The lockdown is unconstitutional – Part III

8 May 2020

We have seen how the Constitution obliges the state, in all that it does, to respect, protect, promote and fulfil our Constitution's transformative vision. We have also seen that this duty applies equally and without exception to the Disaster Act.

Below, we argue that the Minister has acted unconstitutionally in exercising her powers under the Act. She misconstrued these powers and acted irrationally. With hindsight, both failings probably structure the state's response to COVID-19 from the start. In what follows, however, we only consider the most recent exercise of these powers: the Risk-Adjusted Strategy regulations issued under section 27(2) of the Disaster Act ("Risk Regulations"),[1] and the policy informing them ("Risk Policy").[2]

IT'S (NOT JUST HEALTH AND) THE ECONOMY, STUPID[3]

Only two considerations inform the Risk Policy: health and economics.

When the 'National Command Council' is determining the level of lockdown, the Policy says that only 'three criteria should be used' when deciding what to do:

'1. Risk of transmission (including the ease of implementing mitigation measures)

2. Expected impact on the sector of continued lockdown (including prior vulnerability)

3. Value of the sector to the economy (e.g. contribution to GDP, multiplier effects, export earnings)'[4]

Ours is a radical constitution. The ultimate duty of the state, in all that it does, is to respect, protect, promote and fulfil the Constitution's transformative vision. To meet this duty, it cannot restrain itself in the way that it does here. Health and the economy matter, but they do not come close to capturing the plurality of concerns that must inform lawful and rational decision-making.

Not even in states of emergency can we evacuate the domain of normative considerations in this way. Even then, when the life of the nation is threatened, we must take 'into account all relevant factors'.[5] Disaster can warrant temporary centralisation of democratic power, limitations of rights and deviation from processes, but it cannot justify this near-total neglect of the Constitution's ultimate purpose. For an authority to restrict the exercise of its powers in this way, to imagine its function as being limited to finding a 'balance between lives and livelihoods',[6] is to misconstrue totally its constitutional duties and powers. It is to operate under an error of law.

Whilst the content of the Risk Policy cannot straightforwardly be imputed to the Risk Regulations, it matters when interpreting them. Statements by the Minister and other Cabinet members, including the President, also matter: 'Our overriding objective is the preservation of life.'[7]When we couple this policy and these statements with the structure and content of the Risk Regulations, it is clear that the Regulations suffer from this same error of law.

Further, the Minister's failure to consider other fundamental concerns, those ultimate and meaningful goods or values that the state is meant to respect, protect, promote and fulfil, renders the Risk Policy and Risk Regulations irrational—not because their content is necessarily bad, but because the process by which they were devised and enacted is flawed.[8]

Since all public power is subject to the principle of legality, including executive policy and ministerial regulations, the Risk Policy and Regulations are judicially reviewable. As they are rooted in errors of law and emerge from an irrational process, they are objectively-speaking unconstitutional and must therefore be declared invalid.[9]

THE IMPERMISSIBILITY OF ORDINAL RANKING

Even if health and economics were the Constitution's two primary concerns, even if we all suddenly became Hobbesians, Lockeans or Hayekians, with Clintonian and Blairite convictions, the Risk Policy would still be unlawful.

Referring to the three criteria quoted above, the Risk Policy states: 'These criteria should themselves be subject to an ordinal ranking of priority. Thus, sectors with a high risk of transmission should not be allowed to resume activity until this risk is reduced, regardless of the potential impact on their sector or their value to the economy.'[10]

This is impermissible. Under our Constitution, the evaluation of different and sometimes conflicting considerations must be done in context. There is no such thing as 'an ordinal ranking of priority'. The Constitution does not permit the abstract ranking of concerns.

Of course, doctors will tend to privilege health and economists will tend to privilege financial matters, but this luxury of focusing only on what matters to you and your field of expertise is not available to the political actor. Government is not permitted to have an 'overriding objective'.[11] No concern can always trump all the others, such that it must first be met before we assess the normative force of the others. To 'follow the science' or 'obey the markets' is to act unlawfully.

The Risk Policy and Risk Regulations[12] operate in ignorance of these legal facts. Both, therefore, are objectively-speaking unlawful, unconstitutional and must be declared invalid.

PREPAREDNESS, NOT TRANSMISSION

A third error requires us to recall the definition of disaster in the Disaster Act. In the second brief, we saw that the words 'progressive or sudden' function to limit the scope of the Act.

