Rule by bureaucrats – sidestepping democracy

The separation of powers (SOP) doctrine is one of the most entrenched elements of the modern state, from thriving democracies to tyrannical dictatorships. The legislature should create law, the executive should enforce law, and the judiciary should interpret the law and apply it to disputes.

In a dictatorship the distinction between the various branches of government is merely a formality, whereas in practice the dictator, usually in the executive branch of government, does as he pleases. In liberal democracies, however, the separation of powers is jealously guarded against transgression. This is for a good reason, especially in the case of the legislature: only elected officials in Parliament, who have a democratic mandate from the people, should create the law which binds the people.

In a Westminster-based parliamentary democracy such as South Africa, the separation is not absolute, especially between the National Executive Authority and Parliament. The President, Deputy President and Ministers are elected officials who initially sit in Parliament. They then get deployed into the executive. Therefore the highest rungs of the executive government also, albeit to a limited extent, carry a legitimate democratic mandate. Civil servants, however, in the lower echelons of the executive government, on national, provincial and local level, are not elected. They are appointed to carry out specific functions, hopefully, according to their merit and skill.

According to the Good Law Project’s Principles of Good Law report, “there is a natural propensity for the executive branch of government to … exercise law-making and judicial functions.” It continues to say that the executive seeks to create a bigger, more powerful “bureaucratic empire”. This is a global problem, not in any way limited to South Africa. It is however a trend that must be continuously combatted.

The executive’s regulatory function is without a doubt a fundamentally important function for the operation of good government; however, such regulations should not become substitutes for legislation. The proper role of regulation is to facilitate the implementation of legislative provisions, i.e. administrative and technical concerns. Whereas legislation is adopted in the public eye by public representatives, and with public participation, regulations are created behind closed doors in government departments, with most observant citizens only learning about them when they appear in the Government Gazette. Substantive law, i.e. the rules that bind citizens on a day by day basis, should always be known or easily ascertainable, and subject to input. If substantive rules of law appear in the form of regulations, of which South Africa has books full, per department, every innocent act is a potential crime.

For example, an explanatory draft of the Regulations Relating to Foodstuffs for Infants and Young Children, states that Regulation 7(5) prohibits companies with a financial interest in a product they create, market or distribute, from also presenting nutritional information for young children and infants. The Department of Health reasons that this is done because only medical professionals should be imparting this knowledge and that the educational information should not be “product related”, i.e. with the intention to market the product rather than educate. This may be true; however, this is a substantive rule rather than an administrative matter, and therefore must appear in legislation rather than regulation.

Perhaps the most worrying of this phenomenon is that Parliament is not being circumvented, because Parliament in most cases deliberately empowers the executive government to ‘legislate’ through regulation. This can be for various reasons: perhaps Parliament believes the experts and technocrats in the executive will have more intimate knowledge on a particular matter, or perhaps Parliament wishes to transfer the burden of responsibility onto the executive (which will always be more than happy to receive such burden). Parliament is certainly not “in the dark”.

Our current dispensation, in all probability, inherited this trend from the Apartheid regime. Although officially Parliament was ‘sovereign’, the executive government had immense power. The head of state, a ceremonial post for most of our history, was empowered to create substantive law for black South Africans on a whim without Parliament’s input, as provided for in the Black Administration Act. Censor boards and control committees were also given wide discretion in banning material it deemed to be ‘harmful’ in some or other fashion. The judiciary, too, was executively-minded.

It is therefore imperative that contemporary governments must move away from this inclination to ‘defer to the executive’. The judiciary has been thoroughly transformed in this regard, taking its historic role to defend individual rights under the Constitution firmly into its hands since 1993. Parliament has been less willing. Time cannot be wasted in this regard: Parliament must respect its own functions and cease to defer to the executive.

Author: Martin van Staden is a third year LL.B law student at the University of Pretoria, Southern African Regional Director of African Students for Liberty, and an intern at the FMF. He blogs actively at South African Libertarian ( He writes in his own capacity and does not represent the views of the FMF.

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