On Civil Disobedience and COVID-19 Directives

Gabriël A. Moens is Emeritus Professor of Law at the University of Queensland. In 2019, he was appointed a member of the Order of Australia (AM) for his extraordinary services to the teaching of law and higher education. It was an honour for me to edit ‘A Commitment to Excellence: Essays in Honour of Emeritus Professor Gabriël A. Moens’, a collection of articles written by world leading academics and lawyers who share with me a profound admiration for his impressive life and legacy.

As he was confined to his home office, Professor Moens discovered time to look at his previous works which go back about four decades. He noticed many papers and speeches, written in the 1990s and earlier, which have never been published in their entirety. To our great benefit he has collected twelve of these papers and now published them as a book entitled ‘Enduring Ideas: Contributions to Australian Debates’. Additionally, he also included three more recent papers that deal with topical issues.

The outstanding papers consolidated in this book deal with issues and themes which remain more relevant than ever. For example, one of the debates that took place in Australia from the 60s to the 80s involved the right of people to disobey laws. Although some academics argue that civil disobedience should always be peaceful in nature, Professor Moens reminds us in Chapter 2 (‘On Civil Disobedience’, 1980) of this collection that there are instances of grave societal injustice which can be remedied only through less peaceful means.

In this essay he starts by describing civil disobedience as the violation of law which is promulgated in accordance with the formal requirements of a legal system. He informs that the International Covenant on Civil and Political Rights does not mention civil disobedience, although it could be argued that some acts of civil disobedience are protected by Articles 18 and 19 of the Covenant. Under Article 19, “everyone shall have the right to freedom of expression”. And as stated by Article 18, “everyone shall have the right to freedom of thought, conscience and religion”.

Professor Moens explains that citizens may decide to disobey a law when this can be perceived as being incompatible with higher principles which are derived from our common-law legal tradition.  Assume, for example, that the concerned citizen finds herself in the unenviable position of having to break a law because such a law is actually contradictory to these higher principles. The need of governments to respect our freedoms of thought, conscience and religion implies a natural right of the citizen to breach any law that is inconsistent with the ordinary exercise of her fundamental legal rights. This act of civil disobedience could operate as the means by which the concerned citizen can expose what might be regarded as an intolerable violation of fundamental legal rights.

Although one may argue that acts of civil disobedience should always be non-violent in nature, Professor Moens does not entirely agree with this assumption. As noted by him, “it could be argued that there are some instances of societal injustice which could be remedied only through violent means”. Further, it is possible to argue that coercive commands of the State that ultimately result in gross violations of fundamental legal rights are themselves more subtle forms of violence.

Professor Moens explains in this Chapter that the efficacy of civil disobedience is dependent on its rationality. As he points out, the requirement that civil disobedience should be rational is closely linked to an essential element in the legitimisation of these extraordinary measures, namely that these “acts are undertaken with the purpose of bringing about social change”. He then proceeds to demonstrate how a commitment to rationality requires that the principles invoked as justification for civil disobedience must be balanced against the principle of regular obedience to validly enacted laws. This, according to him, is particularly important because human beings are naturally inclined to disobey rules with which they personally disagree.

Professor Moens is honouring an important aspect of our Western legal tradition. In the constitutional struggle of parliamentary forces against the Stuart monarchs in 17th-century England, the receptive attitude towards Biblical Christianity allowed philosophers like John Locke to elaborate a theory in which the primary justification for civil government rests on the preservation of our fundamental rights to life, liberty and property. His main concern in his political writings was the elaboration of a legal-political philosophy to underpin the Glorious Revolution of 1688.

Of course, Lockean theory was also influential during the draft of the American Declaration of Independence. Locke’s anthropology was built upon his Christian views, and such views are essential to his substantial contributions in legal-political theory. According to Locke:

“Whenever the legislators endeavour to take away and destroy the rights of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.”

We should not be too hasty in dismissing Locke’s advocacy for the traditional concept of lawful resistance to political tyranny. This is our classical liberal tradition and it firmly communicates that citizens have a lawful right to resist acts of political tyranny and to demand the lifting of arbitrary measures that violate their inalienable rights.

