JUDICIAL ACTIVISM: NEED OF THE HOUR IN BANGLADESH

Rafid Azad Saumik

(LLB 3^rd Year, Faculty of Law, University of Dhaka)

Introduction: 

The People’s Republic of Bangladesh is a country with constitutional supremacy. The fundamental aim of the state, as it is enshrined in the preamble, is to realize ‘a socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality, and justice, political, economic and social, will be secured for all citizens.’ However, in reality, we still have a long way to go before we can claim that we have achieved our forefather’s vision of our motherland. In a country like ours, where the executives are often seen abusing their power and violating human rights, is it better for the judiciary to try to step in? Alternatively, does that violate our ‘separation of power’ doctrine, which is an essential part of our constitutionalism?

Definition:

Different scholars, jurists, and academicians have different perceptions of what judicial activism entails. On one hand, some perceive it as a judge’s personal views about public policy, among other factors, to guide their decisions (Black’s Law Dictionary). Others perceive it as the court’s inherent obligation to interpret the law (Marbury v. Madison (1804) [5 U.S. (1 Cranch) 137]. In essence, judicial activism is nothing but instances of creative judicial interpretation. ((1980) [1 All ER 529, 551]. German writer - David Strauss, has argued that judicial activism can be categorized into three actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.” In Bangladesh, the Supreme Court usually plays the role of an activist while dealing with PIL cases and issuing suo motu rules. However, there have also been instances where the judges went beyond the ambit of ‘judicial activism’ and roamed around the dangerous realm of ‘adventurism’ or ‘judicial overreach. 

History of Judicial Activism:

It’s hard to pinpoint the exact birth of Judicial Activism. But it can be traced back to as early as the early 19th century USA. In Marbury v Madison, Chief Justice Marshall said, “it is emphatically the duty of the Judicial Department to say what the law is”. This case is arguably the first instance of ‘Judicial Review’, where the court declared that section 13 of the Judiciary Act of 1789 was unconstitutional and struck it down. On the other hand, Public Interest Litigation (PIL) is a de novo idea and has been coined by right-spirited Indian judges. PIL soon became a South Asian phenomenon and an important characteristic of the South Asian legal system. In Bangladesh, it took a certain while before PIL grew its roots and became a common phenomenon. In the Kazi Mukhlesur Rahman v Bangladesh (1974) [26 DLR (AD) 44], case, locus standi was given to Kazi Mukhlesur Rahman though he was not a direct resident of the region concerning the Mujib-Indira treaty. However, this progression was slightly hindered because of the ‘Bangladesh Sangbad Patra Parishad’ case [43 BLD (AD) 126] where locus standi was not expanded and the case was not treated as a PIL case. However, in Dr. Mohiuddin Farooque v. Bangladesh [1997 17 BLD (AD) 1] for the first time, the court gave expanded locus standi to BELA (Bangladesh Environmental Lawyers Association) though they were not directly ‘aggrieved’ according to the traditional view. This case is a milestone in establishing fundamental rights of the down-trodden people of the country as well as in terms of ‘Judicial Activism. The court applied its creativity in interpreting Article 102 of the Constitution in the light of the entire Constitution as well as looked at foreign cases in similar matters. 

Judicial Activism in Bangladesh:

All three organs of the state machinery- the executive, the legislature and the judiciary- all play a crucial role in establishing good governance and rule of law in the country. Certainly, the ‘Doctrine of Separation of Power’ is an essential part of our constitutionalism. However, it does not mean that the judiciary should stay idle when a gross injustice is happening. Every citizen, including the judiciary, has an obligation to observe the constitution as per Art 21(1) of our constitution. Moreover, the oath of the judge reads- “I will preserve, protect and defend the constitution and laws of Bangladesh”. The Apex court of the country has made several landmark judgments using their creativity and applying their utmost wisdom, which have paved the way for a better functioning society.

First, the establishment of PIL is crucially important to help those who are unable to come before the court themselves or are unable to afford good lawyers. The Appellate Division of the Supreme Court of Bangladesh has recognized PIL in the case Dr. Mohiuddin Farooque v Bangladesh (1997) [17 BLD (AD) 1] where BELA was given locus standi to represent the destitute and the unfortunate victims of the FAP-20 project. Justice Mostafa Kamal, in his well-crafted judgment aptly explained that Article 102 of the constitution needs to be read in the light of the entire Constitution’s scheme and not read in isolation. Upon carefully reading the preamble, part II and part III of the Constitution, and other provisions, considering our history of the liberation war, and our international obligations, the learned judges very correctly came to the conclusion that ‘any person aggrieved’ as mentioned in Art 102 shall not be given a narrow construction. Once, PIL was recognized by our Supreme Court, many more PIL cases were filed. Most notably, ZI Khan Panna v Bangladesh (2017) [17 BLD (AD) 1], where the court agreed to give compensation to any victim of ‘Operation Clean-heart’ of 2003, and CCB Foundation v Bangladesh (2017) [5 CLR (HCD) 278], where the court awarded monetary compensation to the family of the victim- Zihad, a 4-year-old boy, who suffered an unfortunate death to mismanagement of the concerned authority. These are just a few cases out of hundreds related to PIL. The creation and progress of PIL are inevitable thanks to the judicial activism of our learned judges of the judiciary.

