The vast majority of us would agree that pursuing the big bad actors in State Capture will not bring the Rule of Law back, despite that we must do that anyway.
Yet oddly there is minimal to no discussion, even in the face of this acknowledgement, about what would bring the Rule of Law back.
So, let me stick my head out and take a shot at starting that conversation that no-one seems interested in, and if you come past and disagree, raise your hand thanks, so we can discuss same.
From the perspective of someone who has itemized a myriad of individual failures of the mechanics of the Rule of Law in promulgating and implementing legislation, as documented in more than ten years of Gazettes, and found that such individual failures, in one form or the other, occur on monthly average in around 40 to 80 percent of the time (I can be exact if you want), the following is as clear as a bell:
The Rule Law can only be brought back, as it were, if those in power are as boxed in by the mechanics of Rule of Law principles, as a chess player is boxed in by the rules of Chess.
And further, boxing in those in authority with the Rule of Law can only be achieved by and in the name of the public, with the backing of a Judiciary that recognizes instances of failure in the mechanics of the Rule of Law before it cannot be treated as if it sits on a narrow casuistic bench with only one or so member of the public before it, if that failure clearly affects other members of the public beyond the confines of the case.
Take for instance, a case before the court of a municipality trying to pin an unpublished by-law on a member of the public, where the court makes an order in favour of the member of the public:
Any court that limits its order in favour of the member of the public before it, is doing the Rule of Law a disservice by not extending its order to include an order against the municipality to cease its application of the unpublished by-law to other members of the public, and make good any application of the unpublished by-law to members of the public who have been burdened by it in the past.
Courts need to recognize that they are beholden to maintain the Rule of Law not only in the instance, but in general. And that therefore, where a member of the public comes before a court on a matter of general application to all the public, then that member of the public must in the courts eyes stand in the shoes of all the public, and any order it makes must be made applicable to “all the pubic”.
To my mind every one of the various principles of the Rule of Law – whether it is the principle that laws be published or any other principle – offer endless support for a court, in response to a failure in the mechanics of the Rule of Law in an instant case, to treat a member of public before them as standing in the shoes of all other members of the public, and to making an order against those who purported authority before that court to cease and desist and restore what all members of the public have lost.