When we have to trust leaders to exercise discretion
Discretion. A word meaning both to not share inappropriate information (to show discretion) and to have latitude within which to make a decision (to have discretion). Both meanings stem from the idea of acting on one’s own authority or judgment.
Discretion is something we are all required to exercise — to good, or less good, result. Of more powerful and troubling consequence is that state functioning is dependent on public officials exercising discretion in the application of state power.
Modern legal systems try to limit the use of discretion, evolving detailed laws and regulations to prevent arbitrary decisions that treat people unequally. In a predictable, ordered world laws can be promulgated with sufficient precision that the sphere in which discretion is exercised is narrowed.
Still, even while applying clear laws and rules judges use discretion in arriving at decisions. Police officers use discretion when effecting arrests and investigating crime. The president and members of the cabinet exercise discretion when making decisions, including top appointments.
Should discretion be used improperly, we can generally approach the courts to seek remedy. However, times of crisis or emergency necessarily involve situations that have not been anticipated. Promulgation of new, detailed laws to address every aspect of a crisis would be too long and cumbersome.
The situation requires flexibility and immediacy and there is unavoidable recourse to discretion from the top-level official down.
The images from Italy are haunting: a health-care system overwhelmed and medical practitioners required to exercise discretion in allocating limited resources — beds, ventilators, medical attention.
At the point of exhaustion, what should doctors and nurses prioritise: their own health, or treating a desperately ill patient?
At the heart of emergency regimes — which all countries attempting to address the Covid-19 pandemic will at least be contemplating, even if not having formally enacted a state of emergency — is legitimating the exercise of extensive discretion by the executive in ways that are difficult in the moment to challenge.
SA’s State of Emergency Act reserves to the president the discretion to declare a state of emergency, a regime that allows for the limitation of a large number of rights fundamental to the Bill of Rights. Under a state of emergency it is at the president’s discretion to promulgate regulations that are necessary to restore peace and order, or to deal with the specific circumstances that have arisen.
In the main, temporary emergency regimes work on the assumption that the people will adhere because they trust the state’s leaders to do what must be done. To have such trust, people must be able to believe that those exercising the discretion are acting in their best interests. People also have to have trust that those exercising discretion are doing so on the basis of expertise — that they are exercising these life-altering powers using the best available information.
In a time of fear, trust is a fragile thing, and the social media age has offered us dynamics that work against such trust. SA, like many other countries, is a polarised nation and every day there are opportunistic attempts to make it more so. That makes it hard for all sections of society to believe leaders are acting in all of their best interests.
Of the many things the pandemic may require of us, re-evaluation of the trends of our social media age may be one. In the meantime, all of us should be using our discretion, in every sense of the word, based on expert, credible information, for ourselves, our communities and our country.