Judicial Activism in Bangladesh: A Golden Mean Approach [New ed.] 1443827339, 9781443827331

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Judicial Activism in Bangladesh: A Golden Mean Approach

Judicial Activism in Bangladesh: A Golden Mean Approach

By

Ridwanul Hoque

Judicial Activism in Bangladesh: A Golden Mean Approach, by Ridwanul Hoque This book first published 2011 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Copyright © 2011 by Ridwanul Hoque All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-2733-9, ISBN (13): 978-1-4438-2733-1

Dedication _________________________ The late Moulana Abdul Fattah, my father Nawal Fattah Hoque, my son

TABLE OF CONTENTS

Table of Cases ............................................................................................. x Table of Statutes ..................................................................................... xxvi Foreword .............................................................................................. xxviii Professor Werner Menski Preface and Acknowledgements............................................................ xxxii Abbreviations .................................................................................... xxxviii Chapter One................................................................................................. 1 Introduction: Judicial Activism in Perspective 1.1 The wider context 1.2 Focus and scope of the study 1.3 The structure of the book 1.4 A brief note on methodology Chapter Two .............................................................................................. 18 Dominant Legal Theories, Separation of Powers, and Judicial Activism: The Need for a New Approach 2.1 Deficiencies of existing legal theories and jurisprudence 2.2 Separation of powers and judicial activism: Conflict or congruence? 2.3 Existing debates about the judicial role 2.4 A new approach to legal theories, separation of powers and the judicial role Chapter Three ............................................................................................ 59 Judicial Activism in a Global Context 3.1 Judicial activism in the USA and the UK 3.2 Judicial activism in South Africa 3.3 Judicial activism in India 3.4 Judicial activism in Pakistan

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Chapter Four .............................................................................................. 94 Development of Constitutionalism and Judicial Activism in Bangladesh: A Critical Analysis 4.1 The Constitution and the legal system of Bangladesh: The missing transformativeness 4.2 The place of the judiciary under the Constitution 4.3 Judicial activism in the formative years: Kazi Mukhlesur Rahman and the aborted seeds of activism 4.4 Extra-constitutional regimes (1975-1990): Judicial abdication of responsibility 4.5 The winds of judicial activism (1989): The basic structure doctrine 4.6 After democratic restoration (1991- ): People as a central focus? Chapter Five ........................................................................................... 139 Public Interest Judicial Activism in Bangladesh: Beyond Access to Justice 5.1 The delayed birth of public interest litigation 5.2 Public interest rights litigation: Measuring judicial activism 5.3 Suo motu judicial intervention: Public interest at work 5.4 Public interest constitutionalism litigation: The new public face of the judiciary 5.5 Post-emergency public interest judicial activism 5.6 The problems of PIL-based judicial activism in Bangladesh 5.7 Fundamental rights and fundamental state policy principles: Bridging the divide Chapter Six .............................................................................................. 183 Judicial (In)activism during the 2007 Emergency 6.1 Emergency and the Constitution of Bangladesh 6.2 Emergency and the role of courts 6.3 The 2007 Emergency in Bangladesh: Judicial passivity or submissivism? 6.4 Judicial role during the 2007 Emergency: A critique 6.5 Post-emergency new judicial activism Chapter Seven.......................................................................................... 206 Overcoming the Barriers of Judicial Agency: Changing Discourses of Remedial Expansion and Comparativism 7.1 Factors retarding judicial activism 7.2 Strategic factors that enhance judicial activism 7.3 Comparativism as activism

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Chapter Eight........................................................................................... 245 Conclusions: Towards Golden Mean Judicial Activism 8.1 Summary of the findings 8.2 Balanced and contextualised judicial activism 8.3 Judicial activism in Bangladesh: The way forward Appendix ................................................................................................. 271 Bibliography ............................................................................................ 288 Index ....................................................................................................... 345

TABLE OF CASES

A v B 1996 (1) KLT 275. A v Secretary of State for the Home Department [2004] UKHL 56. A v Secretary of State for the Home Department [2005] 2 WLR 87. A (FC) v SSHD [2004] UKHL 56. A. D. M., Jabalpur v Shivakant Shukla AIR 1976 SC 11207. A. K. Fazlul Hoque v Secretary, Ministry of Housing (2005) 57 DLR (HCD) 725. A. K. M. Fazlul Quader Chowdhury v Govt. of Pakistan (1957) 9 DLR (Dacca) 139. A. T. Mridha v The State (1973) 25 DLR (HCD) 335. Abdul Awal v Mofasiluddin Ahmed (1975) 27 DLR (HCD) 637. Abdul Baqui Baluch v Pakistan (1968) 20 DLR (SC) 249. Abdul Bari Sarker v Bangladesh (1994) 46 DLR (AD) 37. Abdul Gaffur v Joint District Judge 57 (2005) DLR (HCD) 138. Abdul Gafur v Secretary, Ministry of Foreign Affairs (1997) 17 BLD (HCD) 453. Abdul Jalil v Sharon Laily Begum (1998) 18 BLD (AD) 21. Abdul Latif Mirza v Govt. of Bangladesh (1979) 31 DLR (AD) 1. Abdul Mannan Bhuiyan v State (2008) 60 DLR (HCD) 49. Abdul Momen v Dhaka City Corporation & Ors (1997) 50 DLR (HCD) 300. Abdul Momen Chowdhury and Ors v Election Commission, WP No. 2561 of 2005. Abdur Rashid Sarker v Bangladesh (1996) 48 DLR (AD) 99. Abdus Shukoor Dada v The State (1976) 28 DLR (HCD) 441. Abu Bakar Siddique v Justice Shahabuddin Ahmed (1997) 17 BLD (HCD) 31. Abu Bakar Siddique v Sheikh Hasina, WP No. 2057 of 1995 (unreported). Abul Kashem v Member (Excise), NBR (1981) 1 BCR (HCD) 279. Advocate Sultana Kamal and Others v Bangladesh (2009) 14 BLC (HCD) 141. AFM Naziruddin v Mrs. Hamida Banu (1993) 45 DLR (AD) 38. Aftab Uddin v Bangladesh (1996) 48 DLR (HCD). Afzalul Abedin and Others v. Government of Bangladesh and Others (2003) 8 BLC (HCD) 601.

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Ahammed v Ayesha 1990 (1) KLT 172. Ahmed Nazir v Bangladesh (1975) 27 DLR (HCD) 199. Ahmedabad Women Action Group v Union of India AIR 1997 SC 3614. Akbar Ali v The State 1991 SCMR 2114. AKM Reazul Islam v State (2008) 13 BLC (HCD) 111. Al Amin & Others v The State (1999) 19 BLD (HCD) 307. Al-Amin Construction Co. v Govt. of Bangladesh (2003) 55 DLR (HCD) 510. Alam Ara Huq v Govt. of Bangladesh (1990) 42 DLR (HCD) 98. Aleya Begum v Bangladesh (2001) 53 DLR (HCD) 63. Alhaj Md. Hossain v Bangladesh (1987) 39 DLR (HCD) 265. Alhaj Md. Yousuf Ali v The State (2002) 22 BLD (HCD) 231. Ali v Sufaira 1988 (2) KLT 94. Ali Ahsan Mujahid v State (2008) 60 DLR (HCD) 60. Ali Ekabbar Farazi v Bangladesh (1974) 26 DLR (HCD) 394. Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 324. All Indian Judges’ Association v India (1993) 4 SCC 288. Amaratunge v Police Constables [1993] SAARC L. J. 88 (SL SC). Amaresh Chakravarty v Bangladesh (1979) 31 DLR (AD) 240. Ananda Builders v BIWTA (2005) 57 DLR (AD) 37. Andhra Pradesh Pollution Control Board v Nayudu [2002] 3 LRC 275. Anwar Hossain v Mainul Hosein (2006) 58 DLR (AD) 229 Anwar Hossain v The State (2003) 55 DLR (HCD) 643. Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl.) 1. Anwar Hossain Khan v Speaker of Bangladesh Sangsad (Parliament Boycott Case) 1995) 47 DLR (HCD) 42. Anwar Karim v Bangladesh Bank (2000) 52 DLR (HCD) 1. Apparel Export Promotion Council v AK Chopra AIR 1999 SC 625. Aruna Sen v Govt of Bangladesh (1975) 27 DLR (HCD) 122. Asaf Khan v The Court of Settlement, Dhaka (2003) 23 BLD (HCD) 7. ASK (Ain o Salish Kendro) v Bangladesh (1999) 19 BLD (HCD) 488 (Slum Dwellers Case). Ain o Salish Kendro (ASK) v Bangladesh (2007) 15 BLT (HCD) 48. ASK v Bangladesh, WP No. 3176 of 2000 (unreported). ASK v Bangladesh, WP Nos. 7585/2003; 4698/2003; 3535/2004; 5588/2004. ASK v Bangladesh, WP No 1987 of 2005. ASK v Bangladesh, WP No. 4269/2005 (pending). ASK v Government of Bangladesh [2003] 4 CHRLD 147 (judgment of 5 August 2001). ASK and Others v Bangladesh (2004) 56 DLR (HCD) 620.

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Asma Jilani v Punjab PLD 1972 SC 139. Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Ataur Rahman v BM Muhibur Rahman (2009) 14 BLC (AD) 61. Ataur Rahman v Md. Nasim 52 (2000) DLR (HCD) 16. Azad Rickshaw Puller Union v State of Punjab, AIR 1981 SC 14. B. L. Wadehra (Dr.) v Union of India (1996) 2 SCC 594. B. Singh v Union of India (2004) 3 SCC 363. Baker v Canada (Ministry of Citizenship and Immigration) [1999] 2 SCR 817. Baker v Carr 369 US 186 (1962). BALCO Employees’ Union v India (2002) 2 SCC 333. Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161. Bangladesh v Abdur Rob (1981) 33 DLR (AD) 142. Bangladesh v Dr. Shamima Sultana Rita Civ. P. No. 485 of 2002 in the Appellate Division, Bangladesh Supreme Court (unreported). Bangladesh v Dr. Dhiman Chowdhury (1995) 47 DLR (AD) 52. Bangladesh v Mahbubuddin Ahmed (1998) 18 BLD (AD) 87. Bangladesh v Md. Salimullah (1983) 35 DLR (AD) 1. Bangladesh v Samboon Asavhan (1980) 32 DLR (AD) 252. Bangladesh v Sheikh Hasina (2008) 60 DLR (AD) 90. Bangladesh v Unimarine S. A. Panama (1977) 29 DLR (AD) 252. Bangladesh v Winifred Rubie (1982) 2 BLD (AD) 34. Bangladesh Beverage Industries Ltd v Rowshan Akhter and Others (2010) 62 DLR (HCD) 483 Bangladesh Biman Corporation v Rabia Bashri Irene (2003) 55 DLR (AD) 132. Bangladesh Italian Marble Works Ltd v Bangladesh (2006) 14 BLT (Special) (HCD) 1; (2010) 62 DLR (HCD) 70 (judgment of 29 August 2005). Bangladesh Krishi Bank v Meghna Enterprise (1998) 50 DLR (AD) 194. Bangladesh National Women Lawyers’ Association v Jahangirnagar University, WP No. 3271/1998. Bangladesh Paribesh Andolan v Bangladesh (2006) 58 DLR (HCD) 441. Bangladesh Retired Govt. Employees’ Welfare Association v Bangladesh (1994) 46 DLR (HCD) 426. Bangladesh Retired Govt. Employees’ Welfare Association v Bangladesh (1999) 51 DLR (AD) 121. Bangladesh Sangbadpatra Parishad v Bangladesh (1991) 43 DLR (AD) 126. Banwasi Seva Ashram v. State of U. P. (1993) 2 SCC 61.

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Begum Nusrat Bhutto v Chief of Army Staff PLD 1977 SC 657. BELA v Bangladesh, WP No. 2911 of 2003. BELA v Bangladesh and Others, WP No. 4685 of 2002. Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416. Bilkis Akther Hossain v Bangladesh (1997) 17 BLD (HCD) 344. Birds Bangladesh Agencies Ltd v Secretary, Ministry of Food, WP Nos. 198, 278, and 537 of 1994 (unreported). Bivens v Six Unknown Agents of the Federal Bureau of Narcotics 403 US 388 (1971). BLAST (Bangladesh Legal Aid and Services Trust) v Bangladesh (1999) 4 BLC (HCD) 600. BLAST v Bangladesh (2002) 7 BLC (HCD) 85. BLAST v Bangladesh (2005) 57 DLR (HCD) 11. BLAST v State (2008) 60 DLR (HCD) 176 (WP No. 2060 of 2001). BLAST v Bangladesh (2008) 60 DLR (HCD) 234 (WP No. 4502 of 2003). BLAST v Secretary, Ministry of Law, Justice and Parliamentary Affairs (2009) 61 DLR (HCD) 109 (arising from WP No. 606 of 2006). BLAST v Bangladesh (2010) 30 BLD (HCD) 194 (WP No. 8283 of 2005). BLAST v Bangladesh, WP No. 1694 of 2000. BLAST v Bangladesh, WP No. 1256 of 2006. BLAST and Others v Bangladesh, WP Nos. 3437 of 1997; 1783 of 1998 (pending). BLAST and Others v Bangladesh (2003) 23 BLD (HCD) 115. BLAST and Others v Bangladesh (2003) 55 DLR (HCD) 363; [2003] 4 CHRLD 237. BLAST and Others v Bangladesh, WP No. 3326 of 2003 (unreported). BLAST and Others v Bangladesh, WP No. 2192/2004 (unreported). BLAST and Others v Bangladesh (2005) 25 BLD (HCD) 82. BLAST and Others v Bangladesh, WP No. 5863 of 2009 (unreported). BLAST, ASK and BNWLA v Bangladesh, WP No. 6309 of 2003. BNWLA v Jahangirnagar University, WP No. 3271 of 1998. BNWLA v Bangladesh (2009) 14 BLC (HCD) 694 Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490. Brown v Board of Education 347 U. S. 483 (1954). BSCIC v Mahbub Hossain 29 (1977) DLR (SC) 41. BSEHR (Bangladesh Society for Enforcement of Human Rights) v Bangladesh (2001) 53 DLR (HCD) 1. Campbell v MGN Ltd [2004] UKHL 22. Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC). Carmichele v Minister of Safety and Security 2003(2) SA 34 (CC).

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Chairman, BTMC v Nasir Ahmed Chowdhury (2002) 22 BLD (AD) 199. Chairman, Railway Board v Mrs. Chandrima Das AIR 2000 SC 988. Chameli Singh v State of UP 1996 (2) SCC 549. Chandpur Jute Mills v Artha Wrin Adalat (1997) 2 BLC (HCD) 49. Chowdhury M. Hasan v Bangladesh (2002) 22 BLD (HCD) 459. Christopher Lezama v The Commissioner of Prisons, HCA Civ 2098/2002 (South Africa). City Bank v Bangladesh (1999) 51 DLR (AD) 262. City District v Muhammad Yusaf ICA No. 798 of 2002 (Pakistan). City Sugar Industries v HRPB (2010) 62 DLR (AD) 428. City of Chicago v Shalala 189 F 3d 598 (7th Cir. 1999). Common Cause v Union of India AIR 1996 SC 929. Conforce Ltd v Titas Gas Co. Ltd (1992) 42 DLR (HCD) 33. Constitutional Reference No. 1 of 1995 (1995) III BLT (Special Issue) 159; (1995) 47 DLR (AD) 111. Daily Star v State (2001) 53 DLR (HCD) 155. Dandridge v Williams 397 US 471 (1970). Danial Latifi v Union of India (2001) 7 SCC 740. Darshan Masih v The State, PLD 1990 SC 513. De Shaney v Winnebago County Department of Social Services 489 US 189 (1989). Delhi Science Forum v Union of India (1996) 2 SCC 405. Deshapriya v Municipal Council, Nuwara Eliye [1996] 1 CHRLD 115. DG, BWDB v BJ Geo Textiles (2005) 57 DLR (AD) 1. Dilruba Aktar v A. H. M. Mohsin (2003) 55 DLR (HCD) 568. Dinesh Trivedi v Union of India (1997) 4 SCC 306. D. K. Basu v State of West Bengal AIR 1997 SC 610. Dr. Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109. Dr. Amjad H. Bokhari v Federation of Pakistan (Karachi Oil Spill case) Constitutional Petition No. 45/2003. Dr. Bonham’s Case 77 Eng. Rep. 638 (PC 1610). Dr. Mohiuddin Farooque v Bangladesh (FAP 20 Case) (1996) IX BSCR (AD) 27; (1997) 17 BLD (AD) 1. Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438. Dr. Mohiuddin Farooque v Bangladesh (FAP 20 merit) (1998) 50 DLR (HCD) 84. Dr. Mohiuddin Farooque v Bangladesh (Doctors’ Strike Case) WP No. 1783 of 1999 (unreported). Dr. Mohiuddin Farooque v Bangladesh (2003) 55 DLR (HCD) 69 (Industrial-pollution Case).

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Dr. Mohiuddin Farooque v Bangladesh (2003) 55 DLR (HCD) 613 (Vehicular-pollution Case). Dr. Nurul Islam v Bangladesh (1981) 33 DLR (AD) 201. Dr. Shahdeen Malik v Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affair and Others, WP No. 2088 of 2005 (pending). Dr. Shahdeen Malik v Bangladesh, represented by the Secretary, Ministry of Establishment and Others, WP No. 11736 of 2005 (pending). Dred Scott v Sanford 60 US 393 (1856). Dulaurans v France [2000] ECHR 109 (21 March 2000). Dunlea v Attorney-General [2000] 3 NZLR 136. Eakin v Raub 12 S. & R. 330 (USA). Editor, the Daily Prothom Alo v Bangladesh (2003) 11 BLT (HCD) 281. Ekushey Television Ltd v Dr. Chowdhury Mahmood Hasan (ETV Case) (2002) 54 DLR (AD) 130. Eliadah McCord v State (1996) 48 DLR (HCD) 495. Engineer Mahmud-ul-Islam v Govt. of Bangladesh (Private Port Terminal Case) (2003) 23 BLD (HCD) 80. Farida Akhter & Others v Bangladesh (2007) 15 BLT (AD) 206. Faruque Hasan v Titas Gas Ltd (2006) 58 DLR (HCD) 316. Faustina Pereira v State (2001) 53 DLR (HCD) 414. Fazle Rabbi v Election Commission (1992) 44 DLR (HCD) 14. Fazlur Rahman Chowdhury v Bangladesh (1987) 39 DLR 314. Fitzpatrick v Sterling Housing Association [1999] 3 WLR 1113. Frances C. Mullin v Administrator, Union Territory of Delhi (1981) 2 SCR 516. Giasuddin v Dhaka City Corporation (1997) 17 BLD (HCD) 577. Golam Ali v Gulam S. Naqvi PLD 1990 SC 1. Gopal Sarmath v State of Assam (2001) 1 Gau LT 643. Government of Bangladesh v M. Idrisur Rahman (1999) 19 BLD (AD) 203. Government of the Republic of South Africa v Grootboom, 2001 (1) SA 46 (CC). Government of Sindh v Sharaf Faridi PLD 1994 SC 105. Gratz v Bollinger 123 S. Ct. 2411 (2003). Griswold v Connecticut 381 US 479 (1965). Grutter v Bollinger 123 S. Ct. 2325 (2003). Habiba Mahmud v Bangladesh (1993) 45 DLR (AD) 89. Habibul Islam Bhuiyan v Ms. Sheikh Hasina (1999) 51 DLR (AD) 67. Habibullah Khan v S. A. Ahmed (1983) 35 DLR (AD) 72. Haji Nijam Khan v Additional District Judge PLD 1976 Lah 930.

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Halima Khatun v Bangladesh (1978) 30 DLR (AD) 207. Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (HCD) 190; (1981) 33 DLR (HCD) 381. Hasina Begum v Bangladesh (Vasanteck Slum Eviction), WP No. 567 of 2003. Hazerullah v Assistant Commissioner, Board of Management of Abandoned Property (2002) 22 BLD (AD) 155. Hefzur Rahman v Shamsun Nahar Begum (1995) 47 DLR (HCD) 54. Hefzur Rahman v Shamsun Nahar Begum (1999) 51 DLR (AD) 172. Himachal Pradesh v Parent of a Student at Medical College, Simla (1985) 3 SCC 169. H. M. Ershad v Bangladesh (2001) 21 BLD (AD) 69. Hoffman v South African Airways 2001 (1) SA 1 (CC); 1997 (6) BCLR 708 (CC). Hopwood v Texas 78 F. 3d. 932 (5th Cir. 1996). Human Rights and Peace for Bangladesh v Bangladesh (2009) 14 BLC (HCD) 759 Humayun Kabir v The State (1976) 28 DLR (HCD) 259. Hussainara Khatoon v State of Bihar AIR 1979 SC 1360. (Md.) Idrisrur Rahman v Bangladesh, WP No. 3228 of 2008. Idrisur Rahman & Others (with Shamsul Huda & Others) v Bangladesh (2009) 61 DLR (HCD) 523. Indira Gandhi v Raj Narain AIR 1975 SC 2299. International Transport Roth GmbH v SSHD [2003] QB 728. Islamia Automatic Rice Mills Ltd. v BSRS & Others, Contempt Petition No. 24/2001 (HCD’s judgment of 21 July 2002). Jabon Naher & Ors. v Bangladesh (1997) 49 DLR (HCD) 108; (1998) 18 BLD (HCD) 141. Jamil Huq v Bangladesh (1982) 34 DLR (AD) 125. Jibendra Kishore v East Pakistan (1957) 9 DLR (SC) 21. Jones v University of Warwick [2003] 1 WLR 954. Joynal Abedin v Bangladesh (1978) 30 DLR (HCD) 371. K v Minister of Safety and Security 2005 (3) SA 179 (SCA). K v Minister of Safety and Security 2005 (9) BCLR 835 (CC). K. Ramakrishan v State of Kerala AIR 1999 Ker 385. Kadra Pahadiya v State of Bihar AIR 1982 SC 1167. Kalam v Bangladesh (2001) 21 BLD (HCD) 446. Kapila Hingorani v State of Bihar 2003 SCCL Com 472. Karnaphuli Rayon and Chemicals Ltd v Bangladesh (1976) 28 DLR (AD) 116.

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Kazi Mukhlesur Rahman v Bangladesh (1974) 26 DLR (AD) 44 (Berubari Case). Kesavananda Bharati v State of Kerala 1973 (4) SCR 225. Khairul Alam Pipul v Bangladesh, WP No. 1171 of 2006. Khandaker Moshtaque Ahmed v Bangladesh (1982) 34 DLR (AD) 222. Khandker Ehteshamuddin v Bangladesh (1981) 33 DLR (AD) 154. Khawaza Tariq Rahim v Federation of Pakistan PLD 1992 SC 646. Khedat Mazdoor Chetna Sangath v State of M. P. (1994) 6 SCC 260. Khondker Delwar Hossain v Bangladesh Italian Marble Works and Others (2010) 62 DLR (AD) 298; (2010) VI (B) ADC (AD) 1. Khondaker Modarresh Elahi v Bangladesh (2001) 21 BLD (HCD) 352. Khosa v Minister of Social Development, 2004 (6) BCLR 569 (CC). Khushi Kabir v Bangladesh and Others, WP No. 3091 of 2000. Kishen Pattanayak v State of Orissa 1989 Supp 1 SCC 258. K. M. Asadul Bari v Bangladesh (2002) 22 BLD (HCD) 129. K. M. Zabir v Amanullah CR Case No. 1097A1/1988 (CMM Court, Dhaka). Korban (Md.) v Government of Bangladesh (2003) 55 DLR (HCD) 194. Kudrat-E-Elahi Panir v Bangladesh (1992) 44 DLR (AD) 319. Kumar Padma Prasad v Union of India (1992) 2 SCC 428. Kutubuddin v Nurjahan (1973) 25 DLR (HCD) 21. L. Chandra Kumar v India (1997) 3 SCC 261. Labu Mia v State (2001) 53 DLR (HCD) 218. Laxmi Kant Pandey v Union of India AIR 1984 SC 469. Liversidge v Anderson [1942] A.C. 206. Lochner v New York 198 US 45 (1905). Lt. Col. G. L. Bhattacharya v The State (1963) 15 DLR (Dacca) 175. Lutfur Rahman v Election Commissioner (1975) 27 DLR (HCD) 278. M. Abdul Huq v Fazlul Quader Chowdhury (1963)15 DLR (Dacca) 355 (affirmed in PLD 1963 SC 486). M. Asafuddowla and Others v Bangladesh (Writ Petition of 24 November 2008). M. Hafizul Islam v Government of Bangladesh (2003) 23 BLD (HCD) 123. M. Idrisur Rahman v Shahiduddin Ahmed (1999) 19 BLD (HCD) 291. M. Saleem Ullah v Bangladesh (1995) 47 DLR (HCD) 218. M. Saleem Ullah v Bangladesh (2003) 23 BLD (HCD) 58. M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171 (13th Amendment Case). M. Saleem Ullah and Others v Bangladesh, WP No. 5033 of 2008.

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M. Vijaya v Chairman, Singareni Collieries Hyderabad 2001 (5) ALD 522 (LB). Maimunnesa v State (1974) 26 DLR (HCD) 24. Mainul Hosein v Anwar Hossain (2006) 58 DLR (HCD) 117 & 157. Mainul Hosein et al v Ms. Sheikh Hasina (2000) 21 BLD (HCD) 109. Makhan Singh Tarasikka v Punjab AIR 1964 SC 381. Maneka Gandhi v Union of India AIR 1978 SC 597. Marbury v Madison 5 US (1 Cranch) 137 (1803). Marcic v Thames Water Utilities Ltd [2001] 3 All ER 698. Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 65. Marcic v Thames Water Utilities Ltd [2003] UKHL 66. Mary Sonia Zachariah v Union of India 1995 (1) KLT 644 (FB). Masood R. Sobhan v The Election Commission (2008), Writ Petition No. 709 of 2008 (judgment of 22 May 2008). Master Isa N. Farooque v Bangladesh, WP No. 278 of 1996. Mazharuddin v Pakistan, High Court of Sindh, Karachi, D-135 of 1997, 17 Feb 1998 (unreported). M. C. Mehta v Kamal Nath (2002) 3 SCC 653. M. C. Mehta v State of Tamil Nadu (1996) 2 SCC 756. M. C. Mehta v Union of India AIR 1987 SC 965. M. C. Mehta (II) v Union of India (the Ganges Pollution Case) (1988) 1 SCC 471. M. C. Mehta v Union of India (1991) 2 SCC 137. M. C. Mehta v Union of India AIR 1992 SC 382. M. C. Mehta v Union of India 1993 Supp (1) SCC 434. M. C. Mehta v Union of India 1994 Supp (3) SCC 717. M. C. Mehta v Union of India (2002) 9 SCC 74. M. C. Mehta v Union of India (2004) 1 SCC 571. M. D., WASA v Superior Builders and Engineers Ltd (1999) 51 DLR (AD) 565. Md. Abdul Mannan Bhuiyan v Rajshahi University (2005) 57 DLR (HCD) 14. Md. Amir Hossain v The State (1976) 28 DLR (HCD) 37. Md. Faiz v Ekramul Haque Bulbul & Others (2005) 54 DLR (HCD) 670; [2005] 5 CHRLD 227. Md. Humayun Kabir v The State (1976) 28 DLR (HCD) 259. Md. Kamal Hossain, BLAST & Others v Bangladesh, WP No. 3566/2005. Md. Masdar Hossain & Others v Secretary, Ministry of Finance & Others (1998) 18 BLD (HCD) 558. Md. Mostafa Hossain v S. M. Faruque (1987) 7 BLD (AD) 315. Md. Shahanewas v Govt. of Bangladesh (1998) 18 BLD (HCD) 337.

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M. G. Bhuiyan v Bangladesh (1981) 1 BCR (AD) 80. Mia Ahmed Kabir v Bangladesh (1998) 50 DLR (HCD) 496. Minerva Mills v Union of India AIR 1980 SC 1789. Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC); [2002] 5 LRC 216. Minister of Home Affairs & another v Fourie & others 2006 (3) BCLR 355 (CC). Minister of Public Works v Kyalami Ridge Association 2001 (3) SA 1151 (CC). Minister of Safety v Carmichele 2004 (3) SA 305 (SCA) Minister of State for Immigration and Ethnic Affairs v Teoh 128 ALR 353 (1995). Miranda v Arizona 384 US 436 (1966) SC. Mofizur Rahman v Govt. of Bangladesh (1982) 34 DLR (AD) 321. Mohammed Ali v Bangladesh (2003) 23 BLD (HCD) 389. Monroe v Pape 365 US 167 (1961). Mosharraf Hossain v Bangladesh (2004) 56 DLR (AD) 13. Mostafa Kamal v Commissioner of Customs (1998) 18 BLD (HCD) 301. Motiar Rahman v Govt. of Bangladesh (2005) 57 DLR (HCD) 327. Moulvi Iqbal Haider v. Capital Development Authority (2006) PLD (SC) 394. Moyezuddin Sikder v State (2007) (2007) 59 DLR (HCD) 287 Mrs Farzana Muazzem v SEC and Others (2002) 54 DLR (HCD) 66. M/s A. T. J. Industries v Govt. of Bangladesh (1976) 28 DLR (HCD) 27. M/s Dulichand Omraolal v Bangladesh (1981) 1 BLD (AD) 1. M/s Hyundai Corpn. v Sumikin Bussan Corpn. & Others (2002) 22 BLD (AD) 16. M/s Kohinoor Chemicals Co. Ltd. v Rashida Begum and Others (1973) 25 DLR (HCD) 155. M/s Supermax International (Pvt.) Ltd. v Samah Razor Blades Industries Ltd. (2005) 2 ADC 593. Mst. Fazal Jan v Roshan Din PLD 1990 SC 661. Mujibur Rahman v Bangladesh (1992) 44 DLR (AD) 111. Mujibur Rahman v Bangladesh (1993) 13 BLD (AD) 54. Muktaram Sitaram Shinde v State of Maharashtra 1997 Cri. L. J. 3458. Mumbai Kamgar Sabha v Abdulbhai AIR 1976 SC 1455. Murli Deora v Union of India (2001) 8 SCC 765. Mustafa Ansari v Deputy Commissioner (1965) 17 DLR (Dacca) 553. Mwandingi v Minister of Defence [1991] 1 SA 851 (Namibia). MX v ZY AIR 1997 Bom. 406. Myers v US 272 US 52 (1926).

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NAACP (National Association for the Advancement of Coloured People) v Button 371 US 415 (1962). Najmul Huda, MP v Secretary, Cabinet Division (1997) 2 BLC (HCD) 414. Narmada Bachao Andolan v Union of India (1998) 8 SCC 308. Nasiruddin v Govt. of Bangladesh (1980) 32 DLR (AD) 216. Nasreen Fateema v Bangladesh (1998) 3 BLC (AD) 190. Nasrin K. Siddiqui v Bangladesh (1992) 44 DLR (AD) 16. National Textiles Workers’ Union v Ramakrishnan AIR 1983 SC 75 Newman v Alabama 559 F.2d. 283; 438 US 781 (1978). Nilabati Behera v Orissa (1993) 2 SCC 764. North Pole (BD) Ltd v BEPZA (2005) 57 DLR (AD) 631. Nowsher Ali v The State (1989) 39 DLR (HCD) 57. Nurul Amin v Bangladesh, WP No. 3489 of 1999 (judgment 29 September 1999). Nurunnahar Begum v Government of Bangladesh (1977) 29 DLR (HCD) 372. Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545; AIR 1986 SC 180. O’Reilly v Mackman [1982] 3 All ER 456. Pakistan v. Moulvi Tamizuddin Khan (1955), 7 PLD 240, 240-45 (Fed. App. 1955), Paramanand Katara v Union of India AIR 1989 SC 2039. Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37. Patenaude v Roy (1994) 123 DLR (4th) 78 (Quebec Court of Appeal). Pharmaceutical Manufacturer Association v SA [Re: Ex p. President of the Republic of South Africa] 2000 (2) SA 674 (CC). Pirjada Syed Shariatullah v Bangladesh (2009) 61 (DLR) (HCD) 647. Plessy v Ferguson 537 US 163 (1896). Premachandra v Major Montague Jayawickrema [1994] 2 Sri LR 90. Premier of Kwazulu Natal and Others v President 1996 (1) SA 769 (CC). President v Modderclip Boerdery 2005 (5) SA 3 (CC). Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC). Prof. Muzaffer Ahmad v Bangladesh Bank (2000) 20 BLD (AD) 235. Prof. Muzaffer Ahmad v Election Commission, WP No. 5069 of 2005. Prof. Nurul Islam and Others v Bangladesh (Cigarette Advertising Case) (2000) 52 DLR (HCD) 413. PUCL (People’s Union for Civil Liberties) v State of Tamil Nadu 2004 (5) SCALE 690. PUCL v Union of India (1997) 3 SCC 433.

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PUCL v Union of India (2001) 7 SCALE 484. PUCL v Union of India (2003) 4 SCC 399. PUDR v Police Commissioner, Delhi (1983) 4 SCC 730. PUDR v State of Bihar AIR 1978 SC 355. PUDR v Union of India AIR 1982 SC 1472. Qazi Hussain Ahmad v General Pervez Musharraf, PLD (2002) SC 853. Quazi Faruque, Secretary, CAB v Bangladesh, WP No. 631 of 2001 (pending). R v A (No. 2) [2001] UKHL 25. R v East Sussex CC, ex parte Tandy [1998] AC 714 (HL). R v Home Secretary, ex p. Fire Brigade Union [1995] 2 AC 523 HL. R v Manchester City Council, ex p. Stennet, [2002] UKHL 34. R v North & East Devon Health Authority, ex parte Coughlan [1999] Lloyds Rep Med 306 (CA). R v North West Lancashire HA, ex p. A, D & G [1999] Lloyds Rep Med 399 (CA). R v SSHD, ex p. Dew [1987] 1 WLR 881. R v R [1991] 4 All ER 481. R v R [1992] 1 AC 599. R v Sec. of State for the Home Office, ex p. Dew [1987] 1 WLR 881. R v SSHD, ex p. Launder [1997] 1 WLR 839 (HL). Rabia Bashri Irene v Bangladesh Biman (2000) 52 DLR (HCD) 308. Rafique Hossain v Speaker, Bangladesh Parliament (2002) 54 DLR (HCD) 42. Railway Express Agency Inc v. New York 336 US 106, 112–113 (1949). RAJUK v Mohshinul Islam (2001) 53 DLR (AD) 79. Ramesh Maharaj v Attorney-General of Trinidad and Tobago [1979] AC 385. Rao Shiv Bahadur Singh v State of Vindhya Pradesh AIR 1953 SC 394. Rattan Lal v Vardesh Chander (1976) 2 SCC 103. Re 19thAmendment to the Constitution [2003] 4 LRC 290 (SC) (Sri Lanka). Re Bombay Environmental Action Group (the Bombay High Court’s decision of 7 May 1997). Re Central Inland Water Transport Corporation (1986) 3 SCC 156. Re Certification of the Constitution 1996 (4) SA 744 (CC), 801) [Ex p. Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC). Re Death of Swinder Singh Grover 1992 (3) SCALE 15.

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Re ex p. National Federation of Self Employed and Small Businesses Ltd. [1982] AC 617. Re Human Rights Case 1993 SCMR 200. Re Judicial Inquiry into Gang Rape (1988) 1 Gau LR 489. Re Juvenile Jail, Landhi, Karachi 1990 PCrLJ 1231. Re Kerala Education Bill (1959) Supp SCR 995; AIR 1958 SC 956. Re National Textile Workers Union (1983) 1 SCC 255. Re Suo Motu Constitutional Petition (1994) SCMR 1028. Re Union Carbide Corpn. Gas Plant Disaster 809 F. 2d. 195 (2nd Cir.) (1987). Reference re Remuneration of the Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3 (Canada). Reference re Secession of Quebec [1998] 2 SCR 217. Regents of the University of California v Bakke 438 US 265 (1978). Regina v Keegstra [1990] SCR 697. Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC). Ressler v Minister of Defense 42 (2) PD 441 (Israel). Reyes v The Queen [2002] 2 WLR 1034. Reynolds v Sims 377 US 533 (1964). Rhodes v Chapman 452 US 337 (1981) 359. Richmond v J A Croson Co. 488 US 265 (1989). Riggs v Palmer (1889) 115 NY 506. Rokeya Kabir v Bangladesh (2000) 52 DLR (HCD) 234. Roper v Simmons 125 S. Ct. 1183 (2005). Rudul Sah v State of Bihar AIR 1983 SC 1086. S (State) v Makwanyane and Another 1995 (3) SA 391 (CC). S v Vermass 1995 (3) SA 292 (CC). S v Williams and Others 1995 (3) SA 632 (CC). S v Zuma 1995 (2) SA 642, (CC). Sahar Ali v A. R. Chowdhury (1980) 32 DLR (HCD) 142. Saiful Islam Dildar v Govt. of Bangladesh (1998) 50 DLR (HCD) 318. Saifuzzaman v State (2004) 56 DLR (HCD) 324. Sajeda Parvin v Bangladesh (1988) 40 DLR (AD) 178. Sajida Bibi v In-Charge, Chouki No. 2, Police Station Sadar, Sahiwal PLD (1997) Lah 666. Salimuddin v State (1976) 28 DLR (HCD) 187. Salma Sobhan v Bangladesh, WP No. 2678/1995 (unreported). Salt Miners’ Labour Union v Industries and Mineral Development 1994 SCMR 2061. San Antonio Independent School District v Rodriguez 411 US 1 (1973).

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Sanderson v Attorney General, Eastern Cape 1998 (2) SA 38 (CC). Sardar Farooq Ahmed Khan Leghari and Others v Federation of Pakistan PLD 1999 SC 57. SAS Bangladesh Ltd v Engineer Mahmud-ul Islam (2004) 24 BLD (AD) 92. Sardar Faruque Ahmed v Bangladesh, WP No. 4896 of 2006. Satish Chander Shukla (Dr.) v State of U. P. 1992 Supp (2) SCC 94. Scruttons Ltd v Midland Silicones [1962] AC 446. Sebastian M. Hongray v Union of India AIR 1984 SC 1026. Secretary, Ministry of Finance v Md. Masdar Hossain and Others (2000) 52 DLR (AD) 82. Secretary of State v Sakthevel Prabakar, Misc. Proceeding No. 18 of 2003 (Civil) (HKCA, determined on 3 October 2003). Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141. Secretary of State for the Home Department v Rehman [2003] 1 AC 53. Selim Reza v Govt. of Bangladesh (2006) 58 DLR (HCD) 1. Sh. Liaquat Hussain v. Federation of Pakistan, PLD 1999 SC 504, Shabalaa v Attorney General, Transvaal 1996 (1) SA 725 (CC). Shah Mohammad v Secretary to the President (1996) 1 BLC (HCD) 8. Shah Mohammad Hannan v Bangladesh, WP No. 2052 of 1998. Shamima Sultana Seema v Government of Bangladesh (2005) 57 DLR (HCD) 201. Shantistar Builders v Narayan K. Totame (1990) 1 SCC 520. Shahabuddin Chisti v RAJUK (2009) 61 DLR (AD) 73 Shahriar Rashid Khan v Bangladesh (1998) 18 BLD (AD) 55. Sharif Nurul Ambia v Dhaka City Corporation (2007) 15 BLT (AD) 305. Sharping M. S. Samity v Bangladesh (1987) 39 DLR (AD) 105. Shaw v Reno 509 US 360 (1993). Shehla Zia v WAPDA, PLD 1994 SC 693. Sheela Barse v Union of India, (1986) 3 SCR 448. Sheik Jahangir Husain v Bangladesh, WP No. 3293 of 2004 (unreported). Sheikh Abdus Sabur v Returning Officer (1989) 41 DLR (AD) 30. Sheikh Rafiqul Islam, LSTB v Bangladesh, WP No. 7439 of 2002. Shibu Pada Acharjee v State (2004) 56 DLR (HCD) 285. Shiplu and another v The State (1997) 49 DLR (HCD) 53. Shri Anadi Trust v VR Rudani AIR 1989 SC 1607. Siddique Ahmed v Bangladesh, WP No. 696 of 2010. Simpson v Attorney- General [1994] 3 NZLR 667.

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Sindh High Court Bar Association through its Secretary (and Nadeem Ahmed Advocate) v Federation of Pakistan, Constitutional Petitions 8 & 9 of 2009, Supreme Court of Pakistan. Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ. 1075. Sirajul Islam v The State (2004) 56 DLR (HCD) 236. S. N. Goswami v Bangladesh (2003) 55 DLR (HCD) 332. Smyth v Ushewokunze 1998 (3) SA 1125 (ZSC). Sobramoney v Minister of Health, 1998 (1) SA 765 (CC). Solicitor, Govt. of Bangladesh v A. T. Mridha (1974) 26 DLR (AD) 17. Southern Fisheries Corporation v King Fisheries Industries Ltd (1982) 32 DLR (HCD) 23. Southern Pacific Co. v Jenson 244 US 204 (1917). S. P. Gupta and Others v Union of India AIR 1982 SC 149 (Judges’ Transfer Case). Sri Kumar Prasad v India (1992) 2 SCC 428. State v Deputy Commissioner, Satkhira (1993) 45 DLR (HCD) 643. State v Dosso PLD 1958 SC 533. State v Joynal Abedin (1980) 32 DLR (AD) 110. State v Metropolitan Police Commissioner (2008) 60 DLR (HCD) 660. State v Mir Hossain (2004) 56 DLR (HCD) 124. State v Moslem (2003) 55 DLR (HCD) 116. State v Ryan (1965) IR 70 (Ireland). State v Senior Superintendent of Police, Lahore PLD 1991 Lah 224. State v Sukur Ali (2004) 9 BLC (HCD) 238. State of Maharashtra v Ravikant S Patil AIR 1991 SC 871. State of Rajasthan v Union of India (1977) 3 SCC 634. State of Rajasthan v Union of India AIR 1977 SC 1361. Sultan Ahmed v Chief Election Commissioner (1978) 30 DLR (HCD) 291. Sultana Nahar v Bangladesh (1998) 18 BLD (HCD) 361. Sunil Batra (I) v Delhi Administration (1978) 4 SCC 494. Sunil Batra (II) v Delhi Administration (1980) 3 SCC 488. Sunil Kumara v Chandrananda de Silva [1997] 2 Sri LR 265. Suo Motu Case No. 3 - Cutting Down of Trees in Jehangir Park, Saddar, Karachi (2006) 55 PLD (SC) 5. Syed Borhan Kabir v Bangladesh, WP No. 701 of 1993 (unreported). Syed Mansoor Ali Shah v Punjab WP 6927/1997 (Pakistan). Tamizuddin Khan v. Pakistan PLD 1955 Sind 96 = 7 DLR (WP) 121. Texas v Johnson 491 US 397 (1989). The Editor, the Daily Bangla Bazar v District Magistrate, Naogaon (2001) 21 BLD (HCD) 45. The Governor General’s Reference No. 1 of 1955 PLD 1955 FC 435.

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The Operation Dismantle v The Queen [1985] 1 SCR 441. The State v Baloyi 2000 (2) SA 425 (CC). The State v M. D., WASA 2000 CLC 22 (Lah) 471. The State v Md. Zillur Rahman and Ors. (Hartal Case) (1999) 19 BLD (HCD) 303; [2001] 3 CHRLD 3. TMA Pai Foundation v India AIR 1996 SC 2652. Trop v Dulles 356 US 86 (1958). Union of India v Association for Democratic Reforms (2002) 5 SCC 294. United Democratic Movement v President [2003] 4 LRC 98 (CC). United States v Caroline Products Co. 304 US 144 (1938). United States v Then 56 F. 3d 464, 469 (2nd Circuit, 1995). University of Rajshahi v Md. Abdul Mannan Bhuiyan (2005) 10 BLC (AD) 128 Unni Krishan v State of Andra Pradesh AIR 1993 SC 2178. Upendra Baxi v State of U. P. AIR 1986 SC 191. Van Eden v Minister of Safety and Security 2003 (1) SA 389 (SCA). Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647. Vineet Narain v India (1996) 2 SCC 199. Vishaka v State of Rajasthan AIR 1997 SC 3011; (1997) 6 SCC 241. Vriend v Alberta [1998] 1 SCR 493. Wahab v Secretary of Ministry of Land (1996) 1 MLR (HCD) 338. Walter Valente v The Queen [1985] 2 SCR 673. Wasim Sajjad v Pakistan PLD 2001 SC 233. Watan Party v Chief Executive of Pakistan, PLD (2003) SC 74. Weerawansa v Attorney General SC Appl. No. 730/96 (3 August 2000) (Sri Lanka). West Coast Hotel v Parish 300 US 379 (1937). Winifred Rubie v Bangladesh (1981) 1 BLD (HCD) 30. Younus Mia v Ministry of Public Works (1993) 45 DLR (HCD) 498. Yousuf Sheik v Appellate Tribunal (1977) 29 DLR (AD) 371. Z. I. Khan Panna v Bangladesh WP No. 8621 of 2005. Zafar Ali Shah v General Pervez Musharraf PLD 2000 SC 869. Zakir Hossain Munshi v Grameen Phone (2003) 55 DLR (HCD) 130. Ziaur Rahman Khan v Bangladesh (1997) 49 DLR (HCD) 491.

TABLE OF STATUTES

(non-Bangladeshi instruments are marked) Anti-Terrorism, Crime and Security Act 2001(UK). Bangladesh (Adaptation of Existing Laws) Order 1972. Bangladesh Civil Service (Reorganisation) Order 1980. Bangladesh Judicial Service (Constitution, Recruitment in the Entry Point, Temporary Suspension, Dismissal and Removal) Rules 2006. Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and Other Service Conditions) Rules 2006. Bengal Jail Code 1937. Bonded Labour System (Abolition) Act 1976 (India). Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982 (Canada), enacted as Schedule B to the Canada Act 1982 (UK). Children Act 1974. Chittagong Hill Tracts (Regulation) Rules 1960. Chittagong Hill-Tracts Regulation (Amendment) Act 2003. Civil Service Recruitment Rules 1981. Code of Civil Procedure 1908. Code of Criminal Procedure 1898. Constitution (Second Amendment) Act 1973. Constitution (Third Amendment) Act 1974. Constitution (Fourth Amendment) Act 1975. Constitution (Twelfth Amendment) Act 1991 (Act XXVIII of 1991). Constitution (Thirteenth Amendment) Act 1996 (Act I of 1996). Constitution (Fourteenth Amendment) Act 2004. Constitution Act 108 of 1996 (4 February 1997) (South Africa). Constitution of the Peoples’ Republic of Bangladesh (16 December 1972). Contempt of Court Ordinance 2008 (held unconstitutional by the Court) Emergency Powers Ordinance 2007 Emergency Powers Rules 2007 Factories Act 1965. (Repealed in 2006). Factories Rules 1979. Government Servants (Retirement) (Amendment) Ordinance 1981. High Court of Bangladesh Order 1972. Indian Divorce (Amendment) Act 2001 (India).

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Indian Divorce Act 1869 (India). Interim Constitution Act 200 of 1993 (South Africa). Laws Continuance Enforcement Order 1971 (of 10 April 1971). Legal Aid Act 2000. Legal Remembrancer’s Manual 1960. Martial Law Proclamation Order No. 11 of 1982. Money-Loan Courts Act 1990. Muslim Family Laws Ordinance 1961. Muslim Marriages and Divorces (Registration) (Amendment) Ordinance 2008 (held unconstitutional by the Court). Muslim Women (Protection of Rights on Divorce) Act 1986 (India). Prevention of Terrorism Act 2005 (‘PTA’) (UK). Prisoners Act 1900. Prisons Act 1894. Proclamation of Martial Law (of 20 August 1975). Provisional Constitution of Bangladesh Order 1972 (11 January 1972). Public Safety (Special Provisions) Act 2000. (Repealed). Public Servants (Retirement) Act 1974. Rules of the High Court Division (Bangladesh) (adapted from the Rules of the High Court of Judicature for East Pakistan). Social Assistance Act 59 of 1992 (South Africa). Special Powers Act 1974. Suppression of Acid-Violence Act 2002 Suppression of Violence against Women and Children (Special Provisions) Act 1995. (Repealed). Suppression of Violence against Women and Children Act 2000. Supreme Court Act 1981 (UK). UK House of Lords’ Practice Statement [1966] 1 WLR 1234 HL. United States Code (USC), No. 42, § 1983 (USA). Tobacco-smoking and the Use of Tobacco-related Products (Control) Act 2005. Village Government Act 2003.

FOREWORD

If leading global minds like Jacques Derrida and Amartya Sen tell us almost in unison that justice is always ‘in the making’ and is never perfectly reached, lawyers should long ago have realised that they have their work cut out forever in the arduous task of finding the right balance between ideal and practice. A lot of legal writing these days, however, under attractive banners like ‘international law, ‘human rights’ and ‘good governance’ engages in simplistic fantasies about an ideal world. Worse, many authors prescribe their own versions of soft-sounding remedies that may be quite harsh and are often plainly unrealistic. Even less constructively, it has become a fashion to critique ‘third world’ abuses of law and power without offering meaningful guidance on how to solve mankind’s perennial problems over justice, which of course also plague the ‘first world’, only in different forms and often under more sophisticated covers. This smug tendency to advise others, especially ‘Oriental others’ on how to cultivate justice has made a growth industry out of certain aspects of Eurocentric and North American legal academia, with attractive offerings of courses, snazzy and expensive special programmes and even international missions purportedly designed to make this world a better place. Since many such initiatives are driven by privileged people from the West, there is an element of self-interested activism in much of this, which ultimately may just lead to cushy jobs for so-called progressive people and/or their acolytes, with pompous claims occupying moral high grounds that may be little else than newly colonised islands of self-interested idealism in a global sea of continuing poverty and deprivation. Many academics can talk endlessly and with ease about poverty alleviation, activisms of all kinds, and now prominently post-conflict reconstruction, without ever having to dirty their hands with the polluting real concerns of the ‘slumdogs’ of this world. Sitting in judgment from the high table perspective of Western academia seems such an easy task, but is it ultimately constructive? And, does it tell us enough about law itself as a tool for achieving progress on the road to justice? When an elite academic from a less developed country embarks on building a legal career, whether as a practitioner or an academic, s/he has many crucial choices to make about methodology and ideology. Choices

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also have to be made about how to understand and enliven the meaning and application of activism in a world that remains full of basic rights abuses despite glorious statements and brilliant theories. In a recent conference, an experienced academic from a border region of the East/West and North/South divide suggested that by now lawyers know a lot about law, but when it comes to choice making, do we grab the right tools to accomplish the job in hand? Or do we simply fall back to wellestablished old models of law as command of the sovereign or slippery rule of law symbolisms to prescribe wonder drugs for legal development and the cultivation of justice? While most lawyers indeed know quite well that law is in reality a plurality of pluralities, they almost instinctively reach for plumbing tools that are just not sufficiently sophisticated to plug the constant leaks of justice and the leakages of accountability and responsible governance that appear all over the globe. We should know better, and we often do know better, but we simply are not activist enough. What Upendra Baxi would call ‘hard labour with a pen’ becomes of necessity a form of political intervention in which a scholar puts his or her conscience on the block in an effort to make a career and–hopefully-also to make a difference. Those of us who like to fool ourselves that we can create a better world by writing books rather than digging wells or teaching people how to raise goats or chickens need to do continuous soulsearching, which in some parts of the world is called ijtihad, to maintain an activist stance that continues to be able to improve this world. When Ridwanul Hoque first embarked on the research for the present book, which was to lead to a PhD as a foundation for a solid academic career, he was brimming with globally inspired ideals about judicial activism and the power of judges. But as a Bangladeshi lawyer, he also knew deep down that reality is cruelly different. As a public law expert, he was aware of the ease with which one nation could suppress another, and how easily strong individuals could exploit their privileges. He knew how quickly electoral mandates could turn into dictatorships and how easy it was, even at the level of college politics, to sideline peripheral players in any scenario through purportedly due processes of law. Nurtured in the hothouse of Bangladeshi illusions about nation-building and good governance, Ridwan thus embarked on a journey of researching how–and ultimately even whether–judicial activism could make a real difference. The hope remained that there must be a right way, a correct path, familiar themes to Muslims and really all humans, at the end of the day. But this hope was always threatened by the unsatisfactory realities of political and legal abuse and by disrespect for the concerns of those who need the protection of others. Somehow, there was always opposition to whatever

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was suggested or done, fights over principles and practice, violent disagreements over how justice was to be perceived and be apportioned. In re-examining global legal theory and testing it against the troublesome realities of his own jurisdiction, a country that in 2011 will celebrate only its 40th birthday, Ridwan did not shy away from taking a critical and even self-critical approach to call a spade a spade where necessary, and to pinpoint abuses of law and procedure where they occurred. Writing about judicial activism easily gets shackled by fussy and pedestrian debates about what judges may or may not do as unelected agents of governance. The book produced here out of the foundations of the doctoral thesis goes much beyond such reductionist pedestrianisation of law, for it courageously lifts the debate into the skies of global legal realism. The analysis perceptively addresses bottlenecks of justice, identifying shackles and mental blocks in our own minds against activising concerns for justice for the common citizen. The delayed birth of public interest litigation in Bangladesh is clearly not only due to colonial manipulation of legal minds and of governance. It creates a lot of continuing pain and injustice because even post-colonial governments that rule in the name of the people have been constantly tempted to abuse power. Bangladeshis know only too well that this is not even an issue of party politics or of a particular personality trait; it seems to be a systemic defect built into post-colonial structures of governance in South Asia and elsewhere. Bangladesh is a case in point for such tortuous neglect of principles of good governance, disregard of basic norms of public service and particularly accountability of those in power. Rather than enjoying the ruler’s privilege and authority, destructive positioning and petty politicking have squandered precious resources and much goodwill that this new nation found on its contested birth. It has been easy to condemn this young country and its not so young leading elites for lack of concern for justice and for creating barriers to benign judicial intervention in cases of abuse. This excellent detailed study partly blames traditional anglocentric legal education for lack of sensitivity about culture-specific problems over basic justice. But it also demonstrates that controlling abuse of public power and private privileges remains a critical challenge not just for Bangladeshi judges, but also for the amazingly rich, though often not properly managed nation of Bangladesh, and for the whole world. This fine book is therefore much more than a case study of the author’s familiar terrain or a critical description of a messy national jurisdiction. It is a wonderful and ultimately very insightful illustration of the global challenge of legal navigation–kite flying, as I call it now–in which easy

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solutions are elusive and the right balance is always a phenomenon of momentary bliss and temporary feelings of success, only to be disturbed by new turbulences the next moment. Bangladeshis are familiar with the image of a ghuri, a kite, even a wish-kite, iccher ghuri, and this young nation certainly dreams on with enormous fervour about ultimate success and better justice. This rich study, which it was a privilege to supervise, is much more than a well-documented study of how judges have mostly failed to uphold justice. Its central message is clearly that the challenge of the golden mean approach is never going to go away–justice will always need to be assiduously cultivated, finetuned and navigated. Even the most recent events in Bangladesh confirm this need for continuing vigilance. This, then, is a story of life and law, and of applied legal science. The author has provided a sterling service to academia, helping to lift legal education in his country out of the quite lethargic and smug plumbing mentality. Demonstrating that law in practice can be an intellectually respectable, practically applicable and at the same time justice-cultivating enterprise, this book will hopefully inspire a generation of new lawyers to become more activist about activism without getting lost in petty and ruinous politics. The author’s hard labour through playing with keyboardssince we no longer write with quills or pens–will retain relevance for many years to come. Like a kite sailing in the sky on a nice sunny day, the safeguarding of justice, in Bangladesh and elsewhere, will require continuous vigilance in theory and practice. —Professor Werner Menski SOAS, University of London

PREFACE AND ACKNOWLEDGEMENTS

I This book critically examines the evolving global trend of judicial activism with particular reference to Bangladesh. The study constructs ‘judicial activism’ as a golden-mean adjudicative technology, standing between excessive judicial assertion and unacceptable judicial passivity that may leave injustices un-redressed. It shows that judicial activism, steered towards improving justice, can be exercised without rupturing the balance of powers among the state organs. The analysis commences with an examination of dominant legal theories and judicial role discourses which are found generally deficient in globality-consciousness and fraught with excessive antipathy against judicial activism. In this scenario, and given the practical need for maintaining a constitutional balance, a constant challenge for judges aspiring to achieve better justice by adopting an activist societal role beyond mechanically resolving disputes is to strike a proper balance between judicial over-activism and meek administration of justice. The study argues that this ‘balancing’ should be essentially predicated upon domestic conditions, needs and fundamental public values of judges’ respective society. Providing cross-jurisdictional empirical evidence, the study demonstrates that judges’ adequate sensitivity to societal specificities, underpinned by sufficient awareness both about their constitutional limitations and obligation to enact justice, can help them exercise a morally and legally legitimate form of activism. Characterising this balanced, society-conscious approach as ‘enlightened judicial activism’, this study seeks to develop a framework for its exercise, analysing means and barriers that respectively promote and retard this. Assessing Bangladeshi judicial activity, the study finds there judicial under-activism by and large, and offers insights into causes for this. Based on existing socio-political realities in Bangladesh and its foundational values and goals, this study sees judicial activism in Bangladesh as a social-constitutional imperative, critical for ensuring public accountability and good governance. It concludes by suggesting a way forward for balanced but robust judicial activism in Bangladesh.

