Judicial Activism in Bangladesh

Judicial activism is a term used in the United State that is open to some controversy connecting its true meaning. Its meaning before the 1990s was taken to be a pejorative term for misuse of judicial power for the purpose of obtaining a predetermined judgment based on the political convictions of the judges without regard to the U.S. constitution, written law or legal precedent. After the year 2000 it was adopted by members of the opposition party to mean the appointment of judges for the purpose of political expediency.

Judicial activism in Bangladesh

Judicial activism describes judicial ruling which is based on personal or political considerations. It is sometimes used as an antonym of judicial restraint. Judicial activism is a specific controversial political issue particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

Political science professor Bradley Canon has posited six dimensions along which judge courts which may be perceived as activist: “interpretive stability, interpretive fidelity, substance, democratic process, specificity of policy, and availability of an alternate policymaker.” David Strauss has argued that “judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.”

Others have been less confident of the term’s meaning, finding it instead to be little more than rhetorical shorthand. Kermit Roosevelt III stated that “in practice ‘activist’ turns out to be little more than rhetorically charged shorthand for decision the speaker disagrees with”. likewise, former under George W. Bush, Theodore Olson stated in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated for, that “most people use the term “judicial activism” to explain decisions that they don’t like. Others such as current Supreme Court Justice Anthony Kennedy have scolded this approach as unhelpful because it relies on subjective judgments.”[1] (By Theodore Olson and George W. Bush)

Judicial activism in Bangladesh

The judges apply the law to facts in and describes about the term “judicial restraint” and “judicial activism”. The difference is that “the judges take the law as it is and activist judges make up the law as they go along”. In Bangladesh, Judicial activism does not find any configuration. It is not defined anywhere but is extensively talked about in all section of the society, NGOs and bureaucrats. Statement of Judiciary and its power is judicial activism. Many people label it is over active judiciary. In South Asia, “the Judiciary of India has created standard precedents of judicial activism for defending human rights, human distinction and establishing good governance”. Keshvanand Bharati Vs. Kesala, Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & S.P. Vs. Union of India etc. are few landmark cases that highlight judicial activism. Judicial activism is used as a weapon Supreme Court which gives directive through government. In Vineet Narayan Vs. Union of India is the famous Hawala case Supreme Court monitored the riweshgahous. To present all hearings, these are issued for CBI and intelligence services by the directive. He said that “Judicial reforms are needed therefore judicial activism should go through the judicial restraint. Restrained judges respect the political process. They also agree with its results until it clearly crosses a clear constitutional line. To re-write statutes or the Constitution, activist judges are feeling free.” They ignore limits on their power in the search for attractive results to use extra-legal factors in their decisions. Judicial activism is an established and well-balanced democratic system. It always tries to maintain certain limits, because ultimately it is the Legislature. Here the executives are responsible for the Legislature.

Police remand and need for judicial activism in Bangladesh

A. H. Monjurul Kabir said that “The Magistracy virtually turns into an extensihaton of the Police. In earlier days, magistrates are were the friends of the people, who’s liberties were at stake. The situation is getting worst.” The magistracy is controlled by the executives which becomes concentrated to civil liberties. Denial of bail, indiscriminate the granting of police remand, and the alleged torture of person arrested in police custody which create the genuine concern. A number of advocates in Bangladesh Supreme Court told “A bar council seminar that the new entrants of legal profession are clearly reflects the situation.”

Extensive suffering of detainees is common in criminal investigations in Bangladesh in all regimes. It has become an obvious feature of the government’s attack against independent and political voices. Persons detained by police are regularly subjected to physical and psychological abuse from the initial moments of their arrest. The concerned authority often refuses to hold police and security forces accountable for acts of torture, and even tacitly encourages torture though it’s broadcasting of political prisoners’ public “confessions” as tools of political propaganda. Instituting legal and judicial reform to halt torture, and ending impunity should be a matter of priority for the government of Bangladesh and all parties are interested in human rights, security and stability of the region.

[2] “Unqualified use of the qualified power of arrest a lot have been written on the abuse of the Section 54 of the Code of Criminal Procedure. The Code of Criminal Procedure, 1898 deals with some of the critical procedural elements of the power and function of the police. Chapter V of the Code particularly deals with procedure and mode of arrest of which section 54 is of utmost important. It grants police qualified power of arrest any person on reasonable suspicion without warrant on nine grounds practically section 54(1) is the most abused section of the Code. The Police, in fact do not comply with the provision in its totality. They bluntly ignore the qualifying terms mentioned in the section e.g., cognizable offence’ ‘reasonable complaints’, ‘credible information’, and reasonable suspicion’. It is being indiscriminately used by the police and as application of this section fraught more with ulterior motives than prevention of crimes and or arrest of persons suspected of having committed or about to commit cognizable crimes. Most of the arrests under section 54 are caused on fanciful suspicion and in most cases to fill in the quota allotted to an individual police officer to make an arrest each day. This incredible practice has been going on with impunity for many years. An arrest under section 54 is often a prelude to issuance of detention order under the Special Powers Act, 1974 (SPA). The SPA allows the authorities to detain any person on eight grounds, vague enough to detain any person according to the whim and caprice of the executives and the party in power. Such detention can extend to six months, and may extend beyond this period, if so sanctioned by the Advisory Board. The use and abuse of the SPA in the name of securing law and order have resulted in steady pattern of human rights violations.” (Explained by A. H. Monjurul Kabir)

Police remand

Mounting numbers of torture and deaths in pre- and post-conviction detention facilities over the past three decades attest. Decades attest are the violence of the treatment meted out against detainees and prisoners. Although the constitution of Bangladesh prohibits afflict few law enforcement officer who are accountable for it. Illegal actions of the police personnel, in most cases, are either official or authorized by a magistrate. Refusal to grant bail to a person accused Of a boilable offence at the instance of police is an example police-magistrate joint collaboration.

