‘Deference’ Is Endangering The Rule Of Law

By Nethani Palmani | Mar 28, 2017 11:18 AM EDT

Legislating for the courts has always been a concern for many, but courts making deference that have the effect of bringing the democratic branches of government in line with the tried-and-tested principles of the rule of law, may actually lead to adverse consequences following an overzealous legislative or executive branch. (Photo : Chip Somodevilla / Getty Images)

The executive government may quasi-judicial bureaucracies within itself, and usurp powers from the courts, and yet the courts are compelled to continue to "defer and respect". The "deference" factor is likely one of the greatest reason as to how the rule of law is being violated by the government.

A good study on this would be the International Trade Administration Commission v Scaw SA case in 2015. In this case the minister of trade and industry was removing an antidumping duty, while the private company involved in the case, Scaw SA, was arguing for the duty to protect its own vested interests.

The focus of the case is underlying legal phenomenon of deference. According to BusinessDay, "deference" which is different from the separation of powers doctrine, means the courts believe the government department involved has more expertise on the matter in question than the judges do, and thus they "defer" to the wise judgment of the other branch.

In the Scaw SA case, the International Trade Administration Act provided the minister with the power to prohibit imports and exports of particular goods without real guiding criteria. The deference of action represents a two-fold problem.

On one hand, Parliament delegated its power to enact law to the executive branch by bestowing massive discretionary powers upon ministers, and even bureaucrats and officials. On the other hand, the courts applied deference by refusing to dismiss these statutes as they are convinced wide discretionary powers are part of a modern democracy, according to SAFLII.

The deference places the rule of law in an endangered position as the rule of law absolutely prohibits non-parliamentary law-making and unfettered discretion. The real doctrine requires discretionary powers be narrowly formulated, and limited to technical implementation of parliamentary law.

Therefore, the Parliament's action in giving the minister essential law-making power, renders a violation of discretion in itself, as the Constitutional Court should intervened and agreed the act itself violates the rule of law instead of applying deference. Although judges may not be the experts in all, they are supposed to be experts in one particular field - the rule of law.

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