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II ‘Judicial activism’ still remains a legal buzz word, with definitional uncertainties and often contradictory conceptualisations. As briefly discussed in chapter 1 below, since it was reportedly first used in 1949 (Kmiec 2004: 1445-6), 1 the term ‘judicial activism’ has been accorded many mostly subjective formulations, characterising judicial activism in terms of certain such contentious judicial activities as, for example, judicial invalidation of parliamentary laws, judicial usurpation of legislative and administrative domains, and departure from precedents. There have been much debate about ‘proper’ (Jones 2002) and ‘principled’ or legitimate judicial activism, along with extremely prohibitive publicity against judicial activism itself, sometimes considering this juristic technique a cause for the “death of the rule of law” (Heydon 2004) at the judges’ hands. The term ‘judicial activism’ continues to create a slippery slope for the researchers, requiring them to employ extreme cautions while treading into the vast, uneven field of legal writing on this. As the present study has shown and argued, the exercise of judicial activism has almost always been society-specific and politically conditioned. For example, works on judicial activism in the USA are necessarily based on often intensely fought interpretations of the US Constitution. Still centered on constitutional interpretations, judicial activism in South Asia is arguably different in focus and consequences from judicial activism in the West. In South Asia, judicial activism as a means of social progress is thus not a hollow hope, but rather is a working reality. Interestingly, when in 1991 K. M. Holland edited his book Judicial activism in comparative perspectives with 12 jurisdiction-wise essays on judicial activism, India or any other country from South Asia did not figure there.2 The landscape of jurisprudence of judicial activism has since undergone a remarkable change, with a plurality of shifts in paradigm 1

Kmiec (2004) catalogued ‘five core meanings’ of judicial activism: invalidation of the arguably constitutional actions of other branches; judicial failure to adhere to precedents; judicial legislation; departures from accepted interpretive methodology; and ‘result-oriented’ judging. 2 Further, the authors of the essays in this edited book have concentrated only on the interpretational role of the judges based on the context of respective national constitutions. The work does not represent judicial activism as a social-reform tool or as a juristic technique of achieving justice particularly for those who are poor and disenfranchised people, who constitute the bulk of the populace in so-called Southern societies.

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regarding modalities and philosophies that underpin judicial activism. Equally interestingly, thus, Brice Dickson’s 2007 book on judicial activism in nine common law top courts gives two prominent places to India and South Africa. Although there are debates about the proper modus and the nature of Indian judicial activism, many would agree that India’s Supreme Court, through its justice-inspired activism, has turned out to be the world’s most active and powerful court. Also, the South African ‘new’ top constitutional court has attained a high reputation in dispensing justice through activist constitutional adjudication. Indeed, activist supreme courts across the world have influenced, and learned lessons from the best practices of, each other. It can be said that the increasingly evolving activist jurisprudence has not only found common grounds in the common law and civilian top courts per se, there has also been cross-legal-cultural jurisprudential fertilization among them. Despite societal specificity of the need for an active judiciary, therefore, any critical understanding of the concept of judicial activism needs a comparative insight to be drawn into its analyses.

III In Bangladesh, judicial activism has not yet achieved any serious scholarly attention, and has remained largely under-researched. The literature on Bangladeshi judicial activism is quite scant. 3 Apart from certain largely un-informed, wholesale political criticisms against the judiciary, there has not been any effective debate about the judicial role or activism in Bangladesh. Naim Ahmed’s 1999 work on ‘public interest litigation’ (PIL) is clearly a remarkable source of scholarship on judicial activism. Ahmed (1999) argued that the elitist use of PIL has actually undermined the much-needed focus on social and economic justice for the poor and the deprived. Ahmed’s thesis is thus an exploration of lack of proper judicial activism in Bangladesh. After ten years of the first major work on PIL or, for that matter, on judicial activism, the Bangladeshi top courts have made several significant strides through activist constitutional adjudication, furthering the ongoing efforts towards consolidating democracy and making the constitutional rights meaningful for the poor and the disadvantaged. For example, through what I call here public 3

The first-ever figuring of the term judicial activism was in a section of a 1988 article by Omar (1988). Justice Hoque’s (2003) Administration of justice in Bangladesh contained ‘judicial activism’ only in four pages. On Bangladeshi judicial activism, see further Hossain et al (1997), Afzal (1999), Begum (2005), and Hoque (2010).

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interest constitutionalism activism, the judiciary in Bangladesh has in a series of cases sought to enforce the Constitution against the often overbearing government. The judiciary has also shown some measure of willingness to remain vigilant against encroachments upon the public’s rights and entitlements. These claims lose their edge when it comes to the question of judicial action and responsibility during extra-constitutional regimes or during political crises. Notably, there has been a qualitative change or a shift in paradigm in judicial actions after every democratic turn. Overall, Bangladesh has been still facing problems that necessitate a perceptive and active judiciary. These problems as well as certain actions of the judiciary itself, particularly its public interest jurisprudence, have arguably created a demand amongst the general public for activism from the judiciary against injustices in society. Obviously, the need for judicial vigilance is a continuous need, and not the ad hoc one. In the Nigerian context of poverty and political instability, one scholar argued that, judicial activism might reduce poverty whilst judicial passivism would be a kind of ‘tyranny’ in conditions of poverty and injustices (Dakas 1997). This claim, which fits in the Bangladeshi situations, draws our attention to the nexus between social specificities and judicial activism. Thus, while we emphasise the significance of judicial activism during an undemocratic or encroaching regime, the need for an activist judiciary during a democratic era does not wither out, but rather increases sometimes. As shown in this book, the post-emergency Court in Bangladesh (2009 - ) has issued a series of activist decisions, which arguably responded to the state’s non-responsiveness or malfunctioning of the political branches of state. For example, the Supreme Court of Bangladesh has recently embarked on what can be called spectacular lawmaking in order to extend the protection of the law to women vulnerable to sexual harassment.4 These recent activist actions may, when seen through an uncritical lens, appear to be excessive judicial assertion. In the context of structural imbalance, that is, when the elected representatives tend to abuse and concentrate power and thereby defeat justice and constitutional supremacy (see chs. 1, 4, 7 & 8 below), the socalled unelected judges have no option but to resort to activism in order to effectively discharge their duty. Moreover, in such a situation of unconstitutionalism (ch. 4.1 below), the judges are also better placed to take up an activist social role. The above does not mean that there are no, or there can not be any judicial excessiveness. A few decisions or actions of the top courts in 4

BNWLA v Bangladesh (2009) 14 BLC (HCD) 694 (see ch. 5.5. below).

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Preface and Acknowledgements

Bangladesh, discussed in this study, may indeed be critiqued as undue exercise of judicial authority. There always remains the question of legitimacy, or of the extent a judge in a democracy can travel to. In this study, we have distinguished judicial activism from judicial excessivism, treating the former as conscientious exposition of constitutional norms and the enforcement of public duties and not as the unguided or subjective enforcement of ‘the law’. The line between judicial excessiveness and judicial activism is, however, a delicate line to draw. In this study, we have attempted to articulate the means which might help the judge figure this fine line out. While these means are not exhaustive and absolute, the present study focuses on judicial balancing of competing duties and claims of structural organs and on ‘justice’ as the premise of judicial activism.

IV The present book, developed from my doctoral research conducted at the University of London’s School of Oriental and African Studies (SOAS), has come to fruition with the assistance and support from many individuals and institutions. Chapter six was not part of my doctoral research, and an earlier version of it was published in the NUJS Law Review. I am grateful to the Review and its editor Prof M. P. Singh. While I gratefully re-acknowledge the contributions of those who immensely helped me in effectively concluding my doctoral study, I would like to specially acknowledge the renewed contributions of some of them and the assistance of my untiring research assistants. I am deeply indebted to Professor Werner Menski at SOAS, London, for his extraordinary assistance, inspiration, and insights that worked behind the book. I owe a special debt to Professor M. Shah Alam, currently the Chairman of the Bangladesh Law Commission, for encouraging me to take up the fertile field of judicial activism for intellectual cultivation. Professor Alam has been, as always, a great source of inspiration. I also sincerely acknowledge the help and encouragement from all my colleagues at the Law Departments of Dhaka and Chittagong Universities and to my friends at SOAS, London. My sincere thanks are to Mr. Nurul Islam for his invaluable assistance and to Khairul Alam, Rokeya Chowdhury, Tapos Bandhu Das, Nick Robinson, and M. Ershad Ullah for their kind help in several ways. I would be failing if I do not particularize the assistance and cooperation of Mr. M. Azad who made my days in London enjoyable and smooth. My understanding of the subject of this study has enormously benefited from valuable insights cordially offered by a number of judges,

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lawyers and academics, to whom I will remain ever grateful. While for strategic reasons I choose not to mention the names of judges who generously helped me, I would particularly like to extend my gratitude to Mr. Justice Albie Sachs at the South African Constitutional Court, and Dr. Justice Syed Refaat Ahmed and Mr. Justice Mohamamd Fazlul Karim at the Supreme Court of Bangladesh (recently retired Chief Justice of Bangladesh). I am also grateful to Dr. Naim Ahmed, Professor Upendra Baxi, Professor Mohan Gopal, Dr. Kamal Hossain, Mr. M. Amir-Ul Islam, Professor Sumaiya Khair, Dr. Shahdeen Malik, Professor Mizanur Rahman, and Dr. Prakash Shah. I would like to extend my sincere thanks to the Cambridge Scholars Publishing for publishing the book and, in particular, to two of its executives, Carol Koulikourdi and Amanda Millar, for their warm cooperation and assistance. My heart-felt gratitude is to my family members for their endless support. My son Nawal had remained as a constant source of inspiration throughout the time I worked to transform my doctoral thesis into the present book. Finally, I am grateful to my wife Monalisa for her love and tremendous sacrifice and support. This book has been as much her dream as mine.

ABBREVIATIONS

AC AD ADC ADM AIR ALR ALRC All ER Art . ASK BCLR BCR BELA BEPZA BIICL BIISS BILIA BIWTA BLAST BLC BLD BLT BNWLA BSCIC BSCR BSEHR BSRS BTMC BTTB BWDB CA CAB CAT

Law Reports, Appeal Cases (England & Wales) Appellate Division of the Supreme Court of Bangladesh Appellate Division Cases (Bangladesh) Additional District Magistrate All India Reporter Australian Law Reports Asian Legal Resource Centre All England Law Reports Article Ain o Salish Kendro (Dhaka) Butterworths Constitutional Law Reports (South Africa) Bangladesh Case Report Bangladesh Environmental Lawyers’ Association Bangladesh Export Processing Zone Authority British Institute of International and Comparative Law Bangladesh Institute of International and Strategic Studies Bangladesh Institute of Law and International Affairs Bangladesh Inland Water Transport Authority Bangladesh Legal Aid and Services Trust Bangladesh Law Chronicles Bangladesh Legal Decisions Bangladesh Law Times Bangladesh National Women Lawyers’ Association Bangladesh Small and Cottage Industries Corporation Bangladesh Supreme Court Report Bangladesh Society for Enforcement of Human Rights Bangladesh Shilpa Wrin Sangstha (Industrial Loans Authority) Bangladesh Textile Mills Corporation Bangladesh Telegraph and Telephone Board Bangladesh Water Development Board Civil Appeal (Bangladesh); the Court of Appeal (UK) Consumers’ Association of Bangladesh Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984

Judicial Activism in Bangladesh

CBI CC CEDAW

xxxix

Central Bureau of Investigation (India) Constitutional Court (South African) United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 CERD Convention on the Elimination of All Forms of Racial Discrimination 1965 ch. Chapter CHRLD Commonwealth Human Rights Law Digest CHT Chittagong Hill-Tracts (comprising three specially-regulated districts – Rangamati, Bandarban, and Khagrhachari) CJ Chief Justice CLEP Continuing Legal Education Programme (of the Bangladesh Bar Council) CLR Commonwealth Law Reports (Australia); Construction Law Reports (Canada) CMM Chief Metropolitan Magistrate CNG Compressed Natural Gas CPC Code of Civil Procedure 1908 (Bangladesh) CR Complaint Register (denoting cases initiated through a complaint to a magistrate’s court) CRC The UN Convention on the Rights of the Child 1989 CrPC The Code of Criminal Procedure 1898 (Bangladesh) CUP Cambridge University Press DC Deputy Commissioner DCC Dhaka City Corporation DG Director General DLR Dhaka Law Reports (Bangladesh); Dominion Law Reports (Canada) DLT Delhi Law Times DSE Dhaka Stock Exchange ECHR The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ECO Entry Clearance Officer EHRR European Human Rights Review ETV Ekushey Television EWCA Civ. (England and Wales) Court of Appeal, Civil Division EWHC (England and Wales) High Court FAP Flood Action Plan (Bangladesh) FPSP Fundamental Principle of State Policy FPSPs Fundamental Principles of State Policy HCD High Court Division of the Supreme Court of Bangladesh

xl

HKCA HL/UKHL

Abbreviations

Hong Kong Court of Final Appeal (Judicial Committee of the) House of Lords of the United Kingdom HRA Human Rights Act 1998 (UK) ICA Intra-Court Appeal (Pakistan) ICECSR The International Covenant on Economic, Social and Cultural Rights 1966 J; JJ Justice; Justices JSC Judicial Service Commission (Bangladesh) KLT Kerala Law Times LRC Law Reports of the Commonwealth LSTB Law and Society Trust of Bangladesh MD Managing Director MLR Mainstream Law Reports (Bangladesh) MP Member of Parliament NAACP National Association for the Advancement of Colored People (USA) NBR National Board of Revenue (Bangladesh) NCT National Capital Territory (of Delhi) NCTB National Curriculum and Text-Books Board (Bangladesh) NY New York Reports (United States) NZLR New Zealand Law Reports OUP Oxford University Press PD Law Reports, Probate, Divorce and Admiralty Division (England & Wales) PD Psak Din (Law Reports, Israeli Supreme Court) PICL Public Interest Constitutionalism Litigation PIEL Public Interest Environmental Litigation PIL Public Interest Litigation PILaw Public Interest Law PIRL Public Interest Rights Litigation PLD All Pakistan Legal Decisions PUCL People’s Union for Civil Liberties (India) PUDR People’s Union for Democratic Rights (India) RAJUK Rajdhani Unnayan Kartripakka (The Capital Development Authority) (Dhaka) s. (S.); Ss. Section/sections SA South Africa(n); South African Law Reports SAARC South Asian Association for Regional Cooperation SACC (CC) South African Constitutional Court SC Supreme Court

Judicial Activism in Bangladesh

SCA SCALE SCC SCMR SCR S. Ct. SEC SOAS SPA S&R Sri LR SSHD SSRN UDHR UN UNO UPL UK UP US WASA w. e. f. WHO WLR WP ZSC

xli

Supreme Court of Appeal (South Africa) Delhi-based publication reporting the Indian Supreme Court’s decisions Supreme Court Cases (India); Media-neutral citation from the Supreme Court of Canada Supreme Court Monthly Review (Pakistan) Supreme Court Reports (India) Supreme Court Reporter (United States) Securities and Exchange Commission (Bangladesh) School of Oriental and African Studies Special Powers Act 1974 (Bangladesh) Sergeant and Rawle’s Pennsylvania Reports (United States) Sri Lanka Law Reports Secretary of State for the Home Department (UK) Social Science Research Network The Universal Declaration of Human Rights 1948 United Nations Upazilla Nirbahi Officer (Upazilla is a sub-district equivalent administrative unit in Bangladesh) University Press Limited United Kingdom Uttar Pradesh (India) United States (or United States Supreme Court Reports) Water and Sewerage Authority With effect from World Health Organisation Weekly Law Reports (England & Wales) Writ Petition (in the Bangladesh Supreme Court) Zambian Supreme Court

CHAPTER ONE INTRODUCTION: JUDICIAL ACTIVISM IN PERSPECTIVE

1.1 The wider context The debate about the proper role of the judge in a society is a perennial debate, and is ubiquitous in all jurisdictions. The debate is as complex and multi-dimensional as the process of adjudication (Cardozo 1921; Kennedy 1998; Lucy 1999; Thomas, E. W. 2005a) and the very concept of ‘law’ itself. Until recently, however, standard legal discourse and scholarship remained exceedingly obsessed with Hamilton’s ([1788] 1999: 433) view of the Court as the weakest of the state organs having “no direction either of the strength or of the wealth of the society” and no power to take any “active resolution whatever” but to pronounce merely “judgment” on a dispute. This kind of politically expedient statement of the judicial job aside, legal positivism and other formalism-inspired legal theories continue to portray the role of the judge as a mechanical arbitrator of legal disputes, often referring to the axiom that judges apply the given law and do not make it. Often, the result of that scenario has been a deficiency in reaching justice. Over the years, however, there has been a jurisprudential development that has led to a relatively better understanding of the judging process (Tamanaha 2004: chs. 6 & 8; Bix 2006)1 and the judges’ unique socialconstitutional position or competency to actively resolve issues or to take unpopular but ultimately beneficial decisions.2 Particularly, following the 1

However, as Tamanaha (2004: 239-40) notes, although the “essentialist formalism […] expired long ago, under pressure from the Realists as well as social and political factors, […], the formalistic orientation to rule application has basically survived”. 2 Brennan, J. of the USA once famously observed: “Insulated as they are from political pressures, and charged with the duty to enforce the Constitution, courts are in the strongest position to insist that unconstitutional conditions be remedied, even at significant financial cost” [Rhodes v Chapman 452 (1981) US 337, 359].

2

Chapter One

post-World War II rise in the importance of human rights and the principles of democratic constitutionalism, escalated by the emergence of new democracies and constitutionalisation of rights in some old democracies,3 the importance of the judiciary increased, and perceptions about the role of courts in society began to change (Shetreet 1988). It is now widely recognised that judges often have choices to make, can impose limits on arbitrary political powers, and produce social impacts and legal-political consequences beyond the territory of a particular case. Thus, there has seemingly been an amelioration of the judiciary’s allegedly ‘weakest’ position. Across the world, modern courts of civil and common law traditions alike have indeed witnessed an increase in their authority or power (Guarnieri and Pederzoli 2002), a phenomenon described as “global expansion of judicial power” (Tate and Vallinder 1995) or judicialisation of societies.4 The wave of this “expansion”, which the present study sees as judicial activism, has extended from the USA to transitional central and eastern European counties to South Africa to South Asia to international tribunals. 5 To be optimistic, therefore, gone are the days, perhaps, of judicial traditionalism that countenances the judge as an automaton, applying the law ‘as it is’ to facts. 6 Also in reality, in their pursuit of ‘justice’, sensitive and perceptive judges across the world are increasingly applying the law creatively. In the event that law is silent or absent on a particular point, or is unsuitable for a new circumstance, it would appear that judges have a duty, so modern jurisprudential thinking goes, to interpret the existing laws in a progressive fashion so as to adapt them to the changing needs of society. To the extent that the judges ascribe new life to the black-letter laws to arrive at a legal solution or remove the posited-law’s limits in terms of both procedural rigidity and substantive 3

As is the case, e.g., in the UK, New Zealand, and Canada (see respectively the Human Rights Act 1998; the New Zealand Bill of Rights Act 1990; the Canadian Charter of Rights and Freedoms 1982). On Canada’s increasingly flourishing postCharter judicial activism see, inter alia, Roach (2001) and Manfredi (2001). 4 This Hirschl (2004: 10-13) terms, I think rather inaccurately, as “juristocracy,” to mean the transfer of unprecedented amount of powers from representative intuitions to judiciaries. 5 For example, among others, the European Court of Human Rights plausibly exercises rights-enhancive activism, sometimes creating positive state obligations by extending the remit of traditional civic rights. International courts’ activism is beyond the scope of this study. 6 This is indeed an over-zealous extension of Austin’s legal positivism. Austin himself would not, however, probably hold such an extreme position, as Morrison (1997: 5-6) shows. See chapter 2.1.2 below.

Introduction

3

deficiencies, or to fashion novel or effective remedies in order to do justice as well to litigants as the wider public, they engage in judicial activism. The modern era can thus be said to be one of judicial activism, a phenomenon that perhaps, by now, has turned out to be a “central feature” (Bhagwati 1984-5: 561) in the global juridical landscape.7 This does not however mean that the concept of judicial activism, as positively couched above, is a well-entrenched and uncontested idea. Rather, there is an ongoing heated debate over the desirability and effectiveness of judicial activism, often taking the shape of a debate over judicial restraint v. judicial activism, which continues to affect judges in most parts of the world (Kirby 2004). While constant debates about, and reflections over the business of judging are undeniably beneficial, the current global debate appears to be fraught with the dominance of socially non-sensitive and prohibitive approaches to ‘judicial activism’ itself, where activism by judges is still considered as judicial blasphemy or as naked usurpation of other state organs’ powers. This line of arguments ensues, among other things, from over-simple positivistic understandings that activism by ‘unelected’ judges is inherently undemocratic and essentially destructive of ‘separation of powers’ which, it is claimed, calls for judicial self-restraint. Judicial restraintivists continue to see chronic ‘counter-majoritarian’ difficulty or democratic deficiency in judicial reversals of elected branches of the state (Bickel 1962: 16; Ely 1980: 4), presenting restraint and activism as two mutually exclusive competing theories of adjudication. The fact that these views are largely misplaced and that judicial activism is not undemocratic is vividly captured in the following argument by a Canadian judge defending intense judicial intervention under the Canadian Charter of Rights: Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate […]. [J]udges are not acting undemocratically by

7 In Khawaza Tariq Rahim v Federation of Pakistan PLD 1992 SC 646, Justice Sajjad Ali Shah noted a general trend of superior courts’ activism only in “the advanced countries of the world”, a reference that perhaps symbolises a typically colonial judicial mindset that everything good, including judicial activism, should flow from the West. Contrarily, the achievements of judicial activism in the East generally and in India in particular, as covered in this study, are worth exporting to the West. Menski (2000b: 114-16) says this in different words.

4

Chapter One intervening when there are indications that a legislative or executive decision was not reached in accordance with […] the Charter.8

Despite the above kind of judicial clarification and sophisticated understanding of the constitution-reinforcing role of judicial activism and despite a noticeable change in the judicial task philosophy in the post-war period, however, judicial activism still widely continues to be stigmatised as a raw and improper exercise of judicial authority. There is thus a persistent refutation of judges’ institutional agency to bring about changes in society, 9 or of their authority to engage in policy issues through adjudication of polycentric socioeconomic rights or complex morallycharged issues, 10 underpinned by claims that these issues should be deferred to political bodies ‘as a matter of law’.11 In other words, standard legal-judicial discourses significantly misapprehend the nature and limits of judging, and do not sufficiently acknowledge judicial social responsibility or the need for greater judicial vigilance against injustices, by, for example, binding political institutions affirmatively. This scenario is clearly non-conducive to justice everywhere, particularly in societies where a vast majority of people are effectively deprived of basic civic and social rights, or where public functionaries themselves often produce injustices or the very system of governance is unjust.12 Stated briefly, the over-all scenario of the judicial activism debate is deficient, overly western-inspired and unduly driven by orthodox legal doctrines, leaving out socio-economic realities generally and undermining the obvious need for a society-specific role for the law and the judges. This, although it may not entirely forestall judicial activism, may significantly cause the judges to sustain a lack of confidence in becoming active guarantors of justice. Contrarily, as indicated, national political and 8

Vriend v Alberta [1998] 1 SCR 493, 566-7, per Iacobucci J. The phenomenon is described as the ‘Constrained Court view’ (Rosenberg 1993: 3), signifying that courts are constrained in producing social change. 10 For details see chapter 2.2 - 2.3 below. 11 See e.g. Secretary of State for the Home Department v Rehman [2003] 1 AC 53, per Lord Hoffmann (“decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process”). For views about ‘deference’ as a discretionary restraint to be exercised objectively, views that support essential judicial activism, see Jowell (2003a-b) and Steyn (2005b). See further chapter 2.4.2 and chapter 8.2 below, and Allan (2006). 12 As was the case e.g. in South Africa in the apartheid-era when many (Dugard 1984; Forsyth 1985; Nicolson 1989) felt the need for judicial activism as a protective wall against injustices. 9

Introduction

5

socioeconomic conditions might well require the judges to become more active and interventionist in meeting the new demands for justice. There might be situations where judicial passivity may lead to complicity in injustices. Having said this, it should be recognised that although antagonists of judicial activism overly understate judicial agency, their concerns are not absolutely without merit, since judicial activism, when unguided, may lead to excessivism and hence produce injustice itself.13 Moreover, while it is the executive’s or the legislature’s frustration of the public’s expectation for justice and legal entitlements that legitimises, and causes the people to expect, activist judicial interventions, people also legitimately expect that judges will exercise activism judiciously (Jalil 2006: 14) and without frustrating the constitutional balance and the essential legal certainty. There also remains the question of constitutional accountability of the judiciary as a public decision-making body, which means that it will have to legally and constitutionally justify and legitimise its activism (Dhavan 1985). Therefore, the greatest challenge for judges aspiring to adopt an activist societal and constitutional role beyond simply mechanically resolving legal disputes between parties is to find a legally and morally sustainable way of doing better justice to wider society.

1.2 Focus and scope of the study In this context, and in the backdrop of the above analysis, the present study seeks to explore judicial activism as a golden-mean, justicepromotive juridical strategy which lies between judicial transgression of constitutional limits and an unacceptable form of judicial silence or inertia vis-à-vis injustices and breaches of public duties. This middle ground theory of judicial activism essentially requires judges to constantly strike a proper balance between embracing judicial excessivism and abdicating the fundamental duty of doing justice, between the need for socio-legal changes and the need for legal stability, 14 and between asserting their constitutional authority and preserving the institutional comity. This is a very challenging and demanding task indeed. The challenge is even more intense in societies where the injustice is pervasive and the state-operators 13

Cameron (2005) gives some instances of judges failing justice. In his novel 1984, George Orwell ([1949] 1956) long ago warned of extremism in any form in human behaviour. 14 On this see Barak (2006: 11), noting that the role of a judge is to help bridge the gap between the needs of society and the law, ensuring change with stability and avoiding stability without change.

6

Chapter One

are habitually non-responsive to constitutional promises, tardy in delivering social goods, and even politically encroaching rather than self-restraining.15 The present study seeks to get insights into this difficult judicial job, and argues that this balancing task or the exercise of balanced judicial activism should fundamentally be premised upon internal special needs and conditions of a judge’s society and be aimed only for improving justice. One of the core arguments of the study is that while judicial activism is certainly a trans-jurisdictional phenomenon, its nature, intensity, and extent should be essentially society-specific. Resultantly, the present study distinguishes judicial activism from judicial excessiveness and seeks to develop a necessity-based, socially relevant form of enlightened judicial activism, fed by the constitutional values 16 of the judges’ respective jurisdiction and steered towards adequately meeting its dynamic socio-politico-economic demands. Refuting an all-or-nothing approach to judicial activism, the study demonstrates that judicial activism can be exercised in a ‘principled’ (Barnett 1987a)17 and pragmatic way, without rupturing the institutional balance among the organs of the state. It aims to show that ‘activism’ and ‘restraint’ are not mutually exclusive attributes of judging, promoting an idea of creative restraint that does not shun the primordial judicial duty of dealing with the question of legality. Fundamental social values or the specific needs of a particular society have been projected here as a guidepost that shows the activist judge a middle path between absolute activism and absolute selfrestraint. 18 Here come the fashionable questions of ‘whose values?’ and ‘whose interests?’ that judicial activists need to take into account. The present study shows that activist judges sensitive to their social conditions and mindful of both their limits and agency may actually read the social aspirations objectively rather than purely subjectively.19 15

On conceptualisations about the ‘self-restraining’ state, see Schedler et al (1999). 16 In this study the terms ‘Constitution’ and ‘constitutional’ are used in a generic rather than technical sense that refers to fundamental legal principles that guide a nation. 17 That is, by fusing moral considerations into legal/constitutional interpretations (Macedo 1986: 43). This fusion is demonstrated especially in chapter 3.2-3.4. See further chapter 7.2. 18 Barak (2006: 176) reports that this is a historically preferred path for many prominent judges. See, e. g., Anand (2000b). Cardozo (1921: 141), who perhaps first systematically made a case against mechanical judging, also straddled a middle course. 19 As Cardozo (1921: 88-110) observed long ago, the test to determine the directions of social “welfare”/values may be objectively derived from the standards

Introduction

7

The study claims that the very theory of balanced or golden mean judicial activism will help the judges find the actual social needs that call for increased judicial actions. The middle ground judicial activism is indeed an extension of the judges’ everyday function of balancing and weighing conflicting claims, interests, rights, or obligations in every particular case, a task that increases openness and candour in judicial decision-making and opens a dialogue (Coffin 1988).20 The normatively potential (Bateup 2006) idea of ‘balancing’ as a constitutional device, which bespeaks “moderation and reasonableness” (Henkin 1978: 1047), was developed to help the judges shift their focus from arcane legal doctrines to the actual interest of the litigants (Winslade 1971; Aleinikoff 1987), that is, “to provide bridges between abstraction of principles and the life of facts” (Henkin 1978: 1047). 21 As this inherent adjudicative strategy of balancing increases transparency in the judging process and infuses into it social factors in addition to those purely legal,22 so does the process of balanced judicial activism. Thus, golden mean judicial activism requires judges to get out of legal formalism and resort to rational reasoning in light of the existing conditions in a particular society. Moreover, by engaging in an open balancing of constitutionally-preached wider societal goals and the public interest with the legal competencies of state functionaries, the judges, while exercising activism, may skilfully maintain the constitutional balance among the organs of the state. Clearly, the theory of middle course judicial activism demands activism by judges in the first place and, secondly, their avoidance of overactivism or transgression. This fundamentally requires a proper conceptualisation of the concept of judicial activism which is intrinsically tied with one’s basic approaches to law, legal theory and the adjudicative

of community rather than the judge’s own sense of reason (at p. 108). Bhagwati (1987: 237-8) emphasises that judging must be in tune with the social needs but notes that the process is ‘subjective’ in a limited sense. See further chapter 8.2 below, and Bell’s (1985) ‘consensus’ model of judging. 20 See further Barak (2006: 165-76), finding ‘balancing’ as an important tool for realising his judicial role of bridging the law-society gap and promoting democracy. Significantly, he bemoans that the doctrine of balancing has not been sufficiently developed in the law. 21 Balancing theory is basically a product of American legal scholarship in the 1950s, which has attracted both acclaims and criticisms. See generally Aleinikoff (1987) and Bateup (2006). 22 Balancing is “an expression of the outlook that law is not ‘all or noting’” (Barak 2006: 167). Aleinikoff (1987: 1005) wrote: “[Balancing] promised doctrine arrived at objectively and grounded in the facts of the society to which it applied”.

8

Chapter One

process.23 There is now a bewildering array of often discordant definitions of judicial activism, 24 most of which are fraught with imprecision and societal uncontextuality, often portraying judicial activism as judicial overriding of actions of elected branches or assumption of their duties, or as departure from judicial precedents. The present study does not enter a detailed definitional discussion, although it eventually reveals several facets and ramifications of judicial activism. However, in addition to the above, a brief clarification of the conception in which ‘judicial activism’ is studied here is worth reiterating. Predicating judicial activism on the imperatives of justice and constitutionalism, the present study emphasises judicial activism as an integrated idea of judicial functional responsibility to achieve justice, social, economic and political,25 for wider society beyond the bounds of a particular dispute, and thus to effect, or help promote social changes. Judicial activism thus contemplates goal-oriented and creative interpretation of the law, 26 and application of judicial discretion 27 and judicial review power in enforcing the authority of the law or the Constitution. This essentially integrative juridical tool combines judicial craftsmanship, boldness, and statesmanship to craft new legal principles/solutions to cater for the changing needs of increasingly complex, regulated modern societies, which may, therefore, not only necessitate judicial invalidation of laws or executive actions but also require judicial support to them or, when justice requires, the maintenance of judicial silence.

23

This is especially covered in chapter 2 below. The term ‘judicial activism’, probably coined in America, was reportedly first used in 1949 (Kmiec 2004: 1445-6). Many authors, mostly American, have used the term in different connotations which Kmiec (2004) has usefully catalogued. O’Connor (1996) used the term in three most common senses: invalidation of laws, providing extraordinary remedies, and judicial lawmaking. Canon (1983) made some early conceptualisations. See also Bhagwati (1984-5), Baxi (2002) and Kerr (2003). 25 Bhagwati (1984-5: 561) terms judicial activism for social justice as “judicial social activism’’. For him (id.), two other kinds of activism are: (i) technical activism, i.e., exercise of freedom of judicial choices, and (ii) juristic activism, i.e., creation of new principles without looking at the purposes they serve. 26 As Okere (1987: 788) put it, “[j]udicial activism is constitutive in theory, liberal in conception and teleological in essence. It assumes that […] a constitution is a social charter […] based on certain ideological or philosophical presuppositions. In interpreting the constitution, [judicial activism] seeks to […] give effect to them”. 27 On judicial discretion/choice see Stone (1964a; 1964b: ch. 7), Fletcher (1984), Galligan (1986), Barak (1989) and Hawkins (1992). 24

Introduction

9

A significant limitation of the existing judicial activism studies is that they largely deal with the judges’ tendency or power to ‘make’ law in individual cases, and concentrate on judges’ policy preferences and their social backgrounds (Galanter et al 1979: 702). Societal contexts and specific national domestic needs have hardly been focused in such studies. In contrast, although this study recognises judicial lawmaking as a facet of activism and emphasises the nexus between judges’ legal training or philosophy and court activism, the present study is different from others in that it sees judicial activism from a wider perspective and as an aspect of judges’ functional obligation to ameliorate justice. The study’s fundamental premise is that judicial activism should be exercised in a balanced and legitimate way. The study critically examines evolving activist jurisprudence with particular reference to judicial activism in Bangladesh. As stated, particularly since the mid-20th century, socially-conscious courts across the globe are increasingly playing an activist role, although in varying degrees and forms. Of the instances of activist role-playing by the judiciaries, South Asian 28 (in particular, Indian) and South African judiciaries provide probably the best benchmark in terms of developing proper responses to societal needs, if a comparatist needs to search for any. These judiciaries have been exemplarily inventive and creative in not only enforcing the principles of constitutionalism by ensuring constitutional accountability of public functionaries but also in dispensing substantive social justice. As will be seen in the chapters below, these instances of judicial activism have effectively challenged the universal applicability of positivismdominated existing legal theory. For example, the Indian superior judges in the late 1970s dramatically refashioned their role, realising that dominant legal theory and the traditional triadic model of adjudication that requires the judge to remain ‘neutral’ even in situations of continuing injustices were inadequate in their social contexts. Eventually, the Indian judges removed rigid AngloSaxon legal procedural and doctrinal hurdles like rigid standing rules that were a potential stumbling block for justice for the wider society. 28

In using the term ‘South Asia’, scholars often disagree as to the range of this Asian sub-region. From the perspective of the region’s leading inter-state institution, SAARC (South Asian Association for Regional Cooperation), South Asia comprises Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka, and, since 2006, Afghanistan. Many use, not un-controversially, ‘South Asia’ interchangeably with ‘the Indian subcontinent’ which lost much of its significance after 1947. This study uses ‘South Asia’ to principally mean Bangladesh, India and Pakistan.

10

Chapter One

Principally through the medium of public interest litigation (PIL), where the court assumed a judicial societal role as well as law/policy-making and managerial roles that positivistic legal theories would not concede as ‘judicial’, the Indian judges set out to build an activist jurisprudence to suit their specific societal needs, which has ultimately turned out to be a class by itself. This form of judicial activism is not what some critics readily call ‘rule’ by or of judges or their ‘infidelity’ to law, but a mechanism to establish the rule of law by holding those in charge of public power accountable and responsible. Other South Asian judiciaries, particularly of Pakistan, Bangladesh, and Sri Lanka, soon followed the Indian trail in the field of PIL. Similarly, committed towards establishing substantive justice and social equilibrium in a newly democratised setup, the post-apartheid South African judiciary has been increasingly pursuing activism, persistently enforcing both social rights and traditional civic-political constitutional guarantees. As the present study shows, other judiciaries have also revealed their preparedness, albeit reservedly to some extent, in order to constantly recast their roles in line with changing circumstances. Set in this background of activist assertions of judicial authority, the present study focuses ultimately on the nature, immensity and breadth of judicial activism in Bangladesh which is still at a rudimentary stage.29 The present study seeks to assess whether the Bangladeshi judiciary is paying sufficient attention to the specific needs of society and taking into account the ongoing non-responsiveness of political functionaries seriously enough, in conditions which continue to generate injustices. Although the judiciary in Bangladesh has on a number of occasions shown willingness to play vigilance against rights-violations and constitutional breaches, and although it has formally entrenched activist PIL jurisprudence, it would appear that there remains still much to be done on the part of the judiciary to effectively realise constitutional promises of social-political justice and a just legal order. The present study analyses Bangladeshi judicial activity (activism and passivity) in light of the societal needs and realities, as well as the constitutional leeway. Needless to say, judicial activism is not a panacea to cure all social ills that now grasp Bangladesh. But even a quick inspection of the prevailing social conditions bespeaks the need for continuing judicial activist intervention and guidance. Despite recent progresses made in a number of socio-economic and political fields, Bangladeshi society 29

Legal scholarship about judicial activity has remained exceedingly meagre, and most writings in this field are fraught with black letter legalism (see Malik 2002b: 102, n. 15).

Introduction

11

has been experiencing pervasive social injustice and inequality, growing abuses of public power compounded by legislative passivity in pursuing social welfare agenda, continued denials/violations of basic human rights often by state agencies, and non-enforcement or ill-enforcement of the existing laws. In other words, the Bangladeshi polity sustains a wide gap between law and wider societal aspirations, and between constitutional goals and their actual realisation. In such a scenario of injustices and human under-development, therefore, an intense and humane form of judicial activism seems particularly timely in Bangladesh. For these reasons, constant judicial vigilance in protecting and realising basic constitutional guarantees, and enforcing public accountability vis-à-vis principles of justice and constitutionalism can be seen as an institutional responsibility of the judiciary, built into the country’s constitutional scheme. Building on this essential premise, the present study examines whether the Bangladeshi judges are active enough or have crossed the limits of activism, or have yet to effectively shun reprehensive passivity. In carrying out these investigations, the study will dig deep into reasons why Bangladeshi judges tend to take one particular stance or the other. In line with its central thesis, the study also sets out to suggest means for the Bangladeshi judiciary as to how to straddle golden-mean judicial activism. Before outlining the structure of the present study, it is necessary to say a few words about the scope and limitations of the study. Surely, the present study has not been a study of whether judicial activism will deliver reform or counteract, which needs further research. It has, however, not totally skipped the issue. On close inspection, one will see that the study provides insights into the desirability and instrumentality of judicial activism and its impact on justice, rights-protection, good governance, and the rule of law.30 The present study generally indicates that depending on how the court applies this tool, judicial activism is either counterproductive, ending up in a new status quo and packed judicial power, or it is bound to produce results culminating in social changes. The balanced or golden-middle approach to judicial activism, developed in this study as a pragmatic and participative model of activist adjudication, thus increases the effectiveness of judicial activism and the chance of its public acceptance. Also, although the issue of judicial accountability has not been covered in detail, the study shows an intrinsic nexus between balanced judicial activism and the judiciary’s constitutional accountability. Social accountability is one of the important modes of ensuring judicial 30

On the nexus between judicial activism and effective rights-protection, see, e.g., Cotran and Sherif (1997) and Felix (2000).

12

Chapter One

accountability (Cappelletti 1985). The exercise of judicial activism from an institutional middle ground for increasing public justice therefore does not breach, but rather ensures judicial social-constitutional accountability. A limitation of the study is that it has seemingly not taken any specific area of law as a subject of investigation to study judicial activism, but rather has sought to develop a broad-based, society-focused theoretical framework for the exercise of judicial activism, which can be employed to expand judicial activism to any area of law. However, the study fits into the broad area of public law as it has fundamentally drawn a potentially creative and strong view of the Court in the face of failures or inertia of other state organs and their propensities often to thwart the principle of constitutionality or disregard the public interest while conducting public functions. Further, the study has not covered lower court activism. This does not mean that activism at the lower strata of the judiciary is unimportant for the purpose of ameliorating justice. Rather, judges everywhere and at every tier need to constantly strive to increase justice through their everyday activity. Although the junior judiciary enjoys less legal leverage in terms of discretion, doctrinal innovations, or activating constitutional norms, there is evidence all over the world that they also may turn proactive on many fronts and in many ways, like managing the court, handling their caseloads, enforcing the law actively through ‘missionoriented’ (Galanter et al 1979: 703) interpretations, and so forth.31 Clearly, however, activism by the top appellate or constitutional court judges in any particular jurisdiction is more likely to be percolating to the lower courts.

1.3 The structure of the book This book is a combination of eight chapters that weave through the commonality of the objective outlined above. Following this introduction, chapter 2 examines existing theoretical approaches to law and the judicial process in order to situate the place of ‘judicial activism’ within the jurisprudential landscape. Since the character of judges (e.g. activist, legalist, active, executive-minded, passive etc.) is the consequence of the theory of adjudication in force (Dworkin 1989: 24), and since activist judges’ legal-theoretic understandings greatly facilitate their task of constitutional balancing, analyses in chapter 2 of major legal theories and 31

For an excellent study of trial courts’ activism in the US context, see Galanter et al (1979).

Introduction

13

other associated issues provide a useful tool for better appreciating subsequent analyses, in chapters 3-6, relating to the proper judicial role in a particular society. Chapter 2 first examines whether or how far the existing global jurisprudence is accommodative of judicial activism, analysing mainly how the three principal legal theories, legal positivism, natural law, and sociological schools (Menski 2006a), see the role of the judge. This chapter reveals that the age-old dominant legal theories, as they now stand, have generally proved deficient on their own in terms of creating enough place for judicial activism in any society. Particularly, the chapter argues, each of these disproportionately western-inspired theories left out divergent social realities from their considerations and thereby ignored the distinguished need of non-Western societies for intervening judiciaries that are required to negotiate between competing legal theories. Secondly, chapter 2 focuses on the claim, advanced by judicial restraintivists, that judicial activism is invariably a transgression of legitimate spheres of the judges, breaching ‘separation of powers’. It is argued here that such views are a natural consequence of a Eurocentric and box-like (Twining 2000a) construction of the theory of separation of powers, which is predominantly concerned with allocating state functions and hence refutes wider adjudicative responsibilities of the judges than merely resolving disputes mechanically. Consequential to this is the current understanding about the role of the judiciary, which is a static sort of triadic model of ‘impartial’ judging, premised again on too positivistic notions. The next major part of the chapter calls into question this model’s capacity to ensure justice effectively. After having identified deficiencies in existing legal theories and judicial role discourses, chapter 2 urges for a new approach or paradigm and argues that this may help activist judges stay on an institutional middle-ground. Chapter 3 takes up judicial activism from a comparative global perspective, and tests the findings of chapter 2 by analysing judicial activism in two western (the USA, and the UK) and three non-western countries (South Africa, India, and Pakistan). By showing that judges need to operate under specific conditions of their respective jurisdiction, this chapter argues that judicial activism is essentially society-specific and demonstrates the separateness of the nature and ambit of judicial activism in western and non-western societies. It, however, shows that judging everywhere entails a constant challenge for the judges to adequately respond to ever-changing societal demands and to engage in balancing and weighing not only conflicting social claims/interests but also various competing competencies of the major constitutional functionaries. Analysing

14

Chapter One

case law, chapter 3 shows that consciousness of the special needs of their respective societies may indeed help the judges exercise activism as a golden-mean, striking the right balance between illegitimate excessive activism and culpable judicial abstention. It also provides evidence that while deficient legal theories and judicial activism debates (ch. 2) might potentially inhibit judicial willingness to undertake a greater societal role, judges with adequate sensitivity to national and local conditions might actually feel impelled to turn activist and, for that end, to reconstruct and overcome the inhibitions of existing legal theory. Chapter 4, the first among the four chapters concentrating on Bangladesh, analyses the development of the largely post-autocratic era (post-1990) phenomenon of judicial activism in Bangladesh, and begins to get insights into its nature, desirability and legitimacy. Briefly discussing the truncated growth of Bangladeshi constitutionalism that is intrinsically related to the growth and sustenance of court activism, the fourth chapter critically analyses the role and place of its judiciary within the constitutional framework and in the context of a largely non-responsive governance regime. It highlights the activist and socio-transformative traits of Bangladesh’s Constitution and the duty-focused indigenous cultural base of the country’s legal system, thereby emphasising the potential for the judges’ democracy-reinforcing and (social) justiceenhancive roles. In the backdrop of this analysis, and in light of the findings of chapters 2 and 3, chapter 4 investigates whether Bangladeshi judicial activity is sufficiently informed of societal conditions and the constitutional imperatives, with an ultimate objective of assessing whether its judicial activism has been off-limits or has yet to reach a satisfactory level, an investigation that extends further into chapter 5. Chapter 4 finds that despite a clear post-1990 shift in the Bangladeshi courts’ interpretational and functional stance, contemporary Bangladeshi judicial activism has largely been of traditional mould. The chapter, however, demonstrates that there were several instances of judicial assertions even amidst the pre1991 hostile political environment. By analysing these ambivalent and incoherent phases of Bangladeshi judicial activism, the chapter shows that political or legal-systemic incentives aside, judges’ legal philosophy and training are also important determinants of the extent of their activism or passivity. Chapter 5 focuses on Bangladeshi ‘public interest litigation’ (PIL) that has witnessed the most notable of instances of judicial activism in terms of remedying executive excesses or democratising judicial justice. By studying prominent court decisions in PIL cases, as well as decisions in

Introduction

15

judges’ self-initiated actions, the chapter analyses the nature and problems of Bangladeshi judicial activism. Bearing in mind the watermark standards of judicial activism set especially by the Indian judiciary (ch. 3.3), chapter 5 carries over the investigations undertaken in chapter 4 and seeks to examine whether the Bangladeshi judges have been taking the people’s sufferings and the Constitution seriously enough, striking the right balance between excessive activism and untenable passivity. The facts and conditions that found the background of the PIL cases covered in chapter 5 reflect the seriousness of the claim for an activist judiciary in Bangladesh, demonstrating how inevitable and legitimate judicial activism is. The chapter basically portrays judicial activism as a constitutional necessity vis-à-vis prevalent socio-politico-economic conditions of injustice and as a means of realising higher constitutional goals. Instead of being a case of judicial overstepping, PIL-based Bangladeshi judicial activism has rather been found less than adequately robust vis-à-vis the ever-widening governmental lawlessness or constitutional latches, despite its many positive achievements and implications. Chapter 5 inquires into the reasons behind Bangladeshi judges’ under-activism in PIL cases, critically analyses the future of Bangladeshi PIL, seeking to provide a broader definition of its socialjustice-role, and attempts to shift the judicial focus away from mere widening of access to justice to actually improving justice. Chapter 6 revisits the old but difficult question of the proper judicial role during a state of emergency or controlled political regimes with reference to Bangladesh’s recent Emergency. Chapter 6 examines the role of the judiciary during this period in light of the fact that the 2007 Emergency impaired the rights of the people and the judiciary’s protective authority. The chapter shows that while the Supreme Court’s High Court Division by and large asserted self-confidence vis-à-vis the overweening Emergency government, its Appellate Division either remained silent or paid undue deference to the executive. Examining the potential reasons that may explain the new politics of the senior judiciary in Bangladesh during the Emergency, Chapter 6 assesses whether the judges employed their statesmanship and vigilance in protecting the citizens and ensuring constitutionalism. It shows that the Bangladeshi judiciary throughout the Emergency regime suffered a crisis of public confidence, arising largely from the judges’ failing to live up to the peoples’ expectation. The chapter suggests that apart from common background factors that often influence the judges, it is their embracement of legal formalism that may count for this failing. It contextualizes the need for judicial activism during difficult

16

Chapter One

political situations, and re-questions the efficacy of dominant legalconstitutional theories of the judicial role. Chapter 7 covers factors that dismantle judicial activism as well as those that promote it as a golden-mean adjudicative strategy. It begins with an analysis of potential barriers of judicial agency, especially emphasising judicial non-independence as a major institutional barrier. Focusing on the interface between judicial non-independence and judicial passivity, principally in a Bangladeshi context, subsection 7.1.1 highlights a dynamic notion of judicial independence that includes a judge’s moral and professional committed-ness to improve justice. From the perspective of conceptual constraints, domestic courts’ general indifference to the value of unincorporated international human rights standards is shown as a barrier to judicial agency in keeping the refractory executive within legal bounds. The chapter eventually argues and demonstrates that these and other negative constraints, including those practical or internal to judges’ behaviour pattern or judicial ideologies (ch. 7.1.2), are largely removable or avoidable by willing and creative judges. Chapter 7 then moves on into its central focus, to analyse certain juridical means, mostly gleaned from chapter 3, which can potentially strengthen judicial agency. The chapter particularly analyses two increasingly globally common technologies, remedial innovation and judicial legal comparativism, and underlines their utility in Bangladesh. Building on empirical cross-country evidence, chapter 7 demonstrates these techniques as tools for balanced judicial activism. It specifically highlights the usefulness of the remedy of public law compensation in enforcing public accountability, and develops a framework of domesticallyrelevant judicial legal comparativism based on the need for crossjurisdictional judicial learning, not uncritical borrowing. Finally, chapter 8 summarises the findings and concludes the study. It reinforces that judicial activism can be exercised as a golden-mean strategy and that this pragmatic approach to activist judging has sufficient moral, jurisprudential, constitutional and social legitimacy. By reaffirming that striking a proper balance between over-activism and unacceptable passivity or between the need for preserving the constitutional balance and removing injustices through activist interventions is a constant challenge for judges, chapter 8 develops a framework for this delicate balancing exercise, which is grounded in socio-politico-economic contexts of the judges’ particular society. Characterising this society-conscious approach as ‘enlightened judicial activism’, the chapter emphasises two further ancillary strategies: (i) the adoption of a new, socially-active approach to law, jurisprudence, legal institutions and the judicial role; and (ii) the

Introduction

17

development of a collaborative model of judicial interventions. The final part of chapter 8 reflects on the nature and intensity of Bangladeshi judicial activism, contextualises its desirability with reference to sociopolitical realities in Bangladesh and reassesses whether it has exceeded the limits or has yet to cross the brink of passivity. At the end, a few suggestions are made to carve out a way forward for balanced judicial activism in Bangladesh.

1.4 A brief note on methodology The study is based on a combination of qualitative theoretical research and empirical analyses, with a comparative exercise in a global context. Primary materials for research are drawn from reported and unreported court decisions and relevant constitutions and statutes. The present study has also benefited from the author’s semi-structured conversations with mostly Bangladeshi judges, lawyers, academics and legal rights activists. The present study undertakes a cross-jurisdictional analysis, examining judicial activism in the USA, the UK, South Africa, India and Pakistan. Apart from getting a comparative insight into global trends of judicial activism, an important purpose of this selection of jurisdictions is to develop a framework of judicial activism that will be contextually relevant for Bangladesh, the particular focus of this study. While it is certainly not intended to suggest that Bangladesh needs to follow every activist trail of other foreign courts, a tacit purpose of importing comparative insights into this study has been to show that, for Bangladesh, some jurisdictions provide more persuasive instances of judicial activism than others. Hence, highlighting that activism by each judiciary studied here is clearly linked with concerned societal conditions, the focus of the study has tilted more towards Indian and South African activist jurisprudence than to the UK’s and the USA’s, socioeconomic and political conditions of which societies are vastly different from those in Bangladesh.32

32

While the Bangladeshi judges are increasingly relying on Indian and other South Asian court decisions, South Africa with a striking comparative value has largely remained an entirely neglected jurisdiction for them.

CHAPTER TWO DOMINANT LEGAL THEORIES, SEPARATION OF POWERS, AND JUDICIAL ACTIVISM

The present study argues that eurocentric legal theorising has marginalised the need for judicial activism. By analysing existing legal theories and the doctrine of separation of powers vis-à-vis judicial activism,1 this chapter principally seeks to identify whether, and if so to what extent, Western models of jurisprudence and judicial discourse accommodate a theory of judicial activism, or respond to the needs of non-Western societies for a protective, intervening judiciary. This chapter calls into question the sufficiency of prevailing legal theories in providing a global, generalised theoretical framework. Problems of understanding judicial activism can be related back to the deficient conceptualisation of law. The domination of legal centralism in almost all legal theories, 2 which culminates in the neglect of non-state sources of law, like religious precepts or social traditions, and hence denies the judicial role in morally/socially interpreting the posited law, is shown to constitute a major deficiency. Based on too positivist assumptions about law, some theories, particularly Austinian positivism, go to the extent of erecting stumbling blocks for creative judicial functioning–an apathy generally attributable to the existing dismal jurisprudential scenario that hardly appreciates distinctive needs of nonWestern legal systems.3 1 Issues surrounding ‘judicial activism’ have been extensively discussed in the literature. See generally Halpern and Lamb (1982), Cappelletti (1989), Holland (1991), Griffith ([1977] 1997), Roach (2001), Sathe (2002) and Barak (2006). 2 In Griffiths’ (1986: 3) critical view ‘legal centralism’ means that “law is and should be the law of the state, uniform for all persons, exclusive from all other law, and administered by a single set of administrations”. Legal centralism thus marginalises other lesser normative orderings such as religious norms, family/social customs or organisational rules (Griffiths, id.). 3 This unresponsiveness is facilitated not only by western intellectual domination, but also by the universality claim of western legal ideas and the myth of direct,

Dominant Legal Theories, Separation of Powers, and Judicial Activism

19

Focusing on the politico-constitutional doctrine of separation of powers, this chapter then questions why judicial activism is often seen as breaching separation of powers. The separation doctrine, although it has turned into a principle of universal constitutionalism, has remained obsessed with allocation of powers at the higher level of state governance, and not primarily with the performance or accountability of those who hold power. This doctrine too is overloaded with eurocentric notions, and seems to be actively hostile towards activist judicial functioning. On the contrary, it is argued here that judicial activism is not inimical to the separation doctrine, but rather is a mechanism to enforce it as a principle of constitutionalism. Next, this chapter analyses current debates about the role of the judiciary and argues that they are also constrained by eurocentric perceptions. It is found that despite explosion of the myth that judges do not make law and despite modern judicial practice of departing from precedents, 4 the important distinction between judicial lawmaking and judicial activism that are not necessarily the same thing has not been fully appreciated in the literature. Given that merely a flat acceptance of judges’ law-creative function does not adequately answer basic questions about the judicial role, 5 I urge for a shift of the locale of attention from apprehensions about judicial lawmaking to concerns about the actual, justice-centric role of law and judges.

2.1 Deficiencies of existing legal theories and jurisprudence Giving a detailed account of all legal theories and definitional analyses of ‘law’ is beyond the scope of this book.6 However, since judges’ understanding “socially easy” (Watson 1974; 1993: 95) transplantation of them into non-Western legal systems. Curiously, however, Watson’s (1993: 116) recognition that an “alien rule” transplanted “into another complex system may cause it to operate in a fresh way” may probably be interpreted as suggesting that transplanting is not always easy and workable. Legrand (1997) notes the ‘impossibility’ of legal transplanting. 4 See e.g. the UK House of Lords’ Practice Statement [1966] 1 WLR 1234 HL. 5 Judges’ perception about the legitimacy of judicial law-making cannot articulate the conceptual dividing line between judicial activism and restraint; even a judge admitting judicial law-making can be extremely restraintivist (Clinton 1982: 738). 6 These are discussed in detail in major works on jurisprudence such as Salmond (1966), Harris (1980), Dias (1985), Morrison (1997), Freeman (2001) and Bix ([1996] 2006). Menski (2006a) provides a useful, historically-grounded critical comparative review.

20

Chapter Two

of legal theories and their perceptions about law and its functions profoundly impact on the method and goals of adjudication, any discourse on judicial activism must of necessity involve an analysis of existing legal theories. In standard intellectual discourse, there are basically two major conceptual approaches to law: natural law theory (focusing on the notion of justice or morality) and legal positivism (focusing on posited rules). These two dominant approaches aside, historical and anthropological approaches to law along with so-called legal realism have recently gained new prominence. This section re-examines the capacity of these leading theories to activise the judicial power.

2.1.1 Natural law theory: Morality and reason in law Natural law theories see law in terms of morality, and stress a necessary connection between law and morality for both creation and application “of all laws” (Fuller 1958: 630). They define law traditionally as guiding principles given by Nature or as the post-Enlightenment manifestation of rationality and human reason. Classical theories of natural law place statemade law and justice/morality on the same footing, arguing that no unjust laws are law in any sense: ‘morality’ being seen as an essential condition of (positive) law’s validity in the ultimate analysis (Dias 1976: 653-4). On the other hand, modernists including Finnis ([1980] 2004) advocate a moderate and cautious version of the theory seeing natural law as set of “principles of practical reasonableness” informed by “basic good”, in ordering human life (Finnis 1980: 280; 2004: 22). Finnis (1980: 360 ff.) is not unaware of the need that law should conform to certain minimum moral principles but refuses to agree to rest its legal validity on moral bases, an approach that leads ‘natural law’ into assuming the characteristics of positivism.7 Given the multiplicity of theories under the main rubric ‘natural law’, lengthy details on its various ramifications are avoided here.8 Rather, the focus is on what this school says about the business of judging. Being highly abstract, this theory is often silent about the role of judges, which is not difficult, however, to read from its approach to law. By appealing to something higher than positive law (Friedmann 1947: 18) or to minimum standards of justice, which appears to become a common element in 7 Finnis (1980: 361-2) argues that a good citizen is morally bound to obey the unjust law to avoid “weakening the legal system as a whole”. Notably, even the classic naturalist Thomas Aquinas who disapproved of unjust law held similar views (Freeman 2001: 97). 8 For details, see George (1999; 2002), Freeman (2001: 189-98) and Finnis (2004).

