Cabinet Ministers must end 'rule by decree'
The ‘comical’ manner in which the government handled the ‘ban’ on the selling of ‘hot cooked food’ during the Covid-19 lockdown, highlights a larger (and more important) problem with the manner in which the lockdown regulations have been drafted and implemented.
‘This goes to the heart of respect for the rule of law, a founding value protected in section 1 of the Constitution,’ says Professor Pierre de Vos.
He notes this was not the first time that Ministers and officials had decreed that the sale of some goods were prohibited – ‘despite the fact that the regulations were, at best, unclear about this and, at worst, allowed for the sale of the goods’.
Writing on his Constitutionally Speaking blog, De Vos points out that the constitutional problem here is not related to which products are classified as essential goods and which not. Rather, it relates to the lack of respect for the rule of law – that the exercise of public power must be authorised by law; and that the law authorising the exercise of public power must be relatively clear.
‘The rule of law provides important protection against arbitrary rule by Cabinet Ministers, government bureaucrats and police officers.’
De Vos says when the rule of law is respected, a citizen will not face arrest for doing something that is not prohibited by the law.
‘When a Cabinet Minister decides that a certain activity is undesirable and announces that it is prohibited – despite the fact that the law does not prohibit it – he or she arrogates for him or herself the power to rule by decree.’
During the current ‘extreme crisis’, respect for the rule of law protects citizens against arbitrary rule and the inevitable abuses that accompanies arbitrary rule.
De Vos argues that where the legal rule is vague and it is impossible for a citizen to know with reasonable certainty what he or she is prohibited from doing, the rules are enforced in an arbitrary and unpredictable way.
When this happens – when individuals are arrested on the whims of individual police officers – it further erodes support for and compliance with the regulations.
De Vos adds: ‘The arbitrary interpretation and enforcement of legal rules have a disproportionate impact on the vulnerable and the marginalised, which is why respect for the rule of law is not a luxury, but a necessity.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
