« A Republican Senate Majority and Partisan Conflict | Main | Returning to Prawfs and Remembering Dan »

Sunday, November 02, 2014

Executive Power Restrained -- the South African Experience, and Thanks

Given the recent dialogue here about executive power, but on a very different sub-topic, I thought it would be worth mentioning that the South African Constitutional Court has issued several decisions that have used strong judicial review to limit executive power in situations where corruption may be involved.  The rulings are extraordinary from an American perspective.  In the first case, Glenister II (2011), the Court actually invalidated the existence of a new national anti-corruption prosecutorial entity, as being insufficiently independent to satisfy general constitutional requirements of promoting democracy, fighting corruption, etc.  The Court also controversially relied on international anti-corruption conventions.  One reason the Court was skeptical of the new entity was that the African National Congress dominated government had effectively disbanded a more aggressive and powerful national anti-corruption entity in troubling circumstances, so the Court was finding the replacement body to be insufficient. In another case, Democratic Alliance v. President of the Republic (2012), the Court invalidated President Jacob Zuma's selection of a national prosecuting authority, a Mr. Simelane, based on allegations that Simelane had demonstrable integrity problems, and based on the President allegedly not paying heed to these problems.  I have authored a short article on these cases and a few others that can be found here.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649  In the U.S., there would have been standing and political question problems in both situations so these are bold decisions.

I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations.  On a final note, thanks to the folks at Prawfs Blawg for letting me participate again.  Also, special thanks to Ilya Somin for the interesting Korematsu debate.  For those who want another perspective on our debate, take a look at Professor Eric Muller's post on the question (he is certainly a preeminent Korematsu-Hirabayashi expert).  http://www.thefacultylounge.org/2014/11/the-kende-somin-debate-on-justice-thomas-and-korematsu-and-hirabayashi.html  And God bless Dan Markel, his family, and friends. 


Posted by Mark kende on November 2, 2014 at 02:56 PM in Constitutional thoughts | Permalink


"I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations. "

I would define 'highly deferential' to A as 'giving the benefit of the doubt to A,
even when not legally required. And from my viewpoint, we are at a point where SCOTUS not taking things like 'national security' as a carte blanche is newsworthy.

Posted by: Barry | Nov 3, 2014 4:29:01 PM

The comments to this entry are closed.