A Conversation on Judicial Review and the Separation of Powers

On April 25, I was privileged to attend a discussion entitled “A Conversation on Judicial Review and the Separation of Powers” at the South African Consulate in New York City. This event, the CUNY School of Law 2011 Haywood Burns Lecture, was hosted by Professor Penny Andrews, the associate dean of the City University of New York’s School of Law. The guest speakers were Dr. Dikgang Moseneke, Deputy Chief Justice of the South African Constitutional Court (the equivalent of the United States Supreme Court) and Frank Michelman, the Robert Waimsley Professor at Harvard Law School and one of the preeminent constitutional scholars in the United States. (From left, Dr. Moseneke and Prof. Michelman. Photo by Arpi Pap)

The premise of the conversation was described as:

“

As the tumultuous political events unfold in the Middle East, an issue that surfaces repeatedly is the rule of law. From Tunisia to Egypt, Yemen to Libya, the animating sentiment of the protesters is for the rule of law: the notion that no leader should be above the law and that the government should be responsive to and accountable for the democratic aspirations of its citizenry.”

What promised to be an academic and esoteric dissertation by a practitioner and a scholar of sophisticated legal theories turned out to be nothing of the sort. Justice Moseneke’s perspective was most certainly informed by his activist background. He was a prisoner in the infamous Robben Island prison, courtesy of the apartheid regime in South Africa. Professor Michelman’s passionate belief in the power of the law to transform a society stemmed from his active involvement as a consultant and advisor in the drafting of the South African post-apartheid constitution.

Justice Moseneke articulated the view that role of the judiciary was not simply one of refereeing disputes that might come before the court. As a deputy chief justice, he was quite clear in stating that he believed the role of the court was to insure a just result, even if that meant creating new precedents and expanding the original concepts that created the constitution in the first place.

Interestingly enough, in the United States, judicial activism is eschewed and vigorously criticized as being undemocratic in some conservative corners. Justice Moseneke placed a robust embrace around the concept.

He pointed out that the tradition of oppression and resistance in South Africa virtually mandated that the law could not be a static set of rules, but rather a platform for the creation of a more just and fair society. Professor Michelman echoed this perspective noting that “the rule of law” in and of itself is not enough to insure justice.

Indeed, the entire apartheid regime in South Africa was carried out under “the rule of law,” he added. He also noted that the rule of law was based on immoral and illegitimate concepts.

The presentations clearly indicated the activist approach of the judiciary in South Africa and how we might come to expect similar approaches as the waves of democratization and change continue to emerge in countries throughout Africa and the Middle East.

It was a fascinating evening that gave academic dissertation a good name.

Wallace Ford is a principal of Fordworks Associates, a management consulting firm based in New York. He writes the contemporary commentary blog “Point of View” at www.wallaceford.wordpress.com.