The love of liberty – forged or forgotten?

DARRELL P ALLAHAR

FORGED FROM the love of liberty – the opening words of our national anthem. A lofty and majestic composition, containing the hopes and desires of our nation. I rather like our anthem, perhaps because it’s the only anthem I have. I’ve heard it thousands of times. I have never paused to consider what its opening line was intended to mean. Until recently.

What is this “liberty” from which our nation was forged? Was it freedom from colonial rule? Perhaps it was the liberty of man, the basic and fundamental human rights such as freedom of movement, freedom of conscience and freedom of expression.

I don’t recall that we struggled against the colonial authorities to gain our independence. I really doubt that we fought an epic battle to include fundamental human rights in our first Constitution. By all accounts it happened relatively peacefully – which could explain the “fires of hope and prayer” thing. A people fervently praying, of wailing and the gnashing of teeth. Forgive me, I was not there.

That Constitution and its system of Westminster-style government was the standard model that our colonisers recommended when granting independence to its many colonies worldwide. To say ours is a “hand-me-down Constitution” would, I admit, not be entirely original.

We were given our system of governance pre-packaged like a box of fried chicken: convenient, tasty and filling, but in the long run not really intended for daily or long-term consumption. A diet of fried and fatty has probably made us complacent, lethargic and infected with an apathy which one day we probably will despise.

Are we suffering almost 60 years later from constitutional indigestion, or perhaps a case of incontinence? Is the 60-year old monolith, which received a facelift and some implants in 1976, showing its age?

A global pandemic is raging and so too are the many debates about policy – what should be done and what is being done. I do not wish to add to those debates. I prefer to share my thoughts on a much more boring topic – the disconnect between our hand-me-down Constitution and the lofty ideals of fundamental human rights it is supposed to promote.

The executive (to use a politically neutral but boring constitutional term for the Government) has the unenviable task of navigating us all through this crisis: to save as many lives that can be saved, and to strike the balance between freedom on the one hand and the greater good on the other. I wish them well.

To deal with this pandemic we have taken an 80-year old colonial ordinance which allows the executive to make very wide and intrusive regulations to protect the public health. Regulations which, had they been brought to the Parliament as a bill, would surely have required a special majority, since they affect fundamental rights.

Why am I going on about special majorities in a pandemic? The special majority was intended to be a parliamentary check on enthusiastic executive action, where fundamental rights are involved.

The very Public Health Act that allows regulations to be made by a minister without parliamentary scrutiny was “saved” by the Constitution, along with other laws existing at the time we became a republic. Our Constitution says that those “saved” laws cannot be tested against the very fundamental rights that it has so nicely said should be protected.

I read somewhere that this “savings law clause” in our Constitution was put there to ensure stability: we would continue to have a body of laws in place at independence, while we revised those old laws to bring them into line with fundamental rights. That has sadly not happened.

Some might say that the covid19 regulations are not existing law, and nothing prevents one from going to court to test their constitutionality. I suppose they are right, but lawsuits are expensive, unpredictable and time-consuming.

Our Parliament had not sat for many weeks. That did not seem to disturb us. Perhaps we have grown too cynical of what happens over there. I am nevertheless happy to see that protocols were put in place to enable sittings.

Our trusty Constitution says that the executive is accountable to the Parliament. How effective is that really?

Then there are the police. Overzealous public servants doing their part to persuade us to stay at home. They are out in the hot sun stopping motorists in “routine” roadblocks and asking what they are doing outside, all in the name of crime-fighting. We are being told what is the “moral” thing to do. Apparently, it is now immoral for us to access the essential services that have been left to operate because they are, quite simply, essential services.

It is now immoral for us to come into our cities and towns to cash a cheque, collect our salaries or to leave our house to drop off food for elderly relatives. Shame on us all!

I suppose it is easier and safer to catch and “boof” those hundreds of “criminals” on the highways who dare flout the “stay-at-home” request. Peter is probably paying for Paul. I guess everyone wants to play their part for posterity.

So they tell us that they are not frustrating our freedom of movement since they cannot send us home, but they can make it inconvenient for us to move about. Some might say it’s within the law.

It is probably also within the law to arrest and briefly detain someone every week on “reasonable suspicion” because you can, or to force a group of frightened children lying face down on a beach to recite the alphabet.

I for one would have been happier with regulations telling me how and when I may move about. Written laws are always very useful. They prevent arbitrary action and provide a common standard which can be tested by the courts and, of course, by public opinion.

They say that no one has restricted our freedom of movement, but good luck in the traffic jams! I guess that’s what they mean by a co-ordinated response.

It appears as if we have two different Constitutions in one document. One version trumpets high-sounding statements of basic human rights and freedoms. The flip side allows the executive to make laws without effective parliamentary scrutiny, and for the coercive arms of the State to decide what is best for us. If we don’t like it, we can bring a case.

Thankfully, we have the courts. Sadly, the judges cannot enforce fundamental rights unless a case is brought before them. Lawsuits are not cheap. Access to the courts is one thing; access to justice is another. I do not think it is fair to criticise lawyers and their clients for bringing human rights cases during this crisis. I think we should let the courts decide.

What a mess! Was this what was intended when we adopted the Bill of Rights? We all are scared. Some are scared enough so as to excuse disproportionate and arbitrary breaches of their rights for what is now called “the common good.” A dangerous tone is being set where the flip side of our Constitution may very likely become the norm as the months pass by. I am afraid that as a society we may emerge post-covid19 less free that we started off and too numb to care.

Having not fought for our human rights, many of us probably take them for granted or think they are only for refugees and criminals. We think that the Parliament is only for the politicians to play themselves in. We think that the rule of law is something only lawyers say on TV to sound smart.

Something is not right. Meanwhile, we continue to move along with “boundless faith in our destiny.”

Darrell P Allahar is an attorney