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| The Rule of Law under siege in South Africa? Leon Louw |
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A presentation by Leon Louw 17 March 2005 The rule of law is fundamental to South African law. It is enshrined in the first chapter and first section of the Constitution. It is a binding Founding Provision. Section 1(c) provides for the “supremacy of the Constitution and the rule of law”. Despite its pivotal importance for South African law, there is little understanding of what it means, especially for many law-makers. This is one of the legacies of the apartheid era. True transition requires the cultivation of a clear understanding of what the rule of law means in practice; its implications for conceiving of and drafting legislation and regulations. “The rule of law” is distinguished from “the rule of man”. What that means is that everyone’s rights and duties must be readily apparent from the law and not subject – or subject only in exceptional circumstances – to discretionary power. It also means that substantive laws must be legislated made by an elected, transparent and accountable legislature. They must be executed by the executive, and adjudicated by an independent judiciary. Regulation – sometimes called “subsidiary legislation” inappropriately – should not be thought of as an alternative way of making laws. Power should be delegated only to the extent needed to execute and implement substantive law (legislation and common law). The challenge facing South Africa is to have a fundamental break from the apartheid-era mindset in which there was no constitution requiring adherence to the rule of law – parliament was sovereign; it is now an organ of state. A tradition was established according to which almost all legislation amounted to a delegation of illegitimate power to the executive. The three basic functions of government – legislative, executive and judicial – were systematically conflated into an omnipotent, and consequently abusive executive. The legislature, and thus elected and supposedly accountable politicians, became increasingly marginalised and irrelevant. Legislatures at all three levels – national, provincial and local – merely “rubber-stamped” whatever the executive, usually a single minister, wanted. South Africa’s transition has been an extraordinary process, often called “the miracle of transition”. By observing that it is incomplete, I do not trivialise it. On the contrary, it will be undermined if it is not completed by a change in mindset that translates the constitution and the values that inform it into a living reality, where there is spontaneous recognition of measures that are inconsistent with the rule of law in particular, and other constitutional provisions and values in general. Apart from the philosophical reasons for this “separation of powers”, to prevent the over-concentration of power, there are profoundly practical reasons for it. The legislature operates in accordance with elaborate procedures prescribed by the Constitution, and followed according to Parliamentary convention. These procedures are appropriate for law-making in a democracy. They ensure transparency, accountability, debate, participation and due consideration. They ensure that substantive laws are made by elected politicians. Regulations, on the other hand, can be gazetted arbitrarily. That they are sometimes preceded by public discourse, or presented to the cabinet, is a matter of discretion, not a requirement of the Constitution generally or its rule of law provision. For this reason regulations should be confined to formalistic measures needed to implement substantive legislation adopted by legislators. A second practical reason for rigid adherence to the separation of powers principle is that it is the only sustainable way to contain the natural propensity of officials to draft laws that shift power over time from politicians to officials. Their spontaneous inclination is to promote their interests, namely to formulate laws that enhance their powers, status and incomes. Doing so gradually transfers the de facto legislative function from politicians and parliament to the executive, thus eroding democracy itself. Only if there is critical awareness and vigilance amongst politicians, will the erosion of their powers, the rule of law and democratic values be averted. Most mature democracies and, increasingly, developing countries, ameliorate the problem by having all laws drafted and screened by an autonomous central drafting agency, with trained experts in Constitutional Law. The third practical reason for strict adherence to the separation of powers doctrine is that executive discretion is the main cause of real and suspected abuse of power, especially corruption. It necessarily generates intolerable and irresistible opportunities and temptations for the abuse of power. The failure to recognise this in South Africa virtually all less developed countries is the principle reason for disproportionate levels of corruption in the third world. There is no rigid or obvious boundary between legitimate legislation and regulation. But there are clear values and principles embodied in the rule of law that should be appreciated, respected and observed automatically; as a national mindset or ethos. Regulators – usually ministers in their executive capacity – should not “sail close to the Constitutional wind”. They should not get away with as much as they can. There is no need for regulations to test the limits, and they should seldom if ever be the subject of legitimate Constitutional challenge. Acts should be drafted so as to contain all substantive law. Legislators must decide and debate in public what laws they want. Excessive discretionary power is undesirable in practice. It is an inferior way of making law. It is unsound philosophically; at variance with democratic values. The separation of powers component of the rule of law has two dimensions. It prescribes and proscribes what may or must be in statutes, on one hand, and in regulations on the other. A