Gehan Gunatilleka,whose favoured title is “Liberty in the Time of Corona” **
Sri Lanka’s police has just announced that it would arrest those who disseminate false or disparaging statements about government officials. Why is this announcement incredibly dangerous?
In the midst of the current Covid19 crisis, governments will ask individuals to make great sacrifices to prevent, detect, contain, and cure the deadly virus. While the crisis continues, and the threat of a truly catastrophic pandemic increases with each day, the temptation and pressure to surrender more of our freedom in exchange for protection, stability and care is inevitable. But where this exchange may leave liberal democratic societies in the aftermath of the crisis may not be fully grasped as yet. The post-Covid19 world we inherit may be profoundly different in many ways, including in the way it views and values liberty. In this short reflection, I focus on the conceptual features of individual liberty, and the risk this pandemic poses to it. I propose that in order to avoid governmental overreach, the current negotiation between individuals and their governments must carefully differentiate between the types of liberties that may be limited and those that may not.
There is no singular definition for the concept of liberty. Many philosophers, jurists, and political thinkers have sought to explain what liberty means. Among them, Wesley Hohfeld offers one of the most succinct and widely-accepted accounts of liberty. According to Hohfeld, a liberty to do something simply corresponds to the absence of any duty to refrain from doing that thing. For example, an individual has the liberty to leave their home, as the individual owes no one a duty to remain at home. The moment it transpires that the individual owes others a duty not to leave their home, we may say the individual has no liberty to leave their home.
Many liberal societies are founded on the idea that individuals enjoy liberty as a natural right, and it is up to those who wish to limit such liberty to justify the limitation. Some scholars describe this understanding of liberty as the ‘fundamental liberal principle’. Liberty is the norm; the limitation is the exception.
Governments assume authority to limit individual liberty both under international and domestic law. For example, the International Covenant on Civil and Political Rights (ICCPR) provides that certain fundamental freedoms, such as the freedom of movement, the freedom of religion or belief, the freedom of expression, and the freedom of peaceful assembly, may be limited on certain grounds. The protection of ‘public health’ is consistently listed as one such ground. Domestic law, including a number of modern constitutions, replicate this structure. For example, the United Kingdom’s Human Rights Act introduces into domestic law the rights recognised in the European Convention on Human Rights (ECHR). The Convention lists the protection of health as a legitimate aim for which certain freedoms may be limited.
Apart from the ordinary scheme through which individual liberty may be limited, legal regimes also provide that states may temporarily deviate from fully respecting individual liberty during extraordinary circumstances. For example, article 4(1) of the ICCPR provides that, in a ‘time of public emergency which threatens the life of the nation’, a state may take measures derogating from its obligations under the Covenant. Apart from the freedom of religion or belief, most other individual liberties may be subject to derogation to the ‘extent strictly required by the exigencies of the situation’.
Public Health Emergency
A public health crisis such as the Covid19 pandemic may qualify both as a ground to limit individual liberty under ordinary circumstances, and as an extraordinary situation warranting more unusual — but temporary — restrictions of certain liberties. For example, the freedoms of movement and peaceful assembly may be limited on the grounds of public health. Typically, restrictions on travel to and from certain locations with high infection rates, and restricting gatherings of more than two persons may be justified on the grounds of public health. Meanwhile, the crisis could arguably threaten entire societies, and justify temporary measures that more sharply deviate from rights protections. For example, some governments may be justified in instituting total lockdowns, where the freedom of movement is temporarily prohibited, rather than restricted.
Britain’s new law affords broad powers to the government to restrict the freedoms of movement and peaceful assembly on the basis that the country faces a public health ‘emergency’. This law is likely to receive the support of a large portion of the British public. A number of other countries, including Singapore, are meanwhile implementing systems for digitally tracking the movement of individuals — ostensibly for the purpose of preventing the spread of the virus.
These measures may be legally permissible, provided they are very carefully justified. For instance, under the ICCPR or ECHR, they would need to be justified on the basis that they are necessary in a democratic society, and proportionate in terms of meeting the legitimate aim of protecting public health. Some of these measures may also be justified as temporary deviations from treaty obligations during a time of public emergency.