Dominant Legal Theories, Separation of Powers, and Judicial Activism

21

various manifestations of this theory, natural law offers guiding principles of rulemaking (Dias 1976: 654) and a criterion to test (positive) law’s justness, thus requiring judges to apply their reason to discover what is ‘just’. This task of discovering keeps them constantly engaged in articulating those meanings of law that naturalistic ideals would approve a process that is invariably creative. It is hard to deny that judging involves moral decisions all the time.9 In their quest for justice, judges have often searched for some measure of goodness in law (Mathew 1983: 25) or have, since Plato, sought to interpret man-made law in light of naturalistic notion of justice. Stone (1965: 171) explains the view of the German natural lawyer Rudolf Stammler (1856-1938) that in applying ‘lenient’ legal standards to concrete situations as well as in dealing with situations not covered by the existing laws, judges need to apply their understanding of justness. Even where legal rules exist, Stammler urged, there is a need for the recognition of judicial ‘grace’ (Stone 1965: 171). On one account, Stammler’s ‘grace’ is the modern judicial discretion, no doubt. But his ‘grace’ underpinned by natural law assumptions offers a convincing justification for judicial activism. However, judicial willingness to enforce (or recognise) natural law or the need to refer to higher law may not be as conspicuous and assertive as one could expect. Judges have been particularly disarmed by the familiar positivist assertion that their primary task is to apply the law as laid down by the lawmakers. A major limitation of the natural law theory is its incapacity to arm the judges with a definitive tool to affect social change by both creatively developing the positive law and defying unjust laws. This is so, because many modern naturalists like Morris (1972, cited in Dias 1976: 675) continue to believe that an unjust law is nevertheless law and the court is bound to apply it. This rigid approach towards validity criteria can be likened to Kelsen’s (1970) theory of legal efficacy, which may not provide justice at all times. It is submitted that the argument of judicial incapability to reject unjust law is open to serious questioning. A judge dealing with an unjust law no doubt faces a dilemma of discharging

9

An early instance of judicial invocation of natural law is Cooke, J.’s statement in Dr. Bonham’s case (77 Eng. Rep. 638, PC 1610). In a U. S. case, Riggs v Palmer (1889) 115 NY 506, Earl, J. invoked natural law, saying: “all laws … may be controlled in their operation … by … fundamental maxims of the common law, [which] have their foundations in universal law administered in all civilised countries”. In the shadow of such arguments, there was a presumption that only Western laws were civilised.

22

Chapter Two

his/her duty to do justice and to obey the ‘law’.10 But his or her obligation to implement the law has moral limits (Freeman 2001: 98), and, in appropriate circumstances, s/he may be right, according to Freeman (id), or even obliged, to refuse to implement an unjust law. Thus it appears that natural law theories are more theoretical than functional, and are essentially eurocentric, denying other societies the scope to pursue their own versions of natural law (Menski 2000a: 78).11 Despite this school’s plausible appeal for guidance from “universal and immutable” law (Harris 1980: 7), its claim of absolute universalism seriously undermines the culture-specificity of notions of justice or morality.12

2.1.2 Legal positivism: Trivialising morality and mechanising judges Historically emerged as an intellectual retaliation towards natural law,13 legal positivism prefers law as it is, rather than as it ought to be. Austin (1790-1859), a nineteenth century English lawyer and a leading proponent of positivism after Bentham (1748-1832), famously uttered: “Laws proper, […], are commands; laws which are not commands, are laws improper” (Austin 1911: 80). Following Austin’s command theory, legal positivism sees law primarily as commands, backed by threat of sanctions in the event of disobedience, of political superiors or sovereigns to those inferior or subjects. 14 For its forcible, arbitrary and exclusionary nature, the command theory of law has attracted much criticism. Voluminous questions about the sovereign’s nature have been raised: Can any person 10

For Hart (1994: 156), not implementing an unjust law would infringe a principle of justice. 11 Menski (2000a: 80) argues that “[m]any books on jurisprudence are characterised by total absence of even the slightest recognition that non-European cultures may have something to say on natural law theories”. However, European natural law’s progression from its church-centrism to secularism with overarching emphasis on ‘reason’ perhaps reflects a universal element of modernism. 12 “[W]hile the ideal of justice must be absolute, its application must vary with time, place and circumstance” (Stammler, cited in Freeman 2001: 93). Chiba (1986) has effectively challenged Western universality claims. 13 Natural law’s prolonged disengagement with studying law as practically applied led to a significant shift of focus from natural law to legal positivism towards the end of the 19th century (David and Brierley 1978: 2). 14 In Austinian theory, a sovereign is a person whose commands are habitually obeyed and who is not in the habit of obeying others. Such a secular conception of sovereignty ignores any religious or higher-than-human authority of law.

Dominant Legal Theories, Separation of Powers, and Judicial Activism

23

or group of people having authority to enforce commands, say a dictator or authors of a military coup, legitimately become sovereign? To what extent are the general public, the real sovereign in modern constitutionalism, counted within the positivistic equation of law and sovereignty? Austin’s view provides no answer to these queries, and his power-driven concept of sovereignty may potentially be a real threat to the modern concept of rule of law. The second prong and the founding motto of legal positivism is the notion of separation between law and morality: “the existence of law is one thing; its merit or demerit another” (Austin 1954: 184). 15 This aphorism led many positivists to refuse to consider the question whether any law in question is morally acceptable or conducive to justice (Menski 2000a: 101). Displacing naturalists’ claims that law must conform to certain moral constraints, they rather hold that even the most pernicious of laws are valid and are continually enforced by tribunals (Himma 1999: 72). But the positivist paradigm of separation of law and morality is not an adequate description of our actual legal experience (O’Connell 2000: 23).16 On the contrary, such a separation may be instrumental in leading to dictatorship (Fuller 1958: 657 ff).17 Legal positivism found its most rigid intellectual manifestation in Kelsen’s (1967; 1970) sanction-based ‘pure theory of law’ which insisted on studying law in its purest form, excluding every other considerations that are not strictly law, such as ethics, history, sociology, politics and religion. Though Kelsen (1970: 1) does not deny a connection between law and other elements, his total exclusion of morality and justice from law’s validity criteria is logically unsustainable. In constructing his complex ‘pure theory’, Kelsen sketched a legal system as composed of a set of norms lying in a pyramid-type hierarchical order, each norm deriving validity from the preceding higher norm and all from the 15

Austin (1911: 87) defined away even constitutional conventions, international law and customs as non-law. 16 For a theoretically informed criticism of positivism, see Alexy (2002). 17 This claim of Fuller, which Hart (1957-8: 616 ff) refuted, referred to the impact of legal positivism on Nazidom in Germany. Freeman (2001: 221) termed Fuller’s view as “fanciful in the extreme”, arguing that it leaves totally unexplained why, inter alia, England, with its strong leaning to positivism, has not been led to authoritarianism. However, looking at the damage done to Pakistan (see below nn. 18-19) and other jurisdictions by Kelsen’s pure positivism, one finds much truth in Fuller’s claim. Dugard (1971), and Gready and Kgalema (2003) argue that the apartheid-era South African judges’ and magistrates’ inclination to legal positivism led to their complicity in abuses of justice. Lavoie (2004) shows a link between judicial legal positivism and the rise in unethical corporate behaviour.

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Chapter Two

presupposed ‘basic norm’, the Grundnorm, which stands at the top. For Kelsen (1970: 194), “only a competent authority can create valid norms” and a legal norm or order is valid if it is “by and large effective (that is actually applied and obeyed)” (Kelsen 1970: 212). Kelsen (1970: 211) clearly bifurcated the questions of law’s effectiveness and validity, making the latter subservient to the former concept. Thus in Kelsen’s formulation, even a usurper can attain authority to become the source of a Grundnorm, which as the highest norm is to be obeyed as a command without questioning the reason for its validity (Kelsen 1970: 195).18 Unfortunately, despite Kelsen’s (1965) disclaimer that his theory provided a binding rule, his supposedly value-neutral but in effect authoritarian approach to law’s validity misled many and did considerable damage to many legal systems of the Commonwealth, prominently Pakistan, Rhodesia and Uganda, where in the aftermath of military coups, law was seen merely as the commands of those in power with guns, an approach that ended in legitimisation of might-is-right-type regimes.19 Scholars like Hart (1961; 1994) made attempts to soften positivism’s rigidity, combining legal positivism with socio-legal approaches. Rejecting Austin’s account of legal authority as a brute fact of habitual command and obedience (Dworkin [1986] 2000: 34), Hart defined law as a rule of recognition, emphasised social convention, and helped in shifting the validity grounds from the sovereign’s commands to a general acceptance of law by people (or narrowly, by the state officials) of a society. To Hart, the true grounds of law lie in the acceptance by the community as a whole of a fundamental master rule (“rule of recognition”) that assigns to particular people or groups the authority to make law (Dworkin 2000: 34). Though Hart plausibly connected analytical positivism with social reality (Menski 2000a: 119) by focusing on the acceptance of law by people, he did not adequately explain the nature of that ‘acceptance’: “What does the acceptance of a rule of recognition consist in” (Dworkin 2000: 35)? 20

18

This thesis was denounced by judges in Pakistan in Asma Jilani v Punjab PLD 1972 SC 139, but only after the damage was done by State v Dosso PLD 1958 SC 533. 19 See State v Dosso (id.) and Zafar Ali v General Pervez Musharraf PLD 2000 SC 869. For a doctrinal analysis of Kelsen see Harris (1980: 71-3), Morrison (1997: 323-59) and Freeman (2001: 255-330). On its influence on courts see Reyntjens and Wolf-Phillips (1984) and Islam (1997). 20 On this count, soft positivist Hart’s ‘acceptance’ is not different from strict positivist Kelsen’s theory of ‘efficacy’ of law, since people might be compelled, directly or indirectly, to accept a law as happens in dictatorial regimes. Thus,

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Questions may be posed whether enforced or compelled acceptance can legally give birth to authority to create valid laws. Silence on these questions remains a serious defect of Hart’s theory as well as classical positivist Austin’s. Moreover, Hart’s idea is not globally focused (Menski 2000a: 122) and he could not reach his goal of formulating a “general” theory of law “not tied to any particular legal system” (Hart 1994: 239), as evident in his reluctance to give due importance to certain rule systems of Asia and Africa that may nevertheless be law.21 Tamanaha’s (2001a-b) theory of ‘socio-legal positivism’ is another softening attempt, which is inadequate, too. This theory reinforces the positivist argument that there is no necessary connection between law of whatever kind and morality, but recognises that law emanates from a complex of social practices, which give rise to law and help identify its contents (Tamanaha 2001a: 1-2). This is appreciably a broader approach to law, understanding law in its various forms. But, he elsewhere contradictorily refuted the legal weight of social values/customs or legal pluralism (Tamanaha 1993), as evident in his famous reaction that including everything non-legal in law is a ‘folly’, a foolish misrepresentation of the nature and concept of law. While the general debates on law do not take specific account of the role of judges, it is necessary to examine here how positivist legal theory perceives judicial roles. By seeing judges as faithful servants of the ‘sovereign’ and excluding socio-political considerations from law, positivism or analytical jurisprudence failed to sufficiently appreciate judges’ creative role in the development of law, and simply made them loyal servants of mechanical jurisprudence. Jeremy Bentham, the founder of English legal positivism, was exceedingly against the judges’ creative role, as he feared that this might bring uncertainties into the law. By apparently equating judicial passivity with judicial integrity, 22 he was serving a definitive purpose of trying to attain certainties in English common law of his time which became “unmanageable and complex” (Bhatia 1990b: 139), needing urgent massive reforms capable of being

Hart’s concept became, at its best, a modified restatement of the force-led idea of law. 21 Hart’s jaundiced view of ‘secondary rules’ (sophisticated procedural rules, which he thought non-Western societies were lacking) justifies this finding. 22 Bentham (cited in Edmund-Davies 1975: 1) said: “Nothing but the greatest integrity …can prevent the judge from making an unwritten law a constrained instrument of … corruption”.

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implemented only by the legislature.23 On this score, therefore, Bentham’s disapproval of judicial discretion/lawmaking remains deeply implausible in today’s world, where judicial participation in the development of law is not only a reality but has at times yielded more results than would otherwise be.24 Following his mentor, Austin viewed the judicial role as one of dispensing justice according to law as it is, expecting the judges to apply the sovereign’s commands without questioning. It is, however, encouraging that Austin did not reject judicial law-making altogether, but rather acknowledged it moderately as he recognised that some ‘sovereign’ legislative powers can be delegated to other state institutions including the judiciary.25 As a Benthamite reformer, Austin was certainly not unmindful of the need to relate law to the needs of society (Freeman 2001: 220). But Austin’s sympathy for social reform is doubtful and his attitude towards judicial lawmaking seems to be only incidental as reflected in his failure to distinguish judicial lawmaking from administrative lawmaking. His exceedingly positivistic proposition that judges, being delegates, cannot bind the sovereign is unsustainable in modern times. This clearly ignores the presence of law above the sovereign, and thus negates the rule of law. To obfuscate deficiencies of Austinian theory, post-Austinian positivists pursued a rational yet too positivistic notion of the judicial role. For example, Hart (1994: 272-6) endowed legal positivism with a touch of sophistication by allowing judges to decide ‘hard cases’ by exercising ‘discretion’ and thus to engage in ‘restricted’ lawmaking (p. 252). But Hart’s ‘discretion’ is conservative, overly-constrained, and interstitial26 in operation, this being considered unsuitable for introducing large-scale reforms (Hart 1994: 273).27 Subjecting judicial discretion to principles and standards is not bad in itself, but his ‘discretion’ was not meant to be a 23

In Bentham’s time, judicial lawmaking (as in earlier common law) was now perceived as too subjective, which in his view became ‘sham’ and ‘arbitrary’. Naturally, codification emerged as a preferred choice. 24 Interestingly, Bentham came close to conceptualising judicial review (Freeman 2001: 204). 25 Cotterrell (1989: 54) notes Austin’s recognition that “judge-made law is an inevitable component of a modern legal system, and that despite many disadvantages it … is often the only practical means of legal developments at certain times and in certain fields”. 26 Justice Holmes’ famous phraseology in Southern Pacific Co. v Jenson 244 US 204 (1917), 221, meaning legislating “within interstiches of the existing fabric of the law” (Freeman 2001: 1404). 27 Hart (1994: 272) argued that even where the judge makes new law in ‘hard cases’, he has to apply the established law which constrains his law-making powers.

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concern of legal theory (Cotterrell 2003: 146), nor did he contemplate its goal-oriented judicial exercise. In essence, Hart was far away from conceptualising ‘discretion’ as a tool of judicial activism. He simply explained judicial discretion as a necessary consequence of the fact that there are and will always be gaps in law, law being fundamentally incomplete and open-textured (Himma 1999: 76-7). Thus, despite Hart’s theory of restricted judicial discretion in ‘hard cases’ and Austin’s recognition of a narrow space for judicial lawmaking, positivism has largely marginalised the need for activist judging, ignoring the reality that judges need to constantly look for what the ‘law’ is in easy cases as well. Even socio-legal positivism (Tamanaha 2001a-b) skillfully ignores judicial authority as a tool of legal innovation; neither does it require judges to decide with reference to socio-legal realities.

2.1.3 Historical and sociological schools of jurisprudence: Society matters Displacing naturalists’ endeavour to universalise perceptions of law among various nations, socio-historical approaches defined law as the manifestation of people’s common consciousnesses, and saw every particular legal system as a reflection of what Carl von Savigny (17791861) called Volksgeist, the spirit of the people. The historical or anthropological school (anthropological account of law’s development),28 of which Sir Henry Maine (1822-1888) is said to be the founder, gives due credit to every society’s history and characteristics, and sees law as a product of the process of evolution of a given society. In Savigny’s view, official law should never be made to violate local customary norms and the community’s value systems. In the 19th century, this certainly was a novel idea in that it accommodated, albeit silently, people’s customs, culture, common consent, or the concept of legal pluralism. 29 However, this theory is plagued by over-generalisation of the law-history link and stops short of describing what a judge is actually required to do if s/he finds official law in conflict with the people’s culture/customs.

28

Here, these two schools are taken as a unity. Dias (1976) is a useful introduction to the anthropological school. 29 Making societal differences prominent in legal thought, the historicalanthropological theory seems to highlight the unsuitability of existing eurocentric theories in non-Western societies.

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By the early 20th century, there emerged a growing recognition that society matters in law. 30 Many theoretical propositions under the solabelled banner of ‘sociological school of law’ came into being, all aspiring to promote consideration of law in relation to society focusing on social duties rather than mere individual rights (Menski 2000a: 109). Many jurists and thinkers such as Max Weber (1864-1920) and Rudolf von Jhering (1818-92) contributed to contextualise law and legal studies with reference to ‘social purposes’ to be achieved through rational legal institutions (Weber 1968). Later, the Austrian jurist Eugen Ehrlich (18621922) fine-tuned the sociological school by his famous theory of ‘living law’. By pointing to the real role that social factors, norms, and traditions play in a legal system, Ehrlich argued that the real law is not what is in its formal sources, statutes and court decisions, but the one that people live by. By recognising society as the “center of gravity of legal development” (Ehrlich, quoted in Menski 2006a: 93), Ehrlich prominently becomes one of the early proponents of ‘legal pluralism’. But he too is silent as to what his ‘living law’ precisely requires of the judges. Emphasising law as an institution of social ordering rather than a model of rules, Roscoe Pound (1870-1964) propounded what he himself described as sociological jurisprudence, which can be seen as a compensation for positivists’ refusal to lend legitimacy to judicial creativity. For Pound (1910-11; 1954), law’s tendency to change is inherent, its task is ‘social engineering’, and its contents are not only static rules but also other dynamic precepts, techniques, doctrines, principles and social attitudes. By urging lawyers to apply a functional/instrumentalist approach to law (also perhaps to judicial method) to solve social problems, Pound brought judicial creativity to the fore of his jurisprudence (Bhatia 1990b: 150). Pound’s ‘social engineering’ vision of law should have been a strong motivation for the judges to adopt activist adjudication.31 However, when measured against the time and society when and where the theory developed, it is doubtful that it contemplated judicial activism in the

30

Montesquieu had made an early claim of law-society link, when he argued that law was a product of numerous factors and a good law should conform to the spirit of society (Freeman 2001: 660). On what is called ‘law and society’ movement see Hurst (1950), Friedman (1986) and Freeman (2006). Needless to say, this movement concerned mostly the Western societies (Friedman 1986: 770) and prescribed an “undifferentiated” (Malik 1994: 84) role for law in all societies. 31 For Bhatia (1990b: 150), Pounds marks the beginning of an era of social justice approach in jurisprudence, which many would perhaps be quick to disagree with.

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modern sense of the term. 32 Obsessed with the dream of attaining a coherent society with shared values (Freeman 2001: 676), Pound’s approach ended up, not unsurprisingly, as just another brand of American legal scholarship realistically focused on the judiciary, but inadequately concerned with social realities elsewhere (Menski 2006a: 165; Twining 2000a: 54).

2.1.4 Judicial realism and pragmatic instrumentalism: The silver line Sociological jurisprudence was given a uniquely focused dimension by some 20th century American legal scholars such as Oliver Holmes (18411935), Jerome Frank (1889-1957) and Karl Llewellyn (1893-1962) who led the movement called (American) ‘legal realism’. Originated principally in the American law schools, the theory evolved further in the Scandinavian countries. 33 The basic argument of this school is that trueness of propositions of law depends on the context of law, rather than mere textual sources (Clinton 1982: 736). Emphasis was now laid on the predictability and impact of law’s course, which at the end of the day depends on judges – “a vital focus previously obfuscated” (Clinton 1982: 736) by both natural law and positivism. Legal realism thus broke new ground by shifting our attention from definitions and conceptual analysis of law to what in reality happens through the legal process, hence the label ‘realism’ (Menski 2000a: 112). Against positivists’ insensitivity towards judicial creativity, realists seem to have taken a moderate view that judges make law, thus softening many of the hardships positivism generated. Providing an intellectual stimulus to the realist movement, Holmes (1897; 1911) emphasised judges’ role in making and applying law. By viewing law as predictions of what courts will decide (Holmes 1897) and by proverbially remarking that law’s life “has not been logic but experience” (Holmes [1881] 1911: 1), Holmes in fact stressed pragmatism in judging, 32

Cotterrell (1989: 155) reports that Pound’s dynamic view of law was necessitated by an urgent need to refurbish the 20th century legal profession/common law that was then at the verge of erosion. 33 Departing from the American realists’ typical focus on judicial activities, the Scandinavian realists took a wider philosophical approach to law, seeing it as essentially corresponding to a psychological reality (Menski 2000a: 113). Still obsessed with the ‘force’-based idea of law, Scandinavian realists, however, failed to transcend the limits of judicial legal positivism. Freeman (2001: 854-902) usefully discusses views of leading Scandinavian realists like Hägerström (18681939) and Olivecrona (1897-1980).

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i.e., the need for the judges to shun their blind imitation of the past and outdated laws (Holmes 1897: 469). Leading realist Llewellyn (1930: 464) also laid similar stress on the judicial role and process, underlining a goalbased application of law. Synthesising various jurisprudential contributions of the American realists, and coalescing pragmatism with them, Summers (1982: 1-12) developed what he called an indigenous American theory to compensate failures of major jurisprudential approaches to concentrate on the instrumentalist/pragmatic aspect of legal phenomena.34 Summers’ (1982; 1992b) interesting theory of ‘pragmatic instrumentalism’ saw law as an instrument to achieve practical social ends and emphasised a robust and optimistic theory of law-making, particularly asking judges to adopt a goal-oriented method of interpretation and to abandon legal formalism (Summers 1992a: xv). Refreshingly, while other realists or instrumentalists maintained a stance of ‘law for courts, morality for the legislators’ (Pound 1924: 47), Summers (1982: 189-90) urged for “robust” invocation of moral arguments in judicial interpretations. Seen in this context, this is a desirable theory, and the emergent South Asian judicial activism comfortably fits into its broader premise. More generally, legal realism or instrumentalism makes a convincing case that judicial alertness or assertiveness is a necessity. On closer inspection, however, it appears that legal realism and pragmatic instrumentalism are, like their predecessors, also Western-focused, even parochially claimed to be specifically American. Neither realism nor instrumentalism turns out to be a comprehensive legal theory.35 Rather, they are exceedingly focused on judicial decisions and their impacts, with too little attention being paid to internal elements in law, perhaps because many of the main writers were judges.36 Many theorists, with notable exceptions of Summers (1982: 181-2) and Pound (1924), ignored the importance of naturalist notions in their analyses of law, law being seen as backed by coercion and detached from ‘non-law’ (Summers 1992a: xv), a limitation that reflects this 34

Another “self proclaimed” (Freeman 2001: 817) legal pragmatist is Richard Posner (1999), who urges the judges to use precedents as a source of information and not as a rule of decision for a novel case, and to decide pragmatically by keeping present and future needs in mind (Posner 1996). 35 But see Summers (2000: ch. 4), claiming his instrumentalism as a general theory. 36 Dworkin (2000: 14) criticised Holmes (indeed legal realism) for his ‘external legal theory’ as it denies internal factors of law. In various theories of legal realism, criticisms of the formalist judicial method remain “a principal refrain” (Loughlin 2000: 81). For some robust criticisms of realism (e.g. that it did nothing more than enriching legal education) see Kalman (1986).

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theory’s lack of globality consciousness. Moreover, despite its virtues, legal instrumentalism does not make us sufficiently aware of its limits, particularly in a society where policies (goals) that the law seeks to attain stem largely from authoritarian sources rather than a democratic process, or where laws might be often deficient in providing justice. In such situations, I suspect, Summers’ (as well as Pound’s) instrumentalism may deny judges “any valid premise for decision-making other than implementing” whatever be the state policy (Trubek 1972: 19). 37 More fundamentally, neither legal realism nor instrumentalism has adequately articulated the judicial role in terms of the changing needs of a society except recognising the importance to be attached to judicial activities.38 Hence the need for strengthening efforts in search of a global legal realism or neo-instrumentalism, underpinned by imperatives of justice and naturalist approaches to law.

2.2 Separation of powers and judicial activism: Conflict or congruence? Opponents of judicial activism often argue that, by activist judicial intervention, the judiciary engages in lawmaking and framing social policies, thereby usurping the powers of other co-ordinate state organs for which they are exclusively competent. 39 Concerns are expressed that judicial activism thus entails a breach of long standing principle of separation of powers, making judges commit constitutional infidelity or disregard institutional comity which demands ‘restraint’ (Zwart 2003: 332-3). Much of the debate about these issues depends on how the objectors perceive ‘judicial activism’ and ‘separation of powers’. As will be seen below, while the traditional or “pure doctrine” (Vile 1998: 13-4) of separation of powers may sustain these accusations, an “essential doctrine” (Vile, id.) or a ‘‘dynamic view’’ (Zwart 2003: 334) will comfortably dispel them. At a fundamental level, the doctrine of separation of powers implies that the traditional three branches of government, the legislature, the 37

Trubek (1972: 18-21) warns against increasing (Western) instrumentalism in developing nations generally and in authoritarian regimes in particular, which may weaken non-state sources of norms/ values by over-empowering the state. 38 The concept of insufficiency of rules was not a radical improvement, though plausible. “Nor was it a new insight that … in the settlement of disputes … many personalised factors [other than rules] come into the picture” (Menski 2000a: 112). 39 This Kerr (2003) called “separation-of-powers activism” since it allegedly transfers the power to create governing rules from other political branches of government to courts.

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executive, and the judiciary, independent of each other, must perform within the ambit of their mandated powers and must not encroach upon each other’s area of functions. 40 Aristotle (384-322 BC) perhaps first identified the trilogy of state powers–deliberative (legislative), magisterial (executive) and judicial–without suggesting their vesting into three different government branches (Vile 1998: 24). Emphasis on both institutional and personal separation followed in the late 17th century when John Locke (1632-1704) first advocated the separation between legislative and executive powers (Plucknett 1956: 63), but without any emphasis on separate judicial power. Montesquieu (1689-1755), the father of the modern separation doctrine (Akkas 2004a: 12), piloted the institutional separation of powers and considered judicial separation as the most vital part of the scheme because it guards the government against its own lawlessness, and ensures rule of law by securing liberty of the citizenry vis-à-vis executive and legislative powers. But the width and breadth of the doctrine is not as simple as it appears above, and its landscape has altered dramatically (Pieterse 2004a: 389) along with equally dramatic changes in the functions and roles of the modern states. Since Montesquieu crafted the ‘pure’ theory of separation,41 proper boundaries of state powers have been subject to much debate (Akerman 2000; Barber 2001: 69-71).42 Modernists now refuse to defend the traditional divide of powers into the straight-jacket of three classic state branches since “modern institutions increasingly possess powers drawn from two or more of the classic separation of powers trinity” (Barber 2001: 69). It is accordingly agreed that complete or watertight separation of powers is not possible either in theory or in practice; nor is it desirable. Rather, the dynamic or “partial” (Barendt 1995: 608) theory of separation of powers acclaims some form of overlapping and friction, rejecting absolute functional autonomy of any state organ. Moreover, since separation of powers is fundamentally a constitutional tool aiming at “meeting of form and function” (Barber 2001: 71) of different state organs, there are logically diverse manifestations of the doctrine in various constitutions throughout the world, reflecting different “local requirements” 40

For a fuller political account of the doctrine, see Vile (1998) and Ackerman (2000). On its uses in Asia and Africa see respectively Beer (1992) and Shivji (1991). Franklin and Baun (1995) make a comparative analysis of the doctrine. 41 For a critique of Montesquieu see Claus (2005). 42 What Madison ([1788] 1999: 196) wrote in 1788 is still relevant: “… no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces - the legislative, executive, and judiciary […]”.

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(Barber 2001: 88) and constitutional objectives. For example, the US-style separation of powers is almost absent in parliamentary systems of government where some powers between the executive and the legislature may, and in fact do, mingle. On the other extreme, the British version of the doctrine is quite distinctive in that it may give an impression of nonseparation of powers at some level. 43 This welcome diversity (Barber 2001: 88) of various visions of separation of powers is the greatest wealth of the doctrine, so is the flexibility of its boundaries (Pieterse 2004a: 386), which should allow judges to pursue a model that best accommodates their local needs.44 Despite the absence of a uniform practice, functional separation of powers of some kind to inhibit state-arbitrariness and arrogation of liberty (Allan 2003a: 33) is increasingly gaining recognition as a baseline principle of global constitutionalism, being both necessary for, and required by the rule of law (Allan, id.). To that end, there has emerged the theory of checks and balances, which in fact is the manifestation of a dynamic view of the separation doctrine itself, emphasising on means and ways at each branch’s disposal to control transgression or over-balance of powers by other branches of government. In this balancing process, the judiciary has been endowed with a unique power called ‘judicial review’ by which to enforce legal limits of other political branches.45 For all practical purposes, the debate about legitimacy of judicial review (Forsyth and Elliot 2003; Tremblay 2003) is over. 46 Issues 43

There has never been “real separation of powers” (Akkas 2004a: 18) in England, where the Lord Chancellor, the head of the judiciary, is also a cabinet member and the Speaker of the House of Lords. See further Barendt (1995). Conversely, Lord Simon (cited in Stevens 2005: 85-6) claimed that England follows ‘balance of powers’ which is more valuable than separation of powers. It is to be noted that recent reform into the UK judicial system has somewhat redesigned its ‘separation of powers’. See Le Sueur (2003) for some prescient observations of this line. 44 Undoubtedly, judges’ perceptions about the doctrine are not uniform (see Patapan 2000: ch. 6). Barber (2001: 88) applauds the doctrine’s diversity and its adaptability, but urges the British judges to be slow in embracing the US-style separation of powers. 45 Barber (2001: 88) refutes the English courts’ general jurisdiction “to police division of powers”, a view that reflects the traditional UK model of separation of powers. By contrast, Barendt (1995) critiques this model for ignoring the role of separation doctrine in civil liberties, which is virtually an argument for increased judicial rights activism. 46 Cappelletti (1988: 94) premises judicial review’s democratic legitimacy on judicial enforcement of fundamental freedoms. Rostow (1952) and Rawls (1993) support the democratic character of judicial review. But see Sadurski (2002: 280)

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surrounding judicial review are so well known that a lengthy discussion here will be superfluous. But it is worth noting that after an initial period of crisis orchestrated by ‘counter-majoritarian’ arguments (Ely 1980: 4), judicial review with a differing range of ramifications has come to be settled as a primordial principle of constitutionalism in many jurisdictions, drawing main doctrinal support from ‘separation of powers’ (Mason 1969: 385). 47 Eventually, courts’ power to review the constitutionality of any governmental or legislative act and to strike it down if found unconstitutional has become an undeniable fact of modern judicial life.48 However, like ‘separation of powers’, judicial review has partaken of many models, depending on the constitutional and institutional environment within which it operates and on “objectives and functions ascribed to it” (Cane 2004: 17). Quite naturally, a dynamic view of judicial review results from the dynamic approach to separation of powers, which recognises that the proper judicial role is determined by the circumstances prevailing at a relevant time, and that there are situations in which judges may take actions which pure separation of powers would normally disallow them to take (Zwart 2003: 334). A rigid approach to separation of powers will immediately discard any idea of a searching/probing judicial review. What then is there in ‘judicial activism’ that makes it unwarranted by the separation theory? Restraintivists mainly take judicial policymaking or lawmaking as grounds of their battle. Curiously, even believers in judicial review have raised objections that activism is not a legitimate exercise of judicial review, a view that images a watermark of “static view” of the separation doctrine under which judges are “obliged to stick to their traditional role whatever the circumstances” (Zwart 2003: 334). As said above, ‘separation of powers’ demarcates powers of various state organs, and consequentially allows the judicial arm of the state to control overstepping by other branches. But the doctrine in its orthodox format does not seem to be concerned with the non-use or abuse of state powers.

who finds a “chronic legitimacy deficit” in it, and Waldron (1993: 42; 1999) who views judicial reversal of democratically adopted laws as a denial of the right to democratic participation. 47 Quite non-sensibly, some have even used the doctrine to refute judicial review. See Gibson J’s dissent in Eakin v Raub 12 S. & R. 330, 348. 48 The legendary case of Marbury v Madison 5 US (1 Cranch) 137 (1803) is widely viewed as having given birth to judicial review, genesis of which is, however, traceable to the institutionalisation of judicial power. For a historical account of judicial review’s origin see Rakove (1997), Wood (1999) and Guarnieri & Pederzoli (2002: 135). On judicial review generally see Cappelletti (1971; 1989: chs. 3-5), Abraham (1998: 299 ff.), Richard (2003), and Yoo & Prakash (2003).

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This deficiency could potentially be cured by reference to justice-based theories of separation of powers and the judicial role. Interestingly, judicial activism and separation theory share common objectives, derived from constitutional values. The activism theory emphasises the social, moral and legal creativity of the judges in ensuring justice and enforcing principles of constitutionalism. On the other hand, separation of powers aims at securing citizens’ liberty,49 and enhancing governmental efficiency50 (Barber 2001: 59) and accountability (Kurland 1987: 600-03) by creating a culture of justification (Pieterse 2004a: 385). 51 In simple words, the doctrine emphasises constitutionalism or constitutional supremacy, making each organ accountable to the Constitution as a higher norm of law. A plain theory of constitutional supremacy envisages judicial oversight of state powers to check excessivism. But an active theory of constitutional supremacy would contemplate much further, that is, an assurance that a given constitution works in practice by ensuring the discharge of public duties. If we recognise that judicial activism is the creative and assertive exercise of judicial review aiming at activating the court in overseeing legislative and executive inactivity (Bhatia 1997: 7), its exercise seems inevitable not only in case of excessive or illegal exercise of state powers but also in cases of failure of the power-holders in performing constitutional/public duties. The dynamic separation theory, underpinned by the value of nonconcentration of state power in any organ (Barendt 1995), drags our attention to defects and weaknesses inherent in the system of government. In parliamentary systems, legislative and executive powers are diffused only theoretically. In practice, party monopoly in, and executive dominance over, the parliament and presence of some common people in both stations of powers often generate arbitrariness, oppressive 49

Placing citizens’ liberty as the bedrock of separation of powers, Montesquieu ([1748] 1989: 157) wrote: “When legislative power is united with the executive power in a single person or […] body …, there is no liberty …. Nor is there liberty if the power of judging is not separate from legislative … and … executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator …. All would be lost if the same man or the same body of principal men […] exercised these three powers: that of making laws, that of executing public resolutions, and that of judging …”. 50 The efficiency-task of separation of powers was refused in Myers v US 272 US 52 (1926), 293, per Brandeis, J. 51 As Ackerman (2000: 634) pointed out, three great principles that underlie a modern doctrine of separation of powers are: democracy, professionalism and the protection of fundamental rights.

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majoritarianism and misuses of powers. Even in presidential forms of governments, the executive may become omnipotent and defy constitutionally defined restraints. As Woolf (1998: 579) has suggested, when other checks on the government do not operate as effectively as they are supposed to, the courts should compensate for that by a more “probing review” (Zwart 2003: 335). Sometimes judicial intervention is warranted in situations where the demand of justice is very high or where other state branches are either unwilling to act or avoid their responsibility deliberately. The desegregation case in the USA,52 or judicial lawmaking in the area of competition law in Europe or the use of public interest litigation in South Asia to achieve social justice fall in this category of judicial intervention, which has “breathed new life” into the separation doctrine rather than breaching it (Zwart 2003: 335). In this context, some reflections on the ill-defined notion of judicial policymaking (or lawmaking), often blemished as judicial activism, are inevitable. No doubt, judicial activism or even the very function of interpreting the constitution involves courts in exercising political power or policy activities, which undeniably are inbuilt in the judicial business. However, it is particularly the courts’ power to enforce constitutionally mandated actions which involves some measure of so-called judicial policymaking or lawmaking that has attracted huge criticisms mainly of Anglo-Saxon overtones. 53 Critics say that judicial restraint, a principle deemed emanating from constitutional allocation of powers, would require judges to defer some issues in favour of other branches of the state. It is in this backdrop that the so-called ‘political questions’ doctrine emerged, insisting that some matters are inherently unjusticiable because of their political or policy nature. 54 But, then, what is the dividing line between political and legal questions? Western scholarship has so far simply provided no answer to this. A sharp, dividing line is practicably incapable of development. Justiciability is an ill-conceived idea that often merely reflects general unease about the lack of judicial expertise to deal with the issue(s) in question (Allan 2003a: 9). If it refers to the courts’ obligation to dismiss a 52

Brown v Board of Education 347 US 483 (1954), reversing the ‘separate but equal’ doctrine to recognise black children’s right to attend common schools. 53 Through PIL-based activism, South Asian judiciaries have compelled their governments in some cases to take measures aimed at socio-economic justice. 54 Henkin (1976: 597, 622) questions the doctrine’s necessity even in American constitutionalism. See also Zemach (1976). Hunt (2003: 344) argues that judicial ‘no go areas’ are a “false step” and that all public decisions require justification when challenged in courts.

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case for lack of jurisdiction without examining its merits, then that is surely a retrograde description of judicial power.55 Such a rigid approach encourages unqualified deference even when fundamental rights are infringed, a situation that potentially undermines the rule of law (Allan 2003a: 161-99; 2006). Justiciability of an issue should, therefore, depend on the peculiarity of each case, and be solely a matter of judicial discretion. Every judicial decision-making concerning public duties involves examination, in varying degrees, of public policies. In particular, constitutional adjudication straddles law and politics (O’Connell 2000: 23), which in reality cannot be apolitical, since every constitutional question concerns the allocation and exercise of governmental power.56 Nor can the court avoid making policy decisions because of the very nature of the judicial process.57 In scrutinising legality or otherwise of any official decision it is “immediately and inevitably engaged in both policy analysis and the political exercise of determining its own jurisdiction” (Cassels 1989: 513). Particularly in ‘hard cases’, judges take recourse to policy arguments and go about giving directions to society (Bell 1983: 23). It follows, therefore, that if the court’s job is to dispense justice to the claimants, then every issue involving interpretation of the constitutional provisions or determination of a serious legal issue giving rise to public duties upon which depends the realisation of justice for all, however political and policy-oriented that question might be, is verily within the judicial competence, although institutional comity demands a cautious approach. It is very much possible for the superior courts to blend orthodox judicial functioning with courts’ policymaking (Mathew 1983). Accordingly, automatic application of the ‘political question doctrine’ to disempower the judges and deny them the leverage to deal with policies is undesirable. Of course some ‘political questions’ or policy issues require pragmatic deference rather than adjudication. But to bar the courts from interpreting whether or not an issue is capable of judicial determination is 55

Modern judges like Wilson J of Canada emphasise legal rights of the applicant as a basis to refuse to relinquish jurisdiction: The Operation Dismantle v The Queen [1985] 1 SCR 441. On justiciability see Lindell (1992) and Shetreet (1997). For an early analysis, see Summers (1963). 56 State of Rajasthan v Union of India AIR 1977 SC 1361, per Bhagwati, J. Even a strictly political issue can also be a legal issue: Ressler v Minister of Defense 42 (2) PD 441, 447, per Barak J. 57 Bell (1983) gives an account of judicial practices that led the judiciary into making policy decisions. On judicial policymaking or policy arguments see also Friendly (1978-9), Atiyah (1980), Gray and McClintock (1995), Doyle (1998) and Feeley and Rubin (1998).

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no doubt a violation of the separation theory itself. Embarking on so-called political issues or making policy suggestions may be functionally inescapable in a given case, or inevitable in the context of specific local conditions. For instance, where conventional political activism may take years or may not happen at all, necessitating the need to “effect socioeconomic and political transformation from outside the conventional political arena”, 58 or where constitutional mandates are unjustifiably twisted, judicial engagement with policy issues may be a constitutional imperative. This is confirmed in the following forceful argument by the South African Constitutional Court in Minister of Health v Treatment Action Campaign: Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself.59

Thus, it is logical to argue that the so-formulated embargo that governmental policy should not be subjected to a judicial audit cannot be an absolute rule in all circumstances in all jurisdictions. Obviously, therefore, essential/balanced judicial activism for improving justice is not violative of separation of powers in a system of constitutional governance.

2.3 Existing debates about the judicial role As seen above, existing legal theories and the orthodox ‘separation of powers’ provide a traditional framework of the judicial role and place, where the judiciary is seen as a neutral, apolitical agent tasked only to settle disputes before it, or to do justice according to law by applying or interpreting the existing law, if needed, but not ‘making’ or ‘obstructing’ it (Devlin 1979: 14).60 From a similar positivistic naivety, the judiciary still 58

Ahmed (1999: 75), considering PIL in South Asia as such an alternative device to realise social transformation. 59 2002 (5) SA 721 (CC); [2002] 5 LRC 216, at para 99. In this case the Court emphatically rejected an argument that an injunction to enforce the government to fulfil the socio-economic rights of AIDS patients would breach separation of powers as it would eventually require the government to pursue a particular policy. 60 Shapiro (1981) notes that such a ‘prototype’ of courts does not match with reality.

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continues to be seen as “the least dangerous” (Hamilton [1778] 1999: 433; Bickel 1962) organ of the state, having neither will, nor force, nor purse, but only the judgment. Even in civil law systems where judges play an inquisitorial role and enjoy a relatively wider interpretational/creative power61 and where judicial review of legislation and executive acts has now emerged as a principle of constitutionalism in the post-World War II era, the judicial role is seen through sceptical eyes. 62 On balance, the current debate about the judicial role sidesteps the issues of greater implications such as judicial responsibility in inadequate/no-law situations or in situations of “statutory” (Alexy 2002: 5) or legal injustice, or where traditional remedies are found inappropriate to redress the unusual social, rather than individual, grievances. However, the above suggests that in dispensing ‘justice according to law’ in such situations, a creative judge, willing “consciously to develop the law relatively freely to meet new social and economic conditions” (Freeman 2001: 1405), can apply the law as it should be (Stone 1966: 74) and thus can deliver substantive justice. Evidently, the declaratory or “phonographic theory of the judicial function” (Dugard 1971: 183), i.e., the view that judges only declare and do not make the law, has now been largely exploded (Allen 1964; Reid 1972). 63 Rather, judicial lawmaking within certain limits (Irvine 1999: 352), although it is often interstitial or supplementary in nature 64 and characteristically different from other lawmaking, has become an inevitable feature of modern judicial method in both common law and

61

Civilian codes or legislation generally contain broad principles, giving the courts wider scope to expound their meaning and necessitating “a large measure of judicial creativity” (Shapiro 1981: 151). 62 Guarnieri and Pederzoli (2002: 193) favour limits on judicial power to moderate ‘judicialisation’. For the expanding judicial power in civilian countries see Tate and Vallinder (1995: chs. 10-18). 63 Frank (1930) made “the most trenchant demolition of the long-prevailing myth” (Freeman 2001: 1403) that judges do not make law, a myth which Bhagwati (19845: 563) saw as a deliberate construction of Western scholarship to preserve “the image” of judicial neutrality. Griffith (1997: ch. 8) surveys some restricted views denying creativity even in developing statutory laws (Devlin 1979: 10-14). 64 “In several major legal systems courts go far beyond interstitial lawmaking” (Shapiro 1981: 28) and there are landmark decisions leading to widespread legal reform, or “wider societal change” (Kavanagh 2004: 272, n. 54). See e.g. R v R [1992] 1 AC 599 (HL), redefining the law of rape to include marital rape by husbands. See especially the Indian judiciary’s lawmaking activism covered in ch. 3.3.1 below.

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civil law systems. 65 Despite this myth-explosion, however, and despite improvements in the traditionally held notions of the judicial role, much controversy still exists about the proper role for the judiciary in a given society. The prevalent traditional notion of the judicial role (i.e., the judge as an “automaton” (Weber 1968: 811) acting only to resolve disputes) obscures wider judicial functions. 66 Even a “more sophisticated version of this traditional view” (Griffith 1997: 291) sees the judiciary as having the task merely of helping the democratic institutions in maintaining law and order but not necessarily as a partner in a polity in achieving social goals. Moreover, ‘strict and complete legalism’ in the settlement of disputes, which Dixon (1952: xiv) called the safest judicial guide, potentially renders the judicial function mechanical or bureaucratic. A pertinent question then is to what extent the current formalism in the global judicial method is sustainable in an increasingly globalised world that is continually opening up new challenges for the judiciary whose importance has considerably increased after World War II (Barak 2002: 21). With the transformation of the 19th century laissez faire state to the welfare state in the 20th century, the role of the state has magnificently changed into a more active, interventionist actor purportedly to promote social good. On the ground level, people have voiced wider social or community rights such as better environment, more employment or benefits, and better economy. This led to a rapid expansion of open-ended social legislations, opening a space for purposive judicial reasoning (Unger 1976: 194-6), that is, the adoption of that course of action that will most effectively serve a given goal (Unger 1975: 99). However, the proliferation of the state’s welfare activity ultimately produced some unsurprising side-effects: emergence of a rigid, overly legalistic bureaucracy with ample power/discretion delegated from the legislature to deal with material needs of citizens as well as emergence, paradoxically, of corporatist tendencies of the state itself – a dangerous metamorphosis, 65

In Baxi’s (1987b: 168) assertive view, accepting judges as lawmakers represents the attainment of jurisprudential adulthood. The literature on judicial lawmaking is quite large. See generally Cardozo (1921: 98-141), Jaffe (1969), Reid (1972), Hiller (1984), McHugh (1988), Cappelletti (1989: 30-56), Lester (1993), Mason (1996) and Zander (2004: ch. 7). Popelier (2005) is a good work on judicial constitutional lawmaking in civilian systems generally. 66 For example, a court can in a limited way be a social educator or can enlighten the executive through advice-giving (Eisgruber 1992; Katyal 1997-8). Baxi (1996: 22) saw the Indian Supreme Court’s role in social action litigation as that of the nations’ “moral pedagogue”.

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indeed. Eventually, an administrative state based on the ‘bureaucratized’ state-citizens relationship emerged, with the implication that socioeconomic duties of public bodies were now believed to be owed to the delegator-parliament, and not to the citizens (Loughlin 2000: 101). In such a scenario of potential decrease in public accountability, people are increasingly turning to the judiciary, hoping it can solve pressing social problems (Barak 2002: 21) and thereby reposing not only great faith in it, but also demanding a greater role for it to meet the deeper demands of justice in a particular society. Then what functions/roles should and do judges actually perform or play? Guarnieri and Pederzoli (2002: 69) provide a useful typology of four different types of judicial roles based on the degree of creativity and autonomy: (i) the judge as a passive executor of legislative will, (ii) the judge as the ‘interstitial’ legislator, (iii) the judge as the guardian, having the duty of protecting individuals and minorities from the abuses by other state-branches and (iv) the judge as a policy-maker (the ‘political judge’). 67 As seen above, judicial discourse in the West continues to debate the latter two aspects while debates about the first two seem relatively dim. The mechanistic judicial role of the first type is no more a correct description of judicial functions, and the modern judge is a “partner” (Barak 2006: 2) in developing/creating law. However, recognition of ‘interstitial’ judicial lawmaking is not a radical shift in the focus, which is still believed to be subservient to the political will in a fashion that does not contradict democratic principles (Guarneiri and Pederzoli 2002: 71) but only reflects general social consensus. 68 This urge for reflecting on democratic principles and social consensus is doubtlessly an illuminating guide, but the theory of ‘democratic principles’ still eludes the legal scholarship to stand for excessive and undue judicial deference to the legislature and the executive. When it comes to the judicial role in protecting individuals, the judiciary in this ‘age of rights’ (Bobbio 1996; Henkin [1990] 1996) is seen as a bulwark against state tyranny, or as the “ultimate protector” (O’Connor

67

For Barak (2002: 27), two most fundamental judicial tasks are (i) to bridge the gap between law and society and (ii) to protect the constitution/democracy. Bell (1987: 44) lists eight types of judicial tasks of varying importance in different legal systems. 68 Devlin (1979: 17) dismissed judicial activism in the development of statute even when there is such social consensus. For opposite views see Edmund-Davies (1975). Devlin (1984: v-viii), however, seems to modify his views later by allowing the judge to see the law “as it ought to be”.

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1996: 10) of constitutional/fundamental rights.69 Crystallisation of natural law rights into international human rights instruments along with their positivisation in many post-World War II constitutions has yielded positive changes in the judicial tasks philosophy. Trends towards broadening of fundamental rights have led, some would say dramatically (Loughlin 2000: 213), to the broadening of judicial power (Guarnieri and Pederzoli 2002: 159). Resultantly, the protection of rights is beginning to be a priori for the judges across the world, so much so that national courts are being urged to construct a global common law of human rights (McCrudden 2000) even by making reference to the state obligations under international norms/standards (Kirby 1988) as well as other national developments elsewhere. 70 Despite this salutary development in rights jurisprudence and the judicial role conception, the debate has now moved to what should be the exact scope of the judicial (review) power. Concerns have been expressed that the judiciary is going too far in interpreting these rights, sometimes going to the extent of establishing judicial ‘dictatorship’ (Quirk 1994; Quirk and Bridwell 1995). While the positivist camp takes recourse to ‘interpretivism’ to confine judges to the task of discovering the original texts or the original intent of the framers of the statute/constitution (Berger 1977), proponents of ‘non-interpretivism’ assert that the indeterminate nature of the constitutional texts permits a variety of standards such as moral values of the judge/society or some form of natural law such as theories of justice, democracy and morality (Clayton 2004: 40). 71 Even such a broader interpretational approach of the advocates of the rights-based judicial function has rarely been able to transcend the long-established, artificial divide between judicially enforceable civil-political rights and so-called ‘unenforceable’ socioeconomic rights to enable the judges to effectively realise socio-economic justice. Typically, debates about the judiciary’s engagement in socioeconomic rights evolve around two central issues: (i) constitutional legitimacy and (ii) institutional capacity of courts in dealing with these rights. These concerns are inevitably linked with the traditional concept of separation of powers that underplays the judicial role in addressing social issues and enforcing social obligations.72 69

For a brief but insightful account of political developments of rights discourse see Loughlin (2000: ch. 13), and, for legal developments, Henkin (1996). 70 For details on this see ch. 6 below. 71 Ely (1980: 1) thinks that the ‘non-interpretivism’ approach allows judges to enforce even norms that lie outside the four corners of the constitution. 72 Objections against judicial involvement with social rights are grounded on the view that these are progressively achievable subject to availability of state

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In sum, the current debate is essentially one of formalism versus activist judging in the judicial process which appears to minimise the need to take ‘justice’ more seriously. Followers of limited judicial power like Horowitz (1977) crudely deny judicial social responsibility, raising apprehensions about judicial orchestration of social reform, suspecting the possibility as “the hollow hope” (Rosenberg 1993).73 The arguments of judicial incapacity to properly diagnose social problems and to effectively oversee the complex implemental process, as well as the plea of lack of state resources, have been advanced to confine judges to the role of dispensing formalistic justice and providing ordinary rather than extraordinary remedies (O’Connor 1996: 13). It is said that judges do not and cannot exercise a social/political role and that ‘polycentric issues’74 like issues of resource allocation, which impact on the public exchequer, are incapable of judicial resolution (Fuller 1978). In reality, however, judges have a distinct political role,75 and they can well handle polycentric issues76 and produce significant social reforms (Fiss 1979: 12 ff). These objections, including Western agonising about the political role of the judges, are premised on an individualistic libertarian as opposed to collectivistic communitarian conception about the judicial role. In this predominant “individualistic model of rights enforcement” (Miles 2000:

resources, and that their implementation entails complex policy issues capable of management only by the executive. On the debate about judicial capability in this regard, see Sunstein (2001), Michelman (2003), Sachs (2003) (supporting judicial enforcement of socio-economic rights to uphold human dignity) and Pieterse (2004a). 73 “To ask [judges] to produce significant social reform is to forget their history and ignore their constraints” (Rosenberg 1993: 343). 74 This refers to issues involving “multiplicity of variables and interlocking factors, decisions on each of which presupposes decisions on all the others” (Stone 1966: 653-4). 75 Judges have never been “a unique body of impervious legal technicians above and beyond the political struggle” (Shapiro 1964: 15). Griffith (1997: ch. 9) famously displaced the myth of judicial neutrality, critiquing that the judges make often pro-establishment political choices. Barber (2000: 151-4) argues that judges exercise non-partisan ‘political’ authorities to develop the law both within the legal sphere and “contrary to the existing law”. On this see further Baxi (1980), Waltman and Holland (1988), Dworkin (1989), Jacob (1996) and Koopmans (2003). 76 As Allison (1994: 368) rightly explores, Fuller’s (1978) analysis of problems of polycentricity is a deficient insight into the adjudicative process, and that it underrates the judicial role. There is indeed polycentricism in virtually every legal dispute (Allison 1994: 371; Pieterse 2004a: 395).

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148), issues of rights are essentially “privatised” as a dispute between the victim/claimant and the violator/defendant, thus darkening the greater social objectives or values enshrined in rights that a society guarantees. Such a rigid approach led judges in many countries to embrace passivity in terms of innovating rights independently of those contained in positive laws (Bell 1989: 77). In other words, a broader, justice-based approach was simply missing, which induced modernists like Fiss (2003) to reject individualistic conceptions in order to strengthen judicial agency to reshape the government with reference to collective social needs. Miles (2000: 153) asked for “the communitarian model of rights enforcement” where the courts’ role in adjudicating public law issues would be seen not as simply determining disputes but expounding the law or exposing justice for the collective good. This “expository justice model” (Miles 2000: 153) 77 of adjudication has by and large led to broadening of judicial review and loosening of rigid standing rules in some jurisdictions resulting in democratisation of justice to a lesser or greater extent.78 Yet, a broader understanding of the judicial role in realising wider communitarian interest or protecting the marginalised has evidently been at an unsatisfactory level in the contemporary debates. Also, judicial unwillingness, fuelled by orthodox legal philosophies, to break the ground in judicial business has for long remained a responsible factor for the continued restrictive view of the judicial role.79 As a result, until recently, wider social problems affecting the general public or those socially-marginalised remained hardly visible in judicial eyes, and judges remained overly reluctant in taking account of community standards/demands or in going for what is naïvely called an ‘abstract kind of justice’ beyond law. 80 Speaking in the UK context, Griffith ([1977]1997: 342) notes that the judges, constrained by their own self-imposed limitations, frequently fail to sensibly interpret the ‘public 77

On ‘expository justice’/‘public interest’ nature of public law adjudication see Monaghan (1973), Chayes (1976), Spann (1983) and Fiss (2003). 78 For public interest litigation jurisprudence see ch. 3.3-3.4 and ch. 5 below. On access to justice see generally Cappelletti et al (1979). 79 Supporting this unwillingness, Devlin (1979: 8) said that judges are all of one type, they do not seriously question the status quo, and their ambition is to serve the law, not to be its master. Critical of this approach, Griffith (1997: 343) found the judges principally pro-establishment, a view that Stevens (2005: 75) has moderately endorsed. 80 See, e.g., Scruttons Ltd v Midland Silicones [1962] AC 446, per Lord Simonds, and Griswold v Connecticut 381 US 479 (1965). This scenario has seemingly begun to change, as is shown here.

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interest’ to embrace the concerns of political, social, ethnic or other minorities. This has been the case almost across the world, and, with some notable exceptions, “courts have generally been extremely reluctant to undertake new [social] responsibilities” (Cappelletti 1989: 19). For example, while the relatively activist Canadian judiciary has in a few cases forced the public agencies to initiate polices or spend money against their wishes (Russell 1995: 142), its involvement with social issues like unemployment or environmental degradation has been cynically seen as forming “judicial fairy tales” (Russell 1995: 147). Thus, alongside the “global expansion of judicial power” (Tate and Vallinder 1995), there still is a parallel trend of judicial reluctance to intervene in the areas of state inactions, for example.81 However, the impasse has begun to be broken recently, and urges for “leveraging the law” (Schultz 1998) are being made to achieve social change through judicial social engineering (Bell 1987: 34). It has been argued that the judges as “guardians of general legal values” (Bell 1987: 55) have a “greater responsibility” (id.) to society and are not merely an instrument of the will of legislators or a precedent-setter.82 Encouragingly, there is anecdotal evidence that assertiveness and change-mindedness as to the role of law and courts can actually bring forth significant changes in at least some areas of grave societal concerns.83 Today, modern judges are increasingly considering themselves as participants in the practical process of realising constitutional objectives, seeing their role as a creative rather than “mystically passive” (Mason 1969: 385) one. Often, they have felt obliged to choose from, or balance among, a competing number of moral/social choices, considering, of course, the likely results on social order of the choice made (Stone 1964a: 353-55).

81

This was reflected in an English case, R v SSHD, ex p. Dew [1987] 1 WLR 881, where a prisoner’s attempt to secure necessary medical treatment in accordance with the Prison Rules failed. On the US courts’ reluctance to review agency inactions see Bressman (2004), who argues for judicial change-mindedness in this regard. 82 Advancing the debate, Fiss (2003) shows that judges can rise above personal interests in the pursuit of legal values or meeting social demands. 83 Like prison reforms as in the USA and democratisation of justice as in India. For details, see respectively ch. 3.1.1 and ch. 3.3 below.

