Pre– and Post–Trial Equality in Criminal Justice in the Context of the Separation of Powers

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dc.contributor.author Wolf, L en_US
dc.date.accessioned 2011-09-06T13:49:03Z
dc.date.available 2011-09-06T13:49:03Z
dc.date.issued 2011 en_US
dc.identifier.issn 1727-3781 en_US
dc.identifier.uri http://hdl.handle.net/10394/4691
dc.description.abstract The previous Westminster criminal justice system entailed a different kind of separation of powers insofar as it concerns the role of state prosecutors. In the Westminster system prosecutors are part of the executive branch, whereas they were a split–off from the judiciary in constitutional states and function like a de facto second organ of the third branch of state power. Currently executive interference in state prosecutions often leads to pre–trial inequality. A further difficulty arises from the unconsidered manner in which the former royal prerogative of pardoning was retained in the Constitution of the Republic of South Africa, 1996. It used to be a royal veto of judicial sentences in the constitutional monarchy of the former Westminster model. Although the corresponding veto of parliamentary legislation by the head of state did not survive into modern times, the pardoning power has not been discontinued. Section 84(2)(j) thus causes an irreconcilable conflict with section 165(5) of the Constitution which guarantees the legally binding force of judicial decisions. It undermines the rule of law and leads to post–trial inequality in the execution of sentences. The parole system, which dates back to 1959, likewise allows the executive to overrule judicial sentences and is in conflict with section 165(5). The perpetuation of the status quo in criminal justice is in effect leading to a re–Westminstering of the constitutional state. en_US
dc.subject prosecutors en_US
dc.subject nolle prosequi en_US
dc.subject pre-trial equality en_US
dc.subject post-trial equality en_US
dc.subject pardon en_US
dc.subject parole en_US
dc.subject administrative act en_US
dc.subject administration of justice en_US
dc.subject criminal justice en_US
dc.subject judicial power en_US
dc.subject prerogative power en_US
dc.title Pre– and Post–Trial Equality in Criminal Justice in the Context of the Separation of Powers en_US
dc.type Article en_US

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