The phenomenon of judicial activism has become very characteristic in constitutional adjudication in the recent decades in Bangladesh. The judicial system in a legal order that is frequently burdened by administrative sluggishness, political squabbling and institutional constraints has often taken up the role of filling the gaps in governance. This proactive role has been very instrumental in safeguarding the fundamental rights and growth of public interest litigation (PIL), but what remains unanswered is,
Can such judicial activism be maintained in the long-term?
Judicial activism basically means the judiciary’s tendency to stretch the scope of the Constitution and to be involved in areas in which it is not supposed to be involved. This has been most evident in Bangladesh in relation to environmental protection (Dr. Mohiuddin Farooque v Bangladesh, 48 DLR (AD) 1996), human rights and accountability in administration. At various times, courts have pronounced on issues such as river encroachment and prison conditions, making a difference in public policy.
Judicial activism has brought real gains; there is no doubt about it. When regulators have limited resources and/or independence, the judiciary may be the only mechanism available to provide relief. The PILs have helped civil society actors to raise issues that may otherwise not have been addressed. This has enhanced access to justice and strengthened the judiciary as a protector of constitutional rights (Anwar Hossain Chowdhury v Bangladesh, 41 DLR AD 1989).
Sustainability, however, is not just about short-term success. Lack of respect for the doctrine of separation of powers is one of the main problems with judicial activism. The Constitution in Article 22 envisages the separation of powers between the three arms of government, each having separate functions and responsibilities. Where courts start giving detailed policy directions, or take administrative functions, they take a risk of trespassing on the domain of the Executive (Kudrat-E-Elahi Panir v Bangladesh, 44 DLR AD 1992). The use of these interventions can be warranted when the rights are clearly being infringed, but can become problematic when used to a greater extent than they may cause tensions between branches of government or make it hard to distinguish between the functions of institutions.
Another challenge lies in the issue of implementation. Even the most progressive rulings by the courts will have little impact if they are not enforced. A critical disparity exists between judicial rulings and reality in Bangladesh. Excessive time, lack of coordination, and insufficient resources are not uncommon barriers to the implementation of court orders due to structural problems. This brings to mind an important question,
Can there be long-term change without executive institutional support in judicial activism?
The problem is exacerbated by the limitations of the judiciary. There is a huge pendency of cases in the courts in Bangladesh, which causes delay in the administration of justice. This context may cause judicial resources to be strained indirectly if judicial reliance is greater on judicial interpretation. Expanding the court’s functions creates a challenge for them to maintain the balance between its active and adjudicatory roles. If reforms are not in place, there may be a danger that activism will be at the expense of justice.
Furthermore, judicial activism has to be assessed based on democratic legitimacy. Judges are not elected officials, nor do they have their power from the people. It means self-reliance, but it also requires discipline. Too much activism can lead to accusations that judges are becoming too involved in government and interfering with democracy. The sustainability of activism must be done in an institutional and politically sensitive manner.
Not entirely, however, was it fair to label judicial activism as a complete fallacy. It has been an important accountability and reform process tool in many cases. The balance of activism and restraint is the key. But when fundamental rights are involved, the court has a role to play that needs to be played, and it cannot ignore its institutional constraints. The judiciary is not to supplant the executive, but to spur other branches of government to action.
Complementary reforms are also a key precondition for sustainability. Administrative institutions can be strengthened, transparency improved, and governance mechanisms better, which will help to decrease the reliance on judicial solutions. Meanwhile, judicial reforms can be undertaken to help the courts also deal with their workload, including improving the number of judges, introducing technology in court processes, and speeding up judicial processes.
To conclude, judicial activism in Bangladesh has been an unprovincial part of the movement of constitutionalism and human rights protection. But its sustainability depends on careful and cautious intervention and restraint and on wider institutional change. No one can or should be solely responsible for solving systemic problems. Effective collaboration between all governments is vital to make sure the promise of justice is not just expressed in courtrooms but also delivered on the ground.
About the Author :
Mahbub Tamjid is a law student at the Department of Law, Southeast University, with a strong academic interest in advocacy, legal research, and moot court practice. He is currently the General Secretary of Southeast Moot Court Society, serving as campus ambassdor in Legal Empowerment Bangladesh and Bangladesh Center for Refugee Law Studies-BCRLS, and Legal research intern at Bangladesh Law Digest and Bangladesh Opinion Juris.