Professor Moens also explains “that a system does not function adequately anymore when some groups have entrenched power positions in society and use their power to impose their will on weaker and vulnerable classes of people”. He informs that “when the opportunities for change which are provided by the legal system are deficient, civil disobedience is often an effective and expeditious way to challenge the law”. In other words, civil disobedience could be justified when the normal channels of social and legal change can no longer function properly, or whenever serious grievances are not properly addressed by the State and the voice of the people is simply not heard.  

Above all, it is the basic function of civil disobedience “to close the gap that exists between social reality and the law”. This must be accomplished through the obtention of widespread community support, and when disobedience has been justified in accordance with our common-law tradition. That being so, such acts of civil disobedience could operate as “a strong medicine which renders society, which otherwise may become less democratic, more responsive to its problems”.

In this context, it is important to consider that some governmental measures to supposedly prevent the spread of coronavirus have profoundly affected the exercise of our fundamental freedoms, particularly freedom of association, movement, expression, and privacy. Some of these measures are inherently arbitrary and have caused a great number of citizens to endure deeply stressful and traumatic situations, including home confinement, job losses, financial ruin, and a host of mental and physical illnesses.

At the time Professor Moens was preparing this book, Australia was already facing the alleged Covid-19 pandemic. To defeat the virus the Government arrogated far-reaching powers to itself and adopted numerous draconian measures that have seriously affected the enjoyment of our fundamental rights and freedoms. In this context, Chapter Fourteen of ‘Enduring Ideas’ considers the role of the State in the protection of public health. First, the draconian measures created to allegedly combat the virus are examined. Professor Moens characterises such measures as deeply paternalistic in nature, having an enormous and deleterious effect on the basic rights of people, including unintended consequences for the protection of their own health.

Finally, the legality of Covid-19 measures is assessed in that same Chapter, particularly in light of the perceived unconstitutionality of such draconian measures.[1] Professor Moens is a leading constitutional law expert. In fact, his book ‘The Constitution of the Commonwealth of Australia Annotated’ (LexisNexis, 9th ed.) is regarded by The Hon Robert French, a former Chief Justice of the Australian High Court, as ‘a very useful reference text for students and practitioners at all levels in the field of constitutional law’.

I can hardly over-emphasise the importance of Professor Moens’ ‘Enduring Ideas: Contributions to Australian Debates’, to a better understanding of the enormous challenges we are presently facing as a nation, and potentially for a very long time. In this excellent book, not only the (un)constitutionality of government measures during the Covid era is addressed, but also the instances in which civil disobedience could be justified is carefully explained. Regrettably, as Professor Moens writes in Chapter Six, many Australians “take freedom … for granted and do not realise that the price for freedom is eternal vigilance”. The testimony of current events is entirely supportive to that assumption.

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Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is a well-known expert in Brazilian law, and the author of numerous books and articles on Brazilian Constitutional Law, including Direito Constitucional Brasileiro – Tomes I & II (Rio de Janeiro/RJ: Lumen Juris, 2014), and Curso de Direito Constitucional (4th ed., Rio de Janeiro: Lumen Juris, 2006). He is also co-author of the book Deconstructing Scomo. He is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017. Dr Zimmermann was chair and professor of Constitutional Law at Murdoch University from 2007 to 2017.

[1] A revised and updated version of this article can also be found in a recent book that I have edited together with Joshua Forrester as Volume 11 of The Western Australian Jurist law journal: Augusto Zimmermann & Joshua Forrester (eds.), Fundamental Rights in the Age of Covid-19 (Connor Court, 2020) xvii + 424 pp.

The books referred in this article are:

• Enduring Ideas: Contributions to Australian Debates, by Gabriël A. Moens AM. Available for purchase.
• A Commitment to Excellence: Essays in Honour of Emeritus Professor Gabriël A. Moens, by Augusto Zimmermann (ed.). Available for purchase.