Tuesday, May 21, 2013

‘Do no harm’ dictum should apply to making law

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21 May 2013 | Tony Leon | Original Publication:  BDlive

In legislating and regulating, sober analysis might yield better results than gesture politics, writes Tony Leon

IT IS seductive to mistake activity for result. Governments do it all the time, perhaps exemplified best by Tony Blair’s observation: "When I was leader of the opposition, I would wake up in the morning and think: ‘What can I say?’ As prime minister I would think each day: ‘What can I do?’." Of course, some of Blair’s acts, such as the invasion of Iraq on an essentially false prospectus, were consequential. Others, such as introducing "antisocial behaviour orders", were typical of what one can term "gesture politics", aimed in this case at curbing binge drinking among teenagers and other juvenile delinquencies. The coalition government now in power in the UK apparently intends to scrap them.

But governments everywhere often mistakenly believe that legislating and regulating will simply create the desirable ends embedded in the instrument.

Readers might recall that the Labour Relations Act was introduced with the promise of inaugurating an era of peaceful industrial relations. Events in Marikana and elsewhere suggest a lived reality somewhat at variance with the paper pledges of Parliament. Our constitution is also stuffed full of promises, from decent housing and education to affordable healthcare, which are often observed only in the breach. This led me to observe at the time, that if legislation led to the results promised, then South Africans would live in a promised land.

A number of encounters at the Franschhoek Literary Festival at the weekend were useful in fortifying the belief that, in most circumstances, government and legislators generally would do well to apply the "do no harm" dictum when it comes to making laws. I bumped into David Lewis, the impressive head of Corruption Watch, the civil society movement that monitors this pandemic in our midst. He confirmed that many traffic policemen pay bribes to get into various municipal traffic departments and then, to pay off the bribe, in turn extort bribes from motorists, especially those suspected of driving above the legal alcohol limit. Interestingly, in February, Corruption Watch reported that the two institutions whom callers to their hotline identified as the most corrupt in the country were local government followed by the traffic police. In other words, the bodies most responsible for policing road safety and interdicting drunk drivers are also the most corrupt.

Now, onto this rickety foundation, the ministers of health and transport, frustrated and angry at the staggeringly high number of road deaths — over half of which are caused by drivers or pedestrians under the influence — now propose to outlaw the consumption of alcohol before driving and to legislate a total ban on alcohol advertising.

The virtues and demerits behind this latest government impulse cropped up at the festival during a debate in which I participated alongside Judge Dennis Davis and social commentator Eusebius McKaiser. We were discussing whether the much-maligned concept of liberalism in South Africa was a swearword or a noble idea, and probably concluded it was a bit of both. But from different perspectives, we agreed that our constitution was premised on a liberal idea that the sovereign power of the state over the individual is bounded by the requirement that individual citizens remain inviolable in certain areas of activity.

Doubtless, Ben Martins, the communist who heads the Ministry of Transport, and Health Minister Aaron Motsoaledi would be delighted to be accused of being illiberal. But they might be less happy to be regarded as ineffective. The best answer I found to whether, how and when the state should regulate against private behaviour that can have harmful public consequences, such as drinking and smoking, came from US President Barack Obama’s regulatory czar, Cass Sunstein. On his watch, any federal regulation must now be based on data and evidence rather than intuition, impulse and interest-group pressure. It is a requirement that any prohibition is accompanied by a simple table that offers three things: a clear statement of the quantitative and qualitative costs and benefits of the proposed curb; a presentation of any uncertainties; and similar information for reasonable alternatives to the action.

It is apparent that the desirable end of keeping alcohol-induced deaths off our roads will not be achieved by the means proposed by the ministers. The UK has more generous blood-alcohol levels for driving than South Africa. Yet in the UK, road deaths per 100,000 inhabitants are one-tenth of the South African total. Equally, it is impossible to prove that alcohol advertising, already highly regulated, causes greater consumption than merely reflecting greater demand.

Simply put, sober analysis, forgive the pun, and a reconciliation between the ends desired and the means legislated to achieve them, rather than gesture politics and legislative grandstanding, might yield results.

Leon is the author of The Accidental Ambassador (Pan Macmillan). Follow him on Twitter: @TonyLeonSA OR on Facebook: facebook.com/TonyLeonSA

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