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9 Const. Ct. Rev. 1 (2019)

handle is hein.journals/conrev9 and id is 1 raw text is: 

Constitutional Court Review 2019                                                 ©The Authors
Volume 9, 1-18                                           Open Access article distributed in terms of the
https://doi.org/10.2989/CCR.2019.0001              Creative Commons Attribution License [CC BY 4.0]



                          Pushing the Boundaries:

Judicial Review of Legislative Procedures in South Africa


                                 STEPHEN GARDBAUM

       ABSTRACT: In recent years,   the South African Constitutional Court has dramatically
       shed the general reluctance it had shared with most courts around the world to review
       legislative processes as distinct from outcomes. In a series of graduated steps culminating
       in two 2017 cases, the Court has engaged in increasingly robust oversight of various
       types of legislative procedures. These processes embrace not only the law-making process
       itself, but also internal National Assembly rules, especially those relating to the National
       Assembly's other central function in a parliamentary democracy of holding the executive
       politically accountable. The article begins with a brief discussion of the background norm
       of non-intervention in legislative procedures from which the Court has progressively
       and so notably departed. It then charts the three steps by which this departure has come
       about, showing how each of them marks a new stage in the degree of judicial supervision.
       The heart of the article explores whether the Court was justified in taking these steps
       or was guilty of overreaching. It argues that, although a certain general tension between
       the separation of powers and rule of law underlies the background norm of judicial
       non-intervention, in the specific contexts in which these cases were decided, these two
       values increasingly came together. Indeed, far from violating separation of powers, the
       Court promoted  it when overly concentrated legislative-executive power threatened
       impunity. Systemic weaknesses of executive political accountability that arises not merely
       from the existence but the abuse of dominant party status called for novel remedies of
       the type employed by the Court.

       KEYWORDS: legislative process, executive   accountability, political process theory,
       parliamentary government

       AUTHOR: MacArthur Foundation Professor of International   Justice and Human
       Rights, University of California, Los Angeles, School of Law.
       Email: gardbaum@law.ucla.edu

       ACKNOWLEDGEMENTS: Earlier versions of this article were presented at the
       Constitutional Court Review IX Conference, August 2-3, 2018 and the 2019 ICON-S
       conference in Santiago. I would like to thank fellow conference participants, three
       anonymous  peer reviewers, and especially Kate O'Regan and Stu Woolman, for extremely
       helpful comments, suggestions and questions.


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