9. Police remand and the need for judicial activism by A.H.Monjurul Kabir,Police remand and the need for judicial activism.

The criminal justice system lacks adequate procedural safeguards against police abuse, as it grants the prosecution wide powers concerning pre-trial custody, accesses to lawyers, and access to forensic evidence. Against the backdrop of such flagrant violations of the letter of the colonial law, the role of an assertive, pro-active higher judiciary becomes more important to break the unfortunate nexus between police and magistracy

The last hope

The alarming trend of remand the law enforcers in Bangladesh. It exposes once again and being viewed with a philosophy of paramilitarism associated with the mechanism of awe, threat and coercion. The culture of impunity endorses the existing trend and protects the culprits from being prosecuted. It encourages others to follow the suit, as the criminal justice system is open to manipulation by the agencies. The Supreme Court, as usual, remains the key institution for the protection of human rights of the bewildered. The traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the Constitution of the People’s Republic of Bangladesh. The purpose of the desired judicial activism, in the words of Justice V. R. Krishna Lawyer, a living legend in South Asian legal fraternity, “To obliterate procedural anfractuosities, to broaden the idea of locus standi, to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and pachydermic chaos of interpretation so popular in British Indian lawyer practices and to establish free legal aid and public interest litigation these were forensic urgencies and jurally necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians who would otherwise find the complicated court system ‘untouchable’ and not even ‘approachable’.” (Explained by Justice V. R. Krishna Lawyer)

The need of the hour is an organizational culture that condemns abuse of power and misuse of force and encourages pro people policing. All those who are concerned with the arrest, detention[3] and custody of the people, particularly of the poor and vulnerable sections of the society, must strictly implement the constitutional and legal protections and safeguards. It is necessary that the guardians of law and the custodians of lock-ups and prison houses should be made aware of the constitutional and legal rights of the people. For Bangladesh, an activist, goal oriented judiciary can limit the scope of executive arbitrariness ensure the implementation of its dictates.

The importance of judicial review in Bangladesh

Opportunity for the public to participate

– Judicial review creates a right for individuals to approach the court for relief over a breach of an Act. It makes it possible to challenge a determination of the consent authority. Judicial review of environmental matters therefore allows the public an opportunity to participate in the environmental planning and development process.

Opportunities available for relief

– In Bangladesh there is currently no environmental legislation which gives the opportunity to a person to bring proceedings for remedy or restrain the breach of an Act. Notwithstanding, a person may seek judicial review under the Civil Procedure Code 1908 or Criminal Procedure Code 1898, though there has been little reference made to the opportunities available for relief under these Codes.

Judicial Activism and Islamic Family Law: A Socio-Legal Evaluation of Recent Trends in Bangladesh

This article critically examines instances of judicial activism in the field of Islamic family law in Bangladesh in an attempt to assess this judicial trend. Seeing ‘judicial activism’ mainly as an enlightened application of ijtihad and also as society-specific application of statutes based on, or related to shariah, we highlight the justice-ameliorative role of this concept. The authors argue that judicial activism has led to the amelioration of the status of women in Bangladesh as

11.Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Yale University Press, 2008,

compared to a traditional construction of the shariah, and that judges have adequate authority and legitimacy to develop Islamic family law to ensure better justice in the home.[4]

We conclude [5]that modernist judicial reform is not only desirable but also inevitable in the current South Asian socio-legal milieu, where legislative passivity vis-à-vis Islamic family law prevails.

Conclusion

The apparently conflicting issues of judicial restraint and judicial activism have now become a matter of public debate in India. The debate stemmed from a two-member bench order of the Supreme Court of India on December 6, 2007. The order called for exercise of judicial restraint and not to indulge in judicial overreach or activism by transgressing into domain of the executive or the legislature. This decision, among others, rests on the argument of constitutional scheme of separation of powers among the three organs of the state; the legislature, the judiciary and the executive.

A number of issues need attention to bring back the old glory and the long established tradition of neutrality in the dispensation of justice. Some of these issues have been debated in the past but need to be restated in the process of managing the transition. The first relates to the selection and promotion of judges in the higher judiciary. The past experience in this regard has been less than satisfactory. Second relates to the constitution of benches to hear and dispose of writ petitions. Needless to say, such benches should not be changed frequently as has been done in the past. Third, there must be reasonable promptness in the disposal of cases. Fourth, there should be effective surveillance and monitoring of disposal of cases by the subordinate judiciary. And fifth, meticulous attention must be given to and action taken against deviant conduct of judges across the judicial system.

Above all, good governance depends on harmonious functioning of the three organs of the state with the media and the civil society acting as watchdogs. Past experience has shown that at least the executive organ was largely responsible for upsetting the balance with the higher judiciary and the parliament remaining as silent spectators. Executive organ was largely responsible for upsetting the balance with the higher judiciary and the parliament remaining as silent spectators.