Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
10 December 2012

Why is the DA government advocating lawlessness?

Power does funny things to people. A communist who becomes a Minister suddenly believes he has a right – at tax payer’s expense – to be driven around in a million Rand limousine and to stay at the luxurious Mount Nelson Hotel, probably the most colonial of Hotels in Africa. Democratic Alliance (DA) leaders who squeal day and night about the flouting of the Rule of Law by the ANC suddenly blithely advocate lawlessness on the part of law enforcement officers when they become MEC’s.

The latest victim of this kind of power-sickness is a man named Robin Carlisle, the Transport and Public Works MEC for the DA Western Cape government. Carlisle has instructed law enforcement officers to pull over drivers and, if they are believed to be fatigued, to confiscate their car keys to force them to rest. The problem is that there is no law that empowers law enforcement officers to detain drivers in this way and to confiscate their car keys.

When asked about whether it was legal to confiscate the car keys of drivers, Carlisle said: “I have no idea, but I don’t care either… We have got no option but to pull out all the stops, whether illegal or legal… I just don’t know what else to do than to become very rough.”

It might well be that tired drivers pose a danger to other motorists and to themselves. If there was an accurate method to test drivers for fatigue (which, I suspect, there is not) and if there was an empowering law that allowed officers to limit the right to movement of ordinary citizens in this manner, Carlisle’s idea might have been worth exploring.

The problem is there is no law that empowers this kind of behaviour, so Carlisle is brazenly admitting that he has instructed law enforcement officers to break the law. This is the very law that officers are supposed to uphold, the law that limits the powers of law enforcement officers in order to protect citizens from the potential abuse of power by those who can so easily lord it over the rest of us because they wear a uniform.

What Carlisle is in effect saying is that there is one set of rules and principles that should apply to the ANC government and another set that should apply to the DA government. When the ANC flouts the law, it is the end of civilization as we know it. When the DA instructs law enforcement officers to flout the law they should be cheered on because the DA could be trusted to flout the law only if it is in our collective interest.

What makes it worse is that Carlisle has not issued any guidelines to protect ordinary citizens against the abuse of power that will inevitably flow from this unlawful instruction. In the absence of legally imposed guidelines to direct the exercise of such a drastic and invasive discretion by law enforcement officials, it is inevitable that some motorists will become victims of arbitrary harassment by officers, who – let’s face it – are not known for their wisdom and their deep respect for the rights of others.

Who is going to protect innocent motorists from the possible power-hungry or insecure traffic cops out there? Who will make sure that traffic cops will use this power fairly and will not target motorists based on their race, class or gender? In almost all cases it will be impossible to determine with accuracy whether a driver is fatigued or not. This means that if Carlisle gets his way, a traffic cop will be able to stop anyone and confiscate that person’s car keys because the traffic cop says so.

Although not posing the same degree of danger than statements by politicians and police leaders to “shoot the bastards” (“bastards” who might or might not turn out to be criminals), the principle remains the same. This is the thing with principles: one has to stick to them. If one applies a different set of principles to oneself than one applies to one’s opponents, one will rightly be called a hypocrite. Apart from the hypocrisy, it is also deeply illiberal. The DA is supposed to be a liberal party, so when one of its MEC’s advocate the brazen flouting of the Rule of Law, this raises serious questions about the party’s commitment to liberal values.

And make no mistake, the larger issue here is the absence of respect for the Rule of Law. Carlisle is advocating lawlessness, which flouts one of the most important provisions in our Constitution. One of the founding values set out in section 1 of the Constitution is respect for the Rule of Law. A fundamental part of the Rule of Law is the principle that public power cannot be exercised if it is not authorised by law.

There are very good reasons for this. If law enforcement officers were empowered to use their discretion to invade our privacy, to limit our freedom of movement and to do as they please – even when they are not authorised to do so by any law – a message is sent that they are not bound by ordinary laws, that they are allowed to take short cuts to get results and that the rights of ordinary citizens do not count. It sends a signal that the means used can justify the ends even if those means are unlawful.

This is a dangerous kind of precedent. I am quite certain that if an ANC MEC had blithely stated that he does not care whether his order was legal or not, the DA would rightly have made a big fuss about it. It is when law enforcement officials are told that they should not worry about whether what they are doing is legal or not – as long as they get results – that we move into the realm of a state in which the very people who must uphold the law are empowered to break the law and to infringe on the rights of citizens for the greater good of all.

This kind of logic leads to the unofficial sanctioning of the torture of innocent people and of unlawful arrest and detention. It leads to an abuse of power. Always. After all, if results are all that matters, then surely we should not worry too much that our law does not empower police officers to torture ordinary citizens as long as the torture lead to the arrest of people who might be criminal suspects.

I don’t want to live in a country where traffic cops think that they can stop me without any good reason and take away my car keys because some cowboy MEC has told them to ignore the law. Helen Zille should immediately take action against MEC Carlisle who is bringing her administration into disrepute and creating the impression that the DA government endorses lawlessness. Quite frankly, I would feel much safer if Carlisle is fired forthwith. If no action is taken we will know that Zille, too, does not respect the Rule of Law when it suits her and when a few votes could be won by flouting it.

2015 Constitutionally Speaking | website created by Idea in a Forest