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2.4 A new approach to legal theories, separation of powers and the judicial role It appears from the above that despite many virtues of each of the legal theories, 84 the existing Western-dominated jurisprudence suffers from some operational deficiencies. First, it excludes other societies from its ambit, denying their cultural, historical, political and economic specificities, which demand a new approach. 85 Secondly, the existing theories have been more or less prone to positivism, which in varying ways denounces any moral, ethical and social considerations in measuring law’s validity. While legal positivism is a reality and there is no point to reverse it wholly, positivism has not only proved un-conducive to the development of non-Western legal ideas but has become “the enemy” (Mattei 2001: 254) of our understanding of law in a pluralistic set-up. By enforcing legal centralism, positivism (as well as other theories on their own) makes the state overly powerful as a source and ignores other “deeper structural aspects” (Mattei 2001: 254) of law such as legal culture. Absolutising judges’ duty to apply law (Allan 1997: 448), positivism refutes the obvious that judges also need to apply and draw from various principles or non-positive-law factors such as social, cultural and moral norms as well as politico-economic goals or philosophy. Apart from positivism, other legal theories also fall short of sufficiently appreciating the needs of different societies, 86 and despite an increase in attention being paid to society in jurisprudential discourses since the early 20th century, no theory took full account of social realities and conditions, nor did they advocate any interventionist judicial functioning commensurate with those realities. The above also demonstrates how the basic deficiencies of the theory of separation of powers and the existing judicial role debates may foster legal formalism that perceives the judicial task as one of dispensing justice according to law and “not according to moral standards” (Abbas 1984, cited in Rahman 1988: 6),87 excluding concern for wider social objectives 84 Each theory including positivism has in fact “provided new tools for understanding the complexity of the judicial role” (Barak 2002: 21). 85 Pointing at this deficiency, Menski ([2000a] 2006a) argues for a globallyfocused culture-specific formulation of legal theories. Twining (2000a) believes legal diversity is retainable even in the face of globalisation-challenges. 86 By this I do not discredit the contributions of other theories, particularly sociological theory or pragmatic instrumentalism, toward constructing a broader theoretical approach. 87 This positivist axiom may appear blotless at first sight, but upon closer scrutiny reveals its un-conduciveness for better justice. Though modernists like Freeman

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and realities from the adjudicative process. In the face of these deficiencies explored in the previous sections, the need to have a fresh look at the existing paradigms is evident.

2.4.1 The new paradigm: Activist or neo-realistic jurisprudence based on interconnectivity As already stated, existing legal theories in their unaltered forms stand unsupportive towards activist judicial functioning, though some of them reluctantly tolerate judicial creativity in terms of making choices. The need is thus to go further, to craft a proactive autonomous theorising that can conveniently be called activist or neo-realistic88 jurisprudence in the sense that this would oblige the judge to take account of realities of his/her society while dispensing justice according to traditional concepts. Given the fact that legal formalism alone fails to guarantee justice, we have additional recourse to natural law grounds to found ‘justice’ thereon. But natural law alone, in seclusion of prevailing socio-economic and politico-cultural realities may not guarantee effective and complete justice to the greater society. Unfailingly, therefore, we need to combine natural law approaches with the historical or/and sociological approaches as Finnis (2004) and Stammler (see Stone 1965: ch. 6) did. The earlier combinations of positivism and natural law were unsatisfactory because they always left out social reality, which is hardly realistic. It seems that the most sustainable approach to law would be to combine positivism, natural law and the sociological school together for the greater cause of public interest or the public good. 89 This triangular interaction between these three dominant legal theories is in fact jurisprudential pluralism or interconnectivity of various disciplines, society remaining as the base, which provides the judges with an effective tool to adjudicate by picking

(2001: 1378) think that this insistence on ‘law’ (rules) in adjudication should not be taken literally, and that there are principles, standards and value choices within the law itself, strict legalism/rules orientation is still strong. 88 Nearly a century ago, Llewellyn (1930) used the phrase ‘realistic jurisprudence’ to mean legal realism. Therefore I have used the term neo-realistic, so that others do not take it for the same realism. 89 In the context of the apartheid era South Africa, Dugard (1971) urged the judges, if they wished to be social architects, to utilise a legal theory of a new creed by blending natural law theory with American legal realism. Forsyth and Schiller (1981) critique Dugard’s ouster of positivism.

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an appropriate theory or a mix of theories.90 But it must be noted that even when a singular theory, say positivism or sociological theory, is deemed sufficient in a specific situation, there still is the need to make natural law a continual reference point, so that justice is better ensured. Arguably, there is a great place for natural law in modern constitutionalism (Cappelletti 1971: 97) set to deliver constitutional justice, and a naturallaw-awareness makes us aware of the ways in which moral goals play a part in adjudication of cases (Freeman 2001: 139). Analogous to its internal theoretical pluralism, the new approach also necessarily accommodates the modern theory of legal pluralism that points at the importance of other laws and factors beyond state-laws and the state.91 The concept of ‘legal pluralism’ has often received unfavourable, naïve treatment from orthodox, globality-indifferent legal theory, despite the obvious existence of diverse legal systems and traditions among the nations (Glenn 2000). We are here constrained to be brief on legal pluralism, but its effects and desirability in our perceptions of law and adjudicative method can hardly be eschewed. 92 Anthropological in nature, legal pluralism gives due attention to all stakeholders in the lawmaking process and takes into account various non-state sources of law such as culture and religion. Beyond the state/official law, it attaches a great deal of importance to what Chiba (1989: 138) calls “unofficial law” and “legal postulates”. 93 This being so, while in the West less attention has unsurprisingly been paid to ‘legal pluralism’, the concept should rather necessarily constitute the “basic premise” for the analysis of non-Western pluralist legal systems like those of South Asia and Africa (Menski 2004a:

90

This concept of triangular interaction has been recently developed by Menski (2006a: 610-13). 91 ‘Legal pluralism’ denotes the plurality of legal (sub)systems or legal orders, no less than legal opinions, in a particular legal system. It also means continuance of indigenous legal systems with those imposed by the colonial order, sometimes called transplanted/received system of law. Hooker (1975) prominently brought to light the so-labelled problem of legal pluralism. 92 Moore (1978) provides an early account of legal pluralism. For contemporary developments, see Chiba (1986; 1989), Griffiths (1986), Freeman (2001: 919-21), and the Journal of Legal Pluralism and Unofficial Law. 93 For Chiba (1989: 138-9), law in every human society is composed of a tripartite legal structure: “official law”, “unofficial law” (the system authorised not officially but in practice by a general consensus of a certain circle of people) and “legal postulates” (values necessary to found and justify both official and unofficial law).

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5).94 However, in that ‘legal pluralism’ reinforces the need to take account of social facts and factors in the modern lawmaking more explicitly than has so far been done (Menski 2000a: 128), it offers some universal appeal.95 This explains why the new jurisprudential paradigm should be informed by the theory of legal pluralism. An activist jurisprudence would set judges into the job of activist judging, disallowing them to pursue passivity and to remain unresponsive towards the suffering masses and prevailing social injustices by referring to existing orthodox legal theories. Essentially, this activist jurisprudence should be founded on the theoretical edifice that we have just proposed. Additionally, an activist judge may draw encouragement from the theory of pragmatic instrumentalism and Dworkin’s ([1977] 2005) rights theory that rejects the centrality of ‘rules’ in judicial decision-making and urges that ‘rights’ should be taken seriously. Dworkin ([1986] 2000; 2005) makes the role of ‘principles’ prominent in adjudication, especially when existing rules do not provide answers (the situation of ‘hard cases’), and believes that judges’ inability to go beyond rules would make them defer to legislation unduly (Dworkin 2005). 96 This would end up in their inability to protect the minority against the majority to ensure which, he believes, emphasis should be given on ‘rights’, enforceable against everyone including the opposing majority. Dworkin (2005) also underscored the need for moral reading of the constitution and law in that process. Though appreciable, Dworkin’s pragmatic view of judicial process does not sufficiently illuminate how far a judge can go in enforcing the obligations of the holders of power,97 an agenda that should now belong to the business of activist jurisprudence.

94

Western conservatism is beginning to wane gradually. Scholars are increasingly including ‘legal pluralism’ in their enterprises. See, e.g., Anderson (2005), arguing for pluralism-conscious constitutionalism. See below section 2.4.3, n. 122. 95 However, the concept of legal pluralism is not unproblematic and has received a lot of criticisms from many like Tamanaha (1993). On its limitations see Twining (2000a: 85-7) and Cotterrell (1998: 378-81). It should, however, be noted that pluralism does not mean weakening the state, but emphasises empowering of society. 96 Dworkin ([1986] 2000) offers a complex theoretical analysis of how a judge actually decides a case. 97 For some critical analyses of Dworkin’s theory, see Soper (1977), Bell (1983), McHugh (1988), Cotterrell (1989 [2003]), and Thomas, E. W. (2005a). As a judge, Barak (2006) finds Dworkin’s rights theory and his insistence on judges’ moral engagement quite helpful.

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2.4.2 A new separation of powers As seen above, contemporary constitutional theory remains unduly rigid in its conceptions of both separation of powers and judicial review (Katyal 1998: 1821), obscuring the true nature of the complex judicial role. Section 2.2 above demonstrated that the Western formulation of ‘separation of powers’ overstates judicial limitations, with judges’ power, duties and constituencies being left seriously unfocused. The existing pattern of confusion about the extent of the separation theory and the courts’ activist functioning ensues, among other things, from an excessive emphasis on ‘parliamentary sovereignty’. In addition to marginalising judicial functions, this has often obscured the actual respect judges hold for other departments’ constitutional powers. Barber (2001: 60) argues that a pure version of the separation doctrine overtly empowers one organ, the legislature, to gain ascendancy over the other two which, having no power to wield against the aggressor, are left at the mercy of the third. 98 Accordingly, a traditional construction of parliamentary sovereignty may potentially “inhibit both judicial activism and legislative self-restraint” (Bayefsky 1981: preface), producing diminution of the judicial role in protecting rights, with negative implications for justice. The myth of (unqualified) parliamentary sovereignty has been largely exploded in this era of modern constitutionalism (Allan 1985; 2002; 2003a-b; 2004; Barber 2000). 99 Instead, the doctrine of constitutional/popular sovereignty has gained a firm footing (Allan 1985; Limbach 2001). The claim of parliamentary supremacy in that it precludes any effective judicial control on an encroaching parliament is inherently inconsistent with the rule of law, which the separation doctrine seeks to promote and protect. Rather, legal, social and moral foundations of the rule of law require and entitle judges to help establish constitutional supremacy (Laws 1996; Allan 2003a-b), a view that antagonists dismiss by arguing that inducing judges to establish judicial supremacy is anti-rule-of-law (Eakins 2003).100 98

This argument is focused also in Vile (1998: ch. 6, esp. pp. 161-2). Even in the UK, the doctrine’s birthplace, parliamentary sovereignty has now been qualified more clearly than ever (Elliot 2004; Stevens 2005: xvi) by, inter alia, the UK’s entry to the EU, devolution of power and enactment of the Human Rights Act 1998. 100 The term ‘judicial supremacy’, often inaccurately equated with constitutional supremacy, is fraught with confusion, as it highlights supremacy of an institution or its people rather than higher legal-constitutional norms. Kelly and Murphy (2001) disapprove of the term ‘supremacy’, but defend judicial activism. On the so-called American judicial supremacy see, inter alia, Haines (1932) and Tushnet 99

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It appears that the minimisation of the judicial role and the maximisation of parliamentary sovereignty are the by-products of the “pure” approach to separation of powers, which cannot guarantee justice at all times at all places (Olivier 1999: 54). Modernism, thus, requires an alternative framework to separation of powers, based on justice and social demands. The new approach to the separation doctrine seeks to overcome some of its basic limitations such as its foundation on a society-indifferent, inadequately-exposed concept of judicial ‘self-restraint’, a term that is susceptible to many interpretations depending on what particular result one wants to achieve. Strict adherence to ‘self-restraint’, as proposed by some like Fankfurter 101 and Bickel ([1962] 1986), is the outcome of positivist majoritarian perceptions about democracy which regard judicial review as “something of a constitutional anomaly” (Allan 2003a: 98). But, as shown above, judicial review both guarantees and is a necessary consequence of separation of powers (Woolf 1998: 580) and democracy (Friedman 1993). Also, the separation doctrine’s abstractness marginalises the need to pay more attention to its functional aspect, i.e., its instrumentality in attaining a particular goal, say ‘justice’ for wider society or efficiency of the state organs in achieving that end. Even when this goal-based operation of the doctrine is recognised, it is often overlooked that implementation of that goal in a specific area would largely depend on the respective social make-up (Barber 2001: 66). Thus there is a need for recognition that application of the separation theory must be societyspecific.102 An appeal for a new approach by no means indicates that there are no easily recognisable legal boundaries of powers, or that the judiciary is absolutely unrestrained in exercising its power. 103 Of course, there are such constitutional boundaries calling for judicial respect. For example, (1998a). On the extreme, Troper (2005) questions the very validity of the constitutional supremacy claim itself. 101 This staunch advocate of ‘judicial restraint’ was willing to countenance judicial intervention only if the measure in question lacked any rational justification (Allan 2003a: 98). See Trop v Dulles 356 US 86 (1958) and Baker v Carr 369 US 186 (1962), Frankfurter J. dissenting. Ferejohn and Kramer (2002) speak of institutionalising judicial restraint. 102 Laffont and Meleu (2001) show that the doctrine can be used as an instrument to uproot corruption, the prospect of which is higher in developing countries. 103 A widely-held view is that the judiciary cannot dictate to the executive to adopt a policy, or the legislature to enact a law. While these propositions are theoretically correct, activist judges have developed some juristic techniques to influence or otherwise ensure framing of policies or enactment of laws, particularly in the face of responsible state organs’ failings. For details see below ch. 3.4.1.

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subjects of high policies or ‘self-monitoring’ constitutional provisions are usually committed to other agencies. As judicial practice across the world shows (chs. 3-6 below), courts in reality respect institutional comity while exercising activism. For instance, in reviewing constitutionality of a law or governmental action, judges usually draw a primary presumption of validity and pay due deference to the legislature or the executive. 104 In entering the policymaking arena, judges are both empowered and constrained by their “courtly attributes” (Mathew 1983: 6) and are invariably guided by self-restraint and the dictate of conscience.105 The dynamic approach to separation of powers recognises essential restraint by judges. Importantly, the fundamental judicial duty of giving reasons to justify a decision is an institutional device that checks a naked usurpation of powers by judges (Kirby 2004: 19) and prevents their personal preferences from making an inroad to judicial decisions. 106 Thus many fears that judicial activism invariably results in transgression of constitutional limits seem to have little force. It must, however, be noted that the force of the notion of restraint fades dramatically in the face of limits of constitutional governance, despite its “strong and immediate appeal” (Wright 1986-7: 491). Judges must stand so that judicial activism does not give in to “rhetoric of restraint” (Wright 1986-7: 490), which might end up in judicial passivity, thereby frustrating justice. They need to be mindful of the very thin line of difference between judicial restraint and the support of the status quo (Baxi 1987b: 177). Apparently, the need of the hour is to resort to a balancing exercise: to strike the delicate balance “between intense judicial scrutiny and reasonable deference to elected decision-makers” (Irvine 2003: 316). 107 Logically, therefore, where a public injustice has been un-ravelled, there is no way for the judges to hide under the convenient doctrine of restraint or the orthodox model of separation of powers. Contrarily, a new, dynamic 104

Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl.) 1, 163, per Rahman, J. See also United States v Caroline Products Co. 304 US 144 (1938), esp. the footnote at p. 152; Baker v Carr 369 US 186 (1962). 105 Anwar Hossain Chowdhury, ibid, at pp. 157, 163, per Ahmed and Rahman JJ. As Wright (1986-7: 490) suggests, judicial activism usually proclaims its “own restraint”, and there is hardly any need to constrain judges to a higher degree than they already are (at p. 523). 106 On various restraints on judges see below ch. 6.1. 107 Allan (2003a: 10) endorses this view, suggesting proportionality between restraint and cogency of justice-seekers’ appeals for justice. Laws (1995) provides a useful insight into the issue of “dynamic balance” between courts and other state organs. See also Mathew (1983).

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approach to the separation doctrine will inform the judges of the imperatives of justice, good governance and constitutionalism, and will help them become more active and vigilant vis-à-vis these public norms.

2.4.3 The judge as a guarantor of justice The judging process invariably takes place within its specific socioeconomic and political environment, and there is thus a need to avoid a ‘one size fits all’ approach in favour of distinctive judicial roles in different legal systems (Le Sueur 2004: 88).108 Without undermining the need for a contextualised study of the judicial role, however, it is also important to craft a broad-based framework for the judges to act as guarantors of justice in a particular society. This is in fact an all-inclusive judicial role, combining all its manifestations into one of achieving a just society based on justice or social justice,109 in accomplishing which the judiciary needs to engage in activist judging and become an active participant, rather than a passive onlooker, in the governance system. But as seen in section 2.3, the existing eurocentric view about judging hardly recognises this broader judicial role, and the shift of the debate in the 20th century from civil-political citizenship to the socio-economic citizenship (Loughlin 2000: 102) did not yield expected results as the socio-economic rights remained judicially unenforceable, and social justice was perceived as a ‘political’ function and not a judicial business. Social or distributive justice had typically been regarded as a question of “who gets what, and when and how” (Lasswell 1936). Such notions emphasised an inherently political quality to deal with these issues and have long deterred the judges from engaging in resource allocative decisions (Syrett 2000: 2) or playing any social role. While Hazard (1969: 711) recognised that in a limited way “the courts can accept the invitations to work distributive justice in the guise of adjudicating legal rights”, he was quite sceptical about the judicial system’s capacity to provide social justice. Devlin (1979: 17) even crudely advised the judges not to be concerned with social justice and claimed that, endowed with the task of social reform, “they would not truly be judges” (Devlin, id). Judges are not social reformers in a classical sense. But can they afford to remain silent 108

Rahman (1988: 1) seems to suggest that despite uniformity in the basic role (disputes-solving) across the world, the judicial role in a developing country might have a prioritised focus like, as Elias (1984) observed, national development. 109 Any ideal definition of justice should unfailingly include ‘social justice’. As Miller (1976: 20) put it, the most useful definition of justice itself (“to each his due”) brings out its distributive character.

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spectators of social injustices, deprivation and inequalities, when their function is to administer ‘justice’? Existing societal conditions might well compel them to assume greater social responsibility than the traditional judicial discourse is ready to concede.110 As noted above, contemporary judges are increasingly having regard to such societal needs (Barak 2002: 55-6),111 but the trend is far from being entrenched as an aspect of judicial functional obligation to eliminate social grievances and injustices.112 The problem of social or distributive justice113 is not a local problem: it is rather a global phenomenon of varying degrees of pervasiveness. Like the rest of the world, even the USA “continues to be plagued by poverty, inequality, and discrimination against minority groups” (O’Connor 1996: 16; see also Sen [1999] 2000: xi). However, the term social justice is a highly contested one and is practically incapable of being given a generic, universal meaning.114 The West considers social justice as the fair, equal and non-discriminatory distribution of both advantages and burdens of a society, or simply as equality of opportunities.115 Despite few modernists’ (e.g. Walzer 1983) argument that justice requires the removal of socioeconomic privileges “rooted in aristocratic status, capitalist wealth, bureaucratic power, and racial or sexual supremacy” (Loughlin 2000: 95), the dominant approach to social justice has largely been based on formal 110

As Edmund-Davies (1975: 12) notes, since the 1970s even the traditional British judiciary began to increasingly show “judicial alertness to public needs”. 111 Real administration of justice means conjoining of law with social values (Khan, H. 1993: 105), which a judge is implicitly bound to uphold as a condition of her or his appointment (Honore 1979: 49). 112 For instance, while the UK judiciary has recently adopted a stricter supervisory approach to resource-allocative decisions, the trend does not necessarily signal a prospect for greater judicial activism (Syrett 2000: 12) in overturning decisions of public bodies, let alone positively binding them. See above n. 81 and accompanying text. See further ch. 3.1.2. 113 Another element of social justice is ‘corrective justice’ which is concerned with rectifying injustice caused by any wrongful activity and hence has some distributive effects. However, many (Benson 1992; Perry 2002; Klimchuk 2003) dispute a congruity between, but rather prefer autonomy of, corrective justice and distributive justice. 114 Miller (1976: 336) notes society-specificity of the concept of social justice, suggesting that the Western concept has grown out of “specific arrangements of market society”. 115 Miller (1976) defines social justice in terms of distribution throughout a society of rights, deserts (what one deserves), and needs. Rawls (1972) focused on equal basic liberties, opportunities and resources or social goods. For further conceptualisations see Brandt (1962), Rescher (1966), Honore (1968) and Nozick (1974).

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legal and political equality. Arguably, such a procedure-based concept of distributive justice does not adequately address the complex issue of social justice in a no-resource or resource-constrained society over-laden with corruption and mal-administration but lumbered with a huge marginalised populace, which is the prevailing scenario in many states beyond the West. Consequently, a more rational ideal of social justice based on a deferential treatment of the “disadvantaged and underprivileged” (Bhagwati 1985, cited in Bhatia 1990b: 156) is required so that social, material, legal and political resources of community get distributed equitably rather than formally equally. 116 It does also necessitate an effective controlling mechanism against corruption, administrative abuses and rights-violations, and the development of an obligatory framework aiming at state social performance, underpinned by an easily accessible legal remedial regime. This invites a question: who really is responsible for, or to be trusted more for ‘justice’ generally and ‘social justice’ in particular? There is no denial that other government branches than the judiciary may in fact achieve social justice. 117 But the judiciary, as a component part of the state, has also its own responsibilities, if not monopoly, to achieve this goal by pressing, inter alia, for the “state’s duty to undertake affirmative action in the social sphere” (Cappelletti 1989: 16). As Ackerman (1980) rightly underlined, realisation of social justice often demands the promotion and protection of collective interest rather than self-interest, which in turn depends on increasing both individuals’ freedom and the legitimacy of the powerful and wealthy elements of society. This draws the judge as a candidate to limelight, because, the judiciary is the most trusted and perhaps the least corrupt/self-serving institution. Across the globe, there is a growing recognition that the capacity of the post-modern Western welfare state itself in distributing social benefits is declining and is increasingly being affected by the growing tendency of cuts in those facilities,118 causing “new patterns of inequality, which are often seen to be 116

Bhagwati (1985: 21, cited in Bhatia 1990b: 156) defines social justice as that which “not only […] destroys the inequalities of race, sex, power, position, or wealth but is also heavily weighted in favour of the weaker sections of humanity”. 117 Many thinkers like Rawls (1972) assign social justice function to the legislature or to “the conscience of the community” expressed in legislation (Hazard 1969: 712). Pound (1951) catalogues some similar earlier views. 118 This is sometimes referred to as “shrinking” of the state or privatisation of welfare benefits (Feigenbaum et al 1988). Issues concerning inequalities of wealth/power have recently taken a central stage in Western academic and political debates. Giddens (1998; 2000) argues that a “third way” politics is now needed globally to effectively deal with these concerns.

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violative of basic human rights” (Menski 2000a: 112). This is why a realistic harmonising between state capacities and public demands necessitates judicial intervention to bring formal guarantees of rights into a substantive reality. The procedural and functional avenues to social justice, as discussed above, also point at judicial competency and legitimacy for the task. 119 The legitimacy of judicial societal role or judicial social activism, which modern socially-sensitive judges confidently acknowledge and relate to law’s social-jobs, 120 increases manifold when major political branches are failing in their duty of providing justice or social justice. As said by the Canadian Supreme Court, the court in a free and democratic society “must be guided by the values and principles” which embody “commitment to social justice and equality”. 121 Bhagwati’s (1984-5: 566) argument may further drive and stimulate the international debate about this “most complex and challenging” judicial role: The modern judiciary cannot […] plead incapacity when social justice issues are addressed to it. This challenge is an important one, not just because judges owe a duty to […] mould[..] a just society, but because a modern judiciary can no longer obtain social and political legitimacy without making a substantial contribution to issues of social justice.

Dispensation of “plurifocal justice” (Coomaraswamy 1987: 1) has been another major challenge of the judicial role, and modern judges often have to “fashion solutions to social division that the legislature is either unwilling or unable to touch” (Leader 1997: 432). Since law operates within a pluralistic matrix in almost all societies, particularly in nonWestern ones, the role of the judiciary should be seen in the context of

119

On social-justice instrumentality of the judiciary see Singh (1976), ALRC (1997), Beatty (2004: ch. 4), Brudner (2004: ch. 7), and Ghai and Cottrell (2004). 120 See Shah (1993) who regards the attainment of social justice or equilibrium as part of his judicial obligation. Sachs (2003) acknowledged limits of judges’ capacity in realising social rights, but asserted legitimacy for this. Bhagwati, J. convincingly portrayed law’s social transformative role in Re National Textile Workers Union [(1983) 1 SCC 255]: “[I]f the law fails to respond to the changing needs of society, then either it will stifle the growth of the society … or … the society … will cast away the law which stands in the way of its growth”. See also Re Central Inland Water Transport Corporation (1986) 3 SCC 156, per Madan, J. 121 Reference re Secession of Quebec [1998] 2 SCR 217, 254. In Fitzpatrick v Sterling Housing Association [1999] 3 WLR 1113, Lord Slynn referred to “contemporary notions of social justice”.

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pluralism, political and socio-legal.122 Even in a pluralist legal system,123 realising the spirit of legal pluralism is a challenging task for both the legislature and the judiciary. The judiciary’s challenge is to act as an essential equaliser (Kirby 2002) to ensure that rights of those marginalised on the basis of ethnicity, religion, language and wealth are well protected. Ensuring justice for all and not merely for a fortunate few is a “special responsibility” (Anand 2000: 1) of the judges. In attaining plurifocal justice, the doctrine of legal pluralism may lend its instrumentality by informing the judges of the usefulness of resorting to interdisciplinarity exercise and accommodating national specificities in their decisions. The system of constitutional democracy imposes politico-constitutional limits on how majoritarian institutions should rule and behave.124 People have rights or entitlements to assert against them, enjoyment of which is, however, far less than automatic. Rather, these limitations and rights often demand actualisation to establish justice in society. A justice-based constitutionalism, premised on an adequate system of checks and balances between government branches, not only helps prevent concentration/misuse of state powers that causes extreme public disempowerment, but also requires democratisation of rights, state powers and resources. But these goals have remained largely unrealised due to a peculiar crisis of the modern welfare-turned-bureaucratic states, namely, the emergence of hugely powerful legislative and executive branches least willing to advance social development (section 2.3 above). In such a scenario characterised by gigantic political branches, courts cannot but choose between their traditional role and “rising to the level of other branches” or “becoming themselves the ‘third giant’ to control the mastodon legislator and the leviathan administrator” (Cappelletti 1989: 19), i.e., to construct an effective system of checks and balances vis-à-vis the political branches (Mathew 1983: 20; Cappelletti 1989: 31; Bhagwati 1984-5: 563).125 It thus 122

This does not indicate that Western societies are non-plural, where, too, the judges’ challenge is to maintain social equilibrium. Plurality-consciousness is beginning to inform judicial decision-making in the West. See Singh v ECO, New Delhi [2004] EWCA Civ. 1075, at [63-7], per Munby, J. 123 South Asian legal systems are evidently pluralistic with a multiplicity of subsystems such as Islamic and Hindu laws under the formal state law as ‘ethereal dome’ (Hoebel 1954, cited in Chaudhary 1999: 22). See further Tiruchelvam and Coomaraswamy (1987: 182-6). On the legal-pluralist character of the Bangladeshi legal system, see below ch. 4, n. 18. 124 The lliterature on this is extensive. See particularly Sartori (1987), Murphy (1993) and Rawls (1993). 125 Stevens (2005: 186) writes: “[I]n a system of responsible government with the executive and legislature merged, the spot light often falls on the judges”. Clearly,

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follows that in a constitutional democracy or a social-service-state, judges must act as guarantors of justice and constitutionalism, a role that calls for activism rather than formalism or unacceptable passivity on their part. This chapter has shown that global legal theory and legal discourses remain deficient in globality-consciousness, take a narrow view of the role of law and judges, and thus provide inadequate juridical tools with which to achieve better justice particularly in non-Western societies. 126 In this backdrop, this chapter has sought to construct a new jurisprudential paradigm that is adequately responsive to social realities, conditions, and yearnings of a given society. Importantly, the chapter has also shown that while the existing jurisprudential scenario in its present format hardly recognises the need for judicial activism, perceptive judges may draw legitimacy for judicial activism by reformulating legal theories and adjudicative doctrines in light of their respective social conditions.

this role is even greater when the executive is overweening and co-exists with equally encroaching non-state centres of power. 126 See further Ogwurike (1978), Sharma (1979), Conklin (1984) and Marasinghe (1984). Tamanaha (1989) urged for an indigenous jurisprudence for Micronesian states.

CHAPTER THREE JUDICIAL ACTIVISM IN A GLOBAL CONTEXT

The emergence of the age of rights and “heightened expectations of social welfare” and social change in the post-World War II era have put legal systems “under hitherto unparalleled pressure” to respond to this changing vision (Fleming 1988: 32). As discussed in chapter 2, the increase in awareness about rights in this period resulted in gradual waning of the myth of parliamentary sovereignty, giving rise to constitutional supremacy and the associated concept of active judicial review. Consequently, legal systems across the world have responded to this challenge to a varying extent and at varying speed (Fleming 1988: 32),1 giving birth to a global yet varied trend of judicial activism. Clearly, there has been a “tide” (Dyzenhaus 2004a: 245) or “rise of world constitutionalism” (Ackerman 1997) with the courts increasingly gaining more authority and a sociotransformative role in countries of common law and civil law traditions alike.2 This chapter draws a comparative analytical sketch of this extraordinary judicial development at the global level, focusing on the USA, the UK, South Africa, India, and Pakistan. By critically evaluating the ongoing activist jurisprudential trend from a cross-country perspective, the present chapter seeks to unfold the nature and operational areas of judicial activism in these jurisdictions in order to better appreciate the wider debate about the judicial role and to construct a discursive framework for the next two chapters that follow.

1

Fleming (1988: 32), typically, only spoke of “legal systems in all Western countries”. 2 Two fundamental “correlative elements” of constitutionalism are “the legal limits of arbitrary power and a complete political responsibility of government to the governed” (McLewan, cited in Sripati 1997: 130). For further insights, see generally Henkin and Rosenthal (1990), Greenberg et al (1993) and Bellamy (2006).

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3.1 Judicial activism in the USA and the UK 3.1.1 United States Since the US Supreme Court’s historic decision in 1803 in Marbury v Madison,3 often regarded as the “classic statement of the case for judicial review” (Eisgruber 2003: 7),4 a variety of ‘activism’ charges have been levelled against the Court, whose career has in fact oscillated between periods of restraint and activism (Ahmadi 1996: 3). 5 American rights jurisprudence is “far less impressive than its public image” (Hirschl 2004: 100-1). Despite its prominent role in shaping the contours of American democracy and in determining the direction of the country’s socio-legal progression (Fleming 1988: 32), the US Supreme Court “as the ultimate protector of constitutional rights” (O’Connor 1996: 10) did not appear in the earnest for a long time. Rather, its history is overshadowed by unfortunate episodes of past failures in providing justice, for example, to those politically vulnerable such as racial minorities and the interned Japanese Americans in the aftermath of World War II. Regrettably, neither the US Bill of Rights nor Marbury could prevent the Court from legitimising slavery and racial segregation in public life, 6 or deter its ongoing failure today in protecting hundreds of ‘terror-suspects’ who are indefinitely detained without trial and are being subjected to torture (Palmer 2003; Golove 2005) in Guantanamo Bay, America’s “legal black hole” (Steyn 2004a: 1). Also, the Court took a conservative stance in recognising the American poor as a special class of the politically powerless. In a long series of decisions, the US Supreme Court almost routinely denied even “the most 3

5 US (1 Cranch) 137 (1803). Marbury, where Marshall, CJ famously observed that “[any] law repugnant to the Constitution is void”, is inappropriately seen by some as the first mark of judicial activism. Curiously, the dictum of legal supremacy was not actually applied in this case, since, in refusing the remedy sought Marshall, CJ rushed to find lack of power in the Constitution to bind the President by mandamus. On Marbury and its later impacts see Van Alstyne (1969), Nelson (2000) and EIsgruger (2003). 5 The literature on American judicial activism is too vast to be cited here. Among the important sources are: Wright (1968-9), Mason (1969), Halpern and Lamb (1982), Pilon (1985), Barnett (1985; 1987a), Hellman (2002), Powers and Stanley (2002), Keck (2004), and Tushnet (2007). 6 See the notorious decisions in Dred Scott v Sanford 60 US 393 (1856) (the Negro is “an ordinary article of merchandise”) and Plessy v Ferguson 163 US 537 (1896) (segregated facilities for blacks and whites are constitutional as long as they are “equal”: ‘separate but equal’ doctrine). 4

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basic economic needs of impoverished human beings”, drawing a policy of broad judicial deference in this field and reasoning that the Constitution lacks a guarantee of “material subsistence”.7 A similar pattern of judicial thinking, based on the ill-judged concept of constitutional ‘due process’ and absolutised proprietary or contractual rights, occasioned a more serious judicial failure in the early 20th century when the Court overturned several hundred ‘New Deal’ social welfare legislations. Its anti-poor, narrow jurisprudence of the so-called Lochner era (1898-1937)8 virtually promoted the interests of economic/ruling elites at the cost of suffering farmers and the unemployed. However, things began to change from 1937 when the Court dramatically turned around in a series of judgments upholding many social-welfare attempts, such as minimum wages 9 with a view to controlling unconscientious employers or anti-people economic interests. The Court, particularly the Warren Court (1953-69), now directed its attention towards issues of racial injustice and discrimination. In its landmark decision in Brown v Board of Education 347 US 483 (1954), it found racial segregation in public education unconstitutional and stood bold and assertive in facing the administrative resistance against Brown. The growing judicial sensitivity to colour-blind justice largely led to the conditioning of the illusive ‘political question doctrine’ 10 and the annulment in the so-called reapportionment cases of legislative attempts to “segregate voters into separate voting districts because of their race”. 11 Also importantly, the Court over the last five decades has produced many

7

Dandridge v Williams 397 US 471 (1970), 485-7. See also San Antonio Independent School District v Rodriguez 411 US 1 (1973). Sunstein (2005) analyses the absence of social rights in the US Constitution, implicitly arguing that their realisation is possible through judicial activism. On the US judges’ unwillingness to exercise social rights activism see Eyer (2003-4), and on ‘poverty’ jurisprudence generally see Lofferdo (1993). 8 This refers to restrictive decisions following the infamous Lochner v New York 198 US 45 (1905) in which a state law limiting working hours of bakers was struck down (Justice Holmes dissenting). For a critique of this Lochner-era judicial role see Choudhry (2004). 9 The first being West Coast Hotel v Parish 300 US 379 (1937), sustaining public regulation of commerce. 10 See e.g. Trop v Dulles 356 US 86 (1958); Baker v Carr 369 US 186 (1962); Reynolds v Sims 377 US 533 (1964). Earlier, the Court eschewed so-called ‘political questions’. 11 Shaw v Reno 509 US 360 (1993).

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individual-rights-enhancive decisions,12 some of which (vacating convictions of inequality-protestors from racial minority groups) went to increase political access to those marginalised (O’Connor 1996: 10). Against the backdrop of often “arrogant capitalism and excessive individualism” (Ahmed 1999: 6), there also emerged a deep sense of social consciousness and collective mindedness among the legal circles, ultimately giving rise to American public interest litigation (PIL) that in the 1960s became widely recognised as a more preferred vehicle for social change (Aron 1989: 8-9).13 Unfortunately however, public interest judicial liberalism, instead of flourishing optimally, became overshadowed by superficial concerns about whether it was appropriate for the courts to be dragged into social policies/politics, a debate that is very much akin to debates elsewhere, including South Asia. Eventually, PIL in the USA faced a major backlash in the 1980s (Ahmed 1999: 9) due to significant changes in both state politics and politics of the judiciary following the rise of commercial interests, although it somehow managed to survive and then to attain “maturity” finally (Ahmed, id.). We are constrained to be brief on American PIL, but the US courts’ “relatively successful” (Feeley 2004: 223) career in producing structural reform in prisons (Feeley and Rubin 1998) as well as in other correctional or public institutions (Cavanagh and Sarat 1980; Rebell and Block 1982; Hochschild 1984) deserves particular credit. To take the illustrative case of prison reform, by abandoning the purely legalistic approach of the 1960s-70s, the American courts, driven by a consciousness that the prisoners were being treated almost like slaves, turned active in the early 1980s and set about to remake American prisons (Feeley 2004: 224) through a host of innovative juridical techniques, prominently by appointing supervisory ‘special masters’ who generally served as the eyes and ears of the courts (Aronow 1980). This was no easy task, but the courts’ determination, craftsmanship and vigilance over rights helped them tackle bureaucratic resistance and gain legal competence and administrative capacity (Feeley 2004: 226) to formulate and successfully implement institutional reform policies.

12

See e.g. Miranda v Arizona 384 US 436 (1966) (rendering inadmissible any illegally obtained evidence and establishing the right of a suspect to consult a counsel); Griswold v Connecticut 381 US 479 (1965) (legalising sale of contraceptives); Texas v Johnson 491 US 397 (1989) (decriminalising flagburning). 13 See the early landmark PIL case of NAACP v Button 371 US 415 (1962), striking down a Virginia law impeding the NAACP-lawyers’ ability to conduct desegregation litigations. See further Rabin (1976).

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In contrast to activism described above, the US Supreme Court since 1972 has clearly engaged in less activism and has been rather interested more in “fairly arcane legal principles” (Kerr 2003: 34) than in ensuring justice vis-à-vis major socio-political issues.14 Regrettably, the Court often follows a “selective” (Gibney 1997: 177) approach to the protection of human rights. For example, it has been routinely declining to enforce the rights of foreign nationals against US corporations by referring to the convenient doctrine of forum non conveniens.15 Its “conservative activism” (Emmert 2005: 136) is more evident in the area of affirmative actions launched to undo the past injustices to the ethnic/racial minorities, where the Court seems to be hesitant and overly inactive, oscillating between qualifiedly supporting these positive schemes and invalidating some of them on a strict reading of the constitutional equality clause.16 In a recent confrontation with affirmative actions purportedly taken to promote racial diversity in universities, the Court only upheld the individualised, “flexible” schemes and struck down the “rigid” (reserving quotas) ones.17 Evidently, the US courts are anything but “a bastion of progressive notion of distributive justice” (Hirschl 2004: 101) and have yet to give up their apathy towards considering social justice as a permissible basis of affirmative actions (Tushnet 2004: 160). One might well agree with Lofferdo (1993: 1389) that American judicial passivism on the social rights front is an abdication of fundamental judicial responsibility to dispense justice.

3.1.2 United Kingdom The state of judicial activism in the UK is incapable of appreciation without some skepticism, as the country is historically attached to strict legal positivism underpinned by literal interpretation and parliamentary supremacism. Until recently, much literature (Reid 1972; Edmund-Davies 14

There is an opposite view of the Court’s role. Keck (2004) claims that the US Supreme Court in the past few decades became the ‘most activist’ in the history. 15 A pathetic instance is re Union Carbide Corpn. Gas Plant Disaster 809 F. 2d. 195 (2nd Cir.) (1987), dismissing claims by victims of the Bhopal gas disaster in India. 16 See, e.g., Regents of the University of California v Bakke 438 US 265 (1978), Hopwood v Texas 78 F. 3d. 932 (5th Cir. 1996), assailing public universities’ power to maintain ‘affirmative’ quotas. See also Richmond v J A Croson Co. 488 US 265 (1989). 17 Grutter v Bollinger 123 S. Ct. 2325 (2003); Gratz v Bollinger 123 S. Ct. 2411 (2003).

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1975; Lester 1993) on judicial activity in the UK wrestled with the issue whether or not the judge can or should make law, whereas, paradoxically, the very common law process itself has been a potential source of at least what Bhagwati (1984-5: 565) termed “juristic” activism, i.e., creation of new legal principles.18 However, with the coming into force on 2 October 2000 of the Human Rights Act 1998 (hereafter HRA) that incorporated the European Convention on Human Rights (ECHR) the English debate over the judicial role has undergone a significant change. The judiciary, now seemingly charged with “delineating the boundaries of a rights-based democracy” (Jowell 2003a: 597), has been increasingly taking a “more activist” course than ever (Stevens 2005: 186). Although they still cannot invalidate legislation, the UK superior courts are now empowered to declare any law ‘incompatible’ with the ECHR if they cannot read it Convention-compatibly (ss. 3 (1) & 4, HRA). Such a declaration ultimately triggers legislative amendments to, or modifications of, the assailed legislation. The new constitutionalism that virtually mandates a public law model of adjudication based on “an intensive standard of review” (Clayton 2004: 33), coupled with the demise of the Diceyan doctrine of parliamentary sovereignty (Eekelaar 1997) propelled by British membership in the EU, appears to have ushered in a new, albeit moderate, dawn of judicial activism in the English legal soil, long considered infertile for such activism. 19 The UK judges are no longer immune from the debate surrounding judicial activism (Kirby 2004) and have already begun to see constitutional danger in “too little judicial activism”.20 It would, however, be unjust if one does not appreciate some of the celebrated pre-HRA achievements, prominently in the area of administrative law where “the winds of new judicial activism” (Harding 1989: 278) came in the early 1960s when the courts began to adopt purposive interpretation and to innovatively employ the age-old legal 18

See, e.g., R v R [1991] 4 All ER 481, overturning a 250-year-old rule that a husband could not be held guilty of raping his wife, a development that is probably influenced by significant value changes in society. Even the very concept of judicial review is a result of such kind of activism. See Griffith (1997: chs. 7-8). 19 Waltman (1991: 33) commented that judicial activism “sits uncomfortably” with the English constitutional theory. 20 International Transport Roth GmbH v SSHD [2003] QB 728, at para. [54], per Brown LJ. However, judges largely see their role under the HRA as one of interpreting, and not legislating: R v A (No. 2) [2001] UKHL 25, para 108. For details about the heavily contested idea that the HRA facilitates judicial activism see Clayton (2004), Gearty (2004) and Kavanagh (2004). Young (2003) highlights “the constitutional limits” rather than prospects of judicial activism.

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principles such as ‘natural justice’ and ‘rule of law’ so as to undertake relatively greater responsibility to ensure administrative accountability. The revival of English administrative law from its post-War “deep gloom” (Wade and Forsyth 2004: 16) brought with it newer principles like ‘legitimate expectation’ and ‘public interest’ that considerably expanded judicial review’s catch by creating new grounds and subjects. This trend soon saw the judicial liberalisation of locus standi21 that gave birth to the English version of PIL, allowing public-spirited citizens to challenge important matters “to vindicate the rule of law and get the unlawful [public] conduct stopped.”22 PIL in England, though relatively unsuccessful in comparison to PIL in America,23 was nevertheless a major jurisprudential breakthrough in that it sensitised the judges to the demand of social justice and the need to mobilise existing welfare laws. To mention one outstanding instance of upholding the rule of law through activist interpretation, the House of Lords in R v Home Secretary, ex p. Fire Brigade Union24 held the Home Secretary’s new criminal injuries scheme unlawful for being inconsistent with the one approved in an Act of Parliament, not then in force. In the post-HRA period, not only has English administrative law received a further activist shape (Taggart 2003), but the courts are also becoming increasingly willing to inform their decisions by human rights considerations, and to examine ‘proportionality’ and lawfulness of executive decisions including royal or executive prerogatives with “greater intensity”. 25 The shift in the judicial attitude and ideologies is best reflected in the House of Lords’ decision in A and Others v Home

21

This liberalisation began in the 1970s when the judiciary in a number of socalled Blackburn cases created the “sufficient interest” test (adopted in s. 31(3) of the Supreme Court Act 1981), facilitating citizen litigations. For details, and on these cases, see Denning (1979), Cooper (1993b), Cane (1995) and Hare (2000). However, the HRA 1998, by s. 7(3), has replaced the wider “sufficient interest” with a relatively rigid “victim” test. On this see Beloff (2000) and Miles (2000; 2003), the latter hopes that grounds like ‘human rights’ and ‘rule of law’ will nevertheless continue to help non-victim public interest groups. 22 Per Lord Diplock in Re ex p. National Federation of Self Employed and Small Businesses Ltd. [1982] AC 617, 644 (first truly successful case on public interest standing). 23 Nor was such success workable due to cultural and political differences between the two jurisdictions (Cooper 1991: 15; Guarnieri and Pederzoli 2002: 168). 24 [1995] 2 AC 523 HL. 25 A v Home Secretary [2004] UKHL 56, at para. 44 (Lord Walker dissenting).

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Secretary26 that demonstrated its unprecedented willingness to uphold the rule of law even during national security situations. By a 9 to 1 decision that appears to be “the most powerful judicial defence of liberty” (Feldman: 2005a: 273) in English legal history, the House declared an anti-terrorist law27 incompatible with the ECHR for being discriminatory by providing for indefinite detention of only suspected foreign terrorists and not British nationals. Whatever the practical future consequences of this decision, 28 it seems to launch a watermark departure from the UK courts’ earlier hands-off stand on security issues, thus reflecting judicial self-confidence vis-à-vis the executive’s propensity to misuse the law. Yet there are reasons to be cautious in being overly optimistic about the English judges rising to a high level of activism, and they have yet to fashion an effective mechanism for protecting human rights (Fredman 2000: 100). Even in the heyday of judicial oversight of administrative actions, the English courts remained considerably deferential and declined on various occasions to intervene (Sunkin 1994). The English judges’ reluctant activism is indeed embedded in distinctive legal traditions in which they train, and it is ‘inherently unlikely’ for them to want to flout those traditions (Dickson 2007: 369). Thus, the “immense” power that the HRA brought to the judges has thus far not been “fully used” (Stevens 2005: xvi), 29 nor has the judiciary been active enough to enforce the human rights norms against private parties (the case of horizontality of the HRA). 30 Till today, the English judiciary seems to remain part of the establishment generally (Griffith 1997), at least in some vital areas such as the protection of minorities or the regulation of excesses/failures of the police (Stevens 2005: 75).

26

[2004] UKHL 56 (known as Belmarsh after the name of the prison wherein the applicants were held). 27 The Anti-Terrorism, Crime and Security Act 2001, s. 23. 28 Following this judgment, the Prevention of Terrorism Act 2005 (‘PTA’) ostensibly dropped the provision of indefinite detention without trial and discrimination against non-citizen suspects. For a recent activist decision involving the PTA see ch. 4.6.1, n. 110. 29 A good example is the courts’ “more restrictive” approach to the HRA’s damages provisions (ss. 6-8) for public law torts than the Act itself would mandate (Clayton 2005: 430). 30 See Jones v University of Warwick [2003] 1 WLR 954. See further Craig (1997), Leigh (1999), Lester and Pannick (2000), and Morgan (2002). On views supporting ‘indirect horizontality’, i.e., the use of human rights to develop common law see Hunt (1998; 2001), and Campbell v MGN Ltd [2004] UKHL 22. Wade (2000) supports direct horizontality of human rights.

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The English judges’ conservative trail is more apparent in the sphere of socioeconomic rights, where it seems overly deferential to the legislature/executive. This partially explains why there is virtually no postHRA follow-up of PIL. Despite their increasingly greater involvement in recent times with resource questions that they previously eschewed as nonjusticiable, the English judges are still far away from reaching an activist position in dispensing socio-economic justice. 31 This is however not to undermine their recently shown readiness, albeit inadequate, to recognise rights of various vulnerable social groups such as the mentally handicapped or disadvantaged sections like the elderly. In a few decisions in the late 1990s that involved cutting down or refusal of government facilities the Court rejected the defence by state agencies of “scarce resources”. 32 Although these decisions basically enforced the government’s legal duties owed to the claimants, they nonetheless unveiled a shift from the strict test of Wednesbury reasonableness (developed in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223) to a less restrained judicial attitude to allocative questions particularly when fundamental rights are at stake (Syrett 2000: 6).33 However, the Court still gave no indication whether it would extend its growing liberalism to ameliorate the fate of suffering people by ordering affirmative actions instead of simply invalidating deprivation decisions. Nor did it signal a “more interventionist stance towards allocative decisions across the board” (Syrett 2000: 12). Unsurprisingly, thus, while in R v Manchester City Council, ex p. Stennet,34 the House of Lords saved the mentally handicapped from being charged for after-release services by drawing its decisional legitimacy from the special needs of this vulnerable group in addition to the traditional base of statutory interpretation, it is not surprising that in Marcic v Thames Water Utilities Ltd 35 it overruled a relatively liberal Court of Appeal decision that Thames Water’s failure to take necessary steps to prevent the claimant’s property being flooded by overflowing sewers was an infringement of his right to ‘family and private life’ and

31

O’Sullivan (1998) and Chamberlain (2003) argue for a more assertive judicial role in reviewing resource allocation questions. 32 See e.g. R v East Sussex CC, ex parte Tandy [1998] AC 714 (HL), R v North & East Devon HA, ex parte Coughlan [1999] Lloyds Rep Med 306 (CA), and R v North West Lancashire HA, ex p. A, D & G [1999] Lloyds Rep Med 399 (CA). 33 E.g., in ex parte Coughlan (as in n. 31) the Court found that withdrawal of nursing facilities breached the claimant’s right to a family life. 34 [2002] UKHL 34. 35 [2003] UKHL 66. For comments see Wilberg (2004).

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that the defence of scarce resources was unsustainable.36 Apart from being based on a rather archaic rule of exhaustion of existing statutory remedies, Marcic was unduly wary about the ‘floodgate’ problem and closely reflected the attitude of the UK top courts that questions of priority in resource allocations are non-justiciable (O’Sullivan 2004: 554). Neither has Ex parte Stennet been a radical departure, since it did not cause the government to spend, but merely prevented raising of unauthorised revenues.

3.2 Judicial activism in South Africa South Africa’s dramatic political transformation in the early 1990s was accompanied by an equally dramatic “legal revolution” (Klug 2000: 1), underpinned by the political option for constitutional supremacy aimed at achieving justice long denied during the apartheid era (Clark and Worger 2004). Drafted in the backdrop of gross injustices and violations of the past regime, the South African Constitution of 1996 37 contains many juristic building blocks upon which to construct an activist jurisprudence.38 The Constitution provides not only an entrenched Bill of Rights enforceable even against private actors along with liberalised standing rules (ss. 8 & 38); it also extraordinarily constitutionalises socio-economic rights39 and requires [ss. 39 (1) & 233] the courts to interpret rights and legislation in consonance with international law. Yet these enlightened provisions are couched in such equivocal terms that judicial activism in the new South Africa did not become an automatic phenomenon. Rather, much depended on willingness and assertiveness of the judges in 36

Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 65, confirming the Divisional Court in Marcic v Thames Water [2001] 3 All ER 698. 37 The “final” Constitution (Act 108 of 1996) came into force on 4 Feb. 1997, replacing the Interim Constitution of 1993. 38 In the apartheid era, marked by “rule by [racist] law” (Klug 2000: 47), the courts clearly failed to meet the demands of social and racial justice, which can partially be explained by the presence of that very racist regime and partially by “the subconscious or unwitting connivance of the courts” (Klug, id.) in the legislative and executive pursuit of injustice. See also Gready and Kgalema (2003). As this dark era was approaching its end, scholars begun to urge for ‘increased’ judicial activism (Nicolson 1989), and the courts themselves began to show a “more activist” trend in deciding detention cases (Bassion 1987). 39 A heated debate preceded the entrenchment of justiciable socio-economic rights, on which see Davis (1992), Mureinik (1992), Scott and Macklem (1992), Haysom (1999) and Liebenberg (2001; 2002). Pieterse (2004b) sheds light on the recent resurrection of the debate.

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becoming and remaining vigilant. Although the judiciary took a few years after the political transformation to assume a responsive role, its contemporary jurisprudence suggests an increasing commitment towards establishing constitutionalism and regaining public confidence in its capacity to stand as a guarantor of justice. On the whole, as we shall see below, judicial activism in South Africa has become of a ‘special type’ principally based on constitutional values and spirit (Corder 2007). In its first politically important yet controversial judgment (Klug 2000: 144), the South African Constitutional Court (hereafter SACC) outlawed the death penalty for contravening constitutional values of ‘human dignity’ and ‘right to life’. In S v Makwanyane and Another, 40 the so-known case of Death Penalty, the Court even ignored public opinion favouring the death penalty in order to give way to constitutional majesty and to materialise what it called the will of the South African society to break with its past and to build a future based on respect for all human beings. In a number of other high profile cases, the Court established the principle that exercise of every public power must conform to the principle of constitutionality,41 and applied judicial review as an effective mechanism to manage “irreconcilable political conflicts” (Klug 2000: 161) and to shape and advance South Africa’s new democratic constitutionalism.42 The Court’s changed philosophy is instructively apparent in its gender jurisprudence which has begun to break the culture of legal indifference or what Fineman (1991: 9) calls “legal silences” about women, and is increasingly being built on a substantive equality approach (Loenan 1997; Fredman 2005), informed by the continuing, disadvantageous socio-economic conditions of women. In President v Hugo, 43 it upheld a presidential pardon to all mother-prisoners (not fathers) with children under the age of 12, and in some cases concerning violence against women it imposed damages on the state. 44 To draw some other instances from the area of 40

1995 (3) SA 391 (CC) at para 327. See also S v Williams and Others 1995 (3) SA 632 (CC), outlawing juvenile whipping. 41 See re Ex p. President of the Republic of South Africa [Pharmaceutical Manufacturers’ Association v SA 2000 (2) SA 674 (CC)], invalidating a presidential proclamation giving effect to a law. 42 See e.g. Hoffman v South African Airways 2001 (1) SA 1 (CC), refusing to compromise the principle of constitutionalism with the defence that nonappointment of HIV patients was customary elsewhere. On the SACC’s democracy-constituting role, see generally Klug (2000: chs. 7-8). 43 1997 (6) BCLR 708 (CC). See also Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC). 44 See e.g. K v Minister of Safety and Security 2005 (9) BCLR 835 (CC), and Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC) (consequentially,

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criminal justice, the SACC struck down a law that introduced reverse onus of proof for being unjustifiable in a democratic society,45 strengthened the constitutional guarantee of criminal due process by concretising the right to speedy trial, and the right of the accused to legal representation and to consult relevant police documents and state witnesses.46 Due to space constraints, the remaining discussion is confined to a specific area of judicial activism, namely socioeconomic rights. South African judicial activism pertaining to socioeconomic rights may cynically be viewed as a not-so-radical achievement, given the justiciability of these rights and the Court’s early rejection of anti-enforceability arguments.47 There is some, if not much, truth in saying this. However, the Court’s activist stance regarding the state’s social obligations is worth crediting. It needed to be worked out at first from a rather weak form of positive constitutional rights (Hirschl 2004: 130) that are only progressively realisable by the state through “reasonable measures” and within its “available resources”. 48 In the Court’s early post-apartheid days, such a restrictive formulation of social rights led it to adopt a restrictive role. For example, in Sobramoney v Minister of Health,49 the SACC interpreted the constitutional prohibition of denial of emergency medical treatment unduly narrowly, and rejected a chronically ill patient’s claim for an emergency dialysis from a state hospital. In a plausible obiter, however, it noted (at paras. 8-9) “great disparities in wealth” in society and emphasised that a “commitment” to address this deplorable condition was “at the heart of South African new constitutional order”. Although the Court did not actually translate this rhetorical assertion into reality, a reluctance explicable by the then and to some extent still persisting (see ch. 7.2, n. 18) impact of Anglo-Saxon legal positivism and a culture of judicial deference (Pieterse 2004a: 398; 2004b: 905), these promising words potentially reveal the beginning of a new judicial philosophy.

Minister of Safety v Carmichele 2004 (3) SA 305 (SCA)). See further Ndashe (2004) and Lewis (2005). 45 S v Zuma 1995 (2) SA 642 (CC). 46 See respectively, Sanderson v Attorney General, Eastern Cape 1998 (2) SA 38 (CC), S v Vermass 1995 (3) SA 292 (CC), and Shabalaa v Attorney General, Transvaal 1996 (1) SA 725 (CC). 47 See Ex p. Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC). 48 Phrases used in ss. 26 (housing) and 27 (health care, food, water and social security) of the SA Constitution. 49 1998 (1) SA 765 (CC).

