Aravar wrote:One thing I don't understand is how is the UK Court wrong to consider that the Calaifornian Court considered that capital punishment was cruel and unusual just becasue the legislature overruled it? To us the Wills example, if Canada enacted a radically different statue on wills, that wouldn't alter the decision on the earlier wording, would it?
To be clear: this one was the South African Constitutional Court, not a UK court. I put it in this thread because it related back to my post with respect to the decisions of the UK courts.
The reason why the citation is in error is because the relevant issue for the South African court was whether capital punishment is cruel and unusual. Given that question, it was relevant to cite jurisdictions which had reached that conclusion. California is not (yet?) such a jurisdiction: the voters are granted the final say on the matter under our constitutional setup, and they have declared it otherwise; only the U.S. Supreme Court would have the power to trump that. The South African court thus cited a reality that did not exist: that capital punishment was outlawed as cruel and unusual punishment in California. At a minimum, they should have stated, "Although we realize that the California electorate overturned this decision, explicitly amending the state constitution to deem capital punishment not to be cruel and unusual, we still find the California Supreme Court's prior reasoning to be persuasive." I think that at a minimum that would be necessary where the decision is no longer good law in the jurisdiction in question.
I would say the same thing is true - much though it pains me - for the California Supreme Court's decision saying that same-sex couples have a state constitutional right to marry. That has been overruled by state Proposition 8, providing that marriage in the state is between a man and a woman. For a foreign court to cite the
In re Marriage Cases decision for the proposition that the "California Supreme Court has declared that same-sex couples have a constitutional right to marry" - without acknowledging the constitutional-magnitude aftermath that stripped them of that right - at best would be misleading and improper, in my view. However, since a court is theoretically free to be "persuaded" by whatever it desires, I suppose that a court could say that they found the
Marriage Cases decision persuasive as to the meaning of equal protection, etc., and the electorate's reversal of that decision to be unpersuasive, so they were choosing to emulate the overruled case.
It is the lack of awareness or acknowledgment of the "bad law" status of the case in the home jurisdiction that, to me, constitutes error -- or at least serious sloppiness.