Media release: Beware benign interpretation of government power in times of crisis

Government action, which occurs against the background of a national disaster or emergency can always be made to appear essential to the wellbeing of the people, and therefore benign. The tendency of government to invade the liberty of the individual in these circumstances appears justified for the limited purpose for which it is done. There is, of course, always more than a hint of truth in the official position and this is what makes it potentially sinister. COVID-19 is a singular example of this process. The inevitable result is that the people become complacent.

In these circumstances it is imperative that society's various pressure groups; the media, the academe, the professional bodies and the non-government organisations, remain vigilant. Chairman of the FMF Rule of Law Board of Advisors and former judge of the Supreme Court of South Africa, Rex van Schalkwyk said, "There are, in particular, two things to be alert to: the language in which the enabling legislation and regulation is cast (the second must never exceed the limits imposed by the first), and the stipulated duration of the 'emergency' powers. It is no use to take literally the reassurances given by politicians and their media representatives if the reassurance does not match the explicit powers that are conferred. Powers that are broadly and inexactly defined are an almost certain warning of impending abuse. A political spokesperson will always put the most benign interpretation upon government power in these circumstances". And so, beware.

Experience has shown that the spread of the reach of government authority against the backdrop of an emergency never retreats thereafter to the former position. This is because political authority feeds upon itself.

FMF Head of Legal Policy and Research Martin van Staden said, "There are no easy answers during this time of public crisis. But as the acclaimed anti-Apartheid parliamentarian, Edgar Harry Brookes, and advocate (and later judge) John Burman MacAulay wrote in 1958, citizens must always be vigilant when it comes to exercises of government power, and when in doubt must err on the side of protesting 'in every constitutional way open to them'. If they do not, it 'would be rank disloyalty to South Africa'."

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