Tobacco judgement is troubling, says law professor
The recent tobacco judgment in the British American Tobacco case in the Western Cape High Court, penned by judges Ndita, Steyn and Slingers, makes for troubling jurisprudence.
The optics look terrible. At its core, the court bends its jurisprudence for the benefit of a most malignant force– the tobacco lobby.
The reasoning, if discussed in a meeting of worldwide experts in a comparative constitutional law colloquium, it would be deliberated during a panel labelled “comedy hour” if only its implications were not as consequential. The magnitude of its incoherence and the calibration of what is proportionate against the limitations clause of the Constitution, involving so many incommensurate values, reflects a judicial mindset that has a dangerous and warped sense of the judicial function and individual autonomy.
The opinion is larded with nonsense too many to chronicle in an op-ed. But here are a few.
The court gave credence to the claim that tobacco was pleasurable and calming to the emotional well-being of some of the plaintiffs. The plaintiffs have a right to smoke during the pandemic – an element of their autonomy and bodily integrity, which is linked to human dignity and the security of the person. If tobacco has any harmful consequences, that is the choice of the individual.
This sense of rugged individualism is not what our Constitution represents. In fact, it is not found in any democracy in the world. I imagine the esteemed jurists at the colloquium will get a good chuckle from the view an individual has a right not to be irritable. Amid the chuckles, one wondered aloud whether she could appear in her pyjamas before the judges because that gives her most tranquillity?
Another, an avid nudist not to be outdone, wondered whether a right of autonomy would allow him to appear nude because formal attire irritated him? Alas, they were aghast when they reflected on the implications. The anti-vaxxers, anti-seatbelt, anti-helmet and any slew of people irritated or emotionally aggravated by government regulations must take encouragement in the court’s absurd conception of autonomy.
The court discussed the erosion of tax revenue from the prohibition in tobacco sales. The esteemed jurists would ask where in the world does a judiciary concern itself with collection of tax revenue. Some might blurt out is this a court judgment or a fiasco?
Plaintiffs raised a slew of other supposed constitutional violations including their right to trade and their right to property. Judges must strike the right balance between complex and competing interests. And do so with humility cognisant of the stakes at hand and the limitations in the institutional competence of a court to calibrate incommensurate values.
The court leaned towards the affirmation of values that judges in other democracies would not validate, except perhaps the conservative and loony right wing of the US Supreme Court packed with Trump appointees.
Even that institution has affirmed, through their conservative chief justice, that pandemic restrictions “is a dynamic and fact-intensive matter subject to reasonable disagreement” which is better left to the “politically accountable officials”. The Western Cape judges proceeded to evaluate risks and parse through social science data on the risks of smoking and its impact on health delivery. In doing so, they exercised what even conservative jurisprudence would characterise as acting as a super-legislature. At this juncture, the delegates to the colloquium will shout in horror, where do courts derive the institutional competence to assess public health especially in a fluid situation, which the court alluded to?
Judging almost always involves the ordering of values. In making the determination of ordering values, we get insight into the mindset of the judiciary. The tobacco judgment was obsequious to the most vile and socially destructive sector, namely the tobacco industry. Recognising a fundamental right to smoke tobacco, the delegates to the colloquium break out in a paroxysm of laughter, leading one to ask what were the Western Cape judges smoking beneath the mountain?
The decision represents a brazen overreach by the judiciary and an extreme vision of individual autonomy, found in an infamous case called Lochner. The Lochner decision is often proclaimed as the most condemned case signifying judicial dereliction and expressing an extreme vision of individual autonomy and property. The Western Cape judges gave expression to that discredited vision.
Our Constitution encompasses the principle of ubuntu which, under our jurisprudence, requires the government and society to act collectively to prevent individual or societal harm. The scholars at the colloquium would say with near unison that even in normal times, which is not our reality right now, where the wisdom of policy is debatable and its consequences uncertain, the co-equal branches of the government are entitled to deference.
Let us hope the triumphalist chest thumping by the tobacco interests is premature and will be set straight by an appellate tribunal.
* Ziyad Motala is Professor of Law at Howard Law School