The rule of law is senior to the Bill of Rights

MOST people say they believe in the rule of law, yet few can define it coherently. High rule-of-law scores are the single biggest contributor to national prosperity, peace, liberty and freedom from corruption. Virtually nothing is more important for us to understand and uphold than the rule of law, writes Leon Louw of the Free Market Foundation in Business Day.

Most references and definitions are so vague that people can be forgiven for regarding the rule of law as little more than a cliche. Few, if any, think it a practical aspect of daily life; a way of knowing, for instance, whether roadblocks, taxi regulations, labour laws and exchange controls are lawful. How many people can recognise rule-of-law violations by tax collectors, building inspectors, employers, shops, courts or civilians? How many vote for parties that promise to uphold the rule of law but don’t do so?

Niall Ferguson, rated by Time magazine as one of the world’s 100 most influential people, believes western democracies will collapse if erosion of the rule of law is not reversed. While the rule-of-law score is rising in most countries, it is falling in South Africa.

The rule of law should be a living reality properly understood by ordinary people. It is constitutionally more important than is generally realised.

It is not just in our Bill of Rights, it is above it.

It is a binding and "justiciable" foundational provision of section one of the constitution, which says that the country is founded on the "supremacy of the constitution and the rule of law".

In other words, the rule of law is as supreme as the constitution itself. They are equals.

Why is something so pivotal so little understood? The rule of law is as jurisprudentially complex as it is conceptually simple, at least in its traditional form. The "modern" tendency, mistakenly and dangerously according to Ferguson, is to erode the rule of law to the point where it virtually vanishes, which has happened to the separation of powers in South Africa. Legislative and judicial functions of the government are being transferred to the executive to the extent that the former two are becoming redundant.

Dictatorships are characterised by the conflation of power in the executive.

The rule-of-law idea is that free people are ruled by law, not man. When unsure of your rights and duties, always question whether they are determined by man or law ("man" in the original neutral gender-insensitive sense).

One of countless examples of man replacing law was reported in the weekend press.

The Financial Services Board ombudsman rejected law and ruled against Old Mutual insurance company on the basis of "fairness". Such discretionary power at the expense of objective law plunges society into a casino-like morass in which outcomes are decided by a roll of dice instead of the rule of law.

Three core principles flow naturally from "law versus man". The first, separation of powers, means that only the legislature should legislate, only the judiciary should adjudicate and only the executive should execute law. The second, certainty, is apparent from the Old Mutual case. The third, equality at law, should have replaced apartheid but continues to elude us.

The allocation of taxi licences, mining rights, RDP houses, professional qualifications and vehicle roadworthy certificates are examples of man as opposed to law conferring benefits.

The latter two uphold the rule of law by having objective criteria. The others have meaningless platitudes such as "public interest". Such subjectivity makes real or suspected corruption inevitable.

Apartheid violated the rule of law in many ways, the most pervasive of which was inequality at law. Although discriminatory law may be objective, it will be contrary to the rule of law.

To avoid the decline Ferguson warns against, we must restore the supremacy of the rule of law.

That means stripping the terrifying monster the executive has become of most law-making and adjudication functions and purging our law of whimsical discretion.

• Louw is executive director of the Free Market Foundation

Relevant Legislation:

Constitution of the Republic of South Africa
Financial Advisory and Intermediary Services Act 2002
Financial Services Board Act 1990