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Chapter 40 Freedom and Security of the Person

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Chapter 40 Freedom and Security of the Person Chapter 40 Freedom and Security of the Person Michael Bishop and Stu Woolman 40.1 Introduction (a) Drafting history (i) Evolution of IC s 11 (ii) Evolution of FC s 12 (b) Philosophical background (i) IC s 12: Ferriera v Levin, classical liberalism and substantive due process (aa) Negative liberty (bb) Substantive due process (ii) FC s 12: Enumerated rights, dignity, and the dialectic of enlightenment 40.2 Relationship between FC ss 12(1), 12(1)(a) and 12(1)(b) (a) Dual function of FC s 12(1) (b) Reconstructing 'freedom': Discrete roles of FC ss 12(1), 12(1)(a) and 12(1)(b) (c) The 'due process wall': FC ss 12 and 35 40.3 FC s 12(1)(a): Arbitrary deprivation of freedom (a) 'Freedom' (b) 'Deprivation' (c) Substantive dimension of FC s 12(1)(a) (i) Arbitrariness (aa) Substantive arbitrainess (bb) Procedural arbitrainess (ii) Just cause (aa) Constitutional values (bb) Basic tenets of the legal system (cc) Proportionality (d) Procedural dimension of FC s 12(1)(a) 40.4 FC s 12(1)(b): Detention without trial (a) Detention (b) Trial (c) Limitation 40.5 FC s 12(1)(c): Public and private violence (a) Violence (b) Positive obligations (i) Vertical application (ii) Horizontal application (c) Negative obligations 40.6 FC s 12(1)(d): Torture (a) Definition (b) Justification 40.7 FC s 12(1)(e): Cruel, inhuman or degrading treatment or punishment (a) Components of FC 12(1)(e) (i) Treatment and punishment (ii) Cruel, inhuman and degrading (aa) Dignity (bb) Cruel (cc) Inhuman (dd) Degrading (b) Judicial doctrines (i) Inherently impermissible (aa) Physical punishment (bb) Imprisonment (cc) Other forms of punishment (ii) Proportionality (aa) Gross diproportionality and mandatory minimum sentences (bb) Gross disproportionality and indefinite incarceration (c) Extraterritorial application 40.8 FC s 12(2): Bodily and psychological integrity (a) Bodily integrity (b) Psychological integrity 40.9 FC s 12(2)(a): Decisions concerning reproduction (a) Abortion (b) Sterilization (c) Contraception 40.10 FC s 12(2)(b): Security in and control over one's body (a) Security in (b) Control over 40.11 FC s 12(2)(c): Subjection to medical and scientific experiments (a) Medical and scientific experiment (b) Informed consent (c) Persons unable to consent OS 07-06, ch40-p1 Freedom and Security of the Person 12. (1) Everyone has the right to freed om and security of the person, which includes the right (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent. 1 40.1 Introduction (a) Drafting history (i) Evolution of IC s 11 Section 11 of the Interim Constitution 2 had its origins in two distinct rights found in the early drafts of the Interim Constitution: a right to personal liberty, and a right to 1 Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)('FC' or 'Final Constitution'). freedom from torture and inhumane punishment. 3 The initial separation of the two rights tracked the structure of international human rights instruments and the provisions of a number of foreign constitutions. 4 After briefly forging a OS 07-06, ch40-p2 Page contains footnote text in the print version OS 07-06, ch40-p3 new right to 'Security of the Person' (which included the right to be free from torture or inhuman punishment), 5 the Technical Committee on Fundamental Rights combined this new right with the right to personal liberty and called the amalgamation 'Freedom and Security of the Person'. 6 The enacted version, IC s 11, read as follows: Freedom and Security of the Person (1) Every person shall have the right to freedom and security of the person which shall include the right not to be detained without trial. (2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. 2 Constitution of the Republic of South Africa Act 200 of 1993 ('IC' or 'Interim Constitution'). 3 See Technical Committee on Fundamental Rights Fourth Report (3 June 1993). The personal liberty right read: 'Every person shall have the right to his or her personal liberty.' The freedom from torture and inhumane punishment right read: 'No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.' 