PUBLIC policy globally faces conflict between individual freedoms and the objectives of government to advance collective safety and security.
One can think of the areas of intelligence, law enforcement, criminal justice, disasters and public health. The latter is momentary in that pubic interest measures in the current Covid-19 response such as quarantine, isolation, lockdowns and compulsory screening and testing have become standard. Quarantine, isolation and lockdown are so severe that individuals areunable to exercise their freedoms in normal daily life.
Just how much must collective interests justify trampling upon the liberties and interests of the individual?
The idea that the State’s primary duty is to preserve the life, safety and security of its people, under the parens patriae principle, cannot be faulted. It is a false dichotomy, however, that a governmental authority must choose between collective and individual interests. Rather, the real dilemma is striking a more perfect balance and achieves the best of both worlds.
Imperatives that are shaped under false moral justifications distort the truer position that group rights do not have to clash with individual rights, and that the two are in fact in complementarityand are mutually reinforcing in the protection of people’s interests.
The individual in the rights framework
Social structuring is such that the individual forms the most basic element of society. Human dignity as the foundational right is premised on recognition of the individual’s personhood and humanity.
It is normatively misplaced to readily disregard the individual, and suppress and oppress under the pretext of advancing the collective good. For oppressive regimes, the “greater good of the people”is often a ruse for the desires of those in power, and provides perfect cover for group control and withdrawing or unduly limiting individual agency.
Group rights have historically been used to, among other things, infringe upon individual rights. Yetparens patriae is not a boundless principle, and grants no government the rights to abuse power.
Fascinatingly, the interests that group and individual rights seek to protect will frequently be similar. Many group rights are premised on the interests and rights of the individual.
The collective will not stand if its constituents and their interests become peripheral.And the reserve is true: absent protection of collective health, safety and security, individuals are unable to exercise the many rights they have.Individual rights may sometimes be rights only because they promote collective societal interests.
The highest possible enjoyment of human rights can only be attained if society reachesanequilibrium between the extremes of individual interests and societal interests. As scholars have argued, desirable public policy would demonstrate an acceptable spread of benefits and burdens between public interests and individual rights.
In reality, striking a perfect balance is an elusive venture, but governments can strive to imbue in public policy and practice, principles and standards that pass the marks of rationality and reasonableness. The two interests must not be seen as antagonistic. Rather, they have a symbiotic relationship, with one feeding off and into the other.
The individual, in being subjected to public interest measures, is often left exposed and endangered. As such, subjecting individual rights to collective interests must allow for the application of control measures. As far as possible, authorities must aim to be as thorough and thoughtful as possible in drafting regulations such that actual enforcement would require only minimal and less intrusive steps.
The above is not to say individual rights can and must never bow down to collective rights and interests. They must when necessary. If tension arises between group rights and individual rights, which should take precedence will vary according to circumstances.
But because tension between rights and public health is inevitable, governments should ensure that minimum due process rights are guaranteed, both in the civil and criminal sense.
Even in respect of those individuals who may have been infected, courts worldwide have ruled that a person does not lose fundamental rights or guarantees solely because of ill health or exposure to contagion.
Countries have set minimum standards in their constitutions and legislation, outlining what must not be undercut. Restraining people from enjoying their freedoms cannot be done unnecessarily, arbitrarily, inequitably, or brutally. Derogations must only be to the extent permittedat law.
Various jurisdictions have as far back as a century ago developed criteria for justifiable limitation of rights. Most jurisdictions require that the limitation be necessary, reasonable, proportionate and avoid harm or do the least harm – what other jurisdictions call less restrictive measures.
For instance, the severity of the threat posed by the health issue must shape the response as a measure of necessity. In so doing, one evaluates the purpose and nature of the limitation, the nature of the rights concerned, the relationship between the limitation and the purpose, and the need to ensure that the enjoyment of rights and freedoms by any person do not prejudice the rights and freedoms of others.
Other criteria developed over the years include transparency in enforcement, fairness andthe awarding of just compensation to the affected.
Limitations processes are a global best practice recognised at international law. It is these limitations or savings standards, legislated or otherwise that delineate the contours of acceptable derogation. And some rights cannot be limited, among them the right to human dignity, fair trial and prohibition from being subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.
The burden of proof should be on government to demonstrate that adopted measures pass the limitations test. Under such a test, it is the government’s burden to evaluate and defendthe effectiveness and necessity of measures adopted.
Placing this burden upon government guaranteesrestraint on the state, while providing a standard for judicial review in cases of overreach.
Though a perfect balance is an illusion, governments must strive for as close as possible to ensuring the least harm and violation to individual interests,since ultimatelyno amount of legal safeguards will completely remove the need to limit rights.
Tyranny on “collective interests ”
If collective interests are allowed to take precedence by default, it leads to majoritarian hegemony. This is in fact, the reason populist democracy alone,unchecked, has long been rejected.
Conceptually, global South societies may be concerned with placing a premium on individual rights, on the basis that communalism and the collective have always been priced in these societies.
That is for plausiblereasons, and whatever is good and admirable to that end must be preserved. But focusing on that alone gives a skewed perspective. Culture has oftentimes been used to perpetrate tyranny by the majority.
The advent of human rights has been, to a significant extent, a response to this phenomenon. Human rights seek to protect individuals from collective sabotage and trampling, under the cover of pursuing collective interests.
Contemporary human rights practise eschew any emphasis on a binary of the individual and the collective. One cannot sustainably pursue the collective while ignoring the individual, and vice versa.
The goal is to ensure that as little damage and disruption as possible is allowed to happen to both the individual and the collective. The ideal has greater chances of attainment if there is reciprocal responsible behaviour between the government and citizens.
If one understands the framing of individual and group rights in this manner, it then becomes easier to appreciate, for instance, that while lockdowns are necessary, they must be accompanied with measures which include provision of social assistance, economic support interventions and legal moratoriums on certain disruptive legal processes.
Similarly, it becomes easier to appreciate why security enforcement of lockdown, social distancing and other protective measures must still be human rights and law compliant. This may also help understand the vaccination demand – to compel or not to compel?
Kika is a human rights and constitutional lawyer