The Risk Policy evidences a failure to grasp this limit. It treats transmission as being sufficient reason to exercise power under the Act.[13] This is wrong. Whilst transmission is relevant to how the state acts when trying to protect our rights and interests, transmission alone cannot justify the exercise of these powers. The ultimate purpose of the Risk Regulations cannot lawfully be to 'stop, limit, contain' the transmission of COVID-19. This should be a goal of government, acting through Parliament and other democratic, accountable and constitutionally-regular processes, but it cannot be the purpose of power exercised under the Disaster Act.

The Minister's powers, including her power to issue the Risk Regulations, are restricted to taking the steps that, ideally, ought to have been taken before COVID-19 arrived, and which for time-sensitive reasons cannot now be taken by Parliament and other bodies acting through regular, constitutional processes. Once these technical measures are in place(readied our healthcare system and 'flattened the curve' to point that this system can adequately cope with symptomatic persons), or once Parliament and others can gather themselves and take back control, the Minister's powers under the Disaster Act are exhausted. In either case, the declaration of the national disaster must be withdrawn immediately. If the Minister exercises these powers further, she will act ultra vires and laws made or conduct taken pursuant thereto will objectively-speaking be unlawful and invalid.

It is not clear whether this state of readiness has been achieved,[14] or whether Parliament and others are now ready to do their jobs. What is clear is that the Risk Policy's treatment of transmission as a basis to exercise power under the Disaster Act is an error of law.

For reasons discussed under the preceding headings, this illegality can also be attributed to the Risk Regulations.

CONCLUSION

Nothing that has been said in these briefs speaks to whether this lockdown is a good or bad idea. Like others, I have my suspicions, but I do not know one way or the other. Nobody can be certain. We will only obtain clarity when the passage of time allows us to reflect soberly on all that has happened and all that we have done.

Yet, it is precisely for this reason that the Constitution is so important. It structures and directs power not just when times are easy, but when all about us is in flux, and we cannot rely on fixed beliefs, ideas or attitudes to guide our actions. In these times, more than ever, the Constitution must act as our lodestar. When government goes off course, we citizens must hold it to account.

If this argument is sound, the Minister and others appear to have ignored the Constitution, or at best have woefully misunderstood it. Its policies and laws underpinning the current lockdown are unlawful and irrational. They must be challenged and the courts must declare them unconstitutional and invalid. Government must do better.

Matthew Kruger, Research Fellow, Helen Suzman Foundation

This article first appeared as an HSF Brief. 

[1] General Notice 480, Government Gazette No. 43258, 29 April 2020

[2]https://www.skillsportal.co.za/sites/default/files/company-files/Portal%20Publishing/risk-adjusted.pdf.pdf

[3]https://en.wikipedia.org/wiki/It%27s_the_economy,_stupid

[4] Risk Policy p. 6 and 26

[5] Sections 36(1) of the Constitution, read with section 37(5) of the Constitution

[6] Risk Policy p. 2

[7]https://sacoronavirus.co.za/2020/05/04/from-the-desk-of-the-president-4th-may-2020/

[8]Democratic Alliance v President of South Africa and Others [2012] ZACC 24 paras 33-40
[9] We must recall what the court said in Ferreira v Levin NO; Vryenhoek v Powell NO [1995] ZACC 13 para 27: 'The Court's order does not invalidate the law; it merely declares it to be invalid.'

[10] Risk Policy p. 6

[11]https://sacoronavirus.co.za/2020/05/04/from-the-desk-of-the-president-4th-may-2020/. Like others who make the claim that life matters above all else, the President's reliance on the judgment of Chaskalson P in S v Makwanyane [1995] ZACC 3 para 144, is misconceived. Apart from the fact that the remark is obiter, by a single judge in a case where all the judges delivered their own judgments, and the fact that this statement so interpreted is not consistent with the next 25 years of the court's jurisprudence, the interpretation neglects the fact that the judge speaks about "dignity" not just "life". What matters is not life in the barest, biological sense. What matters is a dignified life, the realisation of which requires an evaluation of a whole plurality of sometimes-conflicting considerations. It beggars belief that we are having this debate about what just two months ago would have been an obvious statement of constitutional fact.

[12] Apart from the reasons articulated above, regulation 3(2) also provides guidance here, for it empowers the Health Minister to determine the criteria by which we move between the different stages of lockdown, consistently with the Risk Policy's ordinal ranking of health.

[13] For example, the Risk Policy says: "If lockdown regulations are amended to allow some economic activity to resume, it is possible that the infection rate will accelerate and that the virus will resurge. In this scenario, it would be necessary to quickly revert to more stringent restrictions in order to arrest further transmission." (p. 3). This logic, which operates by way of a "feedback loop" (p. 4), structures the Policy as a whole.

[14] By levels 1 and 2, though, when the healthcare system has a "high readiness" and the virus spread is "low" or "moderate" (Risk Policy p. 4), the Minister will be acting unlawfully.