What is ‘right’ in a constitutional state?

By Anton van Niekerk

Not everything is going well in South Africa – to put it mildly. I am not going to list all of our worries: there are enough such lists.

A central aspect of many things that the citizenry is wrestling with the authorities about, is a concern about the sustained application of law and order, and in particular, respecting and upholding our liberal-democratic constitution.

The latter is central to the concern about crime, about corruption (think particularly about the President and parliament’s apparent disregard of the constitution regarding the Nkandla-affair), the worries over affirmative action and the struggle in rightwing circles over language rights for minority groups at universities. In all of these disputes we hear a continuing and wishful refrain: ”Respect the laws on our statute book and apply them. Respect the constitution.”

We are a constitutional state – a constitutional system typified by the rule of law, i.e. a government by laws and not people. The constitutional state in its liberal-democratic form is probably the most important and valuable institution of the modern world (that is, Western European civilization since 1600). Before that time (and sometimes during it) we saw what societies look like which are not ruled by laws, but people – almost without any exception, despotic.

Stalin, Hitler and Mussolini are a painful 20th century reminder. Many aspects of apartheid equally remind us of this. One should therefore think carefully in a constitutional state before one begins propagating and doing things which undermine central aspects of the rule of law. It is in this regard that, in my view, we have to think again about the widespread rejection of the e-toll system in Gauteng, as it is presently done under the leadership of OUTA. Whatever else can be said about this controversial system, there is no doubt that it was legally implemented.

Despite disagreements as to whether the public was consulted enough, the system was legally designed and promulgated by the Gauteng legislature [sic]. The system was not designed illegally and just thrust down people’s throats.

I am the first one to recognise people’s right not to like the system. In a democracy we should also have the right to protest (in a legal way) against it. It is very likely that a different form of tax could have reduced the burden on the Gauteng public or spread it more evenly. It is simply true that the poor who often live far from where they work and are reliant on public transport (which will inevitably become more expensive as a result of the new system) will be badly affected. All these things are true.

It is likely that we have a kind of road- and transport tax here which has not been thought through properly and could be improved significantly. The question remains, though: what are we as the public doing when, fired on by organisations like OUTA, the protest against the new system takes the form of completely refusing to participate in it? What implication does this have for the rule of law? What happens in a democratic society when the citizenry simply refuse to abide by promulgated laws made by legitimate legislative bodies (like the Gauteng legislature)?

For most people in Gauteng the shortcomings of the e-toll system are probably clear and thus the call to civil disobedience is acceptable and popular. But we have to consider this a little more. If such civil disobedience is in order, what else can it lead to? Are we really prepared for all the implications? What do we do, for example, when a substantial part of the poor people of South Africa, fired up by the EFF or some other group, simply starts confiscating property (not just farms) left and right for its own purposes. Do we then protest in the name of the rule of law and legitimate legislation on our statute book – particularly in the name of the constitutional article which now protects property rights? Why should the reliance on the rule of law and the legislation which exist in a constitutional state be in order in such a situation but not in our current situation when we ignore the laws that enforce e-tolls?

One of the most valid critical comments on apartheid is that that system undermined people’s respect for the law. There simply were too many discriminatory laws on the statute book for which the majority of the population had no respect and which consequently were less and less applied. Thus an alarming, widespread climate of disdain for legality and laws was created – something, particularly in the phenomenon of crime and corruption, we still see twenty years after democratisation.

With the reaction to e-toll, we now see in the new democratic South Africa exactly the same phenomenon: people do not take notice of laws and thus contribute (perhaps unintentionally) directly to a climate of undermining the constitutional state. In a democracy we do not have to agree with the government. We can protest against unfair and unworkable laws and regulations.

But heaven help us if, on a massive scale, we start taking the law into our hands.

Then we all lose, not just the government. Then it is the end for all of us. People who ignore valid laws (even if they are laws that should be removed or improved) must count the cost of what they are doing and seek change in other ways – as should happen in a constitutional state.

(Prof Anton van Niekerk is Director of the Centre for Applied Ethics at the University of Stellenbosch. The article appeared in Die Burger on Tuesday 14 October 2014)

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