The most important constitutional rights and values are freedom, equality and dignity.
The Pesach commemorating freedom and governmental regulation world-wide of peoples’ conduct in the Coronavirus pandemic have sharply focused on what freedom means. How can a person be said to be free when they are required to remain at home in a lock down? On the other hand should people be free to interact with others possibly allowing the spread of a dangerous virus?
The old adage that anyone can freely enter the Ritz on Fifth Avenue as long as they pay. And what about the notion that anybody can freely work in circumstances when there is no work available. Is that really freedom? Or is freedom of religion violated when the government pass a law which demands that there can be no discrimination on the basis of gender in the practice of religion. And is freedom of speech threatened by a law which criminalises hate speech or publishing terrorist pamphlets?
Freedom is at least in part the ability for every person to do whatever they want right up until the point where what they want to do infringes on the rights of others. So, a person may be free to smoke cigarettes as long as the smoke or noxious fumes from the smoker don’t harm or come into the space of another person.
Eleanor Roosevelt described four basis rights: These are the right to equal education, the right to work for equal pay according to ability, the right to justice under the law, the right to participate in the making of the laws by use of the ballot. And Erich Fromm defined two types of freedom: freedom from (negative) and freedom to (Positive). To be free from is to be no slave, to live in a free country, to have no coercion, to be free from restrictions and impediments. But to be free to is to be able to choose, to control and direct one’s own life. Freedom from is lack of obstacles; freedom to is presence of control. Put simply, I am free from if I am no slave, and I am free to if I am my own master.
The Constitutional Court has accepted that freedom, like the right to dignity, is a core right in the panoply of human rights. If freedom is not respected and protected how can other rights be regarded as protected?
Out of the ruins of World War II the United Nations was created. One of the UN’s ideals is to promote social progress and better standards of life in larger freedom. The UN General Assembly in 1948 adopted the Universal Declaration of Human Rights. The UNDHR proclaims both civil and political rights on the one hand, and on the other economic, cultural and social rights. The latter rights are framed in the language of aspiration. In other words States should strive to protect the economic rights of its citizens gradually. But civil and political rights are to be protected immediately. But the Cold War developed. The civil and political rights so respected in the West, were regarded as impediments to the Soviet aspiration of economic equality.
This clash of cultural values and the approach to rights is brought into focus in the Coronavirus pandemic. The sacrifices of every individual’s freedom to leave our homes and go about our daily business, including our work for the greater good — that is the protection of health and possibly many lives covers huge terrain. Is it a violation of freedom of religion to ban public gatherings? Synagogues, including bar and bat mitvahs and funerals are effectively prohibited. And cell phone location tracking for all persons is being rolled out in violation of right to privacy. And access to courts is extremely limited. Government has made fake news about Covid-19 a crime. Such criminalisation is a clear violation of the right to freedom of speech. Schools are closed, so the right and freedom to education is limited.
But these violations are implemented to protect our right to health. Our freedom on so many levels is restricted. So we are not free from government dictate in this time. There are obstacles to live as we choose. We are not free from State control. We are not living in a free country or world. Restrictions and impediments exist on so many levels, superficial and deep. But in this radical new world freedom to is also heavily impacted. We are not in any way our own masters whilst an all-encompassing lockdown is in place. So we are not free to be our own masters.
This entire saga reminds one of Nelson Mandela’s many years striving for freedom. He didn’t care about the nuances of the differences between freedom from and freedom to. All Mandela knew was that he and the people of South Africa were not free and that his mission was to achieve that freedom. He sacrificed so much, and in such a dignified manner to achieve the freedoms so taken for granted until this Coronavirus time. We should all use the lockdown time to reflect and contribute to healing. Healing ourselves by recognising that unless all persons are free to pursue physical and spiritual health and happiness then our own freedom is somehow compromised.
By Anton Katz
Anton Katz SC, a senior counsel practicing at the Cape Bar, was a member (2011-2018) of the UN Human Rights Council working group on mercenaries.
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