statute or a regulation may be ultra vires, the former for one and the latter for two reasons. If an Act purports to delegate more power than allowed, it is, to that extent, unconstitutional, regardless of whether the power delegated putatively is used by the executive. Regulations are unconstitutional if they exceed what is authorised by their parent statute, and, even if they accord with it, they are unconstitutional if the delegated power is excessive or ambiguous. The Constitutional Court has ruled that it must be clear from legislation why powers are delegated – to what end are they to be executed. They must also be accompanied by objective criteria for implementation. Delegated power cannot be implemented capriciously or according to the arbitrary whim of the executive. Statutes must provide clearly and unambiguously for how officialdom must or may exercise powers, and what, precisely, citizens must do to remain within the law. Citizens should not find themselves at the mercy of arbitrary or discretionary power. They should be able to establish with certainty from relevant statutes what their substantive rights and obligations are. What they must do procedurally for the implementation of laws is the legitimate substance of regulations. Typically, regulations should do no more than prescribe formalities: forms to be completed, office hours, registration fees, and the like. Many new acts, like there apartheid-era predecessors, do not specify the purpose for which it purports to delegate the power under which the draft regulation is contemplated. They do not always specify objective criteria for implementation. To that extent they are or should be found to be unconstitutional. Even if they are constitutional – if the Constitutional Court interprets the Constitution generously, they are certainly undesirable according to the principles of good law. A requirement of the rule of law is certainty: people are entitled to “know where they stand” so to speak. This is an obvious derivative of the rule of law. If there is no certainty, discretion rather than law rules. Uncertainty in law creates real or suspected injustice, and increases the probability of bureaucratic inefficiency. The aspect of the rule of law usually mentioned first in texts on it is the doctrine of equality: that laws must be of general application (an explicit requirement of our Constitution) and apply equally to all. For obvious historical reasons our Constitution allows measures to protect and advance people who are disadvantaged as a result of unfair discrimination. En passant it should be noted that the Constitution does not refer to race or to people who were “historically” disadvantaged. In other words, it applies to people presently disadvantaged regardless of when they were discriminated against unfairly, which could be in the distant future. A careful reading of the relevant provision raises important jurisprudential questions regarding prevailing practices and policies many of which may be per se violations of the foundational rule of law requirement of equality, without necessarily being legitimised by the exception. |
Understandably, there is a propensity to presuppose that the equality requirement of the Constitution refers to racial equality – that targeted discrimination is racial. The challenge to the rule of law of this myopic interpretation is that equality in other senses may be compromised. There are many examples. Most South African legislation and regulation is from the past. There have, for instance, been about 1,000 new acts of parliament since 1994 whilst there are over 3,000 acts still in force. Much if not most pre-transition legislation contains provisions inconsistent with the rule of law. Many post-transition laws also reflect a lack of appreciation of or respect for the rule of law – because of the extent to which the pre-transition mindset survives amongst all concerned with law-making: including legislators, government officials, judges and magistrates, lawyers, NGOs, and representatives of civil society (organised business and labour particularly). A seminal example that bridges the past with the present is the Consumer Affairs (Unfair Businesses Practices) Act. It is a reincarnation of the harmful Business Practices Act. Like its predecessor, the new Consumer Affairs Act has extraordinary provisions. It purports to permit the executive branch of government to ban virtually any business practice, which is so broadly defined as to include almost anything anyone does in pursuit of income. Some formalities are prescribed but they are nothing like what is required of the legislature should it want to ban a business practice. In other words, the Act purports to give the executive more law-making discretion than the legislature enjoys under the Constitution. Additionally, the Act purports to grant the executive an unbridled right to discriminate, a right which is exercised routinely. The net effect is that the executive makes substantive laws, applies them arbitrarily to individual businesses or people (instead of generally to all people), and undertakes quasi-judicial proceedings amounting to a usurpation of the judicial function. Whilst it is required to follow some aspects of the rule of law requirement of due process, it need not and does not comply with the high standards taken for granted in the judiciary, where people have the right to know who their accusers are, of what they are accused, what law it is they are supposed to have violated, the right of access to all relevant information, the right to be present, the right to cross examination, the right of review and appeal, and so on, none of which is applicable to proceedings under the Act. A derivative of the requirement of legal certainty – the right to know the law – is that laws should not be retroactive. It is obviously inconsistent with the rule of law – you are not being ruled by the law – if you cannot know at the time of doing something whether it is lawful. The Act purports to grant the executive the power to rule tomorrow that what you did today is unlawful even