Second, our learned judges’ activism and effort to prevent custodial death and detention is also appreciable. Custodial death and unlawful detention have been a concerning issue in our country since the very beginning and it still is. However, substantial progress has been made through creative and effective interpretation of the Constitution and ordinary law by the judiciary. In Aruna Sen v. Bangladesh [27 DLR 122], the judges made a distinction between Article 33 of our constitution and Article 22 of the Indian constitution. Whereas, Art 22 of the Indian constitution talks about ‘objective satisfaction’ of the Advisory Board, our Art 33 bars objective satisfaction. Despite that, our Apex court held that the court can assess whether the advisory board was actually satisfied or not. Hence, in this case, the court created scope for ‘satisfaction of the Advisory Board to be scrutinized without blindly transplanting the Indian constitution’s jurisprudence. This case is a great example of how judicial activism can exist without stepping into the realm of ‘abusive constitutional borrowing’, as coined by Rosalind Dixon.

Another interesting example of judicial activism can be seen by analyzing how our courts dealt with the incorporation of International Law. As we know, Bangladesh follows ‘Dualism’ in terms of incorporating international law. Hence, any international covenant not only has to be ratified but also municipal law giving effect to the international covenant has to be enacted for the international covenant to have any binding effect in the country. However, this strict rule has been to some extent liberalized with the help of landmark judgments where the learned judges have a bit more relaxed interpretation. In HM Ershad v Bangladesh (2001) [21 BLD (AD) 69], the principle was established that- ‘if national laws are unclear or absent, then international law can be used to fill in the vacuum’. Moreover, in BNWLA v Bangladesh (2009) [14 BLC 694], gave directives in the form of guidelines as per Article 111 of the Constitution taking help from CEDAW (Convention on Elimination of All Forms of Discrimination Against Women). This was arguably the first case of judicial law-making in Bangladesh. Hence, we see that even in this regard, judicial activism played an important role.

Judicial Adventurism or Judicial overreach:

Lord Acton famously said, “All power tends to corrupt, and total power corrupts absolutely”. Though judicial activism is an important tool, especially in the socio-economic context of Bangladesh, sometimes judges go beyond their permitted jurisdiction and step into the dangerous realm of ‘Judicial Adventurism’. Justice V.R Krishna Iyer had opined that sometimes the judiciary goes beyond its permitted authority and usurps the role of executives or legislature. The judiciary, in such situations, argues that they are only doing so because the executives and the legislature are failing to do their job. However, the same argument can be made against the judiciary as well because there are pending cases in court for half a century. (Justice V.R. Krishna Iyer, 2007 “Legally Speaking”, Universal, Delhi, p. 218) In India alone, there have been hundreds of cases of judicial overreach, amongst which Vineet Narain v. Union of India [1 SCC 226] (CIB investigation was directed and a broad layout of the functioning of the CVC was pronounced); Vishakha v. State of Rajasthan [AIR 1997 SC 3011] (directions were given to frame laws regarding prevention of sexual harassment of women at the workplace); D.K. Basu v. State of West Bengal [AIR 1997 SC 610] (Guidelines regarding arrest and detention were laid down); Sachidanand Pandey v. State of West Bengal [1987 SCR (2) 223] (Guidelines for the adoption of children)- are just a few examples. 

In Bangladesh, suo motu rule issuance based on newspaper reports has been argued by many as an example of judicial overreach. The reason is simple, the newspaper report is neither a verified document nor a piece of sworn evidence. In Tayeeb v. Bangladesh (2015) [4 LNJ (AD) 48], for the first time, the Supreme Court allowed a writ petition without any formal application by the aggrieved party. The learned judges had argued that the requirement of application should be ignored when there is a gross violation of human right and multiple provisions of the Constitution. Though the judges had acted in good faith, this decision was criticized by many as art 102 expressly mentions the phrase ‘on the application’ of any person aggrieved. Hence, it is of utmost importance that while acting as activists, the learned judges do not start wearing the cloaks of the executive or legislature.

Finding the right balance:

From the above discussion, it is evident that though judicial activism has played a huge role in the progress of our legal system, it has also seen a fair share of dangerous precedence set up by over-enthusiastic judges. For example, in Abdul Mannan Bhuiyan v State [60 DLR (AD) 49] the Appellate Division of the Supreme Court reversed the decision of the High Court Division, which had made Hartal a cognizable offense. The Appellate Division opined that creating a new cognizable offense doesn’t fall under the functions of the judiciary and it is rather the burden of the legislature. However, it is also worth mentioning that while applying judicial restraint in order to not breach the ‘Doctrine of Separation of Power’, the Apex Court should not restrict the court’s power to scrutinize too narrowly. In Shah Abdul Hannan v Bangladesh [16 BLC 386], it was established that the court can only scrutinize a government policy if it is unconstitutional. This judgment greatly curtails the scope of judicial scrutiny and by doing so ruins the progress we have achieved through years of judicial activism. Hence, in order to achieve the perfect balance, attention needs to be given so that we are neither over-cautious nor capricious. 

Concluding remarks:

In order to establish a society free from exploitation with rule of law and human rights, all three organs of the state need to work hand in hand. While the doctrine of separation of power is an important provision of the constitution and judges should be cautious before overreaching their jurisdiction, too much judicial restraint can also make the scope of judicial scrutiny too narrow. Reaching that perfect balance should be the goal and until we achieve that we all will need to work hard.