Hundreds of taxi drivers and queue marshals from Ivory Park were screened on Saturday for the coronavirus. Picture: Bhekikhaya Mabaso African News Agency (ANA)
Hundreds of taxi drivers and queue marshals from Ivory Park were screened on Saturday for the coronavirus. Picture: Bhekikhaya Mabaso African News Agency (ANA)

The 'new normal' infringes on our rights, judges should uphold principles of the Constitution

By Opinion Time of article published Sep 20, 2020

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The phrase “new normal” belongs to the vocabulary of those with an agenda and are gradually being exposed. Judges of goodwill should continue to uphold the principles of their countries’ constitutions.

Sam Ditshego

On September 14, US District Judge, Honourable William S Stickman IV, declared Covid-19 regulations unconstitutional in a civil matter between Pennsylvania residents of County of Butler and Defendants, Pennsylvania Governor Thomas W Wolf and Secretary of Health Rachel Levine.

If there is going to be an appeal it will be heard next year and it will not overturn a federal judge’s ruling.

In his conclusion, the judge said he recognised that the Defendants’ actions at issue were undertaken with the good intention of addressing a public health emergency.

But even in an emergency, the authority of the government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms - in place when times are good but able to be cast aside in times of trouble.

“There is no question that this country has faced, and will face emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.

“The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines.

“It is the duty of the court to declare those actions unconstitutional. Thus, consistent with the reasons set forth above, the court will enter judgment in favour of Plaintiffs,” Judge Stickman IV said.

Continuing with his judgment, Stickman IV said two considerations informed his decision - the ongoing and open-ended nature of the restrictions and the need for an independent judiciary to serve as a check on the exercise of emergency government power.

He raised concerns that while the harshest measures have been “suspended”, the Defendants admit that they remain in place and can be reinstated sua sponte (an act of authority taken without formal prompting from another party) as and when Defendants see fit.

He said it means even when the restrictions were not enforced, the people of Pennsylvania remain subject to the reimposition of the most severe provisions at any time.

And, from testimony and evidence presented by the Defendants, it does not indicate any specified exit date or end date to the emergency interventions.

“Rather, the record shows that Defendants view the presence of disease mitigation restrictions upon the citizens of Pennsylvania as a ‘new normal’ and they have no actual plan to return to a state where all restrictions are lifted”.

One hopes Professor Salim Abdool Karim who is on the panel that advises the ANC government on Covid-19 - and is also funded by the Bill and Melinda Gates Foundation - will take note that no Constitution accepts the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency measures.

I am raising this issue because on September 16 several local radio stations played a recording of Professor Abdool Karim in which he said South Africans should adapt to a “new normal” and learn to live with restrictions for months or even for years.

Professor Karim has arrogated to himself the power to prescribe to South Africans how to live their lives by virtue of the fact that he is on the government advisory panel. The ANC government itself does not have that power. In fact, no government in the world has that right, except China and other totalitarian governments.

On June 2 in South Africa, Judge Norman Davis declared some Disaster Management Act regulations unconstitutional and invalid in a case between Reyno de Beer, et al and Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini Zuma.

This was a courageous judge. The judges of the North Gauteng High Court and those of the Western Cape High Court who presided over lockdown regulations abrogated their responsibilities.

Judges of a South African court ruled that the minutes of the National Coronavirus Command Council (NCCC) were confidential whereas in his judgment Judge Stickman IV decried the fact that the Defendants’ advisers did not keep minutes of their meetings and could not furnish the names of their advisers.

Judge Stickman IV also decried the fact that while Governor Wolf and other defendants instructed others not to attend mass gatherings and to wear masks, they did not do as they told others to do.

They attended a mass rally and did not wear masks. The ANC government also does not follow its own lockdown rules.

There is a set of lockdown rules for ordinary people and another for the elite. In the second week of this month the Minister of Defence Nosiviwe Mapisa-Nqakula and some ANC officials flew to Zimbabwe while they said international and regional borders were still closed. They conflated party and state in the process.

Pennsylvania, just like South Africa, has been under restrictions for six months without any indication of when it will remove all the restrictions such as mask wearing, social distancing and gatherings.

In both South Africa and the US state of Pennsylvania, schools were closed in March which indicates that they were acting out of a script and following orders from their masters. In Pennsylvania, those restrictions have been declared unconstitutional.

On August 29 there was a rally at London’s Trafalgar Square of people who defied and denounced lockdown regulations such as social distancing, rallies and wearing of masks. They said masks were muzzles. There is a groundswell of resistance against the fascist Covid-19 restrictions which judgments such as that of Judge Stickman IV gives a boost and impetus.

Judge Stickman IV should resonate with many people in South Africa and the continent where people were threatened with harsher restrictions and in some cases such harsher restrictions were reinstated.

In South Africa lockdown regulations were unnecessarily enforced through the deployment of the army and police which resulted in the deaths of about a dozen people.

When are governments such as the ANC government, BDP government in Botswana and Swapo in Namibia going to restore our countries to normalcy?

Our countries need to go back to normal and not to a “new normal” which is a phrase I don’t want to be part of my vocabulary.

The phrase “new normal” belongs to the vocabulary of those with an agenda and are gradually being exposed. Judges of goodwill should continue to uphold the principles of their countries’ constitutions.

Sam Ditshego is a social commentator

The views expressed herein are not necessarily those of Independent Media

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