From a conceptual standpoint, a public health crisis may present individuals with clear duties towards others in society. Such duties signal the limits of individual liberty. For instance, a community’s interest in remaining healthy, and free from a deadly virus, may be sufficient to impose a duty on an individual to stay at home. The individual’s general liberty to move freely is no doubt limited as a result of this specific duty the individual owes others. Therefore, limitations on liberties such as the freedoms of movement and peaceful assembly can potentially be justified during the current crisis.
Differentiating between liberties
The Covid19 crisis has presented governments with an opportunity to justify limitations on individual liberty on the grounds of public health. Limitations on some liberties will inevitably be justified. But this general discourse becomes deeply problematic when we consider the risk it poses to other liberties. For example, the United States Department of Justice has reportedly proposed new emergency powers that could seriously undermine habeas corpus — a remedy that is founded on every person’s right to liberty.
Meanwhile, free speech faces a serious risk of erosion. Governments will seek to introduce special measures that limit free speech on the grounds that criticism of governments or spreading misinformation can prompt others to behave in ways that harm public health. Yet these measures are likely to be too expansive and serve the interests of the government rather than public interests in health. In South Africa, for instance, the government has sought to centralise information sharing on the Covid19 virus. The measure prevents a variety of experts, including epidemiologists, virologists, and infectious disease specialists from commenting on the crisis without channeling their comments through the government. The slide from justifiable limitations to these types of far-reaching and overinclusive limitations is inevitable if there is no meaningful differentiation between the liberties we should limit, and those that should be left untouched. There are two perspectives to consider when making this differentiation in the course of negotiating government responses to the crisis.
First, liberty corresponds to the absence of duties towards others. Whenever a government seeks to limit individual liberty with respect to some human activity, it must demonstrate to the individuals concerned that they owe others a duty to refrain from such activity. Approaching limitations in this manner can help filter out governmental opportunism — where the interests of the government infiltrate the rationale for a particular limitation. We have already seen how such opportunism infiltrated the discourse on national security and the prohibition on torture in the aftermath of the September 11 attacks. We are bound to encounter the
We have already seen how such opportunism infiltrated the discourse on national security and the prohibition on torture in the aftermath of the September 11 attacks. We are bound to encounter the same opportunism and penchant for abuse of power during the Covid19 crisis and its aftermath. For example, an individual owes no conceivable duty to others to refrain from criticising a government during this crisis, even if such criticism undermines confidence in the government. The government’s obligation to adopt measures to prevent the spread of the virus should not be mixed with its own interests in evading criticism, even if the two are indirectly connected. For instance, a loss of confidence in the government may indirectly impede the effectiveness of its measures to combat the virus. Yet the government has to deal with criticism by contesting it, rather than by prohibiting it.
Second, liberty is the default position. It is the norm, and not the exception. The burden of justification lies with those who wish to limit liberty. So each limitation on, say, free speech or religious liberty in the interests of public health must be carefully justified with reference to the interests of others. Even justified limitations on other freedoms, such as the freedoms of movement and peaceful assembly, must be timebound and proportionate. If blanket limitations are introduced under new emergency laws, we risk making the limitation the norm, rather than the exception. The burden of proof then shifts to individuals to demonstrate that they have a liberty to say or do something. Thus the discourse that this Covid19 crisis has precipitated not only threatens specific liberties in specific circumstances — it threatens the very fundamental principle on which the ideal of liberty rests.
A post-liberty world?
The value of individual liberty needs to be protected not just in the best of times, but also in the worst of times. It is not a value that is contingent on the permission of governments. It is, more fundamentally, a value that protects individuals from the coercive power of the state. The Covid19 pandemic presents a serious crisis for individual liberty — a crisis that is perhaps much greater than any encountered by this value in the last 75 years. The main reason for this apprehension is that the legal and technological means of combating the virus can leave a terrible legacy. Societies around the world may commit themselves to new social contracts with their governments. It is difficult to speculate on what these contracts may look like. Yet the appeal for stability, safety, security, and surveillance may renew dangerous liaisons with authoritarian forms of government.
Those who remain committed to the value of liberty now confront a future in which liberty, rather than its limits, must be justified. The prospects of a post-liberty world is now within the horizon of our collective imagination. Before societies hurl themselves towards that future, it is important to pause before every limitation on liberty, and filter out governmental opportunism. For we should strive to be remembered as the generation that overcame one of the worst pandemics in recent history; not the generation that sacrificed liberty at the altar of a public health crisis.