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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Introducing the devil: an institutional analysis of the power of constitutional review
Author:Klug, HeinzISNI
Year:1997
Periodical:South African Journal on Human Rights
Volume:13
Issue:2
Pages:185-207
Language:English
Geographic term:South Africa
Subjects:constitutions
1996
company law
judicial system
External link:https://doi.org/10.1080/02587203.1997.11834945
Abstract:Introducing a justiciable constitution has fundamentally changed the place of the judiciary in South Africa's constitutional and political order. The capacity of the courts and a constitutional court in particular is an essential prerequisite to the judiciary's effective assertion of the power of constitutional review. A balanced understanding of the judicial role requires an institutional analysis of how courts achieve, over time, the power to decide who decides. By adopting a historical comparative approach to the introduction of judicial review, the author demonstrates the role of institutional logic and political dynamics in the implementation or assertion of judicial review. The pattern of the decisions of South Africa's Constitutional Court in the two cases decided in 1995 within a few months of its establishment - S v Makwanyane and Executive Council, Western Cape Legislature v President of the Republic of South Africa - and echoed in the certification judgments on the constitutionality of the final Constitution, is illustrative in this respect. The Court's shift from judicial activism to judicial restraint parallels the distinction between its recognized role as the adjudicator of rights and its assumption of the role of final arbiter of the Constitution's allocation of power over particular, politically charged matters, such as democratic participation and the scope and meaning of the constitution. Notes, ref.
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