Law Book Review
The idea of judicial activism
Kawser Ahmed
 |
JUDICIAL ACTIVISM IN BANGLADESH:
A GOLDEN MEAN APPROACH
By Ridwanul Hoque
Cambridge Scholars Publishing, 2011
Price: $67.99 |
COULD Arthur M. Schlesinger, Jr. (1917-2007) envisage the popularity of the term 'judicial activism' when he had first coined it more than sixty years ago? Schlesinger in his article, 'The Supreme Court: 1947' published in the January issue of FORTUNE in the year 1947 demonstrated that most of the then nine US Supreme Court justices were either as 'Judicial Activists' or 'Self Restraint'. Justices Black, Douglas, Murphy and Rutlege were the activists while Justices Frankfurter, Jackson, and Burton belonged to the group of self-restraint. Justice Reed and Chief Justice Vinson formed a middle group. However, Schlesinger did not offer any comprehensive definition of his term. Of the most contemporary prominent jurists, Dworkin has presented the concept of judicial activism by juxtaposing it with judicial restraint and judicial skepticism. Dworkin's idea of judicial activism, restraint and scepticism can be said to revolve around respectively denoting recognition and enforcement, deference and denial of moral rights of citizens against state. The justification for judicial activism is premised on the compelling sense of judicial achievement, in the words of justice Bhagwati, 'wider objectives of justice' (Bhagwati, 1999: Commonwealth Law Bulletin, at 1263). Nevertheless, one can argue that the juridical tools of judicial activism at least in common law are not new outfits. It may be contended that the term does hardly connote a legal or jurisprudential concept, implies more of judicial attitude or ideological standpoint of the judges.
In the backdrop of this viewpoint, the book, 'Judicial Activism in Bangladesh: A Golden Mean Approach', by Dr. Ridwanul Hoque, Associate Professor of Law, Dhaka University, no doubt appears to be a motivated effort at least for two reasons. The first one is the book makes a sincere attempt to argue into accepting judicial activism as an embedded concept of public law jurisprudence. According to the author, judicial activism differs from judicial excessiveness and can be exercised in a principled and pragmatic way without rupturing the institutional balance among the organs of the state. The author thinks that judicial activism and judicial restraint are not mutually exclusive attributes of judging, promoting idea of creative restraint that does not shun the primordial judicial duty of dealing with the question of legality. The second reason is the author has maintained, all through the book, a succinct, empirical exposition of his thought -which makes the book highly readable, even for the readers who have not been trained in law.
The book can boast of being the first of this sort in Bangladesh. The book claims to examine critically the evolving activist jurisprudence with particular reference to the supreme judiciary in Bangladesh and provide analysis thereof in the light of societal needs and realities. The layout of the book is divided into three distinct parts. First three chapters constitute the introductory part that prepares the readers with theoretical background for taking the voyage further. Chapter 4, 5 and 6 comprise the central part of the book. Chapter 4 & 6 outline the conception and evolution of judicial activism in Bangladesh from historical perspective. The author has juxtaposed the changing role of the supreme judiciary with the political changeover in the country from time to time since independence. Delineating the role of the supreme judiciary during the extra-constitutional regimes is the most noteworthy feature of chapter 5. Almost all the relevant cases have been catalogued with short but seemingly accurate analysis. The author has illustrated with due care the modality of challenges faced by the supreme judiciary of a newly independent country striving for democracy through thick and thin. Chapter 6 examines how the supreme judiciary dealt with the executive's interferences with the liberty of the people and principles of constitutionalism during the most recent emergency period. Notwithstanding the similarity, chapter 4 and chapter 6 posit different overtones. Contrary to chapter 4 which sketches out the imagery of a vigilant judiciary eager to safeguard constitutionally entrenched rights of the people, chapter 6 presents a relatively dim picture. The author, of course, has not made any effort to probe in to the causes for such change of attitude of the supreme judiciary. The title of chapter 5 is 'Public Interest Judicial Activism in Bangladesh: Beyond Access to Justice'. To what extent was the concept of public interest litigation in India borrowed from US type class action suit?- might be a vexed question, there is however no doubt that the supreme judiciary of Bangladesh borrowed much from the Indian experience in introducing public interest litigation. It is interesting to note that the author has treated suo moto judicial interventions as a form of public interest judicial activism and justified it as a judicial response to the abuse of public power by the executive or state agencies. A point of similarity must be noted among these chapters a good number of cases referred to in chapter 4, 5 and 6 involve personal freedom case, for example, legality of detention or restriction on the right to be released on bail etc. Chapter 7 & 8 form the concluding part of the book.
Lastly, a word of criticism. The readers will agree that the issue dealt with in the book behoves the author to present a definition of judicial activism of his own. The author himself has conceded that the theme of the book requires a proper conceptualization of judicial activism which is intrinsically tied with law, legal theory and the adjudicative. Such a definition would have been helpful in dispelling confusion at least in few places. For example, the author has referred to K. M. Asadul Bari v. Bangladesh [22 BLD (HCD) 2002, at 129] and Chandpur Jute Mills v. Artha Wrin Adalat [2 BLC (HCD) 1997, at 49] in chapter 4 as instances of judicial activism. In the first case, the High Court Division allowed the government decision to impose a ban on manufacture of polythene bags to stand. In the second case, the challenge to the constitutionality of a law requiring the defaulters of financial institutions to deposit more money than under ordinary statute in case of preferring appeal was rejected by High Court Division. The decisions in these cases, according to Dworkin, perhaps would have fit the 'restraint' attitude.
The reviewer is an Advocate, Supreme Court of Bangladesh.