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The turning point in the SACC’s approach came in 2001 in Government of the Republic of South Africa v Grootboom,50 a first attempt to craft a jurisprudential framework in the area of socio-economic rights. Following a lower-court approved eviction from a vacant private land earmarked for low-income housing, Mrs Grootboom and 899 other desperately poor people, including children, sought to enforce the state’s constitutional duties to provide them with adequate access to housing before the impending winter rains. The Cape High Court demanded a revised state policy and ordered the concerned municipality to provide temporary shelter and some basic amenities such as water. On appeal, the SACC faced arguments that the government had had a progressively realisable housing scheme in operation, which virtually meant that court intervention was uncalled for. The Court, however, adjudged (at para 99) the government policy as “unreasonable” and unconstitutional for failing “to make reasonable provision” (as mandated by the Constitution, s. 26) for people living in intolerable “crisis situations” with no access to land and no roof over their heads. It then required the government, although broadly, to devise and implement a reasonable (in the sense of prioritising the needs of the disadvantaged) and comprehensive housing programme. Reminding the government of its duty to ameliorate the suffering of millions of South Africans, the Court proceeded in an Olga Tellis-fashion (see below section 3.3, n. 117) and ordered it not to evict the claimants from the settlement, but stopped short of issuing any positive directions,51 thus leaving it open for the state to formulate policies on how best to handle such emergency housing problems as the petitioners were experiencing. Presumably, in choosing to protect social rights “negatively”, 52 the Grootboom Court sought to balance its constitutional duty to honour human dignity (s. 10 of Constitution) with the judicially recognised superior “institutional capacity” (Sachs 2003: 596) of the state to deal with resource questions. Guised in its concern to deliver a remedy that could be effectively carried out in practice (Sachs 2003: 593) was perhaps the Court’s aim to avoid risking its legitimacy/authority by being in clash with 50

2001 (1) SA 46 (CC). It did, however, asked the SA Human Rights Commission to monitor, and report compliance with the judgment. 52 “[A]t the minimum”, social rights can sometimes be “negatively protected” through agreeable forms of judicial intervention (re: Certification of the Constitution 1996 (4) SA 744 (CC), 801). Minister of Public Works v Kyalami Ridge Association 2001 (3) SA 1151 (CC), dismissing a suit challenging a housing scheme for the homeless, provides another example. 51

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the executive. No doubt the Court could have gone further than this symbolic activism. However, given that the Court had been in its formative career of adjudicating purportedly problematic socio-economic issues having budgetary implications, its “strategic activism” (Smithey 2004)53 in Grootboom was probably in terms with the time and environment of the decision. Moreover, despite Grootboom’s inability to immediately implement the right to housing, its impact on subsequent policies and case law has been significant (Wickeri 2004: 6). A good example is the Supreme Court of Appeal’s 2004 decision endorsed by the SACC in 2005, 54 dispensing similar remedies and requiring the government to comply with the Grootboom injunction. The next landmark case in this line was Minister of Health v Treatment Action Campaign (hereafter TAC), 55 in which the central issue was whether the Court could interfere with a governmental policy of limited and controlled supply of the anti-retroviral drug ‘Nevirapine’ widely known to be active against placental transmission of HIV. South Africa’s AIDS rate is one of the world’s highest, yet the government vehemently argued that judicial injunction to enforce its constitutional duty to promote health care (s. 27) would lead to the principle of separation of powers being violated. As stated in chapter 2.2 (n. 59), the Court magisterially overruled the government in order to protect the constitutionally guaranteed right to health, reasserting its constitutional duty to pronounce on constitutionality of both legislation and policies, should it find the state in breach of socio-economic obligations. Although the Court in TAC was still unwilling to embrace the theory of “minimum core obligations” 56 regarding socio-economic rights, it emphatically reinforced the Grootboom reasonableness and declared the governmental policy to confine Nevirapine only to research sites as unreasonable as the policy virtually excluded poor mothers from gaining access to HIV prevention programmes. 53

This refers to the judges’ “strategic decision” that allows them “simultaneously to assert judicial authority and to avoid, or at lest minimize, the risk of counterattack” (Smithey 2004: 5). 54 Republic of South Africa v Modderklip Boerdery (Pty) Ltd. 2005 (5) SA 3 (CC), endorsing SCA’s decision of 27 May 2004 in Case Nos. 187 & 213 /2003. 55 2002 (5) SA 721 (CC); [2002] 5 LRC 216. 56 This refers to the idea of an international law obligation to ensure the satisfaction of minimum essential levels of each of the social rights in the ICECSR (Committee on Social, Economic and Cultural Rights 1990: para 10). Belani (2004) accuses the Court of failing in its interpretative obligation to consider the ‘minimum core obligation’. The Court, however, appears to have achieved the same objective through a different route, and it did not categorically reject the notion (Sachs 2003: 599).

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Like Grootboom, TAC refrained from issuing a structural interdict or retaining supervisory jurisdiction and thus stands for judicial strategic activism, revealing some amount of deference towards the government’s resource-based obligations. This time, too, the court expected the government’s automatic compliance with the judgment and disapproved the lower court’s innovative order requiring the government to revise the challenged policy and to periodically submit compliance reports to it.57 Considering the state inaction even 2 years after Grootboom, a more assertive approach from the SACC was logically due. However, despite criticisms that the Court’s discharge of socio-economic rights obligation is incoherent (Khoza 2002; Bilchitz 2003; Berat 2005) and of a “tentative” (Pieterse 2004a: 383) fashion, judicial insistence in these decisions on ‘human dignity’ perhaps holds a “promise” (Scott and Alston 2000) of embracing, in future, the enforceable standard of minimum sustenance rights. 58 In Pieterse’s (2004a: 416) graphical evaluation, the SACC’s assertion of public law-based judicial power in TAC “provides an invaluable blueprint for judicial activism in future socio-economic rights cases, even if the judgment itself does not always grasp the extent of its own transformative potential”. This forecast became true in the 2004 decision of Khosa v Minister of Social Development, 59 extending the constitutional guarantee of social assistance (s. 27) to non-citizens by striking down an ‘unreasonable’ exclusionary law.60 Adopting a dynamic method of constitutional construction and drawing on the intersecting nature of social and civil rights, the Court not only refused to be guided by unhelpful foreign judgments to the contrary,61 it also disallowed the state to raise the resource defence to vitiate its fundamental duty to adopt reasonable social benefit schemes for everyone and not merely for citizens.62 If one ignores the relatively limited pitfalls of South Africa’s evolving socio-economic rights jurisprudence, one would see its enormous potential 57

The SACC did not however rule out such an innovative remedy, but only thought it unsuitable in this particular case (see the judgment, para 129). 58 This possibility was suggested by O’Regan J in Makwanyane, above n. 40, and by Belani (2004: 37). 59 2004 (6) BCLR 569 (CC). For analyses, see Govindjee and Ristow (2005). 60 S. 3(c) of the Social Assistance Act 59 of 1992 entitling only citizens to “appropriate social grant”. 61 Referring to City of Chicago v Shalala 189 F. 3d. 598 (7th Cir. 1999), the government argued that closed social benefits was an accepted practice in developed countries, too. 62 Khosa, above n. 59, at para 42.

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in providing for an effective tool in challenging poverty (Van Bueren 1999; Liebenberg 2002) and in turning the judiciary into an institution delivering social justice. By unequivocally acknowledging interconnectedness between civil-political and socio-economic rights, South African social rights jurisprudence provides not only a strong case for justiciability of social rights globally (Sunstein 2001; Thiruvengadam 2004) but also a powerful indicator of judicial ability to strike a proper balance between judicial activism and deference (Pieterse 2004a: 417).

3.3 Judicial activism in India Today, India provides the leading instance of judicial activism in the world, and its judiciary is the world’s most active (Baar 1992) and powerful (Andhyarujina 1992: 1).63 Judicial activism in India, mostly a post-emergency phenomenon (Baxi 1987a: 32), is often alleged as an attempt by the judiciary to compensate its past serious failings and thus to retrieve itself from its pre-emergency legitimacy crisis (Cassels 1989: 5123; Sathe 2001: 49-50).64 The Court’s spectacular surrender to the executive and legislature through acquiescing in the subversion of the Constitution (Sripati 1997: 106) 65 during and preceding the Emergency, and its conservative stance in the 1950s-80s towards socio-reformative state actions66 can mostly be explained by a reference to its insensitivity about widespread public deprivation and its continuation of traditional British adjudicative practices (Baxi 1982: 40-3, Cooper 1993a) at the cost of India’s post-colonial socio-legal needs. 67 During the last days of, and 63

The literature on Indian judicial activism is voluminous. Some notable works are: Tripathi (1975), Baxi (1985a), Bhatia (1990a; 1997), Prakash and Sharma (1997), Sripati (1997; 1999), Verma and Kusum (2000), Banerjea et al (2002), Sathe (2002), Bhatia (2003), Neuborne (2003), Lal (2004), and Iyer (2007). 64 India’s third and the last Emergency ran from June 1975–March 1977. 65 See Makhan Singh Tarasikka v Punjab AIR 1964 SC 381; A.D.M. Jabalpur v Shivakant Shukla AIR 1976 SC 11207 (interpreting ‘emergency’ as excluding judicial review). On the Indian courts’ role during Emergency see Derrett (1978), Divan (1982) and Omar (2002). 66 Shah (1999: n. 232) compares judicial invalidation of social legislation in this period to the Lochner era in the USA. Also, until the mid-1970s, Indian courts held a closed idea about affirmative actions. See further Vaidyanathan (2002). 67 Having initially failed “to shake off the pervasive effect of the Anglo-American jurisprudence” (Dhavan 1989: xxiv), the Indian judges began to feel the need for shunning “subtle bondage” with “alien legal thought” (Rattan Lal v Vardesh Chander (1976) 2 SCC 103, per Iyer, J.) in the late 1970s. The consciousness about inadequacy of received jurisprudence, repeatedly reiterated in many judicial

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following, the Emergency, the courts found themselves as virtually “the last resort of the oppressed and the bewildered”,68 a fact that reflected both helplessness of the people against state arbitrariness/failures and their faith in the judiciary. This and other factors such as the rise of social action groups (Rubin 1987) led ultimately to a “heightened phase” (Kothari 2004) of judicial activism, interpretational, legislative and executive (Anant and Mishra 2003). The rationale and impetus of Indian judicial activism are deeply rooted in two factors: (i) a transformative, justice-oriented constitution aimed at socialist democracy,69 and (ii) a sensitised and socially informed judiciary willing to act in furtherance of constitutional goals. Contrary to a popular belief that an activist judiciary was originally un-intended, the wording of the Indian Constitution places its judiciary in a unique position to play a socio-transformative role by not only adequately empowering it to enforce fundamental rights,70 but also virtually mandating the judicial use of socioeconomic principles of state policy. 71 Belatedly though, the Indian judiciary ultimately profitably utilised these and other constitutional provisions in order to craft an extraordinary regime of judicial review that is unknown elsewhere (Abraham 2000: 200-01). The Constitution’s leverage notwithstanding, development of an appropriate judicial role required an assertive judiciary with an adequately pro-people perception of its own role. In some early public interest cases, the Indian judges began to realise that the Constitution mandated “a new socio-economic order” 72 with ‘social justice’ as its “central feature” (Bhagwati 1984-5: 568). Accordingly they perceived their role as one of advancing this overarching constitutional goal through not only protecting the guaranteed rights but also holding the government responsible for the welfare of the people, and

decisions, gradually led to “a more or less total re-orientation of modern Indian law” (Menski 2000a: 43). 68 Per Goswami, J. in State of Rajasthan v Union of India (1977) 3 SCC 634, 670. 69 See Preamble and Article 38 of the Indian Constitution. 70 Art. 32 authorises the Supreme Court to enforce guaranteed fundamental rights through “appropriate proceedings”, “directions, orders or writs”. High Courts are similarly empowered by Art. 226 (without using the term “appropriate proceedings”). 71 These principles, known as “Directive Principles of State Policy” (in Part IV) remain judicially unenforceable, but have been declared as “nevertheless fundamental in the governance of the country” and in lawmaking by the state (Art 37), so that Indian law today permits the DPSPs to be read together with the fundamental rights. See section 3.3.2 below, and ch. 5.6. 72 In PUDR v Union of India AIR 1982 SC 1472, 1490.

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felt that their failure to do so would be disastrous in consequence. 73 Indeed, as will be seen below, Indian judicial activism is largely a result of fusion of judges’ moral knowledge and ethical dimensions of human rights (Van Ness 1999; Sen 2005) with the adjudication process. It is in this context that the Indian higher judiciary gradually developed a new public law rationale that emphasises public duties, societal accountability and the public interest (Abraham 1999: 5), as opposed to merely “individualised justice”. 74 Finding the existing law inherently incapable of dispensing “well balanced, equitable and distributive justice” (Bhagwati 1987: 20), some conscientious judges under the stewardship of activist judges like Krishna Iyer and P. N. Bhagwati staged a truly creative, juristic revolution against legal formalism to weave into the Indian constitutional tapestry what is perceived as distinctively Indian ‘public interest litigation’ (PIL) (Bhagwati 1984-5: 571; Dhavan 1994: 1; Menski 2000b: 109-11).75 As we shall see below, post-emergency judicial activism, of which PIL is the most conspicuous manifestation, is best credited by its ability to transform the traditional and constricted judicial role as a neutral and passive arbiter of ordinary disputes to one of an engagingly active guarantor of justice, adjudicating both ordinary and unconventional polycentric socio-economic rights disputes. Through an array of technical juristic ways, from allowing any sufficiently interested member of the public to petition the court (relaxation of locus standi) to treating the victims’ letters/telegrams to the court (or a judge) as petitions (‘epistolary’ jurisdiction), to initiation of proceedings suo motu, Indian judges outreached to various “geographies of (in)justice” (Baxi 2000: 156). This radical departure from the private-interest based Western legal traditions was clearly fostered by the judiciary’s willingness to take the nation’s socio-economic suffering seriously (Baxi 1987a). 73

S. P. Gupta and Others v Union of India AIR 1982 SC 149, 190 (Judges’ Transfer Case). 74 Mumbai Kamgar Sabha v Abdulbhai AIR 1976 SC 1455. The focus on ‘duties’, a crucial trait of modern public law (Harding 1989), was a key element in Indian judicial activism for collective justice. 75 Agarwala (1985) and Cunningham (1987), however, trace the origin of Indian PIL to the American experience. The literature on Indian PIL, also famously called ‘social action litigation’ (Baxi 1987), is quite large. A leading work is Ahuja (1997). Two short, excellent works are Baxi (1987a) and Bhagwati (1984-5). See also Cottrell (1993), Bakshi (1999), Sathe (2002) and Ray (2003). For theoretical analyses, see Cassels (1989), Craig and Deshpande (1989), Feldman (1992) and Peiris (1992).

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However, while judicial activism gave birth to PIL and helped its institutionalisation as a bulwark against “state repression, governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups” (Bhagwati 1984-5: 571), it is also PIL that helped the Indian judiciary develop a multi-dimensional concept of judicial activism that has led to judicial vigilance and maximisation of ‘justice’ even in private cases. 76 Building on PIL-launched procedural activism that was initially concerned with the democratisation of judicial access for those marginalised sections of society who “by reason of poverty, helplessness or [socioeconomic] disability” 77 were unable to approach the courts for relief, Indian superior courts began to exercise substantive activism, targeting a form of ethical state based on just governance, and became what Baxi (1987a: 32) called “the Supreme Court for Indians”. This latter aspect of judicial focus is the more important face of Indian judicial activism, since giving out substantive justice is quite different from allowing one to seek justice. The justice-consciousness of the Indian judges in both ordinary and PIL cases culminated, among other things, in the expansion of traditional civil-political rights to diverse new areas such as legal aid and speedy trial,78 enforcement of fundamental values of human rights against private spheres and a wider spectrum of state authorities (Chandrasekhar 2004),79 imposition of constitutional limits on parliament’s amending/constituent power to ensure constitutionalism,80 structural reforms of prisons/custodial

76 A fascinating example is a 1981 Kerala High Court decision (Joseph 1982) where, following a widespread scandal concerning the admission test in a medical college, the Court intervened in an unprecedented fashion, calling for the answer scripts and getting them re-examined by a body of experts, ultimately modifying the merit selection list. 77 Per Bhagwati CJ in S. P. Gupta, above n. 73, at p. 189. 78 See, respectively, Hussainara Khatoon v State of Bihar AIR 1979 SC 1360, and Kadra Pahadiya v State of Bihar AIR 1982 SC 1167. 79 See e.g. Kapila Hingorani v State of Bihar 2003 SCCL Com 472. 80 Kesavananda Bharati v State of Kerala 1973 (4) SCR 225, establishing Parliament’s legal inability to amend the ‘basic structure’ of the Constitution. The basic structure doctrine (endorsed in many cases (Jacobson 2006) such as Indira Gandhi v Raj Narain AIR 1975 SC 2299, and L.C. Kumar v India (1997) 3 SCC 261), has not only come to stay in India, but also influenced other jurisdictions such as Bangladesh (see ch. 4.5 below). See further Tripathi (1974), Baxi (1985a), Noorani (1982; 2001), Abraham (2000), Lakshminath (2002), Mehta (2002), Sathe (2002: 77-85), Ramachandran (2006), and Krishnaswamy (2009).

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homes, 81 judicial exploration of state corruption and mal-administration along with concomitant refurbishment of the criminal justice system,82 and actions to preserve and strengthen judicial independence and capacity.83 Today, Indian activist jurisprudence has embraced too wide a range of areas to be accommodated within the limited scope of this study. The following discussion thus seeks to focus on two of its most radical and innovative facets.

3.3.1 Judicial lawmaking or policy activism While judicial lawmaking is not such a novel idea in contemporary judicial theories (ch. 2), the Indian courts’ lawmaking activism is nevertheless “novel” (Baxi 2004: 339). Indian judicial lawmaking is more than interstitial (Shah 1999: 472), and has notably led to the creation of whole new areas of law such as environmental law84 or consumer rights law (Singh 1996). In what is known as the bonded labour case, Bandhua Mukti Morcha v Union of India, 85 where an organisation sought remedies for bonded labourers working in sub-humane conditions in some stone quarries, the Court responded promptly to ensure their right to be “free from exploitation” as a part of the ‘right to life’.86 Following the report of the inquiry commission it appointed earlier and an extensive hearing, the Court not only released the bonded labourers but also laid down some welfare policies buttressed by directions to provide virtually lifelong financial/other assistance to those “unbonded” with a futuristic view to prevent them being “lurked back into servitude” (Sorabjee 1997: 33). The whole breadth of this case has latterly been followed in PUCL v State of

81 See e.g. Sunil Batra (II) v Delhi Administration (1980) 3 SCC 488, and Upendra Baxi v State of U. P. AIR 1986 SC 191. 82 See Vineet Narain v India (1996) 2 SCC 199, suggesting a total restructuring of the CBI to insulate it from interferences of allegedly corrupt politicians. 83 See e.g. S. P. Gupta, above n. 72; Sri Kumar Prasad v India (1992) 2 SCC 428; Hussainara Khatoon, and Kadra Pahadiya, above note 78. 84 One notable aspect of this is internalisation of several international law principles such as the ‘principle of restitution’ or the ‘precautionary principle’ (Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647). In M. C. Mehta v Kamal Nath (2002) 3 SCC 653 the Court applied the ‘polluter pays principle, requiring the defendant motel to pay the cost of ecological restoration. See further Razzaque (2004: ch. 7). 85 (1984) 3 SCC 161. 86 Ibid., at p. 183.

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Tamil Nadu 87 concerning migrant bonded labourers in Tamil Nadu, reiterating the need for rehabilitation, and directing the government, inter alia, to sensitise magistrates and other authorities about their legal duties.88 Indian judges have gone as far as re-writing statutes. In 1995, the Kerala High Court virtually amended a statutory provision to make divorce available to Christian women on the ground of ‘cruelty’,89 thereby perhaps anticipatorily triggering a legislative enactment in 2001 that rectified the legal gap.90 On the apex level, in its “long-awaited decision” (Menski 2004b: 40) in Danial Latifi v Union of India 91 concerning the constitutionality of a 1986 Act,92 purportedly reversing the famous Shah Bano-ruling that a Muslim wife was entitled to post-iddat maintenance,93 the Supreme Court at once invoked the theory of inoffensive reading of the Constitution to save the Act and gave it a superbly innovative and prowomen interpretation to reach a “compromise result” (Hirschl 2004: 258, n. 73) by confirming the Shah Bano decision. Using the overriding constitutional norms of equality and human dignity as a trump, the Court obligated Indian Muslim husbands to make “adequate provisions” for their ex-wives’ future maintenance within the iddat period.94 The Danial Latifi type of interpretational technique was earlier, and perhaps first, taken in Azad Rickshaw Puller Union v State of Punjab,95 where, instead of striking down the impugned Act that entitled only the rickshaw owners to obtain 87

2004 (5) SCALE 690. As this case shows, despite constitutional (Art. 23) and legal prohibition (Act XX of 1976) of bonded labour and Bandhua Mukti-type of judicial activism, the pernicious practice still continues. This unfolds the executive’s passivity vis-à-vis public welfare, and reinforces the need for continued judicial activism. 89 Mary Sonia Zachariah v Union of India 1995 (1) KLT 644 (FB); also in A v B 1996 (1) KLT 275. 90 The Indian Divorce (Amendment) Act 2001 has amended s. 10 of the Indian Divorce Act 1869, among other things, to include ‘cruelty’ as a ground of divorce by Christian women. 91 (2001) 7 SCC 740. 92 The Muslim Women (Protection of Rights on Divorce) Act 1986. 93 AIR 1985 SC 945. 94 See s. 3 of the Act of 1986 (above n. 92) that entitled a divorced woman to claim maintenance and ‘fair provision’ within her iddat. The Kerala High Court earlier showed similar activism immediately after the enactment of the Act. See Ali v Sufaira 1988 (2) KLT 94; Ahammed v Ayesha 1990 (1) KLT 172. Danial Latifi along with these and other Keralite cases (noted in Agnes 2001) stands as an eyeopening, sui generis example of judicial activism in Muslim family law via interpreting statutes. 95 AIR 1981 SC 14, per Krishna Iyer, J. 88

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licences, the Court rather saved it by granting an ingenious remedy of ordering bank-loans for the rickshaw pullers to help them become ‘owners’ and thus to obtain licenses. In an exceptionally rare PIL case, Sheela Barse v Union of India,96 in which judicial intervention was sought to ameliorate the conditions of children in care homes, the Court directed the relevant government to forthwith bring a child protection legislation into operation that had not yet been brought into force even four years after its enactment. Not unmindful that it was basically the government’s business to decide when a particular statute should be brought into force,97 the Court felt justified to take this sweeping decision under compelling practical needs (Peiris 1991: 73), and was informed by its responsibility to enforce “mandatory” constitutional obligation of the state towards the children (in Art 39 (f)). Similar consciousness led the Court in M. C. Mehta v State of Tamil Nadu98 to order enforcement of an anti-child-labour law throughout the country, rather than only in one state as sought by the petitioner, and to provide various wide-ranging remedies like one of requiring recalcitrant employers to pay compensation of Rs 25,000 for each child engaged in hazardous industries. Laying marks of radical adjudicative legislation, the Court in Vishaka v State of Rajasthan99 laid down detailed rules in order to render protection to victims of sexual harassment at work. Speaking through Verma, CJ, the Court rightly thought that absence of legal protection against sexual harassment of working women constituted a violation of constitutional protection of equality and an interference with women’s right to profession, and hence a deviation form India’s international law obligations. Importantly, in so refashioning the ambit of existing rights, the Court drew directly from CEDAW, 100 ratified by India but not implemented in its municipal law.101 96

(1986) 3 SCR 448. Ibid., at p 599. 98 (1996) 2 SCC 756. 99 AIR 1997 SC 3011, suggesting legislation governing sexual harassment in work places and, pending such legislation, mandating executive measures to prevent sexual harassment. The Visakha rationale was reinforced in Apparel Export Promotion Council v AK Chopra AIR 1999 SC 625. 100 The UN Convention on Elimination of All Forms of Discrimination against Women 1979. 101 Also notable is Laxmi Kant Pandey v Union of India AIR 1984 SC 469 in which the Court laid down rules allowing foreigners to adopt poor children, with a view to protecting them from slavery or other abuses (Nueborne 2003: 501). 97

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In a fairly recent case, Union of India v Association for Democratic Reforms, 102 the Supreme Court interpreted the fundamental freedom of speech and expression as embracing the voters’ right to be well-informed of the candidates’ “antecedents” including past criminal records. Having found that there was no existing law to further this important aspect of the people’s right to know, which it thought was “much more fundamental” for democracy” (at p. 322), the Court directed the Election Commission to frame rules compelling each aspiring candidate to disclose, while submitting nomination paper, various pieces of information about his/her wealth, liabilities, educational qualification and criminal records, if any. In what can be called double assertion, the Court recently struck down twice a retaliative legislation that the government got enacted purportedly to undo this democracy-enforcing landmark decision.103 The above shows that judicial lawmaking activism in India has been an inescapable reality in the context of its peculiar socio-political circumstances, and is not an act of judges’ usurpation of the legislative power. It is the legislature’s passivity or the absence of legislative guidance (Cunningham 1987: 513) hindering the judges’ very function of dispensing justice in any given dispute, as was the case in Vishaka for example, that has necessitated, and supplied justifications for judicial policy/law-making activism.104

3.3.2 Judicial realisation of socio-economic and community rights While the South African judiciary provides a pedagogic example of judicial enforceability of social rights conditionally guaranteed in a constitution, the Indian judiciary provides an illuminatingly instructive example that social rights are indeed “amenable to judicial implementation” (Kothari 2004) even in the absence of their constitutional entrenchment. By adopting a strategy of ‘harmonious interpretation’ between fundamental rights and ‘Directive Principles of State Policy’ that led to the classic judicial proclamation of interconnectedness of so-called generations of

102

(2002) 5 SCC 294, (Order of 2 May 2002, per Shah, J.). For a similar ruling see also Dinesh Trivedi v India (1997) 4 SCC 306. 103 See PUCL v Union of India (2003) 4 SCC 399. 104 “Whatever may be said in the First World concerning this kind of [judicial] lawmaking […], it is clear that in almost all countries of the Third World such judicial initiatives are both necessary and desirable” (Baxi 1987b: 173).

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rights, 105 the Court transposed many ‘unenforceable’ socio-economic rights into a class of enforceable rights. Much of Indian judicial activism that produced “the world’s most comprehensive body of judgments dealing with social welfare rights” (Hirschl 2004: 246, n 81) came through the vehicle of the potentially expansive, unconditional constitutional right to life (in Art. 21), an expansion that began with Maneka Gandhi v Union of India 106 where the Court adopted a natural law philosophy of interpretation to extend the right to life to a right to travel abroad and to an entitlement to be treated in accordance with principles of natural justice. In the early 1980s, judicial extension of the ‘right to life’ moved in a dramatic fashion from the area of basic civil-political rights to the one of social and collective rights. The Court in a long line of decisions masterly held that the right to life “includes the right to live with human dignity and all that goes along with it” 107 namely, “the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in”. 108 In many high-profile environmental cases where Indian judicial activism is most visible, 109 the Court crafted a new right to a healthy and safe environment as an ingredient of the right to life, and intervened, for example, to order preservation of green belts and open spaces to maintain ecological balance, to compel municipal authorities to protect the health of the community, to forbid stone-crushing activities damaging to the environment, to preserve habitat and means of livelihood of the aborigines, to compel industrial units to set up effluent treatment plants, and to save historic sites such as the Taj Mahal from the clutches of environmental pollution.110 A number of distinctive features of judicial environmental activism in India are noticeable. The Court usually issues directives, positive and prohibitive, delivers unorthodox remedies, retains jurisdiction to effectively 105 On the integrity between constitutional principles and fundamental (civil) rights see Sharma, S. K. (1990), Jaswal (1996), and Reddy J’s opinion in Unni Krishnan, n. 123 below. 106 AIR 1978 SC 597. 107 Frances C. Mullin v Administrator, Union Territory of Delhi (1981) 2 SCR 516, 529, per Bhagwati, J. 108 Shantistar Builders v Narayan K Totame (1990) 1 SCC 520. 109 On Indian judicial environmental activism, see Dias (1994), Ahuja (1997), Banerji (1997), Abraham (1999) and Razzaque (2004). 110 See respectively Banwasi Seva Ashram v State of U. P. (1993) 2 SCC 612; M. C. Mehta v Union of India 1994 Supp (3) SCC 717; B. L. Wadehra v Union of India (1996) 2 SCC 594; Satish Chander Shukla (Dr.) v State of U. P. 1992 Supp (2) SCC 94; Kumar Padma Prasad v Union of India (1992) 2 SCC 428; and M. C. Mehta v India (2002) 9 SCC 74.

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monitor compliance with its directives, pursues a participatory method of judging by engaging both people and the executive/legislature, and seeks to raise the level of conscience and dutifulness of the ordinary citizens and the administration. For instance, in one of the so-called M. C. Mehta cases, concerning the reopening of one of several industrial plants previously closed for causing environmental damage ensuing from a leakage of olleum gas, the Court employed an expert body on the basis of whose report it allowed the plant to be reopened, subject to strict compliance with certain judicially formulated conditions. 111 By radically shifting from orthodox common law principles of liability to the principle of strict liability for inherently dangerous industrial activities, the Court awarded public law compensation to the victims of industrial hazards. This “novel” (Abraham 1999: 110) remedy was intellectually founded on the interpretation of Article 32 of the Constitution as a source of judicial “obligation” to protect fundamental rights and as the fountain of “all incidental” judicial powers “including the power to forge new remedies”.112 This rationale was further advanced in M. C. Mehta (II) v Union of India (the Ganges Pollution Case)113 of 1988 where the Court retained jurisdiction and by an order in 1991 required various industries to inform it of their anti-pollution measures and ultimately ordered closure of some recalcitrant plants that were polluting the Ganges. 114 The technique of ‘rolling review’ was famously applied in the so-called Delhi Pollution Case,115 in which the Court took a strong stance against the executive’s ingenious defiance of its judgment by issuing several chronological orders to see that its earlier injunction to convert the Delhi bus fleet to environment-friendly compressed natural gas (CNG) was being implemented. Importantly, in the Ganges Pollution (above), the Court appeared as an environmental educator, noting the desirability of launching the “keep the city clean” week by the government to arouse public environmental consciousness. Latterly, in another case, it directed the government to disseminate environmental knowledge to school/college children and the general public through the media such as cinema halls and radio-

111

M. C. Mehta v Union of India AIR 1987 SC 965. Ibid., at p. 1089. 113 (1988) 1 SCC 471. 114 M. C. Mehta v Union of India 1993 Supp. (1) SCC 434. 115 M. C. Mehta v Union of India (1991) 2 SCC 137 (filed in 1985, WP No. 13029/1985). 112

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television. 116 Abraham (1999: 111) sees this sort of persuasive and pedagogic element in judicial discourse as the symbol of the Court’s awareness of the limits of commands-based law and its eagerness to achieve legal objects by promoting “internal inculcation of normative values” through self-participation and self-control.117 Judicial broadening of the folder of right to life embraced other sustenance rights, too. In Olga Tellis v Bombay Municipal Corporation,118 the Court extended its protection to Bombay pavement dwellers, stopping their eviction without due notice being given to them and alternative shelters being made. Though the Court did not recognise their right to live in public footways, it nevertheless held that their arbitrary eviction would deprive them of their livelihood and thus their right to life. Subsequent housing rights decisions, with a few recent exceptions, 119 vigorously followed the Olga Tellis rationale (Kothari 2001), and successfully uplifted the right to housing to the status of a fundamental right.120 In working out an enforceable, most basic right to food, the Court began with strategic activism, giving society time probably to be accommodative of judicial activism in this complex adjudicative area, and educating the state of its greater social responsibility. Thus, while the Court in earlier cases paid sympathetic attention to this right, it appeared bold against deaths from starvation only in a 2001 PIL case, PUCL v Union of India 121 that arose in the backdrop of widespread drought in some states, chiefly in Orissa and Rajasthan. Finding the central government as having plenty of food grains but reluctant to distribute them, it faced less difficulty in enforcing the ‘right to food’ at least in crisis situations by providing the strategic remedy of ordering the 116

M. C. Mehta v Union of India AIR 1992 SC 382. In M. C. Mehta v Union of India (2004) 1 SCC 571, 573, the Court directed to module a syllabus on the environment and to introduce it in schools. 117 Abraham (1999) considers this type of judicial technique as indicative of autochthonous, dharmic (spiritual) orientation of Indian legal culture that emphasises personal obligation and societal responsibilities. 118 (1985) 3 SCC 545; the first landmark case extending the right to life to social rights (Kothari 2001). 119 See Narmada Bachao Andolan v Union of India (1998) 8 SCC 308, and re Bombay Environmental Action Group (the Bombay High Court’s decision of 7 May 1997, evicting slum dwellers living in close proximity to a national park) which Kothari (2001) finds nugatory of Olga Tellis jurisprudence. 120 See Chameli Singh v State of U. P. (1996) 2 SCC 549, per Ramaswamy, J., at para 8. 121 (2001) 7 SCALE 484. For comments, see Singh (2004: 544-48). On the right to food jurisprudence see Kent (2002), Kothari (2004), and Singh (2006).

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government to effectively execute its various food schemes and distribution policies.122 The Indian judiciary also intervened to help materialise the right to education and health. In Unni Krishan v State of Andra Pradesh,123 the Court set about to “convert the [state] obligation” in Art 45 (a directive principle at that time) to provide for free and compulsory education for children into an “enforceable right”124 by ingeniously building on Article 45’s timeframe of “ten years” within which the state was mandated to act. Overcoming the furies about the limits of judicial activism that Unni Krishan gave birth to, the decision brought in some positive societal impact (Sripati and Thiruvengadam 2004) and ultimately engendered an enforceable constitutional right to education. 125 In a similarly creative vein, by placing central importance on ‘human dignity’ the Court crafted a right to good health of wide ramifications as an integral component of life (Shah 1999). In a long series of cases it intervened to ban smoking in all public places,126 to ameliorate the safety conditions of blood banks127 to address various issues involved with AIDS, 128 and to fast-track the citizens’ right to receive emergency medical treatment even amidst the State’s resource constraints, 129 issuing various structural interdicts, and also awarding compensation for inexcusable state failure to provide core medical facilities to its citizens. It appears from the above that by blending procedural innovations (including the judicial managerial role) with interpretive, doctrinal and 122 Ibid. (order of 28 November 2001). Pulsing that the ‘famine’ was a direct cause of lack of good governance, the Court fascinatingly observed: “In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity”. This closely reflects Sen’s ([1999] 2000: esp. ch. 6) argument that “a person may be forced into starvation even when there is plenty of food around” (p. 161) for lack of, for example, democracy, equality, and freedom. 123 AIR 1993 SC 2178. 124 Ibid., at p. 2232. See also TMA Pai Foundation v India AIR 1996 SC 2652. 125 The 86th Amendment (2002) to the Constitution made ‘education’ a fundamental right for the children of 6 to 14. Several States also enacted laws making primary education compulsory. 126 Murli Deora v Union of India (2001) 8 SCC 765. 127 Common Cause v Union of India AIR 1996 SC 929. 128 See e.g. M Vijaya v Chairman, Singareni Collieries Hyderabad 2001(5) ALD 522 (LB) and MX v ZY AIR 1997 Bom. 406 (striking down the unfair dismissal of an HIV-infected employee). 129 Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal (1996) 4 SCC 37. See also Paramanand Katara v Union of India AIR 1989 SC 2039.

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substantive activism underpinned by novel remedies and internationalisation of constitutional fundamental rights, the Indian judiciary has been able to radicalise the judicial role, basing it on a dynamic doctrine of separation of powers (as advocated in ch. 2.4). Its activism poignantly points fingers at the basic deficiencies of legal positivism-inspired global jurisprudence and the widely-held view of the judicial role (ch. 2) in achieving justice in a society that requires constant active judicial vigilance. Unsurprisingly, however, despite its spontaneous popular acceptance and significant societal/political impact (Verma 2001),130 Indian judicial activism has often incurred Western-style criticisms largely based on common grounds such as the non-effectiveness of judicial engagement with social issues (Rosencranz and Jackson 2003: 254) and judicial overstepping of constitutionally demarcated powers (Kishwar 1994; Dharmadan 2004; Ravi 2005). 131 But, as the above shows, judicial activism in India has been in effect a constitutional response by the judiciary towards continual breaches of the law and the Constitution, as well as to continuing injustices to various vulnerable groups such as children, women, minorities and the poor, resulting largely from executive defiance of constitutional duties and legislative inactions. It can not, however, be claimed that Indian judicial activism has always focused on constitutional governance and social justice. In more recent times the Indian judiciary through PIL has controversially taken up morally-loaded social issues like the legality of homosexuality.132 Excepting few instances of overstepping, however, it has largely remained sufficiently selfconscious about the frontiers of judicial activism (Peiris 1991: 89),133 and 130 There is however one exception which is in the domain of preventive detentions and other forms of gross rights violations, for example, in Punjab where the Court’s role has been critiqued as “a classic study in judicial passivity” (Neuborne 2003: 505) or “a judicial blackout” (Kaur 2002). Baxi (2002: 159-65) discusses other judicial failures. 131 Sathe (2002: 20-1) is worried that judicial activism raises social costs. An informed criticism is to be found in Andhyarujina (1991). While Singh (1985; 1986) earlier appeared quite suspicious of many aspects of Indian judicial activism, Singh (2004: 562) now admits to its acquiring legitimacy. 132 See Naz Foundation v. Government of NCT of Delhi (2009) 160 DLT 277, holding that criminalization of consensual homosexuality is unconstitutional. For an opposite argument and a critique of this decision see, among others, Singh (2009). 133 For example, in Himachal Pradesh v Parent of a Student at Medical College, Simla (1985) 3 SCC 169, the Court held that it could not dictate enactment of laws, and that it would not interfere unless there was already some ameliorative legislation. Despite this opinion, as we have seen above, some activist judicial

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has become increasingly vigilant against misuses of its activist adjudicative trend.134 The Indian judges have indeed developed a balanced and principled approach to activist judging. While they have not shied away from actively engaging in policy/law-making exercises in order to enforce constitutional rights and public accountability, they have at times duly refrained from intervening, or have kept silent in the interests of justice or to help usual political maneuvering.135 Thus, the Indian activist judiciary has remained conscious of striking a proper balance between its limited institutional capacity and primordial constitutional obligation to act for the cause of justice, as evident in its stringent but cooperative mode of post-judgment activity, often willing to modify its affirmative orders to allow executive actions according to administrative expediency and financial abilities (see Sorabjee 1997), an approach which critics usually ignore. More importantly, activist judges have adequately reasoned and justified their actions, innovations or social rights activism as a constitutional necessity fed by national socio-political conditions.136

3.4 Judicial activism in Pakistan In addition to similar problems of social injustice, poverty and governmental lawlessness as in India, lack of democracy in Pakistan for long periods not only created deep frustrations among Pakistanis (Ahmed 1999: 17) but also made the rule of law a distant dream for them. A sadly

pronouncements have virtually required the legislature to enact laws. See also National Textiles Workers’ Union v Ramakrishnan AIR 1983 SC 75, in which Venkataramiah, J. warned his fellow judges of the dangers in “strained construction of the law” (at p. 102). 134 For an opposite view that the Indian judges have often ignored warnings against judicial over-ambition, see Iyer (2007: 168). Judicial vigilantism against abuses of PIL (registered much earlier in S. P. Gupta AIR 1982 SC 149, 195) is reflected in some recent cases awarding compensatory costs against frivolous PIL petitioners (see e.g. B. Singh v Union of India (2004) 3 SCC 363). For details see Menski (1990; 1992), applauding such judicial advertence but cautioning about undue inhibitions. See also Anand (2000b). 135 See, among many cases, Delhi Science Forum v Union of India (1996) 2 SCC 405, refraining from intervening in the government’s telecommunication policy. See further Muralidhar (2002: 18-19), and Desai and Muralidhar ([2000] 2006). See also ch. 7.2, below. 136 See the Court’s reasoning in e.g. PUCL v Union of India, above nn. 121-22, and in Vineet Narain, above n. 82.

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result of constitutional crises in Pakistan137 was “the pathetic status of the fundamental rights of the people” (Ahmed 1999: 17), a situation further aggravated by a weakened and emasculated judiciary which legitimised various extra-constitutional regimes instead of sufficiently contributing to the establishment of constitutionalism.138 While the question whether the Pakistani judiciary’s legitimisation of authoritarian rules or its silence amidst such national crises served or subverted the public interest is highly contestable, 139 it is undeniable that undemocratic regimes retarded the development of judicial activism in Pakistan. Given the absence of a favourable political environment crucial for an effective judiciary, it is unsurprising that judicial activism in Pakistan was a late visitor. However, following the withdrawal of the third martial law in 1985 and the revival in “disfigured form” (Maluka 1995: 325, n. 3) of the country’s 1973 Constitution, the judiciary began to “re-assert” its authority (Alam 2000: 24) against the encroaching executive. At this juncture, both legal and non-legal circles, influenced by Indian legal developments, began to realise the basic deficiencies in the received British common law traditions to ensure justice in the socio-economically distinct Pakistani set-up. 140 As a result, a trend of progressive and

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Since independence in 1947, Pakistan has so far experienced four extraconstitutional regimes including the recent one (October 1999-2008), and 11 constitutional arrangements including the three formal constitutions of 1956, 1962 and 1973 (Khan 1992: 86; Maluka 1995: 325, n. 3). On crises of Pakistani constitutionalism see Choudhury (1969), Ahmad (1981), Maluka (1995), Newberg (1995), Khan (2004), and Osama (2006). 138 See State v Dosso PLD 1958 SC 533, and Begum Nusrat Bhutto v Chief of Army Staff PLD 1977 SC 657. Its recent decision in Zafar Ali v General Pervez Musharraf PLD (2000) SC 869 seems to have gone further in glorifying the current military regime, by accepting the military coup and giving the military ruler an authority to amend the Constitution. Exceptionally, in Asma Jilani v Punjab PLD 1972 SC 139, the Court declared a military regime unconstitutional, but only after the dictator left power and democracy was restored. For a good analysis of the judicial role during extra-constitutional regimes see Mahmud (1993). 139 Interestingly, Naseem (1997) considers the Pakistani judiciary’s passive role in cases of constitutional breakdown a “central necessity” and as serving the public interest, because by avoiding a direct conflict with the executive it sought to enforce legal bounds and to keep the continuity of the legal order. 140 Following Hamood-ur-Rahman J’s urge in 1975 for discarding Anglo-Saxon legal principles (Khan, M. H. 1993: 51), senior judges like Afzal Zullah (see e.g. Haji Nijam Khan v Additional District Judge PLD 1976 Lah 930, and Golam Ali v Gulam S. Naqvi PLD 1990 SC 1) and Mohammad Haleem later called for a

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democracy-reinforcing constitutional interpretation emerged (only to become marred in the late 1990s), 141 the Pakistani version of PIL was born, and “the winds of judicial activism” (Khan 1991: 19) reached the country. As in India, PIL in Pakistan came to be applied as an instrument of social justice (Shah 1993) and turned out to be the most fertile site of judicial activism. Following the liberalisation of the procedural bar of ‘standing’ in Benazir Bhutto v Federation of Pakistan,142 the judge-led PIL in Pakistan, following India’s footsteps, flourished rather rapidly, covering a whole range of issues but focusing heavily on common community problems such as environmental degradation. In its first epistolary PIL, Darshan Masih v The State,143 the Supreme Court extended its hands of justice to the suffering bonded labourers by attempting to raise the standards of their lives and giving directions for devising “long-term measures” to end this abominable practice. In other high profile environmental PILs the Court appeared active in protecting both the public interest and shared legal interests of individuals. 144 For example, in the most prominent epistolary case, Shehla Zia v WAPDA, 145 the Court solicited an expert scientific report and by applying the ‘precautionary principle’ gave an interim remedy to a group of Islamabad residents who sought protection against the imminent threats to their life and health from the nearby construction of a power-grid station. In this and other cases including those falling under the traditional civil liberties category, the Court gave an extended meaning to the constitutional right to life and human dignity (Arts. 9 & 14).146 Its newly developed justice consciousness was mirrored in a Lahore High Court case that saw judicial “nonintervention […] in complaints of matters of public concern [as an] shifting “from mechanical jurisprudence to human welfare oriented law” (Haleem 1986: 208). 141 On the role of the Pakistani judiciary in improving constitutional law or upholding constitutional supremacy see generally Mohammad (1993) and Shah (1994). 142 PLD 1988 SC 416. 143 PLD 1990 SC 513, per Zullah, CJ. 144 On Pakistani PIL-based judicial environmental activism see Hassan and Azfar (2004), Razzaque (2004) and Hassan (2005). 145 PLD 1994 SC 693. 146 See Salt Miners’ Labour Union v Industries and Mineral Development 1994 SCMR 2061, 2070 (‘right to life’ embraces a right to have “unpolluted water”); Sajida Bibi v In-Charge, Chouki No. 2, Police Station Sadar, Sahiwal PLD 1997 Lah 666 (bashing police excesses that set apart a woman from her husband, the court held that ‘life’ included a happy marital life).

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abdication of judicial authority”.147 Also notable are the Court’s suo motu interventions in a good number of cases in which it actively responded in the public interest in order to protect life, liberty, honour and property of the citizens (Khan, M. H. 1991; 1993: 70-84; Raza 2000: 80-2). This type of conscientious activism resulted in significant prison reforms, reduction of stove-burn deaths of women, extraordinary protection to victims of rape, and stopping of the inhumane practice of publicly executing deathconvicts.148 We are required to be brief here on PIL-based judicial activism in Pakistan.149 Rather, it is more feasible to examine its internal, qualitative elements and how the judges erected its foundational edifice, which is a notion of justice based on citizens’ duties and state obligations rather than individualised rights. Developing this jurisprudential base was not easy. However, the Pakistani judges accomplished this relatively easily by creatively using the ‘Islamic’ notions of ‘social justice’ and ‘equality’150 to fortify their legal reasoning while adjudicating rights to arrive at better justice. Following Islamisation of the Pakistani legal system, 151 ‘Islam’ became “the greatest influence” (Khan, M. H. 1993: 48) on, and the legitimising source of, Pakistani judicial activism that largely displaced the popular belief that duty-based Islamic precepts are inherently irreconcilable with secular rights. As Lau (1998) tellingly observes, the harmonisation of Islamic ideals with secular constitutional provisions has “enlarged” the scope of human rights and has considerably “widened” the concept of PIL in Pakistan (Lau 1998: 295). This draws our attention to a more “basic framework of South Asian legal ordering” (Menski 2000b: 111-2), which is the reliance on various familiar local concepts of justice, duty, 147

The State v M. D., WASA, 2000 CLC 22 (Lah) 471, 475. Respectively, Re Juvenile Jail, Landhi, Karachi 1990 PCrLJ 1231; State v Senior Superintendent of Police, Lahore PLD 1991 Lah 224; Re Human Rights Case 1993 SCMR 200; Re Suo Motu Constitutional Petition 1994 SCMR 1028. 149 A good work on Pakistani PIL is Khan, M. H. (1993). For a fairly recent analysis, see Menski et al (2000). See also Hussain, F. (1993a-b; 1994), and Hussain, S. (1994). 150 See e.g. Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416, 489, Akbar Ali v The State 1991 SCMR 2114 and Mst Fazal Jan v Roshan Din PLD 1990 SC 661. See also Zullah (1992) and Lau (1998: 295). 151 The Islamisation of the Pakistani legal system began in 1949 with the ‘Objectives Resolution’ that considers state authority as a trust from God (placed in Art 2A of the Constitution in 1985), and achieved perfection through several executive/legislative measures in the late 1970s-80s and judicial efforts (Lau 2000; 2005). For further details see Taylor (1983), Iqbal (1986), Patel (1986), Amin (1989), Mehdi (1994), Khosa (1995), Shah (1995) and Rehman (2000). 148

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accountability, dharma, or Shari’a (Menski, id.), derived from a higher non-temporal authority than mere secular legal principles. However, the lesson that can most profitably be learnt from the judicial use of an Islamised legal system remains not in the Islamisation process itself, but in the “indigenisation of the legal system” (Khan 1992: 93) or the crafty use by the judiciary of culture-specific higher legal precepts. As usual, Pakistani judicial activism has received sustained setbacks from the authoritarian regime of the recent past (1999-2008) that began with General Pervez Musharraf’s taking over of state power after thwarting an elected government.152 Even Islamic notions of justice, unlike in the past, failed to motivate the courts to play their democracyconstitutive role. As noted, also this time, the judiciary almost abdicated its duty of dispensing constitutional justice and set out to be an approver of every activity and law of the authoritarian government.153 By contrast, it is the same judiciary that employed activism and asserted its independence during the end of military regime,154 leading the country ultimately to a democratic transition.155 Against these familiar odds, Pakistani judges have plausibly been able to carry over some measure of PIL-based activism in, at the very least, some politically less risky but nevertheless vital areas such as the environment, where it acted on a participatory basis.156 Examples can be

152

Through a coup the then Army Chief assumed the state power on October 1999 and remained in power until early 2008. After parliamentary elections on 18 February 2008, Pakistan transited from its latest and the longest authoritarian regime to democracy. 153 See, Zafar Ali v General Pervez Musharraf, above n. 138; Wasim Sajjad v Federation of Pakistan PLD (2002) SC 233 (the Court allowing General Pervez Musharraf a period of three years to revert to democracy after attaining the objectives for which he intervened in the state governance); Qazi Hussain Ahmad v General Pervez Musharraf, PLD (2002) SC 853 (conforming the legality of Chief Executive Pervez Musharraf’s Referendum Order No. 12, 2002 by dint of which Musharraf became the President); Watan Party v Chief Executive of Pakistan, PLD (2003) SC 74 (approving extra-constitutional constitutional amendments brought about through the Legal Framework Order, No. 24, 2002). 154 This was allegedly fed by judges’ self-interest, besides being pushed forward by lawyers’ movement and public demands against the military rule. 155 See Review (2010). ‘The Pakistani Lawyers’ Movement and the Popular Currency of Judicial Power’, 123 Harvard Law Review, pp. 1705-26. 156 E.g., in some recent PIEL cases, the court involved the administration within a judicially supervised cooperative team of actors drawn from diverse walks of life. See Syed Mansoor Ali Shah v Punjab (WP 6927/1997); City District v Muhammad

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made of a series of public interest cases in which the top courts played a proactive role in preserving the urban environment by enforcing the public’s right to parks or free spaces. 157 Also, during the recently past undemocratic era, public interest litigation was used as a tool to pressurise the government to revert to its democratic pledges, although the judiciary largely failed to live up to the public’s expectation and demand. In what can be termed as Pakistan’s post-emergency period (2008 onward),158 the judiciary has been attempting to show new activism in the areas of both fundamental rights and constitutionalism. For example, in Sindh High Court Bar Association through its Secretary (and Nadeem Ahmed Advocate) v Federation of Pakistan (2009),159 the Supreme Court declared unconstitutional the imposition of emergency by the then President on 3 November 2007 and also the Provisional Constitution Order issued by him. Somewhat unconventionally, the Court observed that, unless Article 237 of the Constitution160 was first amended, “no validation, affirmation or adoption of unconstitutional, illegal and void ab initio acts of a usurper of power could be made by … Parliament”,161 - assertions which are akin to the establishment of the doctrine of basic structure (ch. 4.5 below). To conclude, this chapter has demonstrated that the nature, scope and degree of judicial activism are fundamentally society-specific, and that judges need constantly to strike a right balance between maintaining

Yusaf (ICA No. 798/2002); Dr. Amjad H. Bokhari v Federation of Pakistan (Karachi Oil Spill Case) (Constitutional Petition 45/2003). 157 See, e.g., Moulvi Iqbal Haider v. Capital Development Authority (2006) PLD (SC) 394 (preventing the leasing out of a park for golf-course) ; and Suo Motu Case No. 3 - Cutting Down of Trees in Jehangir Park, Saddar, Karachi (2006) 55 PLD (SC) 5 (preventing constructions in a park). 158 The last state of emergency (which was ‘martial law’ in disguise) was imposed on 3 Nov. 2007. 159 Constitutional Petitions 8 & 9 of 2009, Supreme Court of Pakistan, Judgment 31 July 2009. On this decision, see Anaujia and Jain (2009). Also notable is Sh. Liaquat Hussain v Federation of Pakistan, PLD 1999 SC 504, the Court declared unconstitutional the establishment of military courts to try offences by civilians. In another decision, it held valid the National Accountability Bureau Ordinance 1999, enacted during the extra-constitutional regime, thereby creating a space for accountability of high executives including the present President. 160 Article 237 of the Pakistani Constitution provides for indemnifying any person in the service of the government, or any other person only in respect of any act done in connection with the restoration of peace. 161 Sindh High Court Bar Association, above note 159, per Chaudhry, C.J., at paragraph 100 of the judgment. This holding can be compared to Bangladesh’s soknown 5th Amendment Case, discussed in ch. 4.6.4 below.

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institutional comity and obligation to do justice, or between judicial overactivism and meek administration of justice. This chapter has further shown that judges’ adequate sensitivity towards the demands of specific conditions of their respective society, underpinned by a consciousness both about their agency and functional limitations, may help them pursue activist judging for better justice without crossing constitutional bounds. As this chapter suggests, this kind of judicial activism largely depends on judges’ ability to infuse moral imperatives into legal constructions, and their willingness to transcend limitations of positivism-swayed existing legal and adjudicative theories.

CHAPTER FOUR DEVELOPMENT OF CONSTITUTIONALISM AND JUDICIAL ACTIVISM IN BANGLADESH: A CRITICAL ANALYSIS

This chapter offers a developmental analysis of the post-democratic restoration (post-1990) phenomenon of judicial activism in Bangladesh in light of the country’s largely uneven and incoherent practice of constitutionalism. It also aims to test the findings of the two preceding chapters, and prepares the ground for chapter 5. Chapter 2 above highlighted an inadequate space in dominant legal theories for judicial activism in the sense of the present study, but noted that a society-specific reconstruction of legal theories, a task that largely turns on perceptive and willing judges, greatly supports judicial activism for achieving justice in a particular jurisdiction. However, most leading Bangladeshi judges and jurists imbibed a Western-inspired jurisprudence that they were uncritically taught at law schools. As such, while now a band of socially conscious Bangladeshi judges see it as their “duty to guide the nation in shaping its destiny within the framework of the law and the Constitution”,1 many others seem to be “quite insensitive to judicial activism”,2 probably because their traditional eyes see no jurisprudential support for it. While it is unwise to generalise negative and reserved approaches to ‘judicial activism’ as a reflection of absolute judicial apathy towards the concept, there is much to suggest that how a judge looks at legal theory and the law’s function depends on his/her education and significantly influences judicial decisions. One of the core objectives of 1

SAS Bangladesh Ltd v Engr. Mahmud-ul Islam (2004) 24 BLD (AD) 92, 112, per M. F. Karim, J. 2 A remark by the former Chief Justice A. T. M. Afzal, who, however, claimed to be “not against judicial creativity” (Afzal 1999: 42). Many judges share a feeling that judicial activism is something anathema to ‘jurisprudence’. Surprisingly, one judge who wrote some pro-active decisions readily disapproved of the term ‘activism’ as an appropriate expression for progressive judicial activity.

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the present chapter is to problematise this link between legal training and judicial practice by analysing some prominent decisions. As seen in chapter 3, the existence of a Bill of Rights and a committed judiciary, particularly in India and South Africa, have combined to create a socio-transformative and democracy-constitutive role for the judges. Keeping such activist examples in mind, this chapter also examines if the adjudication process in Bangladesh is sufficiently informed of the constitutional message of a new socio-politico-economic order, an analysis further stretched in chapter 5 below.

4.1 The Constitution and the legal system of Bangladesh: The missing transformativeness Declaring its independence on 26 March 1971, Bangladesh formally attained nationhood on 16 December 1971 following a long historic war of independence that ended with the surrender of the occupying Pakistani forces.3 Bangladesh’s independence symbolised the legendary repudiation by its people of exploitation and military rule by the West Pakistani colonisers, the denial of human rights and dignity, and of social injustice. Yet ironically, in the thirty five odd years of Bangladesh’s existence, it has remained seized or self-colonised for a long 16 years’ period (1975-1990) by military-autocratic and nearly autocratic regimes. Sadly, post-independence constitutional developments in Bangladesh have been largely as chequered as in Pakistan (Choudhury 1995: ix), a legacy which is also partially liable for the country’s pre-1991 politico-constitutional crises (Islam 2002: 163). Bangladesh’s parliamentary democracy, formally adopted through an election in 1973, faced a tragic demise in 1974-5. Following a constitutional amendment, the preventive detention law (the Special Powers Act 1974, hereafter SPA) was introduced, and an ‘emergency’ was imposed on the ground of internal disturbances on 28 December 1974. 4 Thereafter, an authoritarian, one-party government was installed through the controversial 4th Amendment to the Constitution that destroyed many of the founding values of the nation such as the independence of the judiciary, and 3

On Bangladesh’s birth-history, see Roy Chowdhury (1972), Baxter (1984), Islam (1987a), Sisson and Rose (1990), Muhit (1992), and Zaheer (1994). For preindependence history see Islam, S. (1992). 4 See the Presidential Proclamation of 28 December 1974, made under art. 141A that, along with the preventive detention provisions, was introduced through the Constitution (Second Amendment) Act, 1973 (w. e. f. 22 September 1973). It is to be noted that on 11 January 2007 the current interim government declared a state of emergency in the face of ongoing political clashes.

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abrogated the basic civil rights including the freedom of the press.5 These sweeping constitutional deviations marked the start of the long-running “paternalism” (Ghai 1993: 187) in state governance that had earlier caused the quick collapse of the first parliamentary government (Choudhury, J. S. A. 2005: iv). At this juncture of its career, Bangladesh seemed to incur the typical post-colonial, third world country malady of “absence of constitutionalism and the rule of law” (Ghai: 1993: 187) despite the formal recognition of constitutional supremacy and other ideals of constitutionalism. Further unfortunately, the Constitution and popular sovereignty were forced to die when the military intervened in 1975, 6 (mis)ruling the country for a long period (1975-90) with intermittent interludes of civilianlike governments. 7 This long-lasting cantonment raj (Sobhan 2002: 3) was, however, replaced by a new beginning of parliamentary democracy in 1991,8 achieved through a spontaneous public uprising that ended military autocracy on 6 December 1990. Elected democracy has since been in operation uninterruptedly, but consolidation of substantive democracy in Bangladesh has remained rather unattained (Zafarullah 1999; Quadir 2004). The political institutions in Bangladesh remain largely weak and indifferent to the public good, as evident in the existence of a poorly functioning Parliament (Ahmed, Nizam 2001; 2002) exceedingly dominated by an omnipotent, self-serving executive. Moreover, the country’s record of the protection of both civil and social human rights is regressive. In short, the promise of constitutionalism and a just social order continues to remain shattered principally due to a virtually non-accountable and non-

5

The Constitution (Fourth Amendment) Act, 1975 (w. e. f. 25 January 1975). Supreme Court judges were made removable without legal process and the Court was denuded of its supervisory and controlling authority (e.g. through appointments) over the subordinate judiciary. 6 This happened following a coup on 15 August 1975 by a group of army men that killed President Sheikh Mujibur Rahman, famously called Bangabandhu (the Friend of Bengal), and his family members. 7 First civil interregnum spanned between 7 April 1979 to 24 March 1982 (the dates of withdrawal of the first martial law and the imposition of the second). The second martial law was withdrawn on 10 November 1986 but the military ruler General H. M. Ershad remained in power until democratic transition in 1990. For political accounts see Ahmed (1978; 1995), Al-Razee (1988), Ziring (1993), Kabir (1999) and Chowdhury, M. H. (2002). On how the judiciary was lamed during these regimes, see Bari (1985; 1987). 8 Through the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991).

