oa Constitutional Court Review - Good reviews, bad actors : the Constitutional Court’s procedural drama

Volume 7 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183



The law must rule, and prevent government officials from acting self-interestedly or arbitrarily. When officials act unlawfully, therefore, their decisions ought to be undone. Indeed, the officials themselves have a duty to set things right in court. But sometimes an official acts self-interestedly or arbitrarily in the very act of undoing her own unlawful decision. What should the court do then? That is the puzzle this article is about. This puzzle has arisen in two recent Constitutional Court cases.

A related puzzle has arisen in a third. The thrust of the Court’s judgments has been to constrain the government’s power to have its prior decisions undone by a court. I discuss the puzzle in more detail in Part I, and the Court’s solution in Part II. Since the solution has been to erect procedural bars to the official’s attempts to undo her own decision, this raises the broader question of the relationship in the Court’s jurisprudence between procedure and substance, which is the subject of Part III.

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