Miscellaneous | The Quagliani Case

This case dealt with extensive challenges to the constitutional validity of South African extradition law brought by people who had fled from South Africa to the United States and Australia respectively to escape prosecution on various serious charges of fraud. These challenges raised complex questions of the relationship between presidential powers and parliamentary responsibilities on the one hand, and between a general law on extradition and individual treaties with particular states on the other. Writing for the Court, Justice Sachs stated that it would be unduly limited to see extradition as an aspect of international relations in which ordinarily only states had an interest. An overly state-oriented approach could ignore the rights of individuals to freedom and fairness in the extradition process. In keeping with these principles, the Extradition Act contained provisions aimed at protecting the rights of individuals guaranteed in the Constitution. Yet extradition proceedings could not be looked at purely from the point of view of protecting individuals facing extradition. Transnational mobility of people, goods, and services, as well as new technological means, had contributed to increased mobility of criminals. In his view, none of the challenges succeeded. In his comments, Justice Sachs refers to an American law clerk at the Constitutional Court who after seeing a draft of his judgment delicately asked him if it was appropriate to cite as authority the writings of an American law professor who had publicly defended powers exercised by President George W Bush permitting torture of people captured by American troops in Iraq. When the law clerk showed him the direct connection between the proposition cited and the justification of torture, Justice Sachs withdrew the citation. Justice Sachs discusses his friendships with conservative American Judge Scalia and progressive Judges Ruth Bader Ginsberg, Stephen Briar, and Sonya Sotomayor.