The Conundrum of Judicial Activism and Self-Restraint in Bangladesh



 

Judicial activism is a doctrine positing that judges must actively interpret the law and safeguard the rights of individuals and groups. This may encompass nullifying laws deemed unconstitutional or delivering rulings that extend the rights of individuals or groups. Conversely, judicial self-restraint adheres to the doctrine that judges should yield to the decisions of other government branches, notably the legislature. This implies that judges should only invalidate unconstitutional laws while refraining from questioning the choices of elected officials.

In Bangladesh, the discourse on judicial activism and judicial self-restraint has been an enduring debate. Here, this debate is frequently framed in the context of reconciling the competing tenets of judicial independence and judicial deference. Judicial independence emphasizes that judges should be shielded from political interference in their decision-making, whereas judicial deference posits that judges should exhibit respect for the decisions of other government branches.

The Supreme Court of Bangladesh has garnered a reputation for embracing both judicial activism and self-restraint. In recent times, the Supreme Court has intensified its efforts to protect the rights of individuals and groups. Several catalysts fuel this transformation, including the burgeoning influence of human rights law, heightened awareness regarding the significance of judicial independence, and mounting discontent with the performance of other government branches.

Nevertheless, the Supreme Court has not been exempt from criticism regarding its activist approach. Detractors contend that the Court has exceeded its jurisdiction and that its rulings have undercut the democratic process. Others argue that the Court's application of judicial activism has been inconsistent, sometimes serving individual judges' personal or political agendas.

Key distinctions between judicial activism and judicial restraint include:

Judicial Activism:

  • Judges are more inclined to invalidate laws or government actions perceived as unjust or unconstitutional.
  • Judges may construe the Constitution to broaden the rights of individuals or groups.
  • Judges may display a greater readiness to intervene in political or social matters.

Judicial Restraint:

  • Judges are more prone to defer to decisions made by other government branches, particularly the legislature.
  • Judges may interpret the Constitution in a way that curtails the rights of individuals or groups.
  • Judges may exhibit a reduced inclination to meddle in political or social matters.

The merits of judicial activism and judicial restraint remain subjects of fervent debate. Advocates for judicial activism posit that it is indispensable for shielding individuals and groups from government overreach. They also contend that judges are better qualified than elected officials to interpret the Constitution and invalidate unconstitutional laws.

Opponents of judicial activism argue that it undermines the democratic process by entrusting excessive authority to unelected judges. They also assert that judges are not always adequately equipped to make decisions regarding intricate political and social issues.

Therefore, the quandary surrounding the debate on judicial activism and judicial restraint is multifaceted, and bereft of straightforward answers. Ultimately, it falls upon each judge to ascertain the equilibrium between the competing principles of judicial independence and judicial deference.

 

[image credit: https://cdn.pixabay.com/photo/2015/04/12/16/33/hammer-719066_960_720.jpg]


© Yasin Al Razi

 

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