4 See Universal Declaration of Human Rights, arts 3 and 5, International Covenant on Civil and Political Rights, arts 7 and 9(1), African Charter on Human and Peoples' Rights, arts 5 and 6, and European Convention on Human Rights, arts 3 and 5(1). The Canadian Charter, the German Basic Law and US Constitution also bifurcate the two sets of rights. Section 7 of the Canadian Charter of Rights and Freedoms states that: 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.' Three different dimensions of the Canadian Supreme Court's interpretation of s 7 of the Charter inform our analysis of FC s 12: (1) the restrictive definition of 'liberty'; (2) the relatively restrictive definition of 'security of the person'; (3) the residuary definition of 'fundamental justice' — a definition that invites the court to entertain a wide and unenumerated variety of substantive challenges to the law. 'Liberty' — the functional equivalent of 'freedom' in FC s 12(1) — has been construed to mean freedom from physical restraint. Such restraint occurs primarily in the context of the criminal justice system and has been understood to encompass imprisonment, mandatory fingerprinting, document production, and oral testimony. 'Liberty' under s 7 of the Charter does not embrace political liberty (expressive rights and the franchise are protected elsewhere in the Charter) nor was it intended to offer any protection for property or economic interests. However, despite the drafters' relatively clear desire to limit s 7's ambit to purely procedural challenges, the Supreme Court has imputed a substantive dimension to the provision, and, in particular, the phrase 'fundamental justice'. See S Choudhry 'The Lochner Era and Comparative Constitutionalism' (2004) 2 Journal of International Constitutional Law 1. The Charter, s 12, contains a prohibition on 'cruel or unusual treatment or punishment'. However, the Canadian Supreme Court has had little occasion to define the phrase. The Supreme Court has said that one test for cruel and unusual punishment would be 'whether the punishment prescribed is so excessive as to outrage standards of decency'. See R v Miller and Cockeriell [1977] 2 SCR 680, 688. The Supreme Court has, in terms of s 12, struck down a law that required a minimum sentence of seven years' imprisonment for importing narcotics as grossly disproportionate to the offense. See R v Smith [1987] 1 SCR 1045. Neither the Technical Committee notes nor the Ad Hoc Committee notes offer an explanation for these changes. 7 One inference that might be drawn is that the drafters believed the rights to personal liberty and to security of the person were OS 07-06, ch40-p4 sufficiently related to place them under the same heading. Another inference, drawn by Ackermann J in Ferreira v Levin, is that the amalgamation of the separate rights supported a disjunctive reading of IC s 11(1) and (2) and thus a construction of IC s 11 that results in a stand-alone right to 'freedom' writ large. (ii) Evolution of FC s 12 Article 1(1) of the German Basic Law states that 'human dignity is inviolable'. The right to human dignity has been interpreted by the Federal Constitutional Court to prevent the infliction of cruel or degrading punishment. 45 BVerfGE 187, 228 (1977) citing 1 BVerfGE 332 (1952) and 25 BVerfGE 269 (1969). The FCC has also held that life imprisonment may violate the right to human dignity if the possibility of parole was not built into the sentence. See 45 BVerfGE 187, 245 (1977) as quoted in D Currie The Constitution of the Federal Republic of Germany (1994) 305. Article 2(2) of the GBL contains a general guarantee of life, bodily integrity, and personal liberty comparable to the guarantee of security of the person found in FC s 12(2): 'Everyone has the right to life and to inviolability of the person. Personal liberty shall be inviolable. These rights may be impinged upon only pursuant to statute.' Article 2(2)'s commitment to personal liberty has been interpreted narrowly as protecting individuals from physical restraint and bodily invasion. See 22 BVerfGE 180, 218–20 (1967) as cited in Currie (supra) at 307. In addition, the FCC held that art 2(2)'s commitment to personal liberty limits pretrial imprisonment to that time necessary to investigate the case, to a reasonably short period of time, to cases where there is a significant chance for recurrence and to determine an accused's mental competence. The FCC has also held that while art 2(2)'s guarantee of bodily integrity may not preclude the use of electroencephalograms, it does bar the state from subjecting individuals to non-consensual spinal taps or placing accused persons on trial when they are extremely ill.
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