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responsive governance system.9 As a result, not only have the concerns for public interest sunk into oblivion, the state has also become incapacitated “to effectively and equitably serve the people” (Zafarullah 2003: 288).10 It is in this context that one needs to set the parameters of the judicial role vis-à-vis the people’s entitlement to a constitutional democracy.

4.1.1 The Constitution as an instrument for social change The Constitution of Bangladesh (hereafter ‘the Constitution’), adopted on 4 November and entered into force on 16 December 1972, 11 is an “autochthonous” constitution,12 borne of supreme sacrifices of its people in the bloody War of Independence that witnessed one of the world’s most heinous genocides (Mascarenhas 1971). Being an organic document with the status of “the supreme law” of the land (Art. 7), marking the end of internal colonial bondage, the Constitution placed the people at the heart of the country’s new constitutional journey and promised them a deletion of past disparities and inequalities (Hossain 1997: 43). It begins by the words –“We, the people of Bangladesh”, and sets out in its Preamble the nation’s “fundamental aim” of realising a socialist democratic society, “free from exploitation” and based on “the rule of law, 13 fundamental human rights and freedom, equality and justice, political, economic and social”. By declaring the Republic as a democracy based on the fundamental value of respect for human “dignity and worth” (Art. 11), the Constitution entrenched a justiciable, modernistic bill of rights covering a wide spectrum of fundamental rights (Arts. 27-45).

9

Rahman (1998) is a brief account of Bangladesh’s experience with constitutionalism. Younis and Mostafa (2000) note that weak accountability in the Bangladeshi polity has had negative impacts on her democracy, development and the state of human rights. 10 On recent evaluations of Bangladesh’s progress in various sectors see Chowdhury and Alam (2002). See further Jahan (2000) and Ahmed (2004). 11 A pre-Constitution legal framework was provided by the Proclamation of Independence of 10 April, 1971 (w. e. f. 26 March 1971), and the Provisional Constitution of Bangladesh Order, 1972 (11 January 1972). There is a paucity of literature on the history of Bangladesh’s constitution-making. But see Huq (1973). Choudhury (1995) gives an account of developments till 1991; and Ahmed (1978) presents pre-independence history. 12 Per B. H. Chowdhury J in Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl) 1, 159. 13 For a constitutional lawyer’s analysis of the rule of law in the Bangladesh see Islam (2005). For a refreshingly new account, see Bingham (2010).

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The grand objective of bringing social and constitutional justice to the common people permeated the minds of founding fathers of the Constitution. As such, along with fundamental constitutional rights, there was drawn in Part II of the Constitution a charter of national socioeconomic development under the banner of ‘Fundamental Principles of State Policy’ (FPSPs). These principles (Arts. 8-25), which in fact embody social rights, imposed positive fundamental responsibilities on the state, among other things, to pursue a planned economy to secure to citizens basic amenities of life such as food, shelter, education, and medical care, to bring about a “radical transformation” (Art. 16) in rural life, and to emancipate the toiling masses from exploitation. More importantly, the Constitution adheres to a logical and equitable concept of equality, exempting affirmative state actions taken to advance any “backward section” of citizens from being unconstitutional on the equality ground [Art. 28 (4)], and saving certain social welfare laws from being void for not being compatible with fundamental rights (Art. 47). The Constitution, however, kept a conundrum as to the legal implications of these principles by declaring them to be judicially unenforceable [Art. 8(2)]. 14 However, this non-justiciability clause does not in any way undermine the transformative character of the Bangladeshi Constitution and the normative abidingness of the FPSPs, because these principles have also been mandated to be “fundamental” in the governance and lawmaking of the state and to be “a guide” to the interpretation of the Constitution and other laws [Art. 8(2)]. 15 Undoubtedly, thus, these directive principles, along with the fundamental rights, “provide a reservoir of legal resources which can be drawn upon to bring about [social] change” (Hossain 1997: 43). They clearly provide the mandate for innovative laws, institutions and remedies (Hossain 1997: 43) and, importantly, for an active and prochange judicial role. A deeper inspection of these principles will reveal that these are not only constitutional mandates binding the state functionaries including the judiciary, but are also capable of employment as a tool to create legal and public mobilisation in favour of public entitlements and even to “initiate public interest litigation to realise the pledges of social and economic justice” (Hossain 1997: 51).

14

This technique of judicial non-enforceability of social rights was a reflection of the international politics of ‘generations’ of rights in the 1960s. As the Chairman of the Constitution Drafting Committee, Dr. Kamal Hossain, told a 2006 London seminar, the framers of the Constitution would probably have written the social rights provisions in a South African-style had they drafted it now. 15 For further details see ch. 5, below.

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4.1.2 A duty and collective justice-focused legal system Surprisingly, there has never occurred, either on independence or thereafter, any deeper debate about the nature of the legal system of Bangladesh, which is fashionably and flatly described as based on British common law tradition. 16 Although it is true that the Bangladeshi legal system is “predominantly” (Alam 2002: 116) common law-based, an uncontested acceptance of this characterisation may bring home “genetic defects” (Henkin 1993) of the English common law. This has already happened in that, for example, the legal profession generally and the judges in particular have, until recently, remained attached to procedural over-adversarialism and excessive judicial passivity. The Bangladeshi legal system, a complex hybrid of pre-colonial indigenous legal cultures, received Anglo-Indian legal tradition,17 and post-independence developments, is pluralistic in nature (as evident in various personal law systems)18 and is clearly posited on societal duties and public obligations – a foundation that seems lacking in English common law. Through a unique provision, the Constitution placed upon every citizen a duty “to observe” the Constitution and the laws and enjoined the public servants to strive at all times “to serve” the people (Art. 21). This is an important proclamation of the primacy of public interest and social justice over individualistic interests, and this social orientation of the Constitution and the legal system requires the judges to pursue a society-specific notion of justice. True, following independence, Bangladesh adopted British-era legislations and post-1947 Pakistani laws that existed in erstwhile East16 On historical and current accounts of the Bangladeshi legal system see Hoque (1980), Patwari (1991), Alam (2002) and Hoque, K. E. (2003). Also relevant is Jain (1990). 17 This is not the same as English law – a conceptual mistake often made about South Asian laws (Menski and Rahman 1988: 111). Although the character of the native law was drastically impaired during the British period, local laws and conditions were not totally excluded while the British enacted various legal codes (Alam 2002: 119). Undeniably, however, those mixed laws, many locally “unsuitable” (Gledhill 1956: 9), were nevertheless fundamentally colonial, aimed at increasing imperial economic interest (Benton 2002: 127-66) and disciplining the so-perceived corrupt and untruthful natives (Malik 1994). 18 Bangladeshi legal pluralism is also reflected in the existence of semi-official justice systems operating under different local government bodies. However, legal pluralism in Bangladesh, until recently, remained under-recognised. See the Chittagong Hill-Tracts Regulation (Amendment) Act 2003 that requires the civil courts newly introduced in the Hills region to apply “local customs” and usages of the tribes as residual law.

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Pakistan before 26 March 1971. 19 Pragmatically, “this was perhaps the only reasonable option” (Menski and Rahman 1988: 112), as Bangladesh had no time to develop a brand new legal system. However, a reformagenda was clearly set out for turning the adopted regime into a dutybased, just and welfare-conscious order. This mandate is evident in the overall scheme of the Constitution that renders all adopted “existing laws” amendable or repealable under the Constitution (Art. 149), makes their continuity contingent on being fundamental rights-compatible (Art. 26), and mandates their interpretation in light of the FPSPs (Art. 8). Admittedly, however, post-independence reconstruction of the Bangladeshi law in close accordance with such constitutional mandates has been largely absent. Unfortunately, the contemporary Bangladeshi law is still largely colonial in nature and also in spirit,20 and the colonial legacy of power-facilitative, command-based and top-down lawmaking continues to haunt the country’s legislative history, thereby marginalising the people’s participation in lawmaking and their chance of getting better justice. This however should not in any way undermine the basic framework of Bangladesh’s legal ordering underpinned by constitutional notions of social-political justice and local concepts of justice or right/wrong, obligations and equality.21

4.2 The place of the judiciary under the Constitution Historically, the Bangladeshi people have held the judiciary in very high esteem. Trust in, and expectations from, the judiciary are a vital social base of judicial authority in Bangladesh. At the formal organic level, the Constitution uniquely places the Supreme Court as a sentinel on the qui vive and the guardian of the Constitution, proclaiming its functional independence [Arts. 94 (4); 96; 109] and ensuring its authority to

19

By virtue of the Laws Continuance Enforcement Order 1971 (10 April 1971), Bangladesh (Adaptation of Existing Laws) Order 1972, and Art 149 of the Constitution. 20 Baxi ([1982] 2005) reports a similar problem of coloniality in the Indian legal system, seeing this as a “crisis”. 21 Interestingly, in Shamima Sultana Seema v Bangladesh (2005) 57 DLR (HCD) 201, Haque, J. made (at pp. 207-9) “historical” references to Qur’anic provisions and Islamic traditions regarding equality, purportedly to make government actors conscious about their moral-constitutional obligation of non-discrimination against women.

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command compliance with its decisions/orders.22 Moreover, the Constitution has not only guaranteed fundamental rights and their judicial enforcement [Art. 44(1)], but has also sufficiently empowered the senior judiciary to enforce them through appropriate “directions or orders” to “any person or authority” including the public functionaries [Art 102 (1), empowering the High Court Division (hereafter HCD) of the Supreme Court].23 The HCD has also been given the power to issue appropriate writs to remedy a legal wrong or to enforce legal obligations [Art. 102 (2)]. 24 In its aggregate form, Article 102 of the Constitution provides the principal vehicle through which to practically achieve constitutionalism by enforcing the constitutionality or legality against not only state authorities but also private entities. Moreover, the Appellate Division (hereafter AD) of the Supreme Court has the power to issue directions and orders “to do complete justice” in any pending case (Art. 104). The constitutional supremacy clause (Art. 7) categorically declares that any other law inconsistent with the Constitution shall be void, while Article 26 enjoins the state not to legislate in derogation of fundamental rights, providing that any law (excepting constitutional amendments) 25 made inconsistently with these rights shall be void. It thus appears that despite the absence of an express pronouncement, the constitutional scheme as a whole clearly envisages a robust judicial constitutional review, 26 which extends not only over administrative actions, as is sometimes naïvely claimed, but also over legislative acts and now even 22

It is empowered to commit anyone for contempt (Art. 108), and the “authorities” (executive and judicial) are obliged to act in its aid (Art. 112). 23 Its other and the apex part is the Appellate Division (AD) that hears appeals from decisions of the High Court Division (Art. 103) and some other statutory tribunals. Also, the Appellate Division has jurisdiction to advise the President on constitutional issues of public importance (Art. 106). 24 Without using the nomenclature ‘writ’, article 102 (2) allows five kinds of writs, mandamus, prohibition, certiorari, quo warranto and habeas corpus, against state and local authorities. 25 See articles 26 (3); 142 (2), as introduced in 1973 via the 2nd constitutional amendment. Constitutionality of this type of wholesale ouster of judicial review is doubtful in light of the basic structure doctrine established in Anwar Hossain Chowdhury (n. 27 below) wherein, however, this issue was avoided. 26 Judicial review has a firm common law base in most South Asian countries. For example, despite the silence of Pakistani Constitution of 1962 in this regard, judicial review of legislation was established through judicial activism in Jibendra Kishore v East Pakistan (1957) 9 DLR SC 21 and Mustafa Ansari v Deputy Commissioner (1965) 17 DLR (Dacca) 553 [striking down a provision in the Chittagong Hill Tracts (Regulation) Rules 1960].

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constitutional amendments.27 This constitutional leverage for wide judicial power along with constitutional mandates for a just socio-legal order, as analysed above, indicates a special constitutional invigilation and responsibility on the part of the judiciary, the repository of the people’s judicial power, 28 to promote constitutional goods and justice for the common people.

4.3 Judicial activism in the formative years: Kazi Mukhlesur Rahman and the aborted seeds of activism The post-independence judiciary in Bangladesh had an extremely short democratic period within which it had to consolidate its constitutional jurisprudence. The initial Supreme Court was not even granted judicial review that came with the formal adoption of the Constitution. 29 Appreciably, the Court started its journey by formally acknowledging its “great responsibility” (Sayem 1972: 2-3) to help build “an equitable social order” (Sayem, id.) through the rule of law. Initially, it began to abandon, albeit slowly, strict literalism in favour of a legal spirit-based method of interpretation so as to ensure justice by overcoming procedural difficulties and technicalities.30 Thus, until the subversion of the Constitution through the imposition of emergency on 28 December 1974 and suspension of right to seek judicial remedy, the judges remained relatively vigilant against the executive’s encroachment of the people’s fundamental rights. During this and most of the next period, two issues, namely breach of personal liberty and misuses of the statutory provisions for taking over ‘abandoned property’, occupied most of the Court’s rights decisions, where it played a laudatory role by checking political and bureaucratic arbitrariness.31 In personal liberty cases, it developed a self-awareness of its constitutional duty to safeguard rights of “any person”, to uphold “human dignity” and the ideals of a liberal society, and to engraft a ruleof-law-culture into the body politic.32 In the now famous A. T. Mridha v

27

Following Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl.) 1 (the Eighth Amendment Case). For details see below section 4.5. 28 Mujibur Rahman v Bangladesh (1992) 44 DLR (AD) 111. 29 See article 4 of the High Court of Bangladesh Order, 1972. 30 Kutubuddin v Nurjahan (1973) 25 DLR (HCD) 21. 31 See, e.g., M/S A. T. J. Industries v Govt. of Bangladesh (1976) 28 DLR (HCD) 27. See further Omar (1988). 32 A. T. Mridha v The State, below n. 33, at 338. See also Maimunnesa v State (1974) 26 DLR (HCD) 24, extending judicial protection to suspect collaborators of

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The State,33 concerning the legality of detention of the petitioner under a law that precluded court challenges of actions taken thereunder, the Court made the earliest bold pronouncement that its constitutional supervisory power could not be ousted by a sub-constitutional legislation.34 However, the most prominent decision of this period which apparently sowed the seeds of judicial public interest and constitutional activism in the 1990s came in Kazi Mukhlesur Rahman v Bangladesh (hereafter Berubari),35challenging the constitutionality of the Delhi-Dhaka Treaty of 16 May 1974 involving exchange of territories between Bangladesh and India. The petitioner, an advocate, argued that the executive was constitutionally disempowered to give away, through a treaty, any part of Bangladesh, here southern Berubari Union No. 12, and that the execution of the Delhi Treaty would deprive him of the right to move throughout the country. Having found the petitioner a non-resident of Berubari, the HCD turned him away on the threshold of locus standi. On appeal, however, the Appellate Division took a broad but cautious view that “the question of locus standi does not involve the court’s jurisdiction”, but is a matter of its discretion to be exercised in due consideration of facts and circumstances of each case. 36 This led to a commendable distinction between two separate issues, standing and justifiability, which are often simultaneously invoked at the initial stage of litigation by those who oppose opening up of courts. The main opposing argument was built around article 102 of the Constitution that textually makes judicial review contingent upon “the application of any person aggrieved”. To substantiate that the petitioner was not ‘aggrieved’, the opposing counsels cited a number of foreign decisions that premised standing on the claimant’s special interests in the cause. The AD found “no reasons for differing from those principles, generally”, but was willing to hear the petitioner as his case involved an

anti-independence Pakistani forces, which was a challenging task at that delicate time. 33 (1973) 25 DLR (HCD) 335. 34 Ibid., at p. 350, per B. H. Choudhury, J., by referring to the President’s Order No. 50 promulgated before the Constitution was adopted. Unfortunately, the Appellate Division reversed this decision, but not the finding as to constitutional principles, on an extremely narrow ground that the magistrate remanding the accused to custody was not a ‘court’ for the purpose of the High Court Division’s supervision since he did not yet take cognizance of the offence: Solicitor, Govt. of Bangladesh v A. T. Mridha (1974) 26 DLR (AD) 17. 35 (1974) 26 DLR (AD) 44. 36 Ibid., at p. 52 , per Sayem, C.J.

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outstanding constitutional issue of “grave importance” affecting the rights of the people as a whole.37 Of course, there were reasons to depart from those rigid principles of standing. Moreover, the Court left it un-indicated whether breaches of public interest or welfare by those in positions of power can trigger off a free ‘standing’. Thus, although Berubari went very close to the doctrine of public interest litigation (Ahmed, Naim 1998: 43) or the principle of abstract review that allows any citizen to challenge the constitutionality of any action/law on the face of it rather than through proving a “concrete injury or controversy”, 38 it clearly missed a golden opportunity to erect a firm ground for a transformative jurisprudence. Nonetheless, Berubari symbolises the attainment of sophistication in legal thinking by a young judiciary at a time when the extreme rigidity of ‘standing’ had just begun to loosen elsewhere.39 The decision represents one of the few leading cases to launch rights-based arguments in Bangladeshi judicial discourse. A broader vision of rights led the Court to proceed merely on the basis of an impending threat to the petitioner’s right of free movement, and to reject the argument of non-justiciability of an “act of state” (the Treaty) or a policy matter breaching citizens’ rights and liberties.40 Moreover, although it did not ultimately help the petitioner whose petition was dismissed as ‘premature’, the Court in a “rare exercise” (Kamal 1994: 51) of its authority entered into the merits of the case, seemingly out of a concern to see that the Constitution was being followed. Following an intensive examination of the Executive’s treatymaking power under the Constitution in light of comparative legal reasoning, it finally concluded that the concerned Treaty having involved cession of the country’s territory could not be effectuated without first changing the constitutional definition of the state-territory.41

37

Ibid., at pp. 51-2. This phrase, used in an early Dhaka case, A. K. M. Fazlul Quader Chowdhury v Govt. of Pakistan (1957) 9 DLR (Dacca) 139, is coined by and often used in US judicial decisions (Driesen 2004). 39 On this, Kamal J in Dr Mohiuddin Farooque v Bangladesh (1997) 17 BLD (AD) 1 remarked (p. 3): “It is a matter of some pride that quite early in our Constitutional journey the question of locus standi was given a liberal contour […] at a time when […] the doctrine of public interest litigation […] was yet to take roots in the Indian jurisdiction”. 40 (1974) 26 DLR (AD) 44, 53. 41 The judgment immediately triggered the Constitution (Third Amendment) Act 1974. 38

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A number of conclusions can be drawn about Berubari. First, it seems to liberate the rule of standing from the shackles of legalism and places it within judicial discretion. Second, the Court’s plausible rejection of judicial minimalism, i.e., its entry into the merits stage even after holding that the petition was premature, constitutes a proper approach to public law adjudication. 42 Third, it was probably the beginning of abstract or public interest judicial review of more serious constitutional breaches. Fourth, the establishment of judicial reviewability of an international treaty implicating constitutional rights suggests the possibility that, proceeding strategically, courts can safely deal with policy issues in the greater public interest. Unfortunately, however, these promises remained largely unfulfilled and the Berubari-type of judicial liberalism seemingly failed to dispel the usual judicial formalism, as evident in subsequent decisions where the Court turned a blind eye to public interest arguments.43 What does explain the subsequent absence of impacts of Berubari? One may readily point at the politically unfavourable climate that immediately followed. However, apart from this easily detected reason, judicial unwillingness to continue to innovate or to shun traditionalism was a real culprit, as evident in the very fact that even after the restoration of democracy in 1990 the Court still took another 6 years to authoritatively implant public interest jurisprudence (ch. 5 below).

4.4 Extra-constitutional regimes (1975-1990): Judicial abdication of responsibility The year 1975 began very badly with the 4th constitutional amendment that attempted to make the judiciary pliable. Obviously, the Court fell into troubles and a crisis of existence that deepened further when the military autocracy was installed in August 1975 and continued almost throughout the period being studied in this section. At times, the Court showed preparedness to employ remedy-enhancive interpretation or to assert its authority, particularly when the martial law was yet to take deep roots, or during civil interregnums. For example, in a 42

On this see further Driesen (2004), urging the court not to relinquish public law cases by invoking the requirement of the plaintiff’s personal injury. 43 See e.g. M. G. Bhuiyan v Bangladesh (1981) 1 BCR (AD) 80; Rokeya Kabir v Bangladesh (2000) 52 DLR (HCD) 234 (refusing ‘standing’ to challenge constitutionality, respectively, of a statute and a legal practice). See further ch. 5 below.

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significant and bold assertion of judicial authority, the Court in Sahar Ali v A. R. Chowdhury,44 which concerned s. 30 of the Special Powers Act 1974 that barred “any court” from revising any order or judgment of special tribunals established under this Act, famously held that its constitutional supervisory/review power could not be ousted. 45 Following prolonged passivity on this important issue, sometimes marked by a complete failure to discharge the constitutional role,46 the HCD in Sahar Ali finally made a strict review and held the ouster clause unconstitutional for, among other things, placing the tribunals “outside the purview and pale of the Supreme Court”. This welcome instance of judicial interpretive activism ultimately triggered legislative removal of the illegality.47 However, despite this and few other instances of upholding the principle of legality, the Bangladeshi judiciary, on the whole, abdicated its constitutional responsibility of protecting the rule of law during the martial law regimes and largely became a partner of usurpers of the Constitution (Karzon and Faruque 1999a: 181; Islam 1997).48 As we shall see below, there was indeed a judicial oscillation between occasional preservations of authority and submission to the “non-law”.49

4.4.1 Heydays of legal positivism: Judicial executive-mindedness Doubtless, under extra-constitutional regimes the judiciary has to act in a force-based political system and often has to face moral dilemmas. Against accusations that by legitimising such regimes judges breach their oaths to protect the Constitution, arguments are often made that the judiciary then is deprived of the political guarantee of enforceability of its 44

(1980) 32 DLR (HCD) 142. See also Lutfur Rahman v Election Commissioner (1975) 27 DLR (HCD) 278 (judicial authority to issue interim orders in judicial review to prevent injustice cannot be absolutely foreclosed). 46 In Salimuddin v State (1976) 28 DLR (HCD) 187, 188, the Court found its supervisory power “completely ousted”. But see Md. Amir Hossain v State (1976) 28 DLR (HCD) 37 and Yousuf Sheik v Appellate Tribunal (1977) 29 DLR (AD) 371, interfering with convictions passed by ‘Tribunals’ to prevent gross injustice. For an insightful analysis see Malik (1993). 47 Ordinance No XXXIII of 1985 amended the SPA to provide for appeals to the HCD from decisions of the Special Tribunal and for confirmation by the HCD of death sentences passed by the Tribunal. 48 Karzon and Faruque (1999b) provide a good analysis of judicial interpretations during these periods. 49 M. H. Rahman, J.’s phrase (as in n. 50 below), meaning the martial law. 45

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decisions. The judge’s dilemma and this common apology were vividly described by one of Bangladesh’s great judges, M. H. Rahman J, in 1989: The court carries the burden without holding the sword of the community held by the executive or the purse of the nation commanded by the legislature. […] When the Constitution is suspended or made subject to a non-law the Court is deprived of the aid of the relevant authorities of the Republic. When such an abnormal situation occurs a Judge has got two alternatives: either he would resign or he would hold on to his post. One who has not lost faith in the rallying power of law may prefer a temporary deprivation of freedom to desertion.50

To these two options, Oyhanarte J (cited in Kamal 1994: 60), an Argentine judge, added the third, which is to “simply accept the fact”, i.e., total surrender to autocracy. Earlier in 1988, Rahman J hinted that his preferable “temporary” surrender of judicial freedom was not meant to be a complete surrender, but rather an engagement in “the worthwhile job” of doing justice between citizens so as to lay the foundation for the days when the judge would be able to enforce justice against the mighty and the overbearing as well (Rahman 1988: 5). It remains doubtful whether the Bangladeshi judiciary did actually play its “worthwhile” role. As many decisions of this period show, the judges generally became more executive-minded than they needed to be, although there were a few exceptional judges who had the nerve to assert whatever authority they had against injustices. In an infamous decision in Halima Khatun v Bangladesh, Munim, J. of the Supreme Court,51 by drawing on a close interpretation of the martial law proclamation that conditioned but not wholly suspended the operation of the Constitution, held that the Constitution “lost its character as [the] supreme law of the country.” 52 In refusing to grant any relief to the claimant who challenged appropriation of her property as an abandoned property, the judge found a “total ouster” of jurisdiction (p. 211) under the 50

Anwar Hossain Chowdhury v Bangladesh (1989) 9 BLD (Spl) 1, 180. This strategic position resembles Naseem’s (1997) consideration of the Pakistani judiciary’s silence during martial law regimes as a central necessity (ch. 3 above, n. 139). 51 In the place of a two-division singular Supreme Court, two distinct courts, the Supreme Court and the High Court, were established by the military authority on 28 May 1976. The Supreme Court’s original status was restored on 27 Nov. 1977. 52 (1978) 30 DLR (AD) 207, 210 (K. Hossain and S. Hossain, JJ. agreeing). Unfortunately, another noted judge, S. Ahmed, J., immediately echoed Munim, J. in Sultan Ahmed v Chief Election Commissioner (1978) 30 DLR (HCD) 291, 296, calling the martial law “the Supreme law of the land”.

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martial law proclamation and regulations which were made judicially unchallengeable.53 Regrettably, the judge also (p. 211) proclaimed that it was “the duty of the judges to administer a ‘harsh’ or even an unjust law”. 54 One might well wonder whether such a harsher view about the judicial role was necessary in disposing of this case. Had the judge thought he lacked authority, he would have done better in simply dismissing the case, instead of demeaning the role of a judge. Sometimes exercise of judicial economy is a more desirable virtue than judicial speech. Halima Khatun’s failure to exercise judicial minimalism shockingly attached unsolicited legitimacy to an otherwise unconstitutional regime. In Halima Khatun, the well-settled constitutional doctrine that when the Constitution operates, mere existence of martial law can not oust judicial review of unjust administrative actions on the ‘state necessity’ ground (Islam 2002: 79-80) was missed (Chowdhury 1990b: 81), and there was no saving of judicial power at all (Kamal 1994: 68). Halima Khatun was copiously followed in State v Joynal Abedin55 where the Appellate Division hastily56 overturned a more rational and jurisprudentially sounder decision by Justice B. H. Chowdhury in the High Court Division that judicial review of convictions by an improperly constituted Special Martial Law Court was not ousted because, the Constitution having not been fully suspended was co-existent with, and not subservient to, martial law.57 The lone dissenting voice in the Appellate Division was that of K. M. Sobhan, J. who emphatically endorsed Chowdhury J’s proposition of coexistence of martial law and the Constitution and non-ouster of judicial review when martial law courts were improperly constituted or acted without jurisdiction or beyond their constituting legislation’s mandate.58 Curiously, recent cases from Pakistan, decided under, and involving the legality of, the present martial law regime, have somewhat dramatically held that the doctrine of necessity does not justify taking 53

See clause (g) of the Proclamation of Martial Law (of 20 August 1975). Earlier, the Court in Abdus Shukoor Dada v The State (1976) 28 DLR 441 extended ex gratia glorification to martial law by calling it a “known concept” of jurisprudence invoked “for taking certain corrective measures which are beyond the reach of normal laws”. 55 (1980) 32 DLR (AD) 110. 56 R. Amin, J., avoiding any serious legal analyses, declined to interfere with the martial law court because that was the creature of martial law to which the Constitution, in his view, became “subordinate”. 57 Joynal Abedin v Bangladesh (1978) 30 DLR (HCD) 371, 376. 58 Sobhan, J., who also dissented in another significant case, Bangladesh v Abdur Rob (1981) 33 DLR (AD) 142, was sacked, along with A. R. Chowdhury and S. M. Hossain, JJ., by the military ruler in 1982. 54

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away of the Supreme Court’s judicial review power. 59 This belies the inevitability thesis that a complete judicial surrender to the Executive during extra-constitutional situations is inevitable. Surely, the Bangladeshi top appellate judges compromised with their fundamental obligations in the above cases. Fortunately, however, the dissenting opinion of Sobhan, J. in the AD and the similar opinion of Chowdhury, J. in the HCD ultimately appeared to be a rationalistic interpretation of the law. Latterly, some attitudinal change occurred in the Appellate Division 60 that now agreed to extend judicial review over at least those decisions of martial law courts/authorities that were mala fide, beyond jurisdiction, or bad for corum non-judice.61 Nonetheless, it is a pity that the Appellate Division’s submissive dictum that the Constitution was subservient to the martial law was left unchanged even after the withdrawal of martial law (Kamal 1994: 83), a view that has recently received a reversal.62 Moreover, even the above-noted reluctant shift in judicial interpretations suffered from incoherence, and the judiciary continued to maintain pure Kelsenism on wider issues of constitutionalism and the public interest. For instance, in Hamidul Huq Chowdhury v Bangladesh,63 the HCD refused to declare the 4th constitutional amendment void because the people had “not resisted it” and it had been recognised by the judicial authorities.64 This logical base was clearly wrong, since no judicial decision, nor the people, had accepted the 4th amendment. Neither can an unconstitutional political change nor any passage of time impart validity to an otherwise unconstitutional act (Islam 2002: 406). The judge seemed to shadow his functional failings and lack of jurisprudential creativity by taking resort to imaginary public opinion, thereby blatantly undermining basic constitutional values.

59

Zafar Ali Shah v General Pervez Mosharraf PLD 2000 SC 869; Wasim Sajjad v Pakistan PLD 2001 SC 233. 60 Probably at the influence of progressive-minded judges like B. H. Chowdhury, J. who now was in the Appellate Division. 61 See Khandker Ehteshamuddin v Bangladesh (1981) 33 DLR (AD) 154; Nasiruddin v Bangladesh (1980) 32 DLR (AD) 216; Jamil Huq v Bangladesh (1982) 34 DLR (AD) 125; Khandaker Moshtaque Ahmed v Bangladesh (1982) 34 DLR (AD) 222; Fazlur Rahman Chowdhury v Bangladesh (1987) 39 DLR (HCD) 314. 62 See Bangladesh Italian Marble Works Ltd., as in note 122 below. 63 (1981) 33 DLR (HCD) 381. 64 The Court was seemingly misguided by Hart’s ‘recognition’ and Kelsen’s ‘legal efficacy’ theories.

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Similarly, in Mofizur Rahman v Govt. of Bangladesh65 the Court failed to follow its own dictum that, although Parliament can amend a law retrospectively to de-effectuate a court decision it cannot simply override a court decision invalidating a law or an action. Here, a clause of an amending Ordinance validated the government’s discriminatory orders retiring some public officials, which were earlier adjudged unconstitutional and “malicious”, and rectified the relevant law earlier voided by the Court.66 In a decision whose correctness is open to serious doubt (Islam 2002: 186), the Appellate Division sustained the constitutionality of the validating clause by interpreting one’s constitutional right to be treated “only in accordance with law” (Art. 31) exceedingly narrowly, reading into it any retrospective law by uncritically drawing on some Indian, English and Australian decisions. This positivistic interpretation did not take into consideration the basic tenets of the rule of law that disapprove the kind of injustice done to the petitioners through the colourful use of the state’s legislative power. Not that Parliament is powerless to enact retrospective laws or what is called ‘curative statute’ to overcome legal irregularities in administrative functions. But Mafizur Rahman did not involve such a good law; and the decision negated the moral contents of the phrase “in accordance with law” (Art. 31) and ignored that this inhibits Parliament’s power to validate what cannot be validated.67

4.4.2 Preventive detentions: Judicial vigilance or jureaucratisation of executive excesses? During the period under inquiry, the singularly exceptional area of judicial protective activity was that of personal liberty. Following the SPA 1974 that provided for preventive detentions without trial, 68 hundreds of thousands of people became victims of this arbitrary law. Moreover, the 65

(1982) 34 DLR (AD) 321 (judgment of 10 March 1982). In Dr. Nurul Islam v Bangladesh (1981) 33 DLR (AD) 201 (invalidating s. 9 (2) of the Public Servants (Retirement) Act 1974 for being discriminatory in the absence of guidelines for the selection of a public servant for retirement). Following this decision, the 1974 Act was amended via the Government Servants (Retirement) (Amendment) Ordinance 1981, authorising the government to retire any public servant “in the public interest”, and validating previously made retiring orders. 67 See further, Islam (2002: 185-7). 68 Section 3 (2) authorised any district or additional district magistrate to detain for one month any person upon being ‘satisfied’ that it is necessary to prevent him/her from doing any “prejudicial act”, vaguely defined in the Act. 66

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first martial law regime (1975-79) combined with emergency co-existed with the Constitution, thus creating considerable confusions about judicial review. When approached by detainees, the Court, however, offered a mixed response of evasion and creativity, travelling from mechanistic application of the law69 to a relatively broader course of constitutional or legal interpretation.70 Thus, when the fundamental right to invoke judicial constitutional review remained suspended, the HCD gave remedies on sub-constitutional grounds by, e.g., widening the scope of s. 491(1) of the CrPC that provided for habeas corpus-type remedies to secure release of any person detained “illegally or improperly”,71 thereby dislodging the bar that made this remedy inapplicable regarding preventive detentions. 72 Similarly, when the government pleaded the bar in s. 34 of the SPA 1974 that precluded “any court of law” from questioning actions thereunder to argue that “regular” (i.e. seemingly SPA-compliant) detentions were unreviewable,73 the Court took a pro-active stance and established, albeit without much comment, 74 that legal clogging of judicial power is ineffective when an improper, colourable, unlawful or “arbitrary action” is challenged.75 With the lifting of emergency on 27 November 1979 and the revival of the right to judicial enforcement of human rights, constitutional interpretations began to appear in rights adjudications. Articles 31 and 32 of the Constitution guaranteed every citizen’s right to enjoy the protection of law, and prohibited the deprivation of one’s life or liberty save in accordance with law. In the famous case of Abdul Latif Mirza v Govt. of 69

See Ahmed Nazir v Bangladesh (1975) 27 DLR (HCD) 199, 211, in which Munim, J. was quick to find a “valid order” of detention, even without indulging in legal questions involved. 70 In an important case not involving human rights, Karnaphuli Rayon and Chemicals Ltd v Bangladesh (1976) 28 DLR (AD) 116, the AD held that it has power even to modify the language used in a statute if the literal interpretation thereof leads to injustice. 71 See s. 491 (1) (a) (b), CrPC. See, e.g., Nurunnahar Begum v Govt. of Bangladesh (1977) 29 DLR 372 and Amaresh Chakravarty v Bangladesh (1979) 31 DLR (AD) 240. 72 S. 491(3), CrPC (inserted by Act VIII of 1973). 73 Humayun Kabir v The State (1976) 28 DLR (HCD) 259. 74 For instance, in Humayun Kabir, ibid., where the bar in s. 34 of the SPA was held inapplicable to detention orders passed in bad faith, the Court did not touch the most significant issue of the constitutionality of this privative clause. Also, no decisions under s. 491(1) of the CrPC adequately explained inapplicability of jurisdictional bar in s. 491(3). 75 Humayun Kabir, as in n. 73, at p. 262.

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Bangladesh,76 Bhattacharya, J. gave a generic meaning to the term ‘law’ in these constitutional provisions, reading into “law” not only the statute law but also judicially declared legal principles. In a similar vein, K. Hossain, J. (at p. 8) liberally interpreted the words “without lawful authority or in an unlawful manner” in article 102 that empowers the HCD to issue habeas corpus. Justice Hossian held that these words comprehended all questions of the “competency” of the detaining authority or the “vires” of any detaining enactment. The Court in fact localised what in American constitutionalism is famously called ‘due process of law’. Unfortunately, this ray of hope soon disappeared with the next military intervention (1982) when the Constitution stood ‘suspended’. 77 The Constitution’s revival, however, created new hopes, and the Court in many cases quashed preventive detentions. A close inspection of the Court’s role reveals that beneath its numerous release orders was its failing in taking seriously the people’s liberty and constitutional/social values. With due honour to the Court’s endeavour in upholding “those institutional values which [could] still be saved”78 during the difficult times of ‘Emergency’ and martial law, it appears that it had in fact jureaucratised the preventive detention system by spending much energy in engaging with statutes rather than rights and value issues, and by teaching the executive how best to apply the anti-liberty law. For example, while it has repeatedly asserted that it has a duty to be satisfied that the detaining authority has not acted arbitrarily, the Court refrained from clearly establishing that the authority must have had objective satisfaction as to the necessity of curtailing one’s liberty.79

4.5 The winds of judicial activism (1989): The basic structure doctrine The revival of the Constitution, albeit in a defaced form, on 11 November 1986 seemed to bring forth a new realisation among the Bangladeshi

76

(1979) DLR (AD) 1, 23. As usual, the Court became submissive to the ‘non-law’, and in the only constitutionally important case of this period, Bangladesh v Md. Salimullah (1983) 35 DLR (AD) 1, it found itself lacking any constitutional power (p. 12). 78 Oyhanarte J of Argentina, cited in Kamal (1994: 60). 79 See Aruna Sen v Govt. of Bangladesh (1975) 27 DLR (HCD) 122; Humayun Kabir, above n. 73. See further section 4.6.1 below. 77

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judges,80 who pragmatically stood up in defence of constitutionalism in the late 1980s when the prolonged autocracy was coming to a close. In 1989, when the military junta was still in power in new attire, the Appellate Division through a historic decision in Anwar Hossain Chowdhury v Bangladesh81 invalidated the 8th Amendment to the Constitution, holding that Parliament’s plenary legislative and amendatory power is subject to un-alterability of “basic structures” of the Constitution. The Court was seemingly motivated to uphold the greater public interest, and this case arguably created a conceptual framework for public interest litigation (PIL) (Ahmed, Naim 1998: 83) that later emerged. The brief facts of this case are that the military authority by various martial law regulations diffused the High Court Division into firstly four and subsequently seven permanent benches, six being outside Dhaka. 82 Following the withdrawal of martial law, this change was constitutionalised in 1988 by amending the original Article 100 of the Constitution through an ingeniously-constituted pliable Parliament.83 Constitutional challenges to this part of the 8th Amendment were unsuccessful at the HCD-level.84 On appeal, the petitioners successfully convinced the Appellate Division that, among other things, the High Court Division’s plenary judicial power over the whole Republic was a basic structure of the Constitution which was un-alterable by a constitutional amendment.85

80

See e.g. Al-Haj Md. Hossain v Bangladesh (1987) 39 DLR (HCD) 265, 271, in which Kamal, J. seriously criticised public officers’ actions for private gains rather than the public interest. 81 1989 BLD (Spl.) 1. 82 See Martial Law Proclamation Order No. 11 of 1982 and its amendments, establishing High Court Division benches at Dhaka, Jessore, Comilla, Rangpur, Chittagong, Barishal and Sylhet. 83 Parliaments of 1986 and 1988, constituted by pre-calculated candidates, were marred by widespread electoral fraud (Akhter 2001: 132-7) and unprecedented rigging. 84 The other part of the 8th amendment made Islam the state religion (now see Art 2A), constitutionality of which is rendered doubtful by the basic structure decision (Alam 1990-5). Several court challenges to the ‘state-religion part’ of this Amendment were summarily rejected. Interestingly, Awlad Ali, J. in M. Saleem Ullah, n. 97 below, remarked that by inserting “absolute faith in the Almighty Allah” in the Constitution (Art. 8), a basic pillar was destroyed. This is an ostensible acknowledgement of the basic structure-incompatibility of the state religion provision. 85 See opinions of Chowdhury, Ahmed, and Rahman, JJ, respectively at pp. 83, 156-7, and 174 in Anwar Hossain Chowdhury, above n. 81 (Afzal, J. dissenting).

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In a three-to-one majority judgment, the Appellate Division took the view that Parliament’s power to amend any provision of the Constitution is not an “original” but “derivative” constituent power86 and is, therefore, “a power within and not outside of the Constitution”. 87 Employing a harmonious interpretation to the whole constitutional scheme and laying special emphasis on its preamble, the Court agreed that the concept of a Parliament with unlimited power of amendment is inconsistent with the concept of constitutional supremacy, a basic pillar of the Constitution. It seems that the Court’s conclusion was informed and influenced by the famous Indian decision in Kesavananda Bharati v State of Kerala (1973)88 that first authoritatively established in the common law world the doctrine of inviolability of the “basic structure” of the Constitution. Once it was decided that basic structural pillars were un-amendable, the logical task for the judges was to identify those structures. Here, exactly like the Kesavananda Court, the majority judges could not come to a conclusion. Nor was it necessary for them to provide an exhaustive check list on such a delicate issue. Taking a pragmatic approach, M. H. Rahman, J., who seemingly considered the rule of law as a basic structure (p. 174 of the judgment), felt it wise to defer the enumeration of basic structures to the future. However, given the fact that most basic features are comparatively easily (Islam 2002: 405) or “clearly identifiable”89 and that even the opposing counsel and the dissenting judge did not rule out the existence of certain structural pillars, 90 “a minimalist approach to restricting the basic structures of the Constitution to certain fundamental 86

Per Ahmed and Chowdhury, JJ., ibid., at p. 143 and p. 83. Per Chowdhury, J., ibid., at p. 84, citing the noted Indian constitutional scholar Upendra Baxi. 88 1973 (4) SCR 225. Fascinatingly, as the counsel Dr. Kamal Hossain argued in Anwar Hossain Chowdhury (above n. 81, at p. 168), a 1963 decision of the then Dhaka High Court in M. Abdul Huq v Fazlul Quader Chowdhury (1963) 15 DLR (Dacca) 355 (affirmed in PLD 1963 SC 486), in which the court noted the unalterability of a “fundamental feature of the Constitution”, contained the genesis of this doctrine. However, the idea of un-alterability of basic constitutional features is not unknown to some civil law countries such as Germany whose Basic Law of 1949, article 79(3), explicitly prohibits amendments to certain “basic principles” enshrined in its article 20. 89 Anwar Hossain Chowdhury, above n. 81, at p. 156, per S. Ahmed, J. (identifying eight overlapping basic structures: popular sovereignty, constitutional supremacy, democracy, Republican government, unitary state, separation of powers, judicial independence, and fundamental rights). 90 Afzal, J., the lone dissenting voice, conceded (pp. 212-3) that in the name of amendment “the Constitution cannot be destroyed or abrogated”. 87

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propositions would have strengthened” (Malik 2002a: 442) the Court’s reasoning. Despite these shortcomings and ambivalence in the reasoning of the majority judges, 91 the 8th Amendment decision continues to remain the boldest ever instance of judicial activism in pursuit of constitutionalism in the Bangladeshi polity. Like the Kesavananda Court, the Anwar Hossain Chowdhury Court did not strongly ground its reasoning on the need to preserve “stateness” (Sudarshan 2002).92 It is undeniable, however, that the Court was indeed protecting the Constitution as an idea rather than a text that emphasises the “lower ranking” (Limbatch 2001: 1) of not only the statutes but also the legislator and all other state functionaries. The judges, by and large, were alert to the need for protecting “the fundamental aim” of society from destruction,93 and were eager to construct a rule-oflaw-path for the rulers. However, by making this fundamental politicolegal root of the ‘basic structure’-limitation on the legislature sufficiently clear, the Court could have saved the doctrine from the allegation of being placed on a “nebulous footing” (Kamal 1994: 110). Having said this, it must also be recognised that the Court’s reasoning was in no way light or unsubstantiated. Rather, it was strengthened, e.g., by resorting to comparative public law and to global but indigenised legal theories such as Hart’s and Kelsen’s concepts of legal authority. B. H. Chowdhury, J. (at p. 95) observed that the Constitution provides the ‘rule of recognition’ against which all other laws are to be tested, and that a constitutional amendment is not a grundnorm. Unlike fierce debates that followed Kesavananda in India (Krishnaswamy 2009), Anwar Hossain Chowdhury attracted only nominal criticisms. 94 However, some allegations have recently been made that in terms of constitutional theory, the Court lacked power to invalidate the 8th amendment and by doing so it breached the concept of popular 91

Two majority judges took a highly controversial view that a constitutional amendment is not a law within the meaning of article 7(2) of the Constitution, with which Chowdhury, J. rightly disagreed (at p. 83). The sounder proposition that constitutional amendments can be tested under article 7(2) was later established by Kamal, J. in Kudrat-E-Elahi Panir, n. 123 below, at p. 346, when he said that constitutional amendments are within article 7’s “any other law”. 92 This means “the idea of state” rather than the state itself, which emphasises the primacy of such political values that envisage an impersonal political authority and a rational commitment to a substantive notion of the public interest (Sudarshan 2002: 163). 93 Anwar Hossain Chowdhury, above n. 81, per Rahman, J., at p. 160. 94 For positive commentaries see Alam (1990-95), Kamal (1994: 96 ff), and Islam (2002: 391 ff).

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sovereignty (Omar and Hossain 2005). There are also accusations that this decision reflected the Court’s elitist mindset, and an “invisible” (Rahman, M. 1999: 61) compromise between the judiciary and the Dhaka-based elite lawyers. These accusations largely ignore that the basic structure doctrine did not intend to put any clog on Parliament’s constituent/legislative power, far less on people’s power. It simply erected a bulwark against the destruction of one or more of the basic features of the Constitution, preservation of which was very much intended by its framers. In his judgment, S. Ahmed, J. poignantly observed that people’s sovereignty is susceptible to assailment and denial under many devices by the holders of power (p. 156). Aware of the political realities prevalent in society, Justice Ahmed rightly thought that such a bar on Parliament’s amending power is “an effective guarantee against frequent amendments of the Constitution in sectarian and party interest” (p. 156).95 In a similar vein, M. H. Rahman, J., supplying further rationale, premised the necessity of the doctrine, which he called a “growing point” in constitutional jurisprudence, on the need to tackle the overwhelming and excessive majoritarianism in the legislature (p. 169 of the judgment). Seen from this angle, one finds the development of ‘basic structure’ doctrine grounded in national political demands. One might, however, argue that the situations apprehended in these opinions have changed and hence there is little logic for sustaining the doctrine. However, the possibility of a wieldy and omnipotent executive/legislature is in reality a persistent one. The preservation of constitutional supremacy is no less daunting a task today than before (Islam 1999: 180). For this reason, speaking from the Indian context of the possible recurrence of unbridled parliamentary supremacy like the one during ‘Emergency’, even cautious supporters of the ‘basic structure’ are willing to let it stay despite the possibility of what they consider a potential threat of “judicial adventurism” (Menon 2004: 27). Critics of the basic structure doctrine also ignore a further practical aspect. They miss the preservation even by most activist judges of indispensable deference while examining the constitutionality of a law or constitutional amendment. In dealing with hard cases, judges usually draw a primary presumption in favour of the law’s validity, and guide 95

This apprehension is a proven one, as most of the constitutional amendments have been made for selfish party or personal interests (Islam 1999). On the validity, in light of the basic structure doctrine, of the fifth and seventh amendments that legalised two martial law regimes, see Islam (1987b) and Karzon and Faruque (1998).

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themselves by the “dictate of conscience”96 and the broader needs of their society. Thus, belying critics’ undue apprehensions that the basic structure doctrine might be over-applied, the judges in Bangladesh have shown due deference while sustaining the 13th and 14th constitutional amendments that respectively introduced the new system of a non-partisan caretaker government to oversee national elections and renewed the provision of reserved seats for women in Parliament.97 At the same time, the Court has duly invoked the doctrine recently, declaring unconstitutional the 5th and 7th amendments to the Constitution that legitimised two successive marital law regimes (discussed below). It appears, therefore, that arguments against putting constitutional limits on Parliament’s amendatory power overstate the majoritarian concept of popular sovereignty, and are fraught with the risk of letting constitutional manipulation go unchecked. The concept of a judicially uncontrollable majoritarian democracy seems to spring from an excessively positivistic “institutional arrangement” (Nino 1994: 287) of judicial review. But a “logical” and “philosophical reconstruction” (Nino, id) of judicial review, grounded on the idea of political legitimacy (Thomas, P. 2005), not only supports but also renders inevitable Anwar Hossain Chowdhurytype decisions. Popular sovereignty is not the same thing as parliamentary sovereignty minus the Constitution. Whenever Parliament and its Acts “defy and surpass the Constitution, they both suffer from legitimacy crisis” (Islam 1999: 177). Therefore, although the basic structure doctrine is problematic from the standpoint of Anglo-American modes of constitutional interpretation, it is a crucial amulet against any potential predatory subversion of constitutionalism (Sudarshan 2002: 165) of the kind South Asian politics often tends to engage in.98 There is no reason why judicial review or the 96 Ahmed, J. in Anwar Hossain Chowdhury, above n. 81, at p. 157. See also Rahman, J.’s opinion at p. 63. 97 See respectively M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171 (non-party caretaker government has strengthened democracy, a basic pillar of the Constitution), and Farida Akhter and Others v Bangladesh (2007) 15 BLT (AD) 206. The allegation of unconstitutionality of reserved seats for women in Parliament was turned down earlier in Fazle Rabbi v Election Commission (1992) 44 DLR (HCD) 14, and Dr. Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109. 98 The doctrine is now entrenched in India, Bangladesh, and Nepal (in the 1990 Constitution). While the Sri Lankan judges have rejected the argument that the doctrine applies to their Constitution (Krishnaswamy 2010), they almost conceded with the tenet of the doctrine in Re 19th Amendment to the Constitution [2003] 4 LRC 290 (SC). Short of any authoritative stride in this regard, the Pakistani

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theory of constitutional interpretation should be the same across the world. In chapter 2.2 above, it was argued that judicial review across the world has assumed many models rather than one. The transformative nature of the Constitution of Bangladesh that mandates a duty-based democracy requires a society-conscious function of judicial review (Hoque 2005), which the Appellate Division’s creative recovery of constitutional fundamentals in this case seems to have accomplished. It would, thus, not be unrealistic to regard this decision as the “future constitution” of Bangladesh.99

4.6 After democratic restoration (1991- ): People as a central focus? The emergence of a new constitutional environment after the fall of the autocratic regime in 1990 meant that the people renewed their faith in constitutionalism (Rahman 1998). The Supreme Court now began to be activated by an increasing number of people with diverse causes, leaving the message that they wanted a listening judiciary. The judges, too, seemed to be developing a consciousness that the legitimate concerns of people should be the central focus of their business. In this period, thus, we see the birth of Bangladeshi PIL, and increasingly flourishing constitutional judicial activism - developments underpinned by creative interpretations of the Constitution and judicial review. However, it would be self-defeating to paint a perfectionist view of Bangladeshi judicial activism during this period. As we shall see here and also in chapter 5 below, alongside a positive change in jurisprudence, a continuing grip of strict legal positivism over the Bangladeshi judicial minds is also apparent, with potentially negative implications for justice for the people.

Supreme Court in some cases has gone very close to embracing the doctrine. See Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 324; Zafar Ali Shah v General Parvez Musharraf PLD 2000 SC 869; Wasim Sajjad v Pakistan PLD 2001 SC 233; and Sindh High Court Bar Association through its Secretary v Federation of Pakistan (2009), as discussed in chapter 3.4 above. Also notable is the South African Constitutional Court’s recent indication that it might not consider valid an amendment radically restructuring the Constitution’s “fundamental premises” [Premier of Kwazulu Natal v President 1996 (1) SA 769 (CC), 783-4; United Democratic Movement v President [2003] 4 LRC 98 (CC)]. 99 Paraphrased from Baxi’s (1974: 45) prescient appraisal regarding Kesavananda.

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4.6.1 Shifts in interpretational jurisprudence: Social justice and constitutionalism gaining ground A perusal of post-1990 judicial decisions shows a marked shift in judicial interpretations concerning issues of rights, social justice and the norms of constitutionalism. Social justice-consciousness of the judges ultimately led to the birth of Bangladeshi PIL that will be elaborated in chapter 5 below. However, some features of this new consciousness deserve mention here. Social justice or public interest consciousness of the higher judiciary has begun to influence, although in a limited way, similar activism by the lower court judges. Public interest civil litigations in ordinary civil courts are now about to become a trend.100 Also, since the late 1990s, ‘public interest’ has been increasingly appearing as an element in reasoning of the higher judiciary in private litigations. The Court has been endeavouring to balance between the business/private interest and the public interest or pubic duties.101 In K. M. Asadul Bari v Bangladesh, for example, the Court observed that its “concern” should be more for the betterment of the whole nation than for the financial loss of individual(s). 102 Here, some businessmen unsuccessfully challenged a ban on the manufacturing of polythene bags on the ground that the government’s failure to notify them beforehand violated their right to legal protection. Taking judicial notice of attempts by successive governments to impose such a ban, the Court rejected the no-notice defence, and explained that while exercising judicial review it “cannot ignore public demand” for a safe environment. 103 In another important decision, the High Court Division upheld the constitutionality of a law that required only the borrowers from financial institutions, but not other borrowers, to deposit half of the decreed-money as a condition for filing an appeal to the higher court. 104 The Court’s 100 For example, in a PIL case filed in a Senior Assistant Judge’s Court, Rangpur, the judge considered “public interest” in issuing an interlocutory order (of 15 March 2006) at the prompt, directing some traders to sell liquid petroleum gas at a price fixed by the concerned government agency. See the Prothom Alo, Dhaka, 17 March 2006. 101 See e.g. Abdul Momen v Dhaka City Corporation & Ors (1997) 50 DLR (HCD) 300 (no constitutional right to remedy business losses caused by a construction undertaken in the public interest). 102 (2002) 22 BLD (HCD) 129, 131. See also Sirajul Islam v The State (2004) 56 DLR (HCD) 236 (environment-consciousness led to a broader legal interpretation). 103 (2002) 22 BLD (HCD) 129, 131. 104 Chandpur Jute Mills v Artha Wrin Adalat (1997) 2 BLC (HCD) 49 (challenging ss. 6 (2) & 7 of the Money Loan Courts Act 1990), reaffirmed in Abdul Gaffur v Joint District Judge (2005) 57 DLR (HCD) 138. See also Anwar Karim v

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decision that the challenged discrimination (classification) was constitutionally sustainable was apparently informed by its consciousness that the concerned law was enacted to ameliorate the country’s ailing economy by providing for effective recovery of defaulted loans advanced by financial institutions. A trend of relatively progressive judicial interpretations implicating rights, constitutional safeguards and constitutionalism has been another salient feature of the post-1990 period. There have been many new developments, especially in the field of right to life and personal liberty, including a light attempt to construct a theory of constitutional tort,105 and some self-initiated (suo motu) judicial interventions by some socially sensitive judges, concerned to remove illegality from the country’s criminal justice system. 106 The judiciary in Bangladesh has begun to express their dismay, short of serious actions, against wanton misuses of arresting power by the police and other forms of police brutalities and excesses.107 Unfortunately, however, in terms of influencing government’s behaviour, little has been achieved through these interventions due to both inadequate judicial vigilance and the executive’s persistent defiance of court decisions and recommendations. For example, in the unreported case of Bangladesh v Dr. Shamima Sultana Rita,108 where unlawful and secret detention and torture of the victim were alleged, the Appellate Division overturned the HCD’s directive in WP No. 1268 of 2002 calling the police to submit the case diary to the Court.109 In this regard, mention may be made of what can be called conservative judicial activism in preventive detention cases. Evidently, the Bangladeshi Court in this field did better than many of its counterparts Bangladesh Bank (2000) 52 DLR (HCD) 1; Nasreen Fateema v Bangladesh (1998) 3 BLC (AD) 190; City Bank v Bangladesh (1999) 51 DLR (AD) 262. 105 For details see ch. 7.2.2 below. Mohammed Ali v Bangladesh (2003) 23 BLD (HCD) 389 is the lone case awarding public law damages against the police for unlawful searches. 106 On suo motu judicial intervention see ch. 5.3 below. 107 See e.g. Alhaj Md Yousuf Ali v The State (2002) 22 BLD (HCD) 231, and Saifuzzaman v State (2004) 56 DLR (HCD) 324 (cautioning the police against using arresting power under s. 54, CrPC “capriciously and fancifully”, and against resorting to torture). In Saifuzzaman, the Court also framed guidelines to regulate arrest, detention and police custody. See also the most prominent case of this genre, BLAST v Bangladesh (2003), detailed in ch. 5.4.1 below. 108 Civ. P. No 485 of 2002. 109 However, the High Court Division in a few recent cases has asked the police to submit to it reports of investigation in order to ensure justice, and the Appellate Division did not intervene.

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elsewhere in the world, which, with some notable exceptions such as the UK top courts’ recent dramatic change of jurisprudential stance on ‘security’ issues,110 have largely paid excessive deference to the executive’s determination of what is in the national interest (Dyzenhaus 2004a). However, as noted in section 4.4.2 above, there in essence emerged jureaucratisation of the unjust preventive detention law that still exists in today’s Bangladesh. The post-1990 Court has invalidated countless preventive detention orders and sought to improve interpretations of the SPA. Successive democratic governments have since resorted to various ingenious techniques to subvert judicial decisions about the release of detainees, against which the Court’s activism also increased, resulting in crafty defiance by the administration being declared unlawful.111 To cite one such activist decision, in Korban v Bangladesh, where the petitioner was re-detained from the jail gate after his Court-intervened release from earlier detention, the HCD awarded against the detaining authority “compensatory costs” of taka 5000, but not compensation proper, for arbitrary and colourable exercise of public power.112 However, this and many other successes in personal liberty decisions seem to hide a layer of failings on the judiciary’s part in becoming a real bulwark against unbridled rights-violations under the abusive detention law. Now, court proceedings to challenge detentions have become part of the detention process. Apparently, the executive can still detain any person without trial at least for one month (under s. 3 (2) of the SPA), which is the average time needed in freeing detainees through judicial intervention. Moreover, awarding of compensation for arbitrary and unlawful detention, a remedy that could profitably be used to both compensate for the victim’s 110

See above ch. 3.1.2, nn. 24-8. Notably, in a 2006 decision in The Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141, the UK Court of Appeal upheld the ruling of the High Court ([2006] EWHC 1623, per Sullivan, J.) quashing the Home Secretary’s stringent ‘control orders’ issued under the PTA 2005 to monitor six Iraqi terror suspects for breaching the ECHR, Art. 5. 111 See e.g. Alam Ara Huq v Govt. of Bangladesh (1990) 42 DLR (HCD) 98. For further details see Chowdhury (1990a), Malik (1993), Hoque (1999), and Bhuiyan (2004). 112 (2003) 55 DLR (HCD) 194. Earlier, in Nurul Amin v Bangladesh, WP No. 3489/1999 (judgment 29 Sept. 1999), the concerned District Magistrate was ordered to pay a compensatory cost of tk. 10,000 to the detainee for unlawful detention. Judicial discretion to award costs is rarely exercised in Bangladesh. But see Islamia Automatic Rice Mills Ltd. v BSRS & Ors, unreported, Contempt Petition No. 24/2001 (HCD’s judgement of 21 July 2002), burdening the petitioner with cautionary cost of tk. 25,000 for harassing an advocate through a contempt suit. See further ch. 7.2.2 below.