though there was no way of knowing it. In theory, the activities of the Dutch East India Company in 1652 could today be declared retroactively unlawful. Retired UCLA Professor Emeritus, John Hospers, used to use South Africa’s consumer affairs law in his jurisprudence course as an exercise for students to identify the contravention of every principle of the rule of law in a single short act. Similar powers exist under an increasing number of laws such as the Financial Advisory and Intermediary Services Act and the proposed National Credit Bill. One of the most extreme is the Prevention of Organised Crime Act (POCA), known popularly as the asset forfeiture law. As always, the law was defended with persuasive rhetoric to the effect that abnormal powers are necessary to fight “international organised crime”. When rule of law protagonists queried the extraordinary powers in the act, they were told that the government needs to be “tough of crime” – a sentiment shared by almost everyone, which is why there is widespread support for the law. And we were reminded that similar powers exit in the USA. This latter point has become a mantra to legitimise all dubious laws … as if the United States is our benchmark for what ought to be done during our transitional towards being a mature democracy. This is nearly as bizarre as the tendency to justify dubious things done now on the grounds that they were done under apartheid. Advocates of the rule of law warned that power corrupts and that powers intended to protect us from large, sophisticated and dangerous crime syndicates would be used against ordinary civilians, which is precisely what’s happening. As far as I know the legislation has never been used to seize the assets of international crime syndicates. Instead it is used to take the assets of ordinary innocent civilians. Consider Mr Kleinbooi, an employee on the Laingsburg Municipality. He is suspected of drunk driving, but not yet convicted, and therefore to be presumed innocent. It turns out that there are many curious facts, such as that blood samples were taken long after his two alleged offences. However, when considering the rule of law it is important not to be diverted from basic principles by context-specific anomalies. The Act purports to give officialdom virtually unbridled arbitrary power to take all or any of any citizen’s assets whether or not the person has committed an offence. All your wealth could be seized without you ever having committed an offence, or ever being charged, under conditions that would make it impossible for practical purposes for you to defend yourself. These are not all the elements of the rule of law; only those that are presently least understood and therefore under greatest threat. There are essentially two ways of addressing the problem, firstly for government to continue enforcing and making laws of dubious constitutionality pending a Constitutional Court ruling, or secondly, to create institutions and a climate of opinion that upholds the rule of law in its full and proper sense as a national value that informs all laws and practices. The problem with leaving it to the Constitutional Court is two-fold. It means that unconstitutional laws will be enforced indefinitely, perhaps for decades. It also presents the Constitutional Court with an intolerable dilemma” it is and should be reluctant to find laws, especially those made in the new South Africa and laws that have already had far-reaching consequences, unconstitutional. It should not be under pressure to compromise the letter and the spirit of the Constitution. The constitutional watchdog function should be performed at the other end of the statutory process, when laws are being conceived – long before they are presented to ministers and the public. To this end we should consider the tendency in mature democracies to have all laws drafted by specially trained experts in a central drafting agency, and subjected to mandatory screening by an antonymous agency. This would be an ideal criterion for peer review under NEPAD. Finally, it is necessary to respond to what has become popular rhetoric to the effect that individual aspects of the rule of law cannot be upheld absolutely. It is argued, for example, that the separation of powers has to be compromised because in a modern complex world legislators cannot be expected to take responsibility for all the legislation required. This is nonsense. There is no reason why substantive law now being processed as regulations (“subsidiary legislation”) shouldn’t be presented parliament as part of the Act concerned. Indeed, it is impossible for legislators to make laws in good faith if they do not know what law they are really making because its substance will be in a subsequent regulations never considered by them. Perhaps more profoundly, the assumption that the world is more complex or that a complex world needs more laws, is mistaken. The “modern world” is primarily in the first world. We are a developing country. The quantity and nature of laws appropriate for our state of development is that which existed in the world’s most advanced countries when they were where we are now. We curtail our prospect of catching up to them to the extent that we mimic what they do after their success. Even if we were an advanced democracy, the so called modern world is not more complex. Modernity makes the world increasingly simple and enhances the ability of citizens to cope with it. The fact that they have more education, wealth, technology, civil liberties, civil society, and all the other trappings of modernity, means that their lives are simpler – they work shorter hours, have jobs that are less challenging, have more congenial working conditions, retire earlier, live longer, and have a better quality of life according to every measured index. As the eminent jurist Richard Epstein has observed, modern advanced democracies should be replacing complex laws with simple rules that create unambiguous rights and are readily understood by people to whom they apply. |
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