Opponents of e-tolls don’t seem to accept that the government has the right to pass stupid laws, says Eusebius McKaiser.
Johannesburg - It seems like opponents of e-tolls don’t seem to accept that the government has the right to pass stupid laws. The only thing the government can’t do is pass a law or policy that is inconsistent with the constitution. But lots of silly policies are consistent with the constitution. Such is life in a democracy.
I’ve been thinking about this as the legal and public opposition to e-tolls remains popular. The e-toll saga brings out, however, the best and the worst of democracy. Opponents of the e-toll policy seem to have many good reasons for being disgruntled.
For one thing, there is irritation with the government’s poor public consultation processes. We always seems to have nominal rather than genuine public engagement on critical policy choices that the state is considering.
Here opponents are on decent legal ground, as public consultation is not just politically desirable but, as we know from case law, also a constitutional requirement. Of course the facts are disputed, as the state deems itself to have engaged you and me meaningfully on this policy.
I think that’s a laughable claim. But the court challenges seem to bolster the state’s version (as least in terms of the standards required by law when it comes to establishing legal fact).
The other gripe, of course, from e-toll opponents is the incredible apparent wastage in how the deal has been set up for collecting tolls, and for enabling our roads to be kept in a decent state. I can’t keep up with claims and counter-claims about whether the operational cost of this collection mechanism will itself be more expensive than what gets collected.
In a nutshell, the policy mechanism seems stupid.
But here’s the thing about democracy: democratic governments are allowed to do stupid things. We can’t run to court every time the government passes a stupid law or policy. The aim of constitutional supremacy is to make policies answerable to the constitution, but not answerable to non-legal standards of rationality.
The idea of rationality in law is actually not a particularly strong one. If a policy is consistent with the constitution’s provisions, and the principle of legality isn’t violated, there is little chance of a constitutional case, seeking to have a policy stopped in its tracks, succeeding. It doesn’t matter that the policy you hate is stupid in some other respect.
A brilliant judge once told me that there is a difference between legal truth and real-world truth. Though his claim merits a fuller discussion on another occasion, he was trying to suggest that while he likes the fact that we have a court system in which we can test policies, the public must realise the limits of legal standards and legal processes.
For one thing, many likely truths cannot be regarded as legal truth, so it isn’t obvious that we only want to take our cue from the pronouncements of a judge.
But, more importantly here, it also means that running to court whenever a stupid policy is enacted is an inherently limited move in a democracy. The courts have to throw out many of these cases, not because they are agents of the government, but because they are not guardians against stupidity. Their role, though crucial, is circumscribed: to check for consistency with the constitution. Nothing more, nothing less.
So the public has to stop being disappointed when these cases are lost in the courts, as they are the wrong forums for some of these battles to be played out.
And it’s a good thing about democracy that the government has this space to enact a wide range of policies, including stupid ones.
Otherwise it will never be able to get on with the business of governing. So we shouldn’t be sad that courts can’t be a check against every bit of silliness that comes out of the government.
The tough part of democracy, however, is that this leaves a quandary that only you, as a voter, can decide.
One possibility is to simply vote the government out of office because you don’t like a government that enacts policies you regard as stupid.
All the opposition parties, of course, would love the public to react like that in response to the e-toll policy bungle. That’s an acceptable response.
However, that response might not work for you if you hate the policy but you are not a one-issue voter. It isn’t necessarily for this voter a deal-breaker. Well, then you must cut your losses on this one, accept the policy and learn a crucial lesson from it: accountability between elections means actively participating in the state’s policy formation processes in order to make your voice heard.
Of course, there’s a third option. We can regret democracy. But let’s not. Please?
* Eusebius McKaiser hosts Power Talk With Eusebius McKaiser on Power 98.7, weekdays 9am till noon.
** The views expressed here are not necessarily those of Independent Newspapers.
The Star