In his Chairman’s Address to the Free Market Foundation AGM in August, Michael O’Dowd deplored in the strongest terms ‘the increasing practice of Parliament of passing legislation which gives unfettered discretion to ministers or officials, thereby delegating the legislative function from Parliament to the Executive.’ He continued: ‘There can be no doubt that this is unconstitutional and this fact has been affirmed by the Constitutional Court in several cases. Yet the government and Parliament go on doing it to the extent that it begins to look as if they are deliberately trying to see how much law-breaking they can get away with. Is this the example that the government wishes to set to its citizens? Is this the spirit in which they wish their citizens to approach the payment of taxes?’
Well, we are all trying on our smart new constitution for size and comfort, as we experience the government for which most of us voted. And what’s wrong with official discretion anyway, if it helps to get things done? To meet peacefully at the borders of their individual space, social animals need rules. Not excessive rules. Human freedom depends on rules securing each person’s free sphere of existence and activity. Such rules tell you what facts you can count on, and for what consequences of your actions you will be held responsible. You also need certainty. Then you can plan and act with some confidence. No rule gives such confidence if remote and unforeseeable consequences may follow your actions.
Who nowadays understands the meaning of ‘rule of law’? Yet a general understanding of the way in which it functions is critical to the operation of a free society as this crucial principle enables the courts to do two very valuable things. Firstly, to determine citizens’ rights in accordance with common and statutory law. Secondly, to ensure that government officials and official bodies do not exceed or abuse their powers.
If officials get quasi-judicial discretion, the rule of law survives, though they, rather than the courts, apply it. But giving them purely administrative discretion nullifies the rule of law it lets them set law aside at will to play favourites and victimise enemies. And let’s not combine two evils by noting that bribery can get you round bad laws.
Property ownership, voluntary exchange and the (contractual) performance of promises Hume’s “three fundamental laws of nature” underpin any free society’s aim to minimise private and state coercion. Undermining them is every tyrant’s goal. Wary of tyrants, we the people want law of general application regardless of specific consequence. That way, the governments favourites, not exempted, join us in lobbying to resist excessive law. Conversely, the government’s favourites want law with exemption for themselves. Or, if that looks too blatant, they want officials that have the discretion to grant exemptions officials that can be offered incentives to favour them above others.
Clearly, strict application of the rule of law would not benefit the governments favourites. And, assuming that they reward officials for providing their discretionary benefits, those officials would also lose their income-supplements.
But surely a well-ordered society needs some to give orders for others to obey? And why go to all the trouble of capturing the state apparatus, carrying the burdens of office, and giving orders, if you can’t help yourself and your pals? Why be a policeman with a flashing blue light if you can’t speed through red traffic lights! Why work for a civil service salary if you can’t accept top-up tips and 4x4s? Why enter politics if you have to resign when your lying or incompetence is revealed?
Such views are common enough, and easily blamed on history now that a half-century of apartheid-state violence has almost terminally eroded respect for the law. A state of affairs that was made possible by the apartheid governments total disrespect for the rule of law respect for which makes racially-biased legislation illegal. Fixing the problem is a different matter. Only the courts can do that, if they care to.
At last we have a constitution to limit government actions, and courts to enforce law to limit administrative activity. Courts can decide whether private rights are well-founded or have been violated by official action. Unfortunately, seeking such a remedy against the state remains an expensive, hence elitist, option. Maybe one day the courts will agree to hear cases at state cost, on the grounds that the current cost (perhaps R50 000 to R100 000) discriminates against poor citizens.
That’s another weakness of the present system. Courts don’t consider an issue until it is brought before them, so our highest constitutional experts gaze down in silence at blatant constitutional violations. They should mimic the old censorship board, quick enough to manufacture its own complaints when it felt strongly!
But there’s a more fundamental problem, regrettably about race. We can only say that laws and not men rule when two conditions are met. Firstly, when the lawgiver does not know the particular cases to whom rules will apply, and the judge who applies them has no choice but to draw the conclusions that follow from the existing body of rules and the particular facts of the case. And secondly, if by ‘law’ we mean the general rules that apply to everyone (including government) since a true law should have general application and especially should not single out any specific persons or group of persons.
Unfortunately for us all, that is not what is currently happening in South Africa. Our constitution and laws appear to sanction even require discrimination by race, sex and other characteristics (euphemised as ‘historical disadvantage’). And our government is prioritising empowerment, even ahead of growth. However, the sections of the Constitution that appear to condone these government actions, are in conflict with sections 1(a) and 1(c) of the Founding Provisions, which surely carry greater weight in law than sections appearing in the body of the Constitution. Until these constitutional contradictions are resolved by the Constitutional Court, we cannot hope for the proper application of rule of law, or for general individual liberty. When they are resolved, we will all benefit except of course the governments officials and favourites.
A South Africa that fully implements the Founding Provisions of its constitution will be a truly free and just society. It will rapidly put the apartheid nightmare behind it and become a society in which everyone is equal before the law. Section 1 of the Constitution states that The Republic of South Africa is one sovereign democratic state founded on the following values: …(b) Non-racialism and non-sexism (c) Supremacy of the constitution and the rule of law. … Does this make a long list of provisions on South Africas statute books unconstitutional, including laws that discriminate on the grounds of race and sex? And are there further provisions that are unconstitutional because they are in other ways contrary to the rule of law? It would appear so. However, we will have to wait for the Constitutional Court to decide when relevant cases are brought before it.
Author: Dr Jim Harris is a freelance researcher and writer. This article may be reproduced without prior consent but with acknowledgement to the author. The patrons, council and members of the Foundation do not necessarily agree with the views expressed by the author.
FMF Article of the Week\15 October 2002