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grievance and reduce the rate of executive detentions, has yet to emerge as a precedent.113 More frustratingly, the Court has never decided, even indirectly, on whether preventive detention in a democratic society is ethically/legally sustainable, i.e., to what extent the SPA is constitutional. Rather, unfortunately, even modern decisions have further strengthened this unjust abrogation of civil liberties (Hamid and Zahid 1996: 221), sometimes attaching unsolicited legitimacy to this repressive law. One can only lament on the following words by M. H. Rahman, J. with whom other judges in the AD agreed: [W]here the ordinary law of the land is too inadequate for prevention of an act prejudicial to the security or […] public order […], the law of prevention having the sanction of the Constitution is to be […] administered within the framework of that law.114

Another noticeable area where the Court followed justice-promoting interpretation was regarding women’s legal rights. Despite the fact that paternalistic assumptions have long influenced lawmaking and public decision-making including judicial decisions, there now seems to occur a healthy judicial trend of applying women-related laws and the Constitution more generously and sensibly than before. On several occasions, the Court has struck down gender-based discriminatory actions, both blatant and ingenious, against women, and has attempted to promote an equitable and substantive concept of equality. 115 In Shamima Sultana Seema v Bangladesh, 116 which involved undignified allocation of differentiated functions and pay to women commissioners (elected for the ‘reserved 113

The only decision awarding compensation for unlawful detentions, Bilkis Akther Hossain v Bangladesh (1997) 17 BLD (HCD) 344 (discussed in ch. 7. 2.2), has been pending on appeal in the Appellate Division for the last thirteen years. The same fate has embraced some other HCD decisions awarding either symbolic compensation or compensatory costs. 114 (Emphasis added). Habiba Mahmud v Bangladesh (1993) 45 DLR (AD) 89. Afzal, Kamal, and Rahman, JJ. concurring. Similarly, in Bangladesh v Dr. Dhiman Chowdhury (1995) 47 DLR (AD) 52, the AD observed (at p. 61) that preventive detention “must be capable of being employed […] on sudden emergencies on unverified information supplied to [the detainees]”. Further lamentably, a constitutional challenge to the SPA has been pending in the Court for years. 115 See, among others, Rabia Bashri Irene v Bangladesh Biman (2000) 52 DLR (HCD) 308, declaring unconstitutional a public body’s fixation of different ages of retirement for flight stewards and stewardesses. This was affirmed in Bangladesh Biman v Rabia Bashri Irene (2003) 55 DLR (AD) 132. 116 (2005) 57 DLR (HCD) 201, per A. B. M. Khairul Haque, J.

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seats’) of an urban local government body, the HCD quashed the concerned executive notification and undertook a pedagogic role, seeking to educate the government about its protective duty towards women in an egalitarian welfare state like Bangladesh. It emphasised that a dynamic rather than technical approach to the constitutional concept of gender equality was to be cultivated, and wished a change in societal attitude towards women, as merely legal provisions are not enough.117 Gender-sensitive judging prominently appeared in some criminal cases concerning victims of rape, torture and murder. Considering rape as a deplorable violation of one’s right to life, the Court advised that the violators should receive serious punishment so that justice be done to both the victim and society.118 In some cases the Court set out to craft a womenfriendly criminal justice system, suggesting, e.g., reduction of the evidential threshold in rape cases in consideration of the relevant social factors.119 Also notably, socially sensitive judging seems to be gradually becoming a trend in the area of personal laws, particularly the statutory Muslim family law. 120 However, there is a marked tendency of judicial passivity in adjudicating rights under the minority personal laws, as well as the shari’a law.121 Now the judicial role vis-à-vis constitutionalism can be considered. A significant aspect of this period has been a growing feeling among judges about the past judicial failings during martial law regimes.122 It is often 117

Ibid., pp. 212-3. In Shibu Pada Acharjee v State (2004) 56 DLR (HCD) 285, and Al Amin & Others v The State (1999) 19 BLD (HCD) 307, 317-9 (per A. K. Badrul Huq, J). 119 See Shibu Pada Acharjee, ibid.; State v Moslem (2003) 55 DLR (HCD) 116; State v Mir Hossain (2004) 56 DLR (HCD) 124; Al Amin, ibid., at p. 317. 120 See, e.g., Dilruba Aktar v A. H. M. Mohsin (2003) 55 DLR (HCD) 568, convicting the husband for unauthorised second marriage with both imprisonment and fine, and entitling the victim-wife to receive the amount of fine as compensation and, exceptionally, to receive her unpaid dower. 121 See, e.g., Hefzur Rahman v Shamsun Nahar Begum (1999) 51 DLR (AD) 172, overruling the HCD’s ruling that the Muslim husband is bound to maintain his divorced wife beyond the iddat period and until she remarries. Interestingly, one might wonder whether in writing the leading opinion, Kamal, J. had not been improperly influenced by his personal prejudice regarding the subject matter, as the judge earlier reportedly expressed (published in the Manavzamin, Dhaka, 15 July 1998) strong extra-curial disapproval of the HCD ruling. 122 A good example of this is the HCD’s decision in Bangladesh Italian Marble Works Ltd v Bangladesh (2006) BLT (Special) (HCD) 1, detailed below. See also Shahriar R. Khan v Bangladesh (1998) 18 BLD (AD) 55, 78. In some cases, however, the post-1990 courts refused to scrutinise the legality of actions by 118

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this unarticulated feeling that led to post-1990 constitutional judicial activism. The new judicial preparedness to play a role in shaping the contours of the country’s growing democracy was prominently displayed in a trend-setting 1992 decision in Kudrat-E-Elahi Panir v Bangladesh123 which concerned the local government system. The Constitution uniquely provides for elected local government bodies at all strata of public administration (articles 9 & 59-60), a mandate that still remains largely unimplemented, due to lack of political commitment. In this context, the Court’s activity in Kudrat-E-Elahi Panir to enforce the constitutional mandate for local-level democracy is particularly encouraging. In this seminal decision, the Appellate Division refused to strike down a law that removed an existing local government tier (Upazilla), acknowledging the legislature’s authority so to remove any local government tier. It did, however, issued certain directions asking the government to make all existing local government laws compatible with the Constitution, cautioning that these laws would otherwise run the risk of being declared void. The Court (pp. 336-7) eventually ordered elections to the existing local bodies within six months, “keeping in view the provision for special representation [of women] in Art. 9”. 124 In a mixed response to this decision, the legislature made laws providing for election to city corporations (earlier run by selected personnel) with special representations for women, while elections to some other local bodies have since been deferred by successive governments by ingeniously amending the relevant laws.125 Another notable feature of court decisions concerning constitutionalism is the judiciary’s maintenance of institutional comity and a balanced relationship with other branches of government.126 On constitutional issues martial law administrators on the unjustifiable ground that those were protected by the 7th amendment to the Constitution. See Islam (2002: 743); Abdur Rashid Sarker v Bangladesh (1996) 48 DLR (AD) 99; Mujibur Rahman v Bangladesh (1993) 13 BLD (AD) 54; Shah Mohammad v Secretary to the President (1996) 1 BLC (HCD) 8. 123 (1992) 44 DLR (AD) 319. 124 In an identical decision in Ziaur Rahman Khan v Bangladesh (1997) 49 DLR (HCD) 491, the Court directed holding of fresh elections to the three Hill Districts’ local bodies within a time-frame. 125 See Majumdar (2004). A 2006 PIL challenged the government’s persistent failings in holding elections to Upazillas. See the Prothom Alo, Dhaka, 6 November 2006. 126 See e.g., Mainul Hosein et al v Ms Sheikh Hasina (2000) 21 BLD (HCD) 109, 113 (in dropping a contempt charge against the Prime Minister in the “greater interest of the country”, the Court sought to prevent the executive and the judiciary

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of wider importance, the Court has generally pursued a broader approach to the justiciability of issues of political ramifications. 127 It seems that apart from some unsustainable failures of the past, 128 the Court has, on balance, avoided being eluded by the so-called American doctrine of political question, 129 remaining at times essentially passive on complex political issues such as the legality of hartal (political strikes), probably to allow the most suitable time for court actions to come. 130 In re MPs’ Resignation (Advisory Opinion), 131 for example, the Appellate Division was anxious to keep itself “aloof from political controversies” (at p. 160) but not at the cost of its responsibility to resolve legal issues. The Court was asked by the President to advise whether continuous boycotting of Parliament by opposition MPs for consecutive 90 days would render their seats vacant for being “absent” from Parliament for such a period, as constitutionally mandated in article 67 (1) (b). Faced with knotty political coming to loggerheads). Earlier, in Habibul Islam Bhuiyan v Ms. Sheikh Hasina (1999) 51 DLR (AD) 67, 69, the Court disposed of a contempt charge but expected “more circumspection” and judgment from the Prime Minister. Also see Ataur Rahman v Md. Nasim (2000) 52 DLR (HCD) 16. 127 See e.g. Najmul Huda, MP v Secretary, Cabinet Division (1997) 2 BLC (HCD) 414; Rafique Hossain v Speaker, Bangladesh Parliament (2002) 54 DLR (HCD) 42, (legality of a non-MP minister’s speaking on a matter unrelated to his portfolio and the Speaker’s ruling on a constitutional issue were held justiciable). 128 See M/S Dulichand Omraolal v Bangladesh (1981) 1 BLD (AD) 1, 7, unjustifiably eschewing the relevant issue of legitimacy of Yahya Khan’s regime, terming it as a “political question”, thereby ignoring that even the Pakistani Supreme Court earlier adjudged General Yahya’s military rule as unconstitutional in Asma Jilani v Punjab PLD 1972 SC 139. 129 In Constitutional Reference No 1 (MPs’ Resignation), below n. 131, per Afzal. C.J. held: “There is no magic in the phrase ‘political question’. While maintaining judicial restraint the Court […] can pronounce on an issue which may be dubbed as a political question” (p. 173). See also the unreported case of M. A. Mannan v Bangladesh (2008) (the High Court Division’s judgment of 2 November 2008). This case was about the legality of delimitation of constituencies by the Election Commission, and the Court held that it could go beyond the doctrine of political question so as to adjudicate politics-inspired issues of constitutional importance. 130 In Khondaker Modarresh Elahi v Bangladesh (2001) 21 BLD (HCD) 352, 375, the Court thought that “this political issue should in all fairness be decided by the politicians”. It earlier rejected another hartal-challenging case, Abu Bakar Siddique v Sheikh Hasina, WP No. 2057 of 1995. In a recent case, Abdul Mannan Bhuiyan v State (2008) 60 DLR (HCD) 49, the Appellate Division held that hartal or strike, unaccompanied by force or violence, is a democratic right of the citizens. 131 Constitutional Reference No 1 of 1995 (MPs’ Resignation) (1995) III BLT (Spl.) 159.

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crises, the whole nation was expecting the apex court to play its due role as the guardian of the constitution. The Court picked-up the public expectation well, and answered the reference affirmatively. It reasoned: We are plainly at a loss to appreciate […] why the absence of the members of the opposition should not be construed as absence […]. … Does it enhance the cause of constitutionalism […] by construing their absence as presence? […].That it will be onerous for holding by-election if such a large number of seats fall vacant at a time is no[] ground for giving a twisted [ ] meaning to the word ‘absent’ […].132

Despite the above balanced trend in the delicate area of what is called ‘law and politics’, the Court in some cases seemed to be seized by AngloAmerican legal notions. For instance, in a 1998 decision, the AD “too broadly” (Islam 2002: 443, n. 4) applied the positivistic proposition that a law cannot be declared void on the ground of being harsh, and refused to invalidate a law for being arbitrary and against the principle of natural justice.133 In a later decision, it reasserted its faith that a law cannot be struck down for being iniquitous or even shocking to conscience unless it violates the Constitution.134 These decisions clearly show that the Court conceived of the Constitution from an exceedingly Austinian view that led it to miss the point that a “harsh” or conscience-shocking legislation is inherently incompatible with a Constitution based on the values of rule of law, justice, equality, fundamental rights and human dignity.135

4.6.2 Judicial policy decisions and broadening scope of judicial review It is already clear from the above that although the Court feels shy to recognise the constant engagement with policy issues,136 judicial engagement 132

Ibid., at pp. 187-8, per Afzal, CJ. Bangladesh Krishi Bank v Meghna Enterprise (1998) 50 DLR (AD) 194. 134 Bangladesh Retd. Govt. Employees’ Welfare Association v Bangladesh (1999) 51 DLR (AD) 121. 135 In this context, also mentionable is State v Sukur Ali (2004) 9 BLC (HCD) 238 in which the HCD confirmed, although with “pangs and agony” (at p. 250), a death conviction to a minor boy for rape and murder and refused him the benefit of juvenile trial, by pleading its inability to go beyond a special statute. On this decision, later endorsed by the AD, see further ch. 5.4, n. 91. 136 See Younus Mia v Ministry of Public Works (1993) 45 DLR (HCD) 498 (courts cannot direct the government to implement a policy); Dr. Mohiuddin Farooque v Bangladesh (1998) 50 DLR (HCD) 84, 97 (no judicial say in policy matters); and 133

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with policy matters or judicial policy suggestions in Bangladesh is not uncommon.137 For example, when legal issues involving the government’s energy policy reached its docket, the Court went as far as barring the government from exporting gas until the disposal of the case(s).138 The territory of Bangladeshi judicial review is gradually expanding and technicalities involved in this process are being increasingly relaxed. Apart from arbitrary and irrational actions, governmental inactions, including those in the sphere of foreign affairs, to the detriment of public interest or individuals’ rights are becoming justiciable. 139 At the same time, however, the Court often refuses to expand remedies in judicial review litigations, 140 and still cherishes a feeling that it would be far exceeding its proper functions if it were to enforce “all” public statutory duties without insisting upon the claimant’s proven legal right to a public duty. 141 Thus, a clearer recognition of the need for a public law jurisprudence targeting greater public accountability and much work to that end are wanting. Following the Appellate Division’s observation in its first advisory opinion in 1995 that “to act according to democratic norms is a trust” reposed upon MPs,142 a 2005 personal liberty case seemed to develop an Mosharraf Hossain v Bangladesh (2004) 56 DLR (AD) 13 (the Court is to go by the law as it is). Compare these with Minister of Health v Treatment Action Campaign (SACC), noted in ch. 2.2 above. 137 See e.g. AFM Naziruddin v Mrs. Hamida Banu (1993) 45 DLR (AD) 38, 44 (suggesting legislation to fill a legal gap); Mostafa Kamal v Commissioner of Customs (1998) 18 BLD (HCD) 301, 308 (the judgment suggesting a legal framework for fixing tariffs on imported goods was sent to the government “for consideration for framing rules”). 138 See, e.g., Shah Mohammad Hannan v Bangladesh, WP No. 2052 of 1998 (interim order of 5 Dec. 2001, per S. A. N. M. Rahman, J). See Hasan (2003: 91). 139 E.g., in Abdul Gafur v Secretary, Ministry of Foreign Affairs (1997) 17 BLD (HCD) 453, the Court, in pursuance of the right to life and legal protection of a girl-victim of human trafficking interned in Kolkata, directed diplomatic assistance for her rescue. It also directed actions to bring back other women victims of human trafficking. 140 See, e.g., Bangladesh v Mahbubuddin Ahmed (1998) 18 BLD (AD) 87, declaring unlawful a public official’s dismissal from service but refusing to order his reinstatement, reasoning that in a judicial review it can only declare something unlawful and do “nothing more” (at p. 92). 141 Hazerullah v Assistant Commissioner, Board of Management of Abandoned Property (2002) 22 BLD (AD) 155. Innocuous at first sight, this axiomatic assertion reveals the Court’s remaining conservatism in opening itself to public interest challenges to governmental illegalities. 142 Above note 131, at p. 188.

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agency theory of public functions when it regarded the general public as the true master of public power and the public officials as their agents.143 The Court was seemingly applying the common law doctrine of public trust in its wider, modernist perspective that considers both state power and state properties as having been held in trust by the government. The Indian judiciary has often applied this as a public law principle to preserve public property, resources and the environment. 144 While this has not happened in Bangladesh to that extent (Razzaque 2000: 5-7), the High Court Division in a recent PIL-decision concerning the public money has reinforced that public functionaries are agents/trustees of the people for whose interest they must act, when directing a government department to realise within six months a huge amount of arrear telephone bills from some 427 MPs.145 However, in Bangladesh, the public-law-style adjudication that requires “a mixture of formal legal analysis and pragmatic policy judgments” (Driesen 2004: 890) in cases involving public law has still a long path to travel. Public law refers to a system of constitutional-administrative law that aims at greater public good, piercing the narrow divide between the private and public activity when the enforcement of public responsibilities and constitutional values are in question. In this context, two things need to be considered. First, whether private entities that discharge functions of public nature can be obligated to bear the rights-responsibilities under the Constitution. This concerns the question of horizontality of rights, i.e., the issue of whether constitutional rights can be enforced against private actors or companies. The other question is whether public contracts or the so-called trade activities of government agencies are amenable to the higher judiciary’s constitutional audit. While the Court clarified the meaning of public authority to consider relatively new public agencies as subjects of judicial review,146 it has so 143

Motiar Rahman v Govt. of Bangladesh (2005) 57 DLR (HCD) 327. See Razzaque (2004). The trust doctrine has also been invoked in other South Asian jurisdictions to ensure fair exercise of public power. See e.g. the Sri Lankan decision in Premachandra v Major Montague Jayawickrema [1994] 2 Sri LR 90. 145 BLAST v State (2008) 60 DLR (HCD) 176 (judgment 27 April 2006), per Haque, J. In M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, Haider, J. (at p. 200) quoted, without detailing, Benjamin Disraeli’s words: “all power is trust […], that from the people and for the people, all spring, and all must exist”. 146 See e.g. Mrs. Farzana Muazzem v SEC and Others (2002) 54 DLR (HCD) 66, and Conforce Ltd v Titas Gas Co. Ltd (1992) 42 DLR (HCD) 33 (a company of a public corporation or one working in the affairs of a statutory local body is a public authority). 144

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far virtually refused to enforce fundamental rights against private actors including those exercising functions of public nature, despite the clear indication in the Constitution of rights-horizontality [Art. 102(1)].147 In an interesting development, however, the Court in Zakir Hossain Munshi v GrameenPhone148 allowed a judicial review petition against the country’s leading private cellular phones provider, Grameen Phone, to prevent it from unlawfully levying extra charges on subscribers. Although the Court felt empowered to ensure transparency in the activities of the company since it was a licensee of the government, its reasoning was based on inadequate doctrinal analyses and lacked articulation of fundamental rights and public law elements involved therein. A more fine-grained understanding of the rights-horizontality under the Constitution was developed by the HCD in Mainul Hosein v Anwar Hossain,149 in which the Court appeared clearer in enforcing fundamental rights even against individuals and other juristic private persons in order to extend “judicial control over the fast-expanding maze of bodies affecting the rights of the people”.150 Unfortunately, however, the Appellate Division overruled this rights-enhancive decision by invoking the old reasoning that the concerned private person charged for rights-violation was not connected with the affairs of the Republic, thereby clearly ignoring both the letter and the spirit of article 102 (1) of Constitution.151 Now the second issue can be taken up. Amenability of public contracts to judicial review has been a contested issue in Bangladesh. Until recently the Court remained quite reluctant, sometimes overly rigid, in stretching constitutional review over contracts or other trade-related activities by government agencies on the ground that these were private affairs of the government, thus pushing claimants toward seeking ordinary private law remedies that are largely marked by tardy court procedures and inefficacious results. Judicial ducking of such issues of public importance in this way retarded the development of public law in Bangladesh, and obscured the more serious need for the judiciary to be tough on shady and 147 However, in K. M. Elahi, above n. 130, the Court went close to establishing the horizontality of constitutional rights when it issued a rule nisi against political parties. 148 (2003) 55 DLR 130, per J. Abedin, J. 149 (2006) 58 DLR (HCD) 117 & 157. 150 Ibid., at p. 161, decision by Aziz, J., the third judge, endorsing Mamun, J. who disagreed with Abedin, J. in the earlier split decision. The quoted words are taken from an Indian case, Shri Anadi Trust v VR Rudani AIR 1989 SC 1607. 151 Anwar Hossain v Mainul Hosein (2006) 58 DLR (AD) 229 = (2007) 15 BLT (AD) 144.

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non-transparent public contracts or largesse/procurements which are a major source of corruption in Bangladesh. However, since the late 1980s, the Court began to slacken its rigid approach to reviewability of government contracts but only when the government breaches the contract arbitrarily or discriminatorily, or with mala fides.152 Although the Court still differentiates between non-justiciable “pure and simple” contracts and what it calls “statutory” contracts (licenses), 153 there seems to be a slowly developing trend of exercising constitutional jurisdiction over government contracts on the ground of irrationality, unreasonableness, 154 or breach of the litigant’s ‘legitimate expectation’ of fair dealing, 155 but with extreme reluctance in awarding damages against the government. The discovery of these principles that are in essence extensions of the older principle of natural justice interestingly represents the effects of both globalisation (of legal principles) and the Court’s new preparedness to take into account local needs such as the need for judicial vigilantism vis-à-vis public dealings, especially when the “financial interest of the State” is involved.156 However, despite this shift in the boundaries of judicial review and the increasingly greater use, for example, of the doctrine of legitimate expectation in recent times, 157 the Court has yet to adopt a public law model of judicial review as a tool to effectively ensure the principles of legality and justice in all government actions.158 Mention can be made of

152

Sharping M. S. Samity v Bangladesh (1987) 39 DLR (AD) 105. Ibid. See further Ananda Builders v BIWTA (2005) 57 DLR (AD) 37. 154 M/s. Hyundai Corporation v Sumikin Bussan Corpn. and Others (2002) 22 BLD (AD) 16. 155 DG, BWDB v BJ Geo Textiles (2005) 57 DLR (AD) 1. 156 Ibid., at p. 13, per F. Karim, J. See further Asaf Khan v The Court of Settlement, Dhaka (2003) 23 BLD (HCD) 7, and M. Hafizul Islam v Bangladesh (2003) 23 BLD (HCD) 123. 157 See MD, WASA v Superior Builders and Engineers Ltd (1999) 51 DLR (AD) 565 (agreeing to depart from the “basic” rule of no writs against public contract when the contractor’s legitimate expectation as to fair dealing is breached); Chairman, BTMC v Nasir Ahmed Chowdhury (2002) 22 BLD (AD) 199; North Pole (BD) Ltd v BEPZA (2005) 57 DLR (AD) 631; Selim Reza v Bangladesh (2006) 58 DLR (HCD) 1. 158 See Islam (2000). On this, the sounder principle seems to be the HCD’s observation that any right created by a public body even through a commercial contract is enforceable through constitutional review, which was unfortunately overruled by the AD in Birds Bangladesh Agencies Ltd v Secretary, Ministry of Food, WP Nos. 198, 278 and 537 of 1994 (unreported). For rigid views see Al153

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an instance where the Court’s restrictive view about the reviewability of a public contract appointing a retired HCD judge to the Settlement Court resulted in dilution of the independence of the judiciary, as it refused to protect the judge from being removed by terminating the contract.159 It is submitted that without developing and applying a sustainable theory of reviewability of contractual relations involving public functionaries, the Court will remain incapacitated to protect wider public interest by effectively guarding against arbitrary and interested distribution of government largesse and handling of public offices.

4.6.3 Masdar Hossain: Bold assertion or un-pragmatic monitoring? In a “momentous” 160 decision in Secretary, Ministry of Finance v Md. Masdar Hossain and Others,161 which constitutes the most sophisticated instance of contemporary judicial activism, the Appellate Division, largely agreeing with the HCD, issued some directives concerning judicial independence for “forthwith” implementation by the executive. This classaction lawsuit by some 223 judges of the junior judiciary arose in the High Court Division as a challenge to a governmental action discriminatorily withdrawing their salary-related benefits that pushed them to a position at par with civil servants which they claimed was unconstitutional.162 The Constitution mandated the State to “ensure the separation of the judiciary” from its executive organs (Art. 22), and guaranteed functional independence of judges of all tiers and magistrates [Arts. 94 (4); 116A]. Yet, the judiciary in Bangladesh was not truly independent of executive interferences and control. 163 Particularly the lower judiciary remained “subservient to an all-powerful executive” (Islam and Solaiman 2002:

Amin Construction Co. v Bangladesh (2003) 55 DLR (HCD) 510, and Ananda Builders, above n. 153. 159 Abdul Bari Sarker v Bangladesh (1994) 46 DLR (AD) 37. However, since BSCIC v Mahbub Hossain (1977) 29 DLR (SC) 41, the Court is willing to review public contracts of employment on ‘natural justice’ ground. 160 Below n. 161, per L. Rahman, J., at p. 110. 161 (2000) 52 DLR (AD) 82 (hereafter Masdar Hossain) (judgment delivered on 2nd December 1999). 162 Md. Masdar Hossain & Others v Secretary, Ministry of Finance & Others (1998) 18 BLD (HCD) 558. (Judgment 7 May 1997). 163 See further ch. 7.1.1. Independence of the judiciary is one of the most visited politico-legal topics in Bangladesh. For some recent work see Rahman (1997), Ahmed, Naimuddin (1998), Malik (2003a) and Akkas (2004a).

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107). The independence of the lower tier of judiciary had long remained a matter of serious concern. Unfortunately, the country’s legal system retained the British legacy of constituting the magistracy (the magistrates’ courts) by members of the administration. Therefore, the magistrates exercising judicial functions, except those in charge of courts in metropolitan cities, used to perform regular executive duties, a practice that is anti-thesis to the very notion of judicial independence. On the other hand, while the judges in the “judicial service”164 were not legally part of the executive, matters relating to their service were in effect being administered by the government. The lower court judges were to be selected under the supervision of the public service commission and not a judicial commission. The Constitution empowered the President to appoint members of the judicial service and magistrates in accordance with Rules to be made by him (Art. 115). The President has also been vested with the power to “control” (posting, promotion, and grant of leave) and “discipline” them in consultation with the Supreme Court (Art. 116), a requirement that was, until recently, more often than not ignored.165 No Rules were so far made by the President for these purposes. In this backdrop, the Court plausibly went beyond giving the specific remedy sought by the petitioners and embarked on a whole spectrum of constitutional mandates regarding judicial independence and their legislative-executive realisation. Writing a lengthy but overall wellreasoned leading judgment, Kamal, J. began by characterising the independence of the judiciary as a basic pillar of the Constitution, not to be “demolished, whittled down, curtailed or diminished in any manner”.166 By employing the ‘oil and water’ metaphor to the distinctness of the functions performed by the civil administrative service and the constitutionally-schemed independent judicial service, and by relying, inter alia, on a similarly reasoned Indian decision, 167 the learned judge found the existing amalgamation of the ‘judicial service’ with the ‘civil service’ unconstitutional.168 164 By this nomenclature the Constitution (Art. 152) refers to judges holding posts not being superior to that of a district judge. 165 This consultation requirement is breached even these days. Notably, the Masdar Hossain Court sought to insert teeth to this constitutional provision by declaring that in the consultation process “the views and opinion of the Supreme Court shall have primacy over those of the [e]xecutive” (per Kamal, J., at pp. 102 & 109). 166 Masdar Hossain, above n. 161, at p. 103. 167 All Indian Judges’ Association v India (1993) 4 SCC 288. 168 Eventually, the Court struck down some statutory provisions in the Bangladesh Civil Service (Reorganisation) Order 1980 and the Civil Service Recruitment

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An inquisitive Court also noted that although constitutional mandates regarding judicial independence were meant to be implemented “as soon as is practicable” [para 6 (6) of the 4th Schedule], nothing was done in that line till then. Rather, the Court observed, various legislative and executive acts concerning the members of the judicial service and magistrates constituted a “constitutional deviation”.169 Finally, the Court directed the government to take necessary steps to (i) frame Rules to be promulgated by the President under Art. 115 in order to regulate appointments of members of the judicial service and magistrates discharging judicial functions, (ii) to “enact” law or to “frame” Rules under article 133 to regulate their posting, promotion, discipline, and pay and allowances, (iii) to establish, either through legislation or presidential Rules, a Judicial Service Commission to recommend recruitments to the judicial service, (iv) to establish a Judicial Pay Commission, and (v) to issue administrative instructions to ensure the Supreme Court’s financial autonomy.170 It is curious that the last-mentioned direction relates to administrative power of the higher judiciary, whereas the whole dispute in fact concerned the independence of the junior judiciary. However, one may not find this directive completely out of place, albeit largely un-contextualised. The Court noted that the higher judiciary’s financial dependency adversely impacts on independence of the judiciary, 171 but failed to premise this reasoning on a more fine-grained understanding of judicial independence in the Bangladeshi constitutional context. 172 It is notable that the Court avoided the more important constitutional issue of whether or not there was a right to have the lower judiciary independent of the executive, which the Court virtually, if not clearly, ordered. Article 35(3) of the Rules 1981 for being incompatible with the notion of a constitutionally dictated independent judicial service. 169 Masdar Hossain, above n. 161, at p. 108. 170 Ibid., at p. 109. 171 This the Court took from the Zimbabwean Chief Justice’s work in Hatchard and Slinn (1999: 50). 172 It is tempting to note that Kamal, J. here seemed to be linking his personal preference for an independent judiciary with the wider social demand for it. Earlier, the learned judge extra-curially remarked that judicial independence cannot be meaningfully attained without financial autonomy of the Supreme Court (Kamal 1999: 43), and in this case he directed the government to ensure the Court’s financial independence. The use of such kind of personal commitment aimed at improving justice is a welcome activist judicial strategy, provided it is based on social and constitutional norms. For an instance of unacceptable use of personal preference (de-aligned from wider social demands) see above n. 121, and ch. 7.2 below.

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Constitution guarantees to every accused a right to speedy trial by an “independent and impartial court”. Does this right not impose a positive obligation on the government to separate the magistrates’ courts from the executive? The Court mildly raised, but did not address, the issue whether in view of this fundamental right “executive officers can at all perform purely judicial functions”, and deferred its determination to the future.173 The Court missed a good opportunity to authoritatively pronounce on this important right to an impartial judiciary174 that has gained sophisticated scholarly treatment from many courts, national and international, including the Canadian Supreme Court whose two similar decisions seem to have substantially influenced the directive judgment in Masdar Hossain.175 The real boost for the Court’s intellectual arguments came from two Canadian decisions, 176 in which the Canadian Supreme Court forcefully observed that any executive arrangements concerning the judges “must reflect” the “essential conditions of judicial independence” namely, security of tenure, financial security and institutional independence.177 In Reference re Remuneration of the Judges,178 it then adjudged a parliamentary law reducing salaries of provincial court judges on economic grounds as unconstitutional for determining judges’ salaries without recourse to an independent and objective process such as Judicial Salaries Commission.179 Following a finding that the subordinate judiciaries in Canada and Bangladesh stand on the same constitutional footing, the Masdar Hossain Court fully agreed about these essential conditions of judicial independence. In the end, comparative judicial reasoning coupled with creative interpretations of the native constitution resulted in the above-noted court directives. A question that is involved in Masdar Hossain, and raised by many, concerns the judicial authority to issue directives of the above kind. Assailing the Court’s policy directives by invoking the principle of 173

Masdar Hossain, above n. 161, at p. 102, per Kamal, J. Noting that people generally have a right to an independent judiciary, Gleeson (2005) maintains that “reinforcing that explanation is a responsibility of the modern judiciary”. 175 For instance in Reference re Remuneration of the Judges, below n. 176, the Canadian Supreme Court extended the constitutional guarantee of an “impartial tribunal” [s. 11(d) of the Canadian Charter of Rights 1982] to the judges’ institutional financial security. 176 Walter Valente v The Queen [1985] 2 SCR 673; Reference re Remuneration of the Judges of the Provincial Court of Prince Edward Island [1997] 3 SCR 3. 177 Cited in Masdar Hossain, above n. 161, at pp. 102-3. 178 [1997] 3 SCR 3. 179 Ibid., as cited by Kamal, J. in Masdar Hossain, as in n. 176. 174

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separation of powers, the Attorney-General argued that the Court lacked an authority to direct Parliament to enact laws or to direct the President to frame rules. The Court’s eloquent and thoughtful response was that if in any case a course of ‘constitutional deviation’ is found to be engineered and pursued by either Parliament or the executive, the higher judiciary can exercise its jurisdiction to bring them back to the constitutional path by giving necessary directions. 180 In this context, one further interesting aspect of this judgment appears to be the Court’s conscious avoidance of straightforwardly directing the government to separate the judiciary from the executive, a point that often goes missing in the literature. This strategic activism was probably persuaded by the judicially nonenforceable position of the constitutional mandate in article 22 to separate the judiciary. Interestingly, now the implementation phase of this judgment is proceeding in this direction, and the Court itself describes its directives as meant “for the separation of the judiciary”.181 One final note on the implementation of Masdar Hossain needs to be made. Since its review petition in the Appellate Division failed in 2001,182 the government persistently pursued dilatory tactics, seeking repeated extensions of the compliance deadline, although it earlier complied with one innocuous court-directive concerning the Supreme Court’s financial autonomy. However, after long-shown generosity in allowing the government ‘time’, the Appellate Division finally rejected the government’s prayer for another 4 months’ time and drew up a contempt proceeding against top government officials for wilful non-compliance with its directives (Order of 1 Feb. 2006). 183 In the meantime, the government initiated, although half-heartedly, drafting of various Rules, and implemented one more direction by establishing the Judicial Service Commission (JSC), but again substantially deviating from the Masdar Hossain directives.184 180

Masdar Hossain, above n. 161, at p. 108, per Kamal, J., relying on Kudrat-eElahi Panir, above n. 123, and the Pakistani decision in Govt. of Sindh v Sharaf Faridi PLD 1994 SC 105 that imposed positive state obligations to separate the lower judiciary. 181 Below note 185. 182 See the Order of 18 June 2001 in CA No. 189 of 2000. 183 As Islam and Solaiman (2002: 122) presciently observed, the Court had no better palatable option than this “explicit protest” in the face of “a culture of executive arrogance”. 184 In the 7-member JSC constituted in Feb 2004 (vide the Gazette Notification, 28 Jan. 2004), judges are a minority, while the Court proposed a JSC with judges as a majority.

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In its post-decision monitoring, the Court has involved itself to the extent of inserting modifications to the draft rules so as “to make them consonant with [its] directives”, 185 and, as it explained, to expedite the implementation of its judgment.186 Although the Court’s patient activism in the sense of delaying the disposal of contempt proceedings for strategic purposes is plausible, 187 and while its policy shift from post-judgment passivity to assertive monitoring of the directives is a welcome and longexpected development, judicial engagement in drafting rules seems unpragmatic and non-conducive for its supervisory capacity. This suspicion has become real when the government, pending the contempt proceeding against its concerned officials, has recently issued two sets of Rules by clearly side-tracking the Masdar Hossain directives and the Court’s earlier modifications in drafts of these instruments.188 One might therefore ask if the Court would not have done better by stopping short of modifying those drafts, but rather waiting and applying its contempt power vigorously for defying its judgment. From the perspective of impact of judicial activism, however, the Masdar Hossain case arguably sets a benchmark. It seems that it is because of the Court's serious post-verdict monitoring that the government substantively improved the legislative instruments (the four sets of Rules) it embarked on earlier, which were re-issued on 16 January 2007. Finally, in order to fully comply with court-directives, the lower limb of the judiciary including the magistrates was separated from the executive organ of the state with effect from 1 November 2007 following a new amending Ordinance. Also notably, the government has installed a separate pay commission for the judges, thereby complying with another important Masdar Hossain-directive.

185

See the AD’s Order of 26 January 2003 in CA No. 79 of 1999, at p. 1. Order of 26 May 2003, clarifying that it “has not assumed the rule-making power” (paras. 11-2). 187 Prior to the contempt proceeding of 1 Feb. 2006, there was another contempt proceeding against 7 high ranking officials involved in drafting the ‘Rules’ for misinterpreting court directives. Conceivably, the Court is delaying these proceedings to facilitate cooperative government actions. 188 The Bangladesh Judicial Service (Constitution, Recruitment in the Entry Point, Temporary Suspension, Dismissal and Removal) Rules, 2006; the Bangladesh Judicial Service (Posting, Promotion, Leave Grant, Control, Discipline and other Service Conditions) Rules, 2006 (published on 12 June 2006). 186

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4.6.4 Bangladesh Italian Marble Works Ltd v Bangladesh: In defence of constitutionalism In a 2005 decision in Bangladesh Italian Marble Works Ltd v Bangladesh, popularly known as the 5th Amendment Case,189 the High Court Division held unconstitutional the 5th constitutional amendment that validated the first martial law regime (15 August 1975 - 9 April 1979). The Court adjudged the 5th Amendment and the “martial law” as a “grave” legal wrong, emphatically pronouncing that martial law is unknown to the Constitution and that it can never be amended, let alone abrogated, through extra-constitutional means (Hoque 2005). The Court found that some basic structures of the Constitution were destroyed through the 5th Amendment to the Constitution. Unboundedly, the basic structure doctrine as well as the overarching constitutional principle of rule of law became the underpinning rationale for the Court’s decision. There are, nevertheless, some notable weaknesses in its reasoning especially for its stand of sustaining the legality of some changes and rejecting the others brought about by the 5th Amendment. Despite these ambivalence and juristic contradictions, the decision is arguably a bold assertion against unconstitutional usurpation of state powers. The decision has spurred and sustained, over the last few years, a heated debate regarding the proper extent the court in a democracy can go to (see, e.g., Rahman, W. 2009). By contrast, it can be regarded as an outstanding judicial action in the consolidation of democracy. One might argue that this has significantly contributed to the cause of constitutionalism in that the 2007 Emergency (ch. 6) did not yield in another martial law regime. The decision seems to have compensated in some way the Court’s earlier failing to discard martial law. As seen above, the Court during the extra-constitutional regimes mostly surrendered its autonomy and 'judgment' to the executive, a legacy that effectively overshadowed the post-1990 activism by the judiciary in Bangladesh. The political party whose predecessor was responsible for the concerned martial law regime enacting the 5th constitutional amendment preferred an appeal to the Appellate Division. Sitting on appeal for quite a few years, the Appellate Division in the environment of a newly installed post-emergency democratic regime largely endorsed the High Court Division's above decision. In Khondker Delwar Hossain v Bangladesh Italian Marble Works and Others (2010), the Appellate Division stood in

189

(2006) BLT (Special) (HCD) 1.

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defence of the supremacy of the constitution. 190 As we shall analyse in chapter 6 below, there is a new, post-emergency realisation on the part of the court to remain vigilant against encroaches upon constitutionalism. The decisions of both Divisions of the Supreme Court in the so-known 5th Amendment Case reflect this new judicial assertiveness for the cause of constitutionalism. Most evidently, judicial assertion in the 5th Amendment Case spurred radiating influence on the judiciary. In a similar challenge, brought about by a life-convict who sought a quashing of his conviction awarded by a martial law court during the second martial law regime, the High Court Division in its 2010 verdict declared the 7th constitutional amendment unconstitutional that legitimised the second martial law regime (24 March 1982 to 1986) in Bangladesh, and directed the reprint of the Constitution after deleting the legitimisation-clause (para. 19, 4th Schedule to the Constitution).191 The Court also asked the government to look into the possibility of prosecuting those who usurped the state power. This chapter has demonstrated that Bangladeshi judicial activism has certain strains, seemingly emanating from both political conditions and internal judicial ideologies and tradition, and that court decisions are influenced by external circumstances like political turmoil or a political culture deficient in democratic credibility. We witness certain pre-1991 instances of judicial vigilance, some even amidst a relatively hostile political environment, while, by contrast, even the post-1990 courts have either apparently pursued reluctant activism or eschewed activism altogether on several occasions. These ambivalences practicably mean that, political factors apart, there is also a close link between a judge’s legal training or philosophy and the method of judging s/he follows.

190 191

(2010) 62 DLR (AD) 298; (2010) VI (B) ADC (AD) 1. See Siddique Ahmed v Bangladesh, WP No. 696 of 2010.

CHAPTER FIVE PUBLIC INTEREST JUDICIAL ACTIVISM IN BANGLADESH: BEYOND ACCESS TO JUSTICE

The present chapter analyses the nature of Bangladeshi judicial activism with specific reference to a particular area of activity, public interest litigation (PIL). The previous chapter noted that although the Bangladeshi judges began to perceive their role rather differently in the post-1990 period and formally embraced PIL and through it a judicial societal role, they are still at a slow pace in terms of realising the Constitution’s sociotransformative goal and the principles of constitutionalism and justice. This chapter seeks to assess this finding, by examining to what extent PILbased Bangladeshi judicial activism is free from judges’ attitudinal deficiencies and prejudices found in chapter 4. Judicial realisation of the constitutional objectives of social justice, public interest and imperatives of constitutionalism became an agenda in Bangladesh when public interest jurisprudence emerged in the country in the late 1990s (Ahmed 1999). How far has public interest judicial activism in Bangladesh gone since then? Are Bangladeshi judges taking the people’s cause seriously enough? Have they exceeded their limits, or, are they merely pursuing traditional activism in this regard? The present chapter addresses these and other related questions, focusing on which can be conveniently called ‘public interest rights litigation’ (PIRL) and ‘public interest constitutionalism litigation’ (PICL). The latter, unlike the former, is concerned more about the wider principles of constitutionalism than the constitutional rights of the weak or deprived segments of society. 1 Additionally, this chapter also captures a brief analysis of self-initiated (suo motu) judicial interventions which are but a mixed bag of PIRL and PICL. 1

I do not claim that PIL is the only avenue for judicial constitutional activism. As seen in ch. 4, it can also be exercised in regular constitutional proceedings or ordinary cases implicating constitutional dimensions.

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A further area of investigation is the extent to which the judiciary in Bangladesh has been able to predicate its activism on the imperatives of local needs and on a solid theoretical base of constitutional justice. Therefore I examine, among other things, the Court’s role in narrowing the gap between the so-called non-justiciable social rights and the guaranteed constitutional rights.

5.1 The delayed birth of public interest litigation PIL in Bangladesh is a post-democratic transition (post-1990) phenomenon, and its entrenchment in the country’s legal soil during the mid-to-late 1990s was significantly influenced by this political change.2 However, in the process of PIL’s much-laboured birth, Bangladeshi judges, unlike their Indian counterparts, have not been optimally instrumental. Rather, they pursued a parsimonious jurisprudential path for quite some time and refused to look beyond their own world, not because they were ignorant of PIL-developments elsewhere, but because, “for various reasons, they delayed implementing it until the pressure from established legal quarters became overwhelmingly strong” (Menski 2000b: 125). In fact, the premier reason behind Bangladesh’s belated embrace of PIL appears to have been judicial unwillingness to break away from colonial legal thinking, and to abandon constitutional textualism or legal formalism. Also, as will be seen below, even though the emergence of PIL owes much to the judicial adoption of an autochthonous, pro-people mode of constitutional interpretation, there has hardly been any sufficiently articulated urge for a socially relevant jurisprudence in Bangladesh, or the realisation about the inadequacy of the inherited, age-old British legal tradition.3 As noted in chapter 4.3, there was an early decision (1974) in Kazi Mukhlesur Rahman v Bangladesh (Berubari)4 with strong PILness which is proudly characterised as the precursor of South Asian PIL (Kamal 1994:

2 Despite recent enthusiasm among new researchers, there is simply not much literature on Bangladeshi PIL. The leading major work is Ahmed (1999). See also Hoque (1993; 1996), Hossain et al (1997), Rahman, A. (1999), Ahmed, Naim (2001), Asia Foundation (2002) and Razzaque (2004). ASK (2005) contains a wealth of information. 3 Promisingly, however, senior judges have begun to emphasise a proactive judiciary (Chowdhury, M. R. 2002), urging the new generation of judges to build the country’s “own jurisprudence” suitable to its “poverty-stricken multitudes” (Hasan 2004: 40). Also see the observations in notes 20-22 below. 4 (1974) 26 DLR (AD) 44.

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16).5 However, as has already been observed, Berubari did not authoritatively establish PIL in the sense it is understood today; nor could the public interest attributes of this decision sufficiently enlighten even the greatest minds in the judiciary.6 Consider the following 1991 orthodox observations in Bangladesh Sangbadpatra Parishad v Bangladesh (hereafter Sangbadpatra), 7 surprisingly by the very Appellate Division judge who later took the lead in entrenching PIL in Bangladesh: In our Constitution the petitioner seeking enforcement of a fundamental right […] must be a ‘person aggrieved’. Our Constitution is not at pari materia with the Indian Constitution on this point. … The emergence in India of pro bono publico litigation, […], has been facilitated by the absence of any constitutional provisions as to who can apply for a writ.8

It seems that the Court rejected the possibility of PIL in Bangladesh because its Constitution, unlike India’s, required a petition by “a person aggrieved” for constitutional remedies (Art. 102). We are often advised not to take these remarks as having meant to retard PIL in Bangladesh but rather to understand them only in the context of non-PIL Sangbadpatra (Islam 2002: 607).9 True, Sangbadpatra, where an associational standing was refused on some rather unconvincing technical grounds,10 was not a 5

See also Dr. Mohiuddin Farooque v Bangladesh, below n. 12, at pp. 31-2, & 45, per Afzal and Kamal, JJ. 6 For the long post-Berubari period of inertia, Kamal, J. in FAP 20, ibid., at p. 46, blamed the “frequent interruptions” with the working of the Constitution and superior courts rather than the “lack of public spirit on the part of the lawyers and the Bench”. Elsewhere (Kamal 1994: 166), he contradictorily blamed the Bar and the Bench for failing to follow the spirit of Berubari, while the learned judge himself failed to follow this spirit in Sangbadpatra, below note 7. 7 (1991) 43 DLR (AD) 126, per Kamal, J., disallowing an association of newspapers owners to challenge a fixation of wages for newspaper employees. 8 Ibid., at pp. 127-8 (emphasis mine). 9 See Kamal, J.’s defence of Sangbadpatra-reasoning in FAP 20, below n. 12, at p. 48. Afzal and Rahman, JJ. concurred (see p. 33 and p. 61). 10 Reasoning that the petitioner was “opulent” and was not espousing the cause of a downtrodden social section, a reasoning that is open to question given that breach of the wider principle of legality was alleged here. However, in Bangladesh Retired Govt. Employees’ Welfare Association v Bangladesh (1994) 46 DLR (HCD) 426, the HCD granted (endorsed by the AD; (1999) 51 DLR (AD) 121) associational standing by giving a much-expected liberal interpretation to locus standi (per N. Ahmed, J.).

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PIL in the classical sense of the term. But where are the justifications for the above-quoted sweeping remarks against PIL? Unsurprisingly, thus, by constructing a formidable barrier (Ahmed 1999: 127) for the later development of PIL in Bangladesh, Sangbadpatra did more harm than was initially perceived by the optimists and maybe by the judges themselves. Following a long-fought jurisprudential battle11 and a series of initial attempts where very little was achieved, PIL in Bangladesh was formally accepted in 1996 in Dr. Mohiuddin Farooque v Bangladesh (hereafter FAP 20), 12 the country’s first true PIL case, when an environmental organisation, the Bangladesh Environmental Lawyers’ Association (BELA), was granted standing to challenge an ongoing ‘flood control’ mega project, Flood Action Plan 20, on the ground of rights-violation and breach of the law. Earlier, the High Court Division (HCD), relying on Sangbadpatra (above), refused standing to BELA. 13 On Appeal, the Appellate Division opened standing to any person with “sufficient interest” and wishing to litigate people’s rights or seeking enforcement of public legal-constitutional duties. 14 Writing the leading opinion in this epoch-making decision, Kamal, J. made the following much-awaited statement: [W]hen a public injury or public wrong or an infraction of a fundamental right affecting an indeterminate number of people is involved, […], any member of the public, being a citizen, […] or an indigenous association […], espousing th[e] [public] cause […], has the right to invoke the [Court’s] jurisdiction.15

These observations, which in effect reflect the famous reasoning of Bhagwati, J. of the Indian Supreme Court in S. P. Gupta v India,16 tellingly indicate that Bangladeshi judges began to learn from their brethren in the

11

A national conference on PIL (see Hossain et al 1997) held on 26-7 July 1996 in Dhaka apparently contributed to PIL’s growth in Bangladesh, although the first decision that formally recognised PIL was handed down on the day preceding the conference. Since the early 1990s leading lawyers like Syed Ishtiaq Ahmed were arguing for PIL, and an environment of legal activism towards a public interest law was gradually being constructed by some local and international NGOs (Gulab 2000). Unnoticed by many, a law reporter (see the Editorial in the Bangladesh Case Reports, 1987: 4-5) advocated PIL earlier in 1987. 12 (1996) IX BSCR (AD) 27 (FAP 20 Case); (1997) 17 BLD (AD) 1. 13 In Dr. Mohiuddin Farooque v Bangladesh, WP No 998/1994. 14 FAP 20, above n. 12, at p. 33, per Afzal, CJ. 15 Ibid., at p. 51, per Kamal, J. 16 AIR 1982 SC 149.

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neighbouring jurisdiction. 17 It must, however, be recognised that the significant shift in constitutional interpretations and adjudication that this case installed was informed by a sense of the “autochthonous”18 nature of the Constitution of Bangladesh. The Court revealed its consciousness that the country’s Constitution was “not the outcome of a negotiated settlement with a former colonial power” but rather “the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number of people for a common cause” namely, a just society.19 Emphatically noting that “people feature as a dominant actor” in the Constitution, the Court made a self-pledge to make the people “the focal point” of its concerns.20 This line of reasoning led Kamal, J. to employ a people-centric, holistic and teleological interpretation to the words “a person aggrieved” in Art. 102, thereby throwing the judicial door open to “the people as a collective personality”21 rather than keeping it reserved only for a lexicographically understood ‘aggrieved’ person. Other judges, too, took the Constitution as a living instrument and emphasised the need for judicial activism in realising “social justice” 22 through securing constitutional fundamental rights. Kamal and Rahman, JJ. underlined that judicial focus on only individual rights, which is usually the case in a capitalist laissez faire society, is inappropriate and would be disastrous for the welfare of a poor society burdened with socioeconomic inequalities such as Bangladesh.23 The formal inclusion of the masses in the justice system is indicative of the collective-justice base of public interest law in Bangladesh.

17

The influence of other jurisdictions over Bangladeshi PIL is hardly recognised. Contrarily, judges and jurists, eager for an indigenous theoretical framework, have sometimes overstated the need for avoiding Indian and Pakistani approaches to constitutional interpretation. See, e.g., Anwar Hossain Khan v Speaker of Bangladesh Sangsad (Parliament Boycott Case) (1995) 47 DLR (HCD) 42, and Farooque (1994-95: 80), pleading for a “credible national jurisprudence”. While consciousness about country-specific constitutional interpretation is highly desirable, it was left unclear how other South Asian jurisdictions are unhelpful for the development of Bangladeshi law. 18 This autochthonous nature was curially underlined first by B. H. Chowdhury, J. in Anwar Hossain Chowdhury v Bangladesh 1989 BLD (AD) (Spl) 1, 59. See also Anwar Hossain Khan, above n. 17. 19 FAP 20, above n. 12, at p. 49, per Kamal, J. 20 Ibid., at pp. 49-50. 21 Ibid., at p. 49, per Kamal, J. 22 Ibid., respectively per Chowdhury and L. Rahman, JJ., at p. 65 & p. 59. 23 Ibid., respectively at p. 51 and p. 59. This echoes a similar feeling of Bhagwati, J. in S. P. Gupta, above n. 16, detailed in Bhagwati (1984-5).

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Having granted ‘standing’ to the petitioner (BELA), the case was remitted for a decision on merits to the High Court Division, which, however, declined to intervene as the challenged project had progressed substantially and involved a huge amount of foreign aid. Nonetheless, the Court directed the concerned authorities to involve local people in important developmental/environmental decisions and to ensure that “no serious damage” be caused to the environment by the project.24 This is how PIL in Bangladesh took off, probably a not-so-radical start in comparison to other successes elsewhere, but nevertheless historic. The stage for actions having been set, one could expect more PILs. Obviously, the judiciary and legal circles, including the rights bodies, needed time to construct a sustainable support base for future actions, which seems still to be under construction. This phase of Bangladeshi PIL thus revealed a state of jurisprudential uncertainty and a general hesitation among legal activists, leading to only a few actions, most of them being framed as actionable rights claims and filed by or conjointly with more directly affected petitioners. 25 However, there were also cases of a mixed genre concerning civil-political rights and greater constitutional principles beyond the classic pattern of actions on behalf of the ‘most disadvantaged’. Interestingly, along with rights groups and public-minded individuals and lawyers, political litigants or litigation for political interests, too, began to appear as an emerging, if not ultimately dangerous, feature of this period.26 Bangladeshi PIL entered this advanced phase of “the middle class usurpation” (Menski 2002: 8) of PIL techniques rather rapidly, and, as we shall see below, without passing through the desirable “pioneer stage” of 24 Dr. Mohiuddin Farooque v Bangladesh (FAP 20 merit) (1998) 50 DLR (HCD) 84, 102 (although the Court’s order was not implemented in its true sense, the government plausibly consulted with the locals while assessing environmental impacts, and introduced the National Environment Action Management Plan (Rafiquzzaman 2002: 132)). 25 See, e. g., Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438 (Radioactive Milk Case) where the petitioner himself claimed to be a potential victim (the Court prevented the release of radioactive dried milk in order to protect public health), and Master Isa N. Farooque v Bangladesh, WP No. 278 of 1996, wherein some children became the ostensible petitioners to stop the use of Bangladeshi children as ‘camel jockeys’ in the UAE. 26 See Ziaur Rahman Khan v Bangladesh (1997) 49 DLR (HCD) 491; and Abu Bakar Siddique v Justice Shahabuddin Ahmed (1997) 17 BLD (HCD) 31 (not claimed as PILs, but standing was granted to lawyer-politicians to (unsuccessfully) challenge respectively an electoral law and the holding the post of President by a former Chief Justice). Ahmed, Naim (1998: 281-3) reports that elitist challenges outnumbered the socio-economic issues during this period.

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focusing on issues of serious violations of most basic fundamental rights (Menski, id.). However, the recent orientation of PIL in more genuine, wider constitutional causes has largely minimised the risk of being misused for unacceptable selfish interests.

