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11 January 1994
Dear Ms Meyer
NEED TO GIVE HIGHER
PRIORITY TO HEALTH IN THE NEW CONSTITUTION
The Medical Research Council
would like to make two recommendations for the new Constitution based upon
research that highlights the
need for a broader approach to health promotion
that includes legislative action.
1 . Individual rights and the
common good
The primacy given in chapter three of the Interim
Constitution to fundamental rights of persons, both natural and juristic, raises
the concern that the implementation of legitimate government policies to advance
the common good may be jeopardised by reliance on
competing individual
rights.
Already, the tobacco industry has based its challenge to the
proposed tobacco health warning regulations of the Department of Health
on
alleged infringement of its property rights, as established in section 28 of the
Constitution. However spurious the claim of
the tobacco industry may be, their
challenge should serve as a caution that health promotion legislation in the
future may be threatened
by competing individual rights.
While it is true
that section 33(1) allows for limitation of rights in the public interest, it
should not be necessary for government
to bear the onus of proving that its
interest in matters such as the public health, is a substantial one. The
substantiality of
such interests should be stipulated as an irrebuttable
presumption in the Constitution. Once important matters of common good, such
as
the public health, are at stake, it should remain only for government to prove
that the intended measures are rationally tailored
to the objective.
Such
prioritising of the common good is already effected in relation to the right to
freedom of economic activity in section 26.
In terms of section 26(2), the
right to freely engage in economic activity (as provided for in section 26(1)),
"shall not preclude
measures designed
I -
to promote the protection or the improvement of the quality of life,
economic growth, human development, social justice, basic conditions
of
employment, fair labour practices or equal opportunity for all, provided such
measures are justifiable in an open and democratic
society
based on
freedom and equality".
Notable for their absence in section 26(2) are the
important considerations of "public health" and the "environment". Should
section
26(2) remain in place in the new Constitution, these considerations
should be added.
It is recommended, however, that section 26(2) falls
away in the new Constitution, in favour of a provision prioritising matters of
common good in relation to rights more generally. There is indeed no reason why
the common good should only be prioritised in relation
to the competing right of
freedom of economic activity.
It is therefore recommended that section 33
be supplemented by an expanded form of section 26(2), which would fall away.
The additional
section would approximate the following:
The rights entrenched in this Chapter shall not preclude measures designed
to promote the protection or improvement of the quality of life, economic
growth, human development, public health, environment, social justice,
basic conditions of employment, fair labour practices or equal
opportunity for all, provided such measures are justifiable in an open
and democratic society based on freedom and equality.
2 . A right to "optimal health"
It is of concern that the
right of the public to protection of their health is couched in a statement in
section 29 which is vague
and negatively phrased: "Every person shall have the
right to an environment which is not detrimental to his or her health or
well-being".
While it is acknowledged that specific protections are afforded to
detainees (section 25(1)(b)) and children (section 30(1)(c)),
no positive duty
is placed on the State to provide essential health care to other disadvantaged
groups in society, such as women,
the disabled, and the elderly. It is
recommended that an additional right of every person to "optimal health" be
included in the
Constitution.
For detailed motivation for these changes I
would like to recommend that you contact Mr S Harrison at the MRC (phone 938
0284; fax
938 0377).
Yours sincerely
Prof 0 W
Prozesky
PRESIDENT: MEDICAL RESEARCH COUNCIL
cc Dr D
Yach
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