Great life vs liberty debate

THE EDITOR: A former attorney general posits that the enforcement of the stay-at-home orders may present a breach of our rights enshrined in the Constitution and he has a point.

The rights to which he refers in this context are delineated in Section 4 of the Constitution and include the right of the individual to life, liberty, security and enjoyment of property; freedom of movement; freedom of association and assembly, among others.

The former AG’s position may be grounded in his belief that the Government may not have fully satisfied the exception conditions (one such condition being the declaration of a state of emergency) for an “abrogation, abridgement or infringement of these rights and freedoms hereinsobefore declared.”

So where does this leave us? In the height of a global public health crisis due to a highly infectious disease, the invisible enemy, covid19, do we flout the stay-at home guidelines in the name of its “unconstitutionality” and potentially endanger our lives and the lives of others?

Do we challenge the already woefully burdened public authorities and in so doing line the pockets of privileged politicians who mask political agendas under the veil of the law?

Do we interpret the letter of the law and not the spirit of the law?

Do we ask what can our country do for us and not what we can do for our country?

While as a Commonwealth state our legal precedent relies more heavily on the UK, it will be imprudent to abandon good common law in its entirety solely on this premise. It is in this light that I rely on the US Supreme Court’s decision in Jacobson v Massachusetts.

In 1905, during the smallpox epidemic, a pastor argued that a mandatory smallpox vaccination violated his constitutional rights. The Supreme Court sided with Massachusetts but framed its decision carefully. The court acknowledged “the liberty secured by the Fourteenth Amendment” but it added:

“In every well-ordered society...the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations as the safety of the general public may demand.”

With over two million cases globally and more bodies than morgues in some of the most developed countries in the world, is there not a pressure of great danger to which such a restraint is considered reasonable?

Further, in the Harvard Law Review article entitled “Twenty-First Century Jacobson v Massachusetts,” there is a statement from a Prof Gostin which holds merit in this time. Gostin writes that “public health often involves difficult trade-offs...this trade-off suggests there are times when the government must act quickly and infringe on liberties to save lives.”

He relied on “the 1918 influenza epidemic – the worst in the nation’s history – as an example. Recent studies have shown that the cities and towns that most quickly enacted quarantines and medical isolations had lower death rates than those that were slow to act.”

With over 180,000 deaths registered globally, we must ask ourselves: are liberties more important than lives or are lives less important than liberties?

Does the spirit of the law intend for there to be such flagrant inflexibility in its interpretation to the extent that such inflexibility can threaten the very right to life that it enshrined?

The great debate of liberty versus life will be one that will continue for many years, perhaps beyond our lifetime and who am I to say that one’s value of liberty over life is misguided, selfish, reckless, injudicious and dangerous? After all, we all have the right to freedom of expression. Right?

TENIELLE TOBIAS

via e-mail