The Free when-it-suits-us Market Foundation

When one finds oneself cheering the combined team of the Tobacco Institute and the Free Market Foundation – the latter with surely about as much credibility in a post-financial meltdown world as the Lenin Institute of Economic Innovation – one must perhaps pause and head for a neurological examination.

Certainly it was disconcerting to be agreeing with ultra-libertarian Leon Louw, executive director of the Free Market Foundation. He was weighing in against the Health ministry’s contentious plans to ban all smoking in public places.

‘If you allow this to happen, you have effectively opened the sluice gates,’ said Louw. ‘No way will the nico-nazis be satisfied. They will keep on moving the goal posts. Is that the society you want?’

He was supported by Chris Hart, chief economist at Investment Solutions, who in an address to the Foundation said that the proposals were ‘unconstitutional, impractical and ill-considered’. Louw and Hart share the approach of the Tobacco Institute of Southern Africa that while the regulation of smoking in public places was fair enough, the draft regulations went too far and were excessively restrictive.

Their arguments are mainly economic and, in the case of Louw, the right of the individual to freedom of choice and minimal state interference. The new law would abolish dedicated smoking areas, erected at considerable cost, effectively banning smoking anywhere except in private homes – where the kiddies that the government is ostensibly trying to protect mostly are.

There would be significant knock-on effects on economic activity and employment, argues Louw. In Ireland, 11% of pubs were forced to close within four years of a total smoking ban.

Louw forgets that for a government which is allowing its Health ministry virtually free rein to curb unhealthy habits – resulting in the loss of literally billions of rands of economic benefit that the planned ban on liquor advertising and liquor industry involvement in sport sponsorship will mean – a knock-on effect on public drinking will probably be welcomed.

In reality, it is licensed restaurants and pubs, which will dutifully obey the new laws, that will be economically penalised. The steadily growing shebeen industry, mostly operating unlicensed and unpoliced, will score by ignoring the law. The Township Liquor Industry Association, which says the regulations are more stringent than laws in the apartheid years, has already demanded an exemption.

The critical argument against the new legislation, raised by the Law Review Project, is that the new law is being made by executive decree, not through the parliamentary process. “This amounts to a direct violation of the constitutional requirement of separation of powers,’ said spokesperson Tebogo Sewapa.

The LRP believes that the draft regulations show there was ‘no longer a legitimate desire to defend the rights of non-smokers, but rather act as a draconian intervention against those of smokers’. The Health ministry should rely on common laws governing nuisance, property rights, freedom of association, and contracts. ‘Smoking is a vice, not a crime, just as it is not a criminal offence to be obese, have reckless recreations, or be dishonest without committing fraud,’ Sewapa said.

The objection to government executive fiat in a constitutional state is one that the government should seriously think about. So, too, should the opposition Democratic Alliance.

The march that the African National Congress national government is trying to steal with its anti-smoking regulations is no different from the DA-ruled Western Cape government’s decree that it will arbitrarily seize the cellphones of motorists who use their phones while driving.

Both the ANC and DA are acting unconstitutionally but believe that their patently good intentions outweigh constitutional niceties. Both are wrong. The true test of constitutional commitment is acceptance of its strictures when the call goes against one.

Strangely, the Free Market Foundation hasn’t whispered a word about the DA trampling upon motorists’ right to due legal process and freedom from the arbitrary seizure of private property. So is that the society you want, Mr Louw?