD), Vox in Spain are shameless ideologues from the right wing playing to populist impulses. They peddle the narrative that there is virtue to open for business and closure is repression. And there is a not so hidden assumption that what is good for the economy is axiomatically good for society.
Right wing pundits question the science and peddle an insidious narrative that elites want to screw the ordinary person. And they have an echo chamber found in the right-wing media, ala Fox News and others, which amplify the version of Trump, Bolsonaro and the other right wing zealots like hot air buffoons that the lockdown measures are an unreasonable measure to harm ordinary people. If truth be told, this constituency rarely cares about the poor and marginalised. The chorus of support for the findings of judge Davis would also make one believe that the government has been actuated with malice.
The know-it-all interim leader of the DA, John Steenhuisen claims to speak for the people against the lockdown measures. The DA’s perspective of reality on transformation and so many subjects is distressingly warped. This is not to suggest that the court should always be a rubber stamp or never intervene on policy and medical questions during an emergency. It is legitimate to challenge whether the government is providing reasonable educational resources to the poor or food when people are forced to stay at home. Steenhuisen and his ilk would not wage this challenge as it would impose tax burdens on their constituency. Their politics is consistently predicated on what is good for the minority elite is good for the rest of society. The pandemic offers them a rare opportunity to ride, if not incite, populism and feed off the pain of quarantine fatigue, reckless to the potential risks of accelerating a new wave of the virus. And the court should not play a role in tilting the scales towards partisan advantage or taking sides on contested policy such as how funerals should be conducted and whether hairdressers should be allowed to be open as Judge Davis did.
In contradiction to Davis approach, the German Constitutional Court has proved reluctant to question the health-related necessities of the pandemic response. The Bavarian Constitutional Court denied a challenge to the restriction of movement as a violation of fundamental human rights grounds. Plaintiffs claimed the restrictions were not proportionate and unduly interfered with civil liberties. The court acknowledged the violation of many fundamental human rights but concluded that health and life prevailed over other fundamental rights. The court deferred to the lawmaker’s concern about the paramount importance of the life and health of vulnerable members of the public. The court accepted that the state intended to prevent the contagion of a large number of people. Such contagion would lead to overburdening of the health system, which would lead to a widespread consequent death toll.
Recently, the United States Supreme Court, unlike the French Council of State rejected a challenge restricting the number of people at religious gatherings. Freedom of religion is a fundamental right. The methodology of the four unabashedly conservative U.S. justices, like Judge Davis would have ruled the restriction on religious gatherings to be invalid. The binding result (with concurrence by the court’s four known progressive judges) ruled that whether “restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” Decisions on the safety and the health of the people should be left to the “politically accountable officials” as to how to guard and protect” the population. In instances where the question of appropriate action is “fraught with medical and scientific uncertainties,” the latitude given to the political leaders “must be especially broad” and not generally be subject to second-guessing by the judiciary. Chief Justice Roberts held that the judiciary “lacks the background, competence, and expertise to assess public health and is not accountable to the people,” especially where political leaders are “actively shaping their response to changing facts on the ground”.
There is a larger issue that will come up more pointedly in the next set of court challenges, namely the judiciary trying to evaluate the connective tissues between means and ends and making rationality judgments with respect to the government regulations in the context of so much uncertainty. If you want to question the government’s response, the entire science is open to dispute. Much of the response from the scientific community to Covid-19 has not gone through the normal peer review process making it open to contestation. As a general proposition, the judiciary should be circumspect in taking sides with respect to science, economic policy, and social science data. They are ill-suited to determining what is a rational policy that balances health, safety, and economic needs. Neither should judges make calls on what is the appropriate level for opening up of the economy versus the human and health toll. Trump supporters, the right wing in America and other parts of the world engage in a slew of discrepancy arguments. For example, the popular comparison of flu deaths and death through car accidents against Covid-19 deaths.
Some teachers and parents are objecting to the opening of schools. Certain business interest like the tobacco industry object to the curtailing of their business operations. Trevor Manuel, the previous Minister of Finance has questioned the rationality of various economic regulations under the lockdown. If one believes that a court should question the rationality of the hours for exercise or not selling flip flops, what should the response of a court be if the trade unions challenged the rationality of Manuel’s monetary policy choices and sweet heart deals to major corporations allowing them to move their assets out of South Africa? If experts tell the court that these economic choices will diminish the tax base and harm ordinary South Africans irreparably, should a court reverse such an irrational choice? Should a court intervene if workers brought a rationality challenge to Manuel’s free trade policies that resulted in millions of workers losing their jobs and no rational benefit to the local economy? These economic choices implicated workers fundamental right to work and survival. For the judiciary to wade into these sorts of questions is an abject dereliction and abuse of judicial power. These are fraught questions venturing into the realm of incommensurate value judgments for which discernible judicial standards are lacking. Similarly, in an emergency, economic, social, and medical causation is difficult for a court to discern. When courts venture into this exercise, they risk disrobing the judiciary of its cloak of impartiality.
The judiciary must absolutely protect against government abuses as it has correctly done with respect to police atrocities during the lockdown. The threshold for judicial intervention on social and medical questions and evaluating the balance between fundamental interests such as life, economics and health during an emergency should be defined as particularly high. Whether one should be able to buy flip flops and surf in the ocean does not cross that threshold. Whether the government is doing enough to get food and essential services to the poor is a legitimate constitutional challenge. Our Constitutional Court got it right in responding to President Thabo Mbeki’s insane AIDS’ denial and refusal to supply anti-retroviral to pregnant mothers against the almost universal corpus of science. This is not the situation with Covid-19. The complexities of responding to the virus are profoundly different and fluid.
Ziyad Motala Professor of Law Howard Law School