5.2 Public interest rights litigation: Measuring judicial activism 5.2.1 Judicial social rights activism: Taking (in)justice seriously? Following the developmental phase, the number of PIL cases and successful decisions began to rise after 2000. Most of these modern rightsbased PILs, like their predecessors, involved environmental justice which seemingly attracted the Court’s spontaneous and relatively assertive interventions. Indeed, continued judicial environmental activism has been one of the central features of Bangladeshi PIL jurisprudence. In a number of cases, for example, conversion of open spaces into housing plots, 27 occupation of public parks,28 and constructions of commercial or public buildings were declared unlawful for violating fundamental rights of the local people and causing detriment to their health, and for breaching relevant laws.29 In a commendable anti-vehicular-pollution decision in Dr. Mohiuddin Farooque v Bangladesh,30 the first of its kind in Bangladesh but arrived at through a rather short discussion of relevant constitutional issues and without being informed by scientific reports, the Court issued an eight-point directive to improve the condition of air pollution in Dhaka City. Keeping the case pending for the purpose of monitoring, the Court ordered the government, inter alia, to convert the existing polluting 27

See M. Saleem Ullah v Bangladesh (2003) 23 BLD (HCD) 58. In Giasuddin v Dhaka City Corporation (1997) 17 BLD (HCD) 577, the Court refused to give a remedy to a person challenging his eviction from a public park, holding that preservation of open space was necessary for the public’s health, but without balancing the rights of those homeless. 29 In Sharif Nurul Ambia v Dhaka City Corporation (2007) 15 BLT (AD) 305, the Appellate Division through its 2004 decision declared unlawful the DCC’s initiative to construct a commercial building endangering the environment. See also Bangladesh Paribesh Andolan v Bangladesh (2006) 58 DLR (HCD) 441, declaring unlawful the construction of residential houses in the parliament premises. 30 (2003) 55 DLR (HCD) 613 (Vehicular Pollution Case). Another similar challenge was BLAST v Bangladesh, WP No. 1694 of 2000. 28

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vehicles into CNG-run, environmentally friendly means of transport, to give a month-long publicity to the court-directives in print and electronic media on two consecutive days in a week, and to submit half-yearly reports of compliance and progress. In another famous public interest environmental litigation (PIEL) decision, Dr. Mohiuddin Farooque v Bangladesh,31 relevant state officials, having been put under a “reportage obligation” (Baxi 2004: 345, n. 43), were likewise directed to take actions against polluting industries by compelling them to adopt sufficient antipollution measures within 1 to 2 years, and not to permit new industries without first requiring them to take such measures. It seems that the courts are increasingly aware of the limits of law on paper, and of the need to engender a duty-based legal regime by fostering a sense of “public duties” amongst the general public [Art. 21 (1) of the Constitution] and by enforcing the constitutional and statutory duties of the state functionaries concerning the citizens’ “welfare”, 32 sometimes assuming a rights-enhancive and constitution-reinforcing role. For example, in Prof. Nurul Islam & Others v Bangladesh (Cigarette Advertising Case),33 the High Court Division exercised some measure of policy-making activism while imposing a ban on tobacco advertisements in print and electronic media. There was no posited law prohibiting tobacco advertisements, but an innovative Court found that such prohibition was in-built in the ‘self-executory’ constitutional right to life, enforcement of which needed no further enabling legislation. Informed of the implications of the Fundamental Principles of State Policy (FPSPs), particularly those relating to the promotion of public health and associated state obligations such as a duty to follow relevant resolutions of the World Health

31

Dr. Mohiuddin Farooque v Bangladesh (2003) 55 DLR (HCD) 69 (Industrial Pollution Case). 32 For example, when BLAST and Ors v Bangladesh (2005) 25 BLD (HCD) 82 unearthed that marketed edible salts contained no or less than the statutory level of iodine, the HCD, attaching a periodical reportage obligation, directed the government officials to discharge their statutory regulatory duties, especially to prosecute recalcitrant salt-manufacturers (per S. A. N. M. Rahman and M. I. Chowdhury, JJ.). See also ASK v Bangladesh [2003] 4 CHRLD 147 (Judgment of 5 Aug 2001), and Quazi Faruque, Secretary, CAB v Bangladesh, WP No. 631 of 2001 (interim order of 3 August 2003), seeking to compel public duties under the relevant safety legislation in order to prevent respectively deaths of workers from fire in garments factories and deaths from launch-accidents. 33 (2000) 52 DLR (HCD) 413; reaffirmed in Sheikh Rafiqul Islam, LSTB v Bangladesh, WP No. 7439/2002, stopping promotional prize-offering by a tobacco company.

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Organisation,34 the Court rightly found itself empowered to issue appropriate declarations/directions (like this banning order) in order to remedy any kind of violation of the people’s right to life. Importantly, instead of banning smoking in public places itself,35 the Court urged for legislation for that end and made several other recommendations, thereby keeping a margin of appreciation for the legislature/executive.36 Similarly, in the Industrial Pollution Case,37 crafting the right to a safe and hazards-free environment, the Court asserted its authority to enforce the government’s constitutional or legal obligations vis-à-vis fundamental rights including the “constitutional guarantee […] in Article 32 for a pollution free environment”.38 Growing judicial environmental activism, even though it lags far behind the Indian and Pakistani achievements, has been stimulating legal activists to increasingly challenge various governmental actions and inactions under the umbrella of the flourishing ‘right to environment’, even to the extent of challenging state corruption in disguise. Curiously, many traditionally non-environmental rights claims are being increasingly tailored as PIEL, apparently to solicit greater judicial activism. A quick look at the subject matter of recent PIELs will confirm this. These have been filed, inter alia, to challenge governmental allocation of certain land to one MP for the purpose of shrimp-cultivation on the ground that the surrounding environment would be harmed, 39 to challenge unlawful leasing out of a portion of some river-land, 40 and to protect the social (labour) rights of a sizable number of unregulated workers in the polluting, hazardous ship-breaking industry. 41 In almost all challenges, the Court acted promptly by issuing provisional protective injunctions. The above shows that judicial extension of the most prominent (negative) civil right, i.e., the constitutional right to life, to areas traditionally considered to be non-enforceable has just begun in 34

See ibid., at pp. 415, 421-22 & 433, per M. F. Karim, J. This was done by the Kerala High Court in K. Ramakrishan v State of Kerala AIR 1999 Ker 385 (per Kurup, J.); reaffirmed in Murli Deora v Union of India (2001) 8 SCC 765, extending the ban to the whole of India. 36 I wonder whether the enactment of the Tobacco-Smoking and the Use of Tobacco-Related Products (Control) Act 2005, prohibiting smoking in public places and imposing control on the tobacco-use, is not influenced by this and other anti-smoking decisions. 37 Above n. 31. 38 Ibid., at p. 79, per A. B. M. Khairul Haque, J. 39 Khushi Kabir v Bangladesh, WP No. 3091 of 2000. 40 BELA v Bangladesh & Others, WP No. 4685 of 2002. 41 BELA v Bangladesh, WP No. 2911 of 2003. 35

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Bangladesh. The expansion in the early environmental cases of the ‘right to life’ to embrace the right to a healthy environment42 had stirring effects on subsequent decisions concerning ‘livelihood’ of such vulnerable sections of society as slum-dwellers or sex-workers. In Ain o Salish Kendro (ASK) v Bangladesh (Slum Dwellers Case), 43 the Court intervened to (prospectively) protect poor slum dwellers from being evicted without first being given notice as a matter of constitutional propriety,44 asking the government to conduct the eviction in phases and only subject to alternative shelters being made. In a similar case,45 the Court declared the government’s arbitrary, sudden, and fanciful eviction of hundreds of sex workers as unconstitutional as these actions effectively deprived them of their livelihood and thus their right to life. The Court then asked the government to formulate its promised rehabilitation schemes compatibly with human dignity, and containing such educational, moral and socioeconomic facilities that would dismantle prostitution-facilitative factors. In these cases, the Court apparently sought to protect the vulnerable in the Olga Tellis way (ch. 3.3, n. 117), i.e., by preventing the state from arbitrarily depriving the people of their livelihood rather than by imposing positive obligations on it under the FPSPs. However, while rendering this sort of strategic protection, the Court usually seeks to enlighten the government about its duty to honour the people’s expectation about “social justice [and] the minimum necessities of life”.46 A notable impact of the growing judicial consciousness about the breadth of the right to life is a correspondingly greater willingness of institutional social activists to litigate social rights of the disadvantaged 42 This type of rights-broadening interpretation, first adopted in FAP 20 (above n. 12, at p. 69), was later fine-tuned in other cases such as Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438, 442: “the right to life […] includes the enjoyment of pollution free water and air, improvement of public health […] and [a] life consistent with human dignity”. 43 (1999) 19 BLD (HCD) 488. 44 The Constitution (Art. 32) prohibits the breach of one's right to life and liberty except “in accordance with law”. The Court here seems to enforce this ‘due process’-equivalent safeguard. See also Kalam v Bangladesh (2001) 21 BLD (HCD) 446; Aleya Begum v Bangladesh (2001) 53 DLR (HCD) 63. 45 BSEHR v Bangladesh (2001) 53 DLR (HCD) 1, per M. F. Karim, J. 46 Kalam v Bangladesh, above n. 44, at p. 448. Haque, J. wrote (at p. 448) the following humanising words: “After all, the slum dwellers […] are also citizens of this country […]. Their fundamental rights may not be fully honoured because of the limitations of the state, but they should not be treated […] as slaves […]. [T]hey have a right to be treated fairly and with dignity, otherwise all [constitutional] commitments […] shall prove to be mere mockery”.

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within the framework of constitutional right to life combined with a usual strategy of seeking to enforce statutory public duties or the wider principles of constitutionalism such as non-discrimination. For instance, in BLAST and Ors v Bangladesh,47 a court directive was sought to compel the government to initiate an affirmative action for those disabled, handicapped or blind by reserving quotas for them in the public service. A more recent PIL case sought to ensure that neglected ‘garments workers’ are paid for their overtime work in fulfilment, inter alia, of their constitutional right to life. 48 However, it remains to be seen how effectively the Court can expand its activism to cover this sort of social injustices.

5.2.2 Inadequate focus on civil rights It appears from the above that Bangladeshi PIL has a close affinity with group or socio-economic rights, albeit not as strong as it could be, and with more focus on environmental rights than on other social rights. However, as said earlier, there have also been PILs that sought to protect ‘enforceable’ civil-political rights, although their number has been very low. Some possible reasons could be: (i) individualistic rather than collectivistic dimension of these rights; (ii) the paucity of rights groups working on traditional civil-political rights; (iii) the existing organisations’ inadequate attention to these rights; and (iv) lack of legal professional creativity in framing common rights-violations within the PIL spectrum. The under-use of PIL to redress widespread violation of individuals’ civil rights constitutes but one major weakness of Bangladeshi PILaw. However, some notable PILs of this genre include early cases that sought to end the inhumane practice of chaining prisoners with ‘danda bery’ (bar fetters)49 and some recent actions, including the country’s only epistolary PIL, that were brought to free some unlawfully detained under47

WP Nos. 343/1997 and 1783/1998 (pending). In a partial response, the government made a law reserving quotas for the handicapped people only in public jobs of 3rd and 4th classes. 48 BLAST v Bangladesh, WP No. 1256 of 2006, also seeking to enforce s. 58 of the Factories Act 1965, and rule 70 of the Factories Rules 1979. See also ASK v Bangladesh, WP No. 4269 of 2005, challenging lingering detention of a mentally ill person and seeking to ensure rights of mentally retarded people generally. 49 Salma Sobhan v Bangladesh, WP No. 2678 of 1995 (unreported). Although this was not later prosecuted, an interim remedy unchained a prisoner from ‘danda bery’ put on his legs for 33 months. See also ASK v Bangladesh, WP No. 3176/2000, ordering the removal of handcuffs from a juvenile detainee.

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trial prisoners including children,50 to challenge unlawful incarceration of some foreign nationals languishing in jails by over-serving their sentences,51 to halt various mass-arrest drives,52 and to challenge torturous and inhumane detention of a person allegedly for threatening to kill the parliamentary leader of the opposition. 53 Also notable are the few instances of suo motu judicial interventions, discussed below, in the area of gross abuses of civil liberties, which portray a mixture of judicial public interest and constitutional activism. In the first instance of exercising epistolary jurisdiction, the HCD in Dr. Faustina Pereira v The State54 issued a ‘suo motu’ rule in pursuance of a letter by a Supreme Court advocate to the Chief Justice of Bangladesh, drawing his attention to a news report that 29 foreign nationals had been languishing in jails for about five years even after the expiry of their sentences. The Court promptly sought a report on similar situations from the Inspector General of Prisons, and, following a hearing, not only released those foreign prisoners but also directed the relevant authority to take steps for the release of other foreign prisoners across the country and to submit to the Court a progress report. Further, the Court appreciably formulated guidelines for the government departments to follow in handling similar situations in the future. 55 In a regular PIL, BLAST v Bangladesh (2005),56 the Court issued various positive orders against the 50

BLAST v Bangladesh (2005) 57 DLR (HCD) 11. Faustina Pereira, below n. 54. A similar PIL involving Bangladeshis is ASK v Bangladesh, WP No. 1987 of 2005. 52 See BLAST & Others v Bangladesh, WP No. 2192/2004 (unreported), issuing an injunction against blanket mass arrests ahead of an opposition party’s conference. Despite this, there was a similar mass arrest drive in February 2005, and the rights groups again promptly activated the Court. 53 See ASK and Others v Bangladesh (2004) 56 DLR (HCD) 620, directing the police not to torture the detainee and not to take him to further custody, and ordering his medical treatment. 54 (2001) 53 DLR (HCD) 414. It is interesting to note that epistolary jurisdiction was first exercised in 1962 by the then Dhaka High Court in Lt. Col. G. L. Bhattacharya v The State (1963) 15 DLR (Dacca) 175, where a detained Indian army official, asking for a habeas corpus, wrote a postcard to Morshed, C.J. who promptly responded on this basis before a formal proceeding was drawn. I am grateful to the former Chief Justice Mr. A. T. M. Afzal for drawing my attention to this case. 55 Recommending, e. g., a separate government cell to deal with foreign prisoners, and the initiation of repatriation process at least three months before the expiry of prison terms. 56 (2007) 57 DLR (HCD) 11. 51

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government to ensure the release of, or withdrawal of cases against, several thousand under-trial prisoners languishing in jails pending their trials for years. It also directed the concerned legal aid NGOs to render legal assistance to those under-trial detainees, and to co-operate with the government. However, the Court’s preparedness in PILs to be vigilant against executive violation of the citizens’ liberty seems to be of a piecemeal pattern and not sufficiently robust, coherent, and pragmatically policybased.57 This claim rings true in the area of much-criticised extra-judicial killing by a specialist force of the police where judicial/legal activism is acutely deficient. As a further example of this, one can cite the case of Ain o Salish Kendro (ASK) v Bangladesh (2007) 58 where the High Court Division, sitting for nine years on the petition, held on 27 April 2006 that restraining a prisoner in bar fetters is not unconstitutional since the prison administration’s statutory power in this regard is not unguided. By employing a close construction of some colonial-era prison laws 59 the Court held that putting bar fetters on prisoners was constitutional so long as these are used as punishment for jail offences or in extreme emergencies indicated in these laws. Regrettably, it further held that the constitutional prohibition of torture and cruel punishment in Art. 35 (5) did not apply to prison offences. Apart from breaching constitutional supremacy, this reasoning clearly negates the democratic and liberal values of a modern Constitution the Court was expounding, which emphasises human dignity and worth (Art. 11) and guarantees a right to be free from torture, and inhumane and degrading punishment [Art. 35 (4) – (5)]. The Court has not only failed to reconstruct colonial laws in light of hard-earned constitutional norms, particularly human dignity and the principle of legality (Arts. 31-32) that are the core unifying values of the Constitution,60 but has also indirectly allowed an element of brutality to continue in the country’s legal system, because the administration will in all likelihood misuse this inhumane practice despite the judicial sermon for

57

See, however, the path-breaking decision in BLAST v Bangladesh (2003), in section 5.4.1 below. 58 (2007) 15 BLT (HCD) 48 (arising from a petition of 1997), per Chowdhury and Haque, JJ. The Court, however, declared this particular incident of chaining the prisoner unlawful, and directed to initiate departmental actions against the responsible officials ‘if not retired from service in the meantime’ (at p. 461). 59 See the Prisons Act 1894, the Prisoners Act 1900, and the Bengal Jail Code 1937. 60 Also, the Court paid no weight to Bangladesh’s international law obligation under the UN Convention Against Torture which it ratified on 5 October 2000.

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its use only in good cases.61 Nor did the Court provide any guideline as to how misuses of the law could be checked. A similarly regressive interpretation was earlier given to the practice of ‘safe custody’ (detention of (women) victims of crimes in jail, often for months and years) 62 in Rokeya Kabir v Bangladesh in which the HCD refused to outlaw this practice on the ground that it was “a system developed by courts”.63

5.3 Suo motu judicial intervention: Public interest at work In Bangladesh, there have been only a few instances of suo motu or self64 initiated judicial intervention, initiated by the Court either completely on its own motion, or following news reports or in response to letters addressed to it. What prompts a judge to act suo motu without being activated through a formal petition is his/her sense of obligation to act in the wider public interest by remedying or stopping a blatant legal wrong. Therefore, suo motu judicial actions form a sui generis type of PIL. Suo motu judicial interventions in Bangladesh have typically involved issues of gross executive negligence or police excesses impairing people’s life and liberty. In the first reported suo motu intervention, State v Deputy Commissioner, Satkhira,65 which is inappropriately seen by some as the first instance of judicial activism in Bangladesh (Akkas 2004b: 72; Hoque, K. E. 2003: 239), M. M. Hoque, J. at the HCD, after having read a newspaper report over breakfast, issued a rule nisi in order to free an illegally detained person, Nazrul Islam. Being charged with some baseless criminal allegations, the detainee with chains on legs had been languishing in jail for 12 years since his arrest at the age of nine. Upon hearing, the Court on the very first day ordered to take the bar fetters off his legs, 61 Compare this with the Indian Supreme Court’s decision in Khedat Mazdoor Chetna Sangath v State of M. P. (1994) 6 SCC 260, adjudging hand/foot cuffing as repugnant to one’s right to life, and banning these means except in extreme circumstances and with the court’s prior approval. 62 Until recently, ‘safe custody’ remained almost unregulated. Now, s. 31 of the Suppression of Violence against Women and Children Act 2000 (as amended in 2003) allows the relevant ‘Tribunal’ to send the victims to ‘safe custody’ at places other than prisons. See also ss. 2 and 55 of the Children Act 1974 (providing for temporary detention of child in place of safety), and s. 28 of the Suppression of Acid-Violence Act 2002. For a study of safe custody, see Rahman, M. et al (2008). 63 (2000) 52 DLR (HCD) 234, 239, per K. M. Hasan, J. This raises the question whether judicially-created ‘practice’ or law is beyond constitutional challenge. 64 I have elsewhere discussed the issue in detail. See Hoque, R. (2003). 65 (1993) 45 DLR (HCD) 643.

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quashed all pending criminal proceedings against him as well as his conviction for the offence of dacoity that was imposed on him at the age of 12, and released him from detention. The Court found that the proceedings and the conviction were void ab initio as the child accused was charged and tried jointly with adults in contravention of law.66 Re Nazrul Islam marked the beginning of jurisprudence of suo motu intervention in Bangladesh, and explored a so far undiscovered source of such judicial power, namely, a provision in the country’s age-old criminal code which, without specifically using the term ‘suo motu’, empowers the HCD to issue orders in the nature of habeas corpus “whenever it thinks fit”,67 and to set at liberty any person illegally or improperly detained in public or private custody. 68 Thus, what underlies the discovery of this naturalistic legal power that hitherto escaped the judicial eyes is an activist judicial mind, ignited by shocked conscience. Also, this case set a landmark in the country’s legal history by issuing various affirmative directives. The court issued directives to disseminate the judgment to all lower court judges and magistrates, to train concerned legal officers so that strict application of the Children Act 1974 in trying juvenile offenders may be ensured, and to initiate investigations into whether any other children or people were in situations similar to Nazrul’s. Quite innovatively, the Court recommended legal actions against the negligent public officials concerned, ordered a report of compliance with court directives and called upon the government to consider whether it could give any job to Nazrul to compensate him for his unspeakable sufferings and loss. Backing these directives, the Court’s reasoning was grounded in its obligation to preserve constitutional values: We are fully aware of our responsibility as regards enforcements of fundamental human rights and also of our solemn oath […]. In a case like this, we also felt that we should give necessary directions […] to take legal actions against those responsible […]. (emphasis given).

Obviously, Nazrul Islam symbolises a significant relinquishment of judicial passivity and traditionalism. The only limitation of this landmark case is the absence of a compensation remedy against those responsible for shockingly twisting the law, causing Nazrul’s prolonged sufferings. 66

See s. 6 of the Children Act 1974. This dictum was reaffirmed in Shiplu and Another v The State (1997) 49 DLR (HCD) 53. See also BLAST v Bangladesh (2002) 7 BLC (HCD) 85. 67 Anwar Hossain v The State (2003) 55 DLR (HCD) 643, 650 confirms that these words form the legal basis of suo motu jurisdiction. 68 S. 491(1) of the Code of Criminal Procedure 1898.

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Unfortunately, however, this monumental and historic decision failed to create a trend because of the lack of activist stance by other judges (Ahmed, N. 1998: 194), although a few suo motu interventions later followed. After a long period of judicial quietism following this trail-blazing suo motu action by Hoque J, 69 other judges began to use the suo motu jurisdiction since 1999, 70 but successful actions are emerging only recently. In a significant suo motu action prompted by a newspaper report that under-trial children prisoners had been languishing in jails with adult prisoners, the HCD in Editor, the Daily Prothom Alo v Bangladesh 71 directed the Inspector General of Prisons to inquire into the matter and to submit a detailed report thereon. Following a hearing, the Court issued prescriptions, guidelines and some mandatory directives against the government, including orders to transfer the detained children to correction centres with “utmost expedition”, to keep juvenile offenders separately from adult prisoners, and to arrange for discharge of the under12 children from criminal charges.72 There have been a few other suo motu interventions by the HCD that resulted in, for example, quashing of several proceedings against some under-aged children who could not even legally commit offences, 73 and, rather unconventionally, a directive to

69

See also Eliadah McCord v State (1996) 48 DLR (HCD) 495, wherein Hoque, J. suo motu reduced the life sentence of a minor American girl convicted in a drugs smuggling case, a decision that was reversed by the Appellate Division. 70 In The State v Md. Zillur Rahman and Others (Hartal Case) (1999) 19 BLD (HCD) 303, Rabbani, J, in a suo motu intervention, held that forceful opposition to, and compelling others to observe hartal were criminal offences under the Penal Code 1860 (ss. 141-160). In The Editor, the Daily Bangla Bazar v District Magistrate, Naogaon (2001) 21 BLD (HCD) 45, now pending in the Appellate Division, the same judge, acting on a newspaper report, issued a directive banning unauthorised fatwas involving Muslim personal law matters now governed by the Muslim Family Laws Ordinance, 1961. For an almost similar HCD-judgment regarding fartwa, see BLAST and Others v Bangladesh, WP No. 5863/2009. 71 (2003) 11 BLT (HCD) 281. 72 Ibid. Noticing that these directives remained largely unfulfilled, the Court in a subsequent similar case, BLAST v Bangladesh (2005) 57 DLR (HCD) 11, 14, directed the government to comply with them within six months. These cases show that the various government agencies including magistrates failed to learn from re Nazrul Islam in following the Children Act, 1974. 73 See Labu Mia v State (2001) 53 DLR (HCD) 218 (a charge of a crime was formally brought against a minor boy of four). Regrettably, similar breaches of law, even by magistrates, are still continuing. As per ss. 82-83 of the Penal Code 1860 (as amended in 2004), minimum age of criminal responsibility is nine (earlier this age was seven).

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change a public prosecutor in a sensational murder case who was alleged to have been following dilatory tactics to delay justice.74 A feature of suo motu jurisprudence in Bangladesh is the uncertainty about its legal framework (Hoque, R. 2003), which needs to be removed if judicial activism through judge-initiated proceedings is to flourish. There are views that the Court can intervene suo motu only in the area of gross criminal injustice, and that it cannot take judicial review actions suo motu under Art 102 of the Constitution (Islam 2002: 451). Also, unlike the Indian Supreme Court, the Bangladeshi Court has yet to authoritatively pronounce on its authority to issue writs suo motu.75 However, apart from limited scope for suo motu judicial interventions in civil proceedings, 76 automated judicial review actions are also possible at least in cases of habeas corpus77 or quo warranto that are available to “any person” [Art. 102(2)(b)(i), (ii)], and for which the Constitution sets out no particular form of application. Because of a similar procedural flexibility in the corresponding provisions of the Indian Constitution, the Indian judiciary on several occasions considered letter-petitions or its self-initiated actions as writ petitions.78 There is no reason why Bangladesh should not follow this broader trend,79 which it has so far eschewed despite the above-noted flexibility in article 102 (2) (b).80 Moreover, there is the problem of legitimacy objections against suo motu judicial actions, which might have negative impacts on the judges willing to intervene. Objections are raised from the positivist camp that suo motu judicial actions are un-judicial and violative of natural justice and judicial neutrality, since the self-intervening judge allegedly becomes both a complainant and a judge, and illegitimately takes on the task of social reform (Khosa 1993). Despite these positivistic jurisprudential 74

Daily Star v State (2001) 53 DLR (HCD) 155. The only case, Editor, the Daily Bangla Bazar v District Magistrate, Naogaon, above n. 70, which the HCD entered as a suo motu judicial review petition was based on no legal reasoning. 76 Inability to initiate fresh civil proceedings notwithstanding, the HCD has inherent or revisional powers to suo motu intervene in lower court proceedings for the ends of justice (ss. 151 and 115 of CPC, and Art. 109 of the Constitution). 77 Sinha, J. tacitly held a contrary view in Anwar Hossain v The State, above n. 67. 78 See e. g. Sunil Batra (I) v Delhi Administration (1978) 4 SCC 494. 79 Ahmed (1999: 146-7) writes: “Any objection against [treating letters as writ petitions] on the ground that Article 102 of the Constitution contains the terms ‘on the application of’ is not tenable because the Constitution neither defines the term ‘application’ nor restrictively determines its scope”. 80 In the lone epistolary case, Faustina Pereira v The State, above n. 54, the Court did not treat the concerned letter as a writ petition, but rather as a suo motu ‘rule’. 75

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concerns that rehash traditional judicial theories (discussed in ch. 2), suo motu judicial interventions have now become part of South Asian jurisprudence. The adversarial or triadic system of judging is surely not a biblical rule incapable of deviation, particularly when injustice occurs in the garb of legal actions. Even in a strict adversarial system, it is possible for a court to deliberately depart from the triadic model of adjudication “to combat the resource deficiencies of litigants” (Barber 2001: 82). In suo motu actions, judges take into account, among other things, resource or accessibility problems of the sufferers, and seek to enforce principles of good governance. Moreover, far from breaching the principle of natural justice, suo motu judicial actions go through the formal processes of hearing, and are more in the nature of an exception being employed to protect public/social interests when immediate intervention is necessary (Ahmed, Naim. 1999: 148). More importantly, as seen above, suo motu jurisdiction has strong legal and constitutional legitimacy, derived particularly from the constitutional objectives of rule of law, justice, and human dignity. There is thus little scope to see these actions as publicity stunts by individual judges desiring to be popular. 81 Apart from drawing upon legal-constitutional bases, a justice-sensitive judge may also well justify taking such actions “as a matter of professional integrity” (Menski 1996: li), as s/he, like every other citizen, has an obligation to improve justice. Thus, judges’ functional responsibility to remove injustices and legal wrongs provides constitutionally-sustained moral justifications for their suo motu actions. Here, Menski’s (1996: li) forceful argument is worth quoting: If a judge, reading his paper over breakfast, discovers that a poor individual has wilfully been deprived of a basic right, how can he go to court a little while later and pretend that he can be in charge of processes designed to achieve justice? It is a matter of individual conscience, and a matter of respecting the suffering of others, less fortunate than oneself, that one cares and takes action.

Accordingly, suo motu activist intervention by senior Bangladeshi judges should be viewed from the perspective of judicial responses to the abuses of public power by the executive or state agencies that often generate grave injustices. These instances of judges’ self-activation thus constitute a

81

As Menski (1996: li) has rightly remarked, such a view “does injustice not only to the learned judge, it also seeks to discredit the whole structure and framework of public interest litigation and of attempts to bring justice within reach of the common citizen”.

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promising indication that judges are increasingly becoming justiceconscious.

5.4 Public interest constitutionalism litigation: The new public face of the judiciary In this age of constitutionalism (Beatty 1994: 1), the increasing importance of ‘democracy’ both as a legal norm and a political idea has been central in international law and relations discourses. As a result, the right to democratic governance has been gradually gaining its footing also in national legal systems.82 The positive impact of the primacy of the rule of law and constitutionalism on the people’s basic rights and human development hardly needs any mention. 83 In this context, enforcement through PIL of democratic norms other than through the usual route of enforcing pure rights is therefore a quite fascinating legal enterprise. PIL offers one of the potent means to develop a rights-and-justice-based governance system through judicial constitutional activism. But while rights-based and pro-disadvantaged-group PIL was placed on a solid constitutional foundation in the mid-1990s, PIL as a means to vindicate the principles of constitutionalism is of fairly recent vintage. Originally thought of as a means to achieve an accessible or democratised judicial system, PIL in Bangladesh and elsewhere was once fashionably limited only to the causes of the extremely marginalised and disadvantaged people who could simply not litigate on their own.84 This idea of basic democratisation of access to justice is correspondingly related to the limited idea of social justice that emphasises purely social rights-based judicial activism, thereby leaving out from the judicial agenda other forms of injustice caused by the flouting of the law and the 82

Fox and Roth (2000), Burchill (2001) and Ibegbu (2003) capture the normativity of democracy and the states’ international obligations to that effect. Frank (1992) presents a classical exposition of the emerging right to democratic governance. 83 There is now a large body of literature on this. See, among others, Al-Jurf (1999); Sen (2000); Sano and Alflredson (2002); Alston and Robinson (2005). 84 There are accusations that even the most forthright academic vanguard of Indian PIL, Upendra Baxi, opposed PIL’s extension (as his label “social action litigation” suggests) beyond being concerned with the causes of merely the most disadvantaged to being a more general legal tool for all public interest issues (Cottrell 1992: 201; Ahuja 1997: 4). In an interview in London on 19 October 2005, Baxi expressed his change of mind as to PIL’s ambit and was willing to give it the job of ensuring public accountability. In fact Indian PIL began to transcend this self-imposed limitation soon after its birth (Dhavan 1994: 310).

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constitution. Also, such a narrowly understood concept of PIL goes to unduly arm the critics of judicial agency in ameliorating conditions of life. It is true that the judges cannot “feed people or give them jobs” (Menski 2000b: 120) at the end of the day. It should, however, be duly acknowledged that through ensuring public constitutional accountability of those who hold power, judges can help promote conditions that enhance the possibility of employment and reduce the chances of deaths from starvation.85 Moreover, un-constitutionalism and bad governance not only adversely affect the people’s productivity and economic life (Anderson 2003, and sources cited therein), these factors also invariably make the people continue to remain in a state of inequality, the most responsible culprit for social injustice. As has been masterly argued by Sen (2000: ch. 6, 147-8), democratic governance can improve the standards of human living or satisfy the urgency of economic needs. The few PILs, discussed below, that prevented some segments of people from being exposed to sudden serious miseries were premised on the need to prevent breach by the executive of constitutional safeguards (civil-political rights). This advances the case that judicial expansion of civil-political rights to include social rights and increased activism in checking executive-legislative defiance of the Constitution can provide effective avenues to social justice. The ‘public interest’ ethos that underlies PIL eventually embraces the idea of PIL as a means of disseminating and pursuing fundamental constitutional and social values (Hoque 1996), which ultimately points at a larger role for the law. Evidently, the above-noted minimalist or “quantitative” definition of PIL needs to be replaced by a much broader “qualitative” definition that will embrace any real human rights complaint and any real challenge to legislation, policy or practice with wider consequences (Chakrabarty et al 2003: 712). PIL has thus much to do with the imperatives of the rule of law and just constitutional governance. Fortunately, PIL in Bangladesh has recently directed its stake to this area of constitutionalism. A quick survey of decisions reported over the years 2000 to 2005 confirms this. Of the 18 reported PIL decisions (3 of them failing on the issue of standing), 86 9 85

As seen in ch. 3.4, Indian judges realised earlier that “the starvation deaths” in some Indian states were the products of “utter negligence and callousness of the administration” and not unavailability of food (Kishen Pattanayak v State of Orissa 1989 Supp 1 SCC 258, per Dutt, J.; People’s Union for Civil Liberties v Union of India (2001) 7 SCALE 484). 86 Apart from these, there were 3 class action private lawsuits with substantial public interest elements (class action PIL), where, too, the Court showed commendable public interest/constitutional activism. See Masdar Hossain (2000)

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were rights-based or PIRL (7 by action groups and 2 by individuals),87 and 9 were constitutionalism-based or PICL (2 by an organisation, and 7 by individuals). These reported decisions and the pending cases clearly show a new trend of using litigation to enforce constitutionalism and achieve a better rule of law. In recent times, both organisations and individuals have been allowed to bring abstract judicial review challenges to the vires of legislation (including constitutional amendments), legal practices or administrative decisions, without having to prove a definite legal dispute or a concrete injury. With this sort of new liberalisation of public interest judicial review standing, unprecedented legal challenges are appearing on the adjudicative scene. For example, petitions were filed to seek directives against the abuse of police power (section 5.4.1 below), to successfully challenge the constitutionality of a law that undermined the principle of governance through “elected representatives” (Arts. 11, 59 & 60), 88 to compel the government to effectuate a legal mandate to establish special courts in the CHT (Chittagong Hill Tracts) region for the protection of women and children rights, 89 to challenge the constitutionality of death penalty for children (below the age of 16 as per the Children Act 1974) for the offence of rape and murder as was provided by an already repealed legislation,90 (as noted in ch. 4.6.3); Aleya Begum v Bangladesh, above n. 44 (eviction from government property); Shamima S. Seema v Bangladesh, noted in ch. 4.6.1, n. 116, above. 87 Of the two PILs by individuals one was ‘epistolary’ (Faustina Pereira, above n. 54), and the other was M. Saleem Ullah v Bangladesh (2003) 23 BLD (HCD) 58 (environmental rights). 88 BLAST v Bangladesh (2008) 60 DLR (HCD) 234 (judgment 2 Aug. 2005, per Haque, J.), declaring the Village Government Act 2003 unconstitutional for not providing for election to the village governments. 89 BLAST v Secretary, Ministry of Law, Justice and Parliamentary Affairs (2009) 61 DLR (HCD) 109 (judgment 24 Feb. 2008). The petitioners sought to compel the government to establish ordinary civil and criminal courts and special tribunals for the protection of women in the CHT as per the provisions respectively of the Chittagong Hill-Tracts Regulation (Amendment) Act 2003 and the Suppression of Violence against Women and Children Act 2000, s. 26. The Court directed the government to that effect accordingly. 90 BLAST v Bangladesh (2010) 30 BLD (HCD) 194, challenging s. 6(2) of the Suppression of Violence against Women and Children (Special Provisions) Act 1995, a repealed Act that, however, ‘saved’ pending and concluded trials. Interestingly, this judicial review was sought following the Appellate Division’s rejection of an appeal by one juvenile death-penalty recipient, Sukur Ali, against his conviction in a rape case imposed by a special tribunal and confirmed by the HCD. By its judgment of 2 March 2010, the High Court Division declared s. 6(2)

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and to require the government to submit to the Court fortnightly reports of the investigation concerning the recent country-wide bomb attacks that killed many including two judges. 91 This latter venture where the HCD (and later the Appellate Division) positively responded has been the first of its kind in Bangladesh, and will arguably have implications for the future of the country’s faulty and corrupt criminal investigation system. Also importantly, the constitutional principle of independence of the judiciary in its various manifestations has recently become a PIL-matter, a development that seemingly owes its origin to a 1999 case in which a lawyer successfully challenged the constitutionality of the appointment of the Chief Metropolitan Magistrate of Dhaka without consulting the Supreme Court as per the Constitution (see Art. 116).92 For instance, in a fairly recent PIL case, a lawyer challenged, and gained an interim injunction against the government’s attempt to transfer five assistant judges in disregard of the Supreme Court’s opinion given earlier. 93 Another public interest challenge by a lawyer resulted in a judicial embargo on a clearly politically-biased judge, barring him from performing judicial duties.94 The Court also showed activism in strengthening the very basis of democracy, i.e. a fair and free electoral practice, when in a lawyer’s PIL it directed the Election Commission to require all aspiring candidates in parliamentary elections to furnish eight categories of information covering a variety of issues such as existing wealth and past

of the 1995 Act unconstitutional, but the death penalty awarded was not nullified. For the earlier appellate (reference) decision confirming the death penalty see State v Sukur Ali (2004) 9 BLC (HCD) 238. 91 Z. I. Khan Panna v Bangladesh, WP No. 8621 of 2005. 92 (Md.) Idrisur Rahman v Shahiduddin Ahmed (1999) 19 BLD (HCD) 291 [confirmed in Bangladesh v Md. Idrisur Rahman (1999) 19 BLD (AD) 203]. This public interest challenge (not claimed as a PIL) did not face the ‘standing’ hurdle, as it did not sought an abstract judicial review but was rather couched as a petition for a quo warranto (to challenge the legality of one’s holding of a public office), which can be brought by “any person” under article 102(2)(b)(ii). See Md. Mostafa Hossain v S. M. Faruque (1987) 7 BLD (AD) 315. 93 Dr. Shahdeen Malik v Bangladesh, WP No. 2088 of 2005. Similarly, in Sardar Faruque Ahmed v Bangladesh, WP No. 4896 of 2006, the Court stayed (interim order of 26 May 2006) the operation of conferment of magisterial power on a UNO without consulting the Supreme Court. See also Dr. Shahdeen Malik v Bangladesh, WP No. 11736 of 2006, challenging the constitutionality of appointing judicial officers to administrative posts in the civil service. 94 Khairul Alam Pipul v Bangladesh, WP No. 1171 of 2006 (Orders of 13 & 27 February 2006; the disputed judge later resigned).

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criminal activities, with a view to enabling the voters to make informed choice as to their prospective representatives.95 There was an abusive appeal by an unknown, ill-motivated applicant against this decision. Pursuant to this appeal, a single-judge bench of the Appellate Division through an interim order of 19 December 2006 halted the effectiveness of this landmark decision, by controversially reasoning that compelling aspiring electoral candidates to disclose their educational background or other antecedents is unconstitutional. Ultimately, however, the High Court Division’s judgment sustained, and the requirement of disclosing information became mandatory.

5.4.1 BLAST v Bangladesh (2003): Removing criminal injustice? In this seminal decision,96 the High Court Division displayed its outmost judicial dismay about the continuing brutality in the country’s criminal justice system. Following the brutal killing of an innocent university student by members of the police, a rights organisation, BLAST, filed a PIL in 1998 independently of the criminal prosecution, seeking judicial guidance and directive so as to check misuses of police power with a far reaching view to preventing such heinous police crimes being committed further. In BLAST (2003), the Court offered a conscientious response by formulating a well-thought legal amulet against misuses of arresting power of the police and of the discretion of the magistrates to remand arrestees to police custody. Section 54 of the century-old Criminal Procedure Code 1898 (CrPC) empowered the police to arrest without warrant any person on some widely-worded grounds such as ‘reasonable’ suspicion of the commission of crime, while s. 167 (2) authorised the concerned magistrate to order further detention of the accused “in such custody as the Magistrate thinks fit”, not exclusively in police custody, when the investigation can not be completed within twenty four hours.97 On the other hand, article 33 of the 95

Abdul Momen Chowdhury and Ors v Election Commission, WP No. 2561 of 2005. This was followed by Prof. Muzaffer Ahmad v Election Commission, WP No. 5069 of 2005, seeking to compel the Election Commission to frame necessary rules to implement the earlier court directives. Recently, a PIL has been filed, seeking direction to make the requirement of disclosure of candidates’ information obligatory in all elections. 96 BLAST and Others v Bangladesh (2003) 55 DLR (HCD) 363; [2003] 4 CHRLD 237. For a brief but critical analysis of this case, see Malik (2003b). 97 This is the legal time within which the police have to produce every arrestee before the nearest court of magistrate [s. 61, CrPC; Art. 33 (2), the Constitution].

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Constitution ensured every arrestee’s right to be informed of the grounds of his/her arrest and to consult and be defended by a legal practitioner, while article 35 prohibited self-incrimination, and torture and inhumane punishment. Yet the reality on the ground was that these constitutional guarantees were made to remain mere paper-words. Resultantly, wanton misuses of s. 54-power by the police coupled with torture and killing in police custody became, and now increasingly continue to be, part of the prosecution system, a form of injustice facilitated to some extent by the magistrates’ “parrot-like” passing of orders remanding arrestees to police custody.98 The fact of the murder by the law enforcers that gave rise to this PIL was one of countless police brutalities that shocked the Court’s consciousness.99 Following an in-depth scrutiny of the relevant legal provisions and the prevalent practice, the Court found the wild arresting power of the police under s. 54, and the magistrates’ unguided discretionary power to remand arrestees to police custody under s. 167 largely inconsistent with the fundamental rights provisions of the Constitution. Having so found, it then issued detailed guidelines and made various policy suggestions as to how to bring these provisions into conformity with the Constitution.100 Pending enactment of recommended legislations, some mandatory recommendations were directed to be implemented in six months’ time. Relying on an overwhelmingly similar watermark Indian decision, D. K. Basu v West Bengal AIR 1997 SC 610, and by expounding the constitutional safeguards, the Court laid down some criminal due process principles or what are called Miranda safeguards. 101 The Court consolidated the accused person’s rights to be informed of the grounds of arrest and to consult a lawyer before being sent to the magistrate. 102 Moreover, it virtually prohibited the practice of sending arrestees to police custody by

98

Above n. 96, at p. 370. For instance, the Court noted that deaths of 38 people in police custody during 2002 following their arrest under s. 54 were absolutely shocking, and that these tragic deaths clearly resulted from the sweeping power of police under this law. Custodial torture and legal impunity for that constitute a persistent human rights problem in Bangladesh (Islam and Solaiman 2003; REDRESS 2004). 100 For example, it (above n. 96, p. 377) laid down that in case of any death in police custody it would be the burden of the police to explain how that death occurred, and suggested legislation providing for compensation to victims of police torture or, in case of killings, to their legal representatives. 101 Following the US case of Miranda v Arizona 384 US 436 (1966) SC. See above ch. 3.1.1, n. 12. 102 As in note 97 above, at p. 372. 99

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imposing strict conditions on magistrates’ discretion in doing so. 103 Importantly, although it did not award compensation itself, the Court asserted its power under judicial review jurisdiction to award compensation for fundamental rights-violations such as police torture or custodial deaths. Unfortunately, this extraordinary decision has yet to have impact on the country’s faulty criminal justice system. 104 An appeal against this humanising decision, the most celebrated judicial defence of people’s liberty so far, has been pending in the Appellate Division which has been maintaining silence on this important public matter, thereby leaving the police and other law enforcers virtually with carte blanche to continue to bend the law and commit human rights violations.

5.4.2 The ETV and the Private Port Terminal: The right to be well-governed? Broader principles of the rule of law and transparent governance constituted the hub of judicial constitutional activism in two recent, muchpublicised decisions in Ekushey Television Ltd v Dr. Chowdhury Mahmood Hasan (ETV Case)105 and Engineer Mahmud-ul Islam v Govt. of Bangladesh (Private Port Terminal Case). 106 In these PICLs, the Court invalidated respectively a public license in favour of a private television operator, and struck down a government decision allowing a foreign private company to construct container terminals at the Chittagong Port on the ground of opaqueness and non-transparency in public decision-making. As a result, the most popular television channel faced a sudden closure and the construction of a private port terminal became abandoned, although the Court neither ordered the closure of the ETV nor stopped the construction of the container terminal. From a simplistic angle, one might see the Court as having stood somewhat in the way of economic development of the country since a huge amount of foreign investment was at stake in both

103 It recommended (ibid., pp. 371, 376-7) that there should be no remand to police for more than three days and unless extremely necessary, and that quizzing of the accused be made in prisons, recommending a legislation proving for transparent (glass-walled room) facilities for interrogation. 104 However, this influenced a later decision in Saifuzzaman v State (2004), above ch. 4.6.1, n. 107, that further developed the rationale of this decision, but again without any tangible effects. 105 (2002) 54 DLR (AD) 130, affirming Chowdhury M. Hasan v Bangladesh (2002) 22 BLD (HCD) 459. 106 (2003) 23 BLD (HCD) 80, per S. A. N. M. Rahman, J.

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cases. However, this is not the case in reality,107 and the Court’s stance was pragmatic, and the premiss of its reasoning was the principle of rule of law. It appeared to be concerned to ensure a just and honest system of governance. With particular reference to the ETV Case, scholars like Islam and Solaiman (2003: 45-8) have also accused the Court of failing to serve the greater community interest as the people were deprived of the freedom of information resulting from the closure of this neutral TV channel. However, it should be emphasised that while there was undoubtedly scope for exercising greater judicial activism such as the awarding of punitive compensation against corrupt state officials responsible for “a shady deal in every step of the licensing process” or a positive order to reissue a fresh license,108 the Court’s annulment of the license is legally defensible and serves the community interest as it is intended to ensure a wider constitutional good of accountable and transparent governance. In ETV, thus, the Court stressed the need for checking public corruption and reaffirmed an open public standing to espouse such a genuine public cause. It also revealed a sense of “duty” “to protect the ordinary citizens from executive excess and corrupt practice”, observing that the citizens’ “right to clean administration” put the courts “under tremendous pressure to locate and address the question of executive accountability”.109 The Court then explained: This Court […] is duty bound to preserve and protect the rule of law. The cutting edge of law is remedial and the art of justice has to respond here so that transparency wins over opaqueness. […] Unless this Court responds […], governmental agencies would be left free to subvert the rule of law to the detriment of the public interest.110

Similarly, the Court’s motto in Private Port Terminal was to play a “vital” role “not only in preventing and remedying abuse and misuse of public power, but also [in] eliminat[ing] injustice”. 111 Sitting on appeal in this case, the Appellate Division sought to honour the people’s “legitimate 107 Later, some private TV channels were launched which are by and large independent. Also, a private container terminal is now under construction. 108 Islam and Solaiman (2003: 47), too, think that these could be options for the Appellate Division. The ETV (which is now a running TV channel) later obtained a favourable decision that could have led to its prompt rebirth but for the administration’s deliberate obstruction. It is thus wrong to make the judiciary solely responsible for the closure of the ETV (Sumi and Rubaiat 2003: 41). 109 (2002) 54 DLR (AD) 130, 140. 110 Ibid., at p. 144 (emphasis added). 111 (2003) 23 BLD (HCD) 80, 99.

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expectation” as to honest governance, to protect “public rights and interests” and to “jealously” guard against unlawful handling of public property.112 These decisions and their underlying values not only generate a theory of wider public interest constitutional standing 113 and increased judicial constitutional activism, but also offer solidarity to a growing cross-country judicial consensus that a legal system’s inability to redress an injury caused to the public interest at the invocation of any citizen is “disastrous for the rule of law”114 and public welfare.115 The distinctive development of the principle of public interest abstract review in Bangladesh’s PILaw would certainly have a positive impact on the judiciary’s constitutionreinforcing role. Although seeds of this quiet development were planted in FAP 20 (1996) that sought to dismantle the hurdle of the rule of specific legal injury when “an injury to public interest” is caused, and earlier in Berubari (1974) that sought to relax standing on ‘outstanding’ constitutional issues, the type of cases discussed above that predominantly seeks to enforce constitutionalism is the fruit of a more contemporary flash of judicial activism. Thus, the above developments show that PIL does not necessarily have “to cost money, especially if its effect is to deter privileged people from indulging in violations of legal rules” (Menski 2000b: 125) or “to conscientise the system of governance” (Dhavan 1994: 310) by upholding fundamental constitutional principles. Indeed, PIL “has never been only about giving relief to the most deprived, it has always also been concerned about the protection of wider constitutional and legal rights” (Menski 2000b: 125), which the above cases reconfirm.116

112

SAS Bangladesh Ltd v Engineer Mahmud-ul Islam (2004) 24 BLD (AD) 92, 112. 113 For an excellent account of traditionalist and activist approaches to public interest standing to challenge the constitutionality of legislation, see Okpaluba (2003). Such an open regime to seek enforcement of laws has long been advocated by scholars like Cappelletti (1975: 875-84). A similar argument is made by Hoque in the Bangladeshi context (2001). 114 Bhagwati, J. in S. P. Gupta (above n. 16), as cited in Jain (1998: 98-9). 115 Per L. Rahman, J. in FAP 20, above n. 12, at p. 59. 116 That PIL can be availed of by any person to resist an onslaught against the constitution/law, beyond serving the cause of a desperately poor section of the public, was famously accepted in the Pakistani case: Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416.

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5.5 Post-emergency public interest judicial activism PIL jurisprudence in Bangladesh, although it has still a long way to go, has generated some spill-over impact on the contour of Bangladeshi judicial activism even during an Emergency, as we shall see below. The postemergency Court (2009 onward) has strategically used the PIL-tool, to some extent, as a check on the government’s power. In recent times, the judges in PIL cases have been increasingly undertaking lawmaking or policy-setting exercises with renewed enthusiasm and engagement. This has been a major shift in the Court’s jurisprudence, a paradigmatic shift that the Court seeks to justify with reference to imperatives of the Constitution, although it is in effect driven by democratic changes in the polity in the post-emergency era. 117 As we shall briefly cover in the following chapter, the judiciary in Bangladesh in the aftermath of the 2007-08 Emergency has engaged itself in regaining public confidence and rebuilding its image. New activism is being shown in both ordinary and public interest litigations. Correspondingly, this has enlivened the hitherto feeble legal activism at the bar and amongst civil society actors. Bangladeshi PIL now seems to have entered what can be said a mature phase of its development. A good example of the Court’s new activism is its decision in a PIL that was lodged to activate the government ministries against rampant incidents of sexual harassment of women at work and educational institutions. The Court in BNWLA v Bangladesh (2009) 118 found that, despite constitutional mandates for gender equality and the protection of fundamental rights of all including women there was virtually no law to effectively prevent and punish acts and behaviour known as sexual harassment of women. Drawing on comparable foreign top court decisions and certain international human rights instruments,119 it issued detailed guidelines “in the nature of law”, binding the employers and educational institutions to follow them in preventing and suppressing sexual harassment of women at work places and educational institutions until an ‘effective legislation’ is enacted. 120 The formulation of the guidelines looks almost like a legislative statute, and they largely resemble the guidelines against sexual harassment that the Indian Supreme Court 117 This is, however, not to say that this type of activism was altogether absent in the pre-emergency period. 118 (2009) 14 BLC (HCD) 694. 119 Among other instruments, great reliance was placed upon the UN Convention on Elimination of All Forms of Discrimination Against Women 1979, which Bangladesh acceded to. 120 (2009) 14 BLC (HCD) 694, at p. 706.

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issued in Vishaka v State of Rajasthan (1979).121 The Court rationalized this kind of radical adjudicative legislation by placing its reasoning on the constitutional protection and equality clauses. A similar type of activism is also discernible in other areas such as environmental justice and child rights.122 An instructive decision in point is BLAST v Bangladesh (2010) (above, p. 159, note 90) in which case a child received a death sentence under a special law that provided for mandatory capital punishment. Aware of comparative public law developments elsewhere, the High Court Division had struck the law down, holding that mandatory capital sentence is unconstitutional as it interferes with the discretion of the judge and hence judicial independence, and is incompatible with the constitutional right to life. In public interest environmental litigations, in particular, there has been a combination of civic activism and judicial activism, with an increased number of court challenges and judicial post-verdict oversight principally through the technique of continuous mandamus. A good example of this is the case of Human Rights and Peace for Bangladesh v Bangladesh (2009),123 in which court activism prompted a string of government drives regarding the protection of four rivers surrounding the Dhaka metropolis that are allegedly the most polluted rivers in the world.

121

AIR 1997 SC 3011 (also suggesting legislation governing sexual harassment in work places). The High Court Division’s all-out reliance on Vishaka, although this was not made clear in the judgment, showcases how closely the Indian PIL developments influence its PIL jurisprudence. 122 See, for example, State v Metropolitan Police Commissioner, Khulna (2008) 60 DLR (HCD) 660 (per Imman Ali, J.), in which the Court, acting on its own motion, issued a number of guidelines to protect the rights of children who come in conflict with the law. In this case, where a girl of 8 was arrested and put in jail in violation of the law, the Court, among other things, ordered for the appointment of probation officers throughout the country with a duty to report to the concerned court matters concerning the children. Interestingly, the Court relied on the Convention of the Rights of the Child 1989 that Bangladesh ratified, and recommended that the government fully internalize its provisions. 123 (2009) 14 BLC (HCD) 759, affirmed in City Sugar Industries v HRPB (2010) 62 DLR (AD) 428.

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5.6 The problems of PIL-based judicial activism in Bangladesh South Asian judicial activism, though principally post-colonial, is not a simple manifestation of post-colonial legal modernity. Its emergence is traceable to the “changing concepts of rights and justice in South Asia” (Anderson and Guha 2000a), a change that is rooted in the ancient, cultural concept of a duty-based society. Although the idea that South Asian societal structures are obligations-based rather than rights-based is assailed as an aspect of “colonial scholarship” (Anderson and Guha 2000b: 4), it is exactly this idea that gave birth to, and sustained, South Asian PIL and judicial activism. 124 Accordingly, PIL in Bangladesh, having a firm jurisprudential base built into constitutional socialistic mandates and supported by local conditions, and based ostensibly on secular principles,125 was discovered as a major tool in the people’s struggle for social justice and in their fight against the state’s abdication of its duties. It seems that there is no disagreement as to these objectives of PIL, if not as to how to achieve them. PIL-based judicial activism in Bangladesh is not free of imperfections. As we shall see below in this section, for example, the Court has not yet developed an adequately cooperative mode of adjudication taking the public officials within implementation processes, although one may find 124

As seen above in section 5.1, the Bangladeshi court focused this in FAP 20, above n. 12. As Menski (2000b: 114-6) puts it, the duty-orientation of South Asian PIL has a stronger and solid legal foundation than merely the rights-based American PIL. It would, however, be a mistake to think that ‘rights’ are immaterial in South Asian legal discourses. Rather, duties are taken as the most viable avenue towards achieving a collective rights-based society. 125 Interestingly, notwithstanding the constitutional fundamental principle of “absolute trust and faith in the Almighty Allah” (Preamble; Art. 8) and the ‘statereligion’ status of Islam (Art. 2A), the Bangladeshi judges seem inclined to premise PIL on secular constitutional principles. While this has been an appreciable approach given the country’s multi-faith social fabric, they could have profitably used traditional perceptions of justice as an added support base for their activism. In FAP 20 (above n. 12), the Court remained silent vis-à-vis the petitioner’s invocation of the principle of absolute faith in Allah in support of its (constitutional) duty to preserve Allah’s creation, the environment. For a positive impact of this principle see Abul Kashem v Member (Excise), NBR (1981) 1 BCR (HCD) 279, invalidating a law facilitative of consumption of alcoholic drinks. On two opposing judicial stances, see M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, ch. 4.5 above, n. 97, and Hefzur Rahman v Shamsun Nahar Begum (1995) 47 DLR (HCD) 54 (later overruled).

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one or two recent examples of requiring the administration to set up expert commissions. 126 Also, PIL-based judicial activism concerning various aspects of judicial independence has culminated in a disproportionate judicial engagement vis-à-vis other tenets of constitutionalism. A leading authority on Bangladeshi PIL argued that it did not reach the grass roots level, and that its elitist use has undermined the much-needed focus on social justice and socio-economic empowerment of the most disadvantaged (Ahmed 1999).127 As seen above, PIL in Bangladesh has in recent times undergone some if not huge changes, and has now directed its attention from purely socioeconomic or civil rights claims to the area of constitutional issues. Although in reality ‘rights’ or constitutional guarantees such as the equal legal protection inform these modern cases, their central concern is the promotion of the democratic process and the principle of legality in the framework of governance. Doubtless, most of these new PILs involve political motivations and are still principally driven by the elites - individuals, conglomerates of elitist individuals, NGOs and political pressure groups such as lawyers’ bodies and civil society representatives. After all, PIL has a political and social function in that it seeks constantly to reshape and rebalance power relations. Reflective of the elitist mobilisation of Bangladesh’s PILaw is virtually the total absence, unlike in India, of true epistolary PILs or real victim litigants, and the dearth of PILs by less elitist but more genuinely publicspirited citizens such as academics or independent social activists. 128 Moreover, rights groups that utilise PIL as social impact litigation do so as a strategic part of their job description. Also, their resources and willingness to litigate public causes are limited by their own internal agenda-setting interests in addition to other apparent and hidden external factors such as government interference.129 Thus, it is hard to disagree with Ahmed’s (1999) view about the limitations of the elitist use of PIL. These limitations notwithstanding, seeing Bangladeshi PIL only in terms of its elitist use may hide its other real problems and also its potentialities. The 126

There is still no instance of court-appointed commission in PIL cases. In addition to the Constitution [article 102(1)], the Code of Civil Procedure 1908, Order XXVI, can be utilised to appoint such commissions in PILs. 127 Singh (2005: 537) anxiously provides similar findings about Indian PIL: “Today PIL is less utilised as a medium of social empowerment and is being increasingly used to raise the issues of political governance or to espouse the interests of middle class Indians”. 128 The only epistolary PIL was initiated by a lawyer who was associated with a public interest group (above p. 158, n. 80). 129 Krishnan (2002) draws insights into the reasons for which action groups litigate.

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elitist use of law or, more specifically, PIL has been a pervasive phenomenon across the world.130 Even the most successful Indian PIL has been a product of elitist legal mobilisation. In the very nature of things that shape and influence the Bangladeshi society, elites will continue to occupy the central position in the movement of social change through judicial enforcement of the law. Therefore, the focus should rather be on whether or not these litigation elites are vindicating more genuine public grievances, as well as on whether the judiciary is activist enough in upholding the public interest and realising a constitutionally-promised just society. The above shows that despite risks of opportunistic and politicallymotivated uses of constitutionalism-based PILs, a cautious but activist judiciary can profitably use this new juristic technique to improve executive accountability and thus to impact on constitutional governance and the people’s fundamental rights and legal entitlements. The prevailing scenario of social deprivation and injustice in Bangladesh, lack of the rule of law, bad governance and the flouting of the constitutional norms, rights and mandates in running the business of the state is by and large a product of the lack (or sheer inadequacy) of public accountability. In this context, ensuring public constitutional accountability should be a key constituency of PIL. Given the fact that the realisation of social justice greatly depends on the quality and substance of constitutional governance, vindication through PIL of the principles of constitutionalism, along with rights, could be a viable avenue towards ‘social justice’, broadly understood. In light of the above, it is necessary to look at the problems of Bangladesh’s PILaw other than its elitist use. Bangladeshi PIL was once reminded by an English public interest lawyer of its “long journey to travel” (Cooper 1998: 5-6) if it was to achieve anything like the impact in the higher Courts of its largest neighbour, India. A quick juxtaposition of the achievements of Bangladeshi PIL with those of India’s and Pakistan’s (ch. 3.3-3.4) will at once show that this remark still rings true. Despite increasing diversification of PIL matters, major and urgent issues such as corruption and poverty have not yet been taken seriously enough by PIL initiators; nor are there many structural-reform PILs concerning, e.g., prisons, hospitals, and other public institutions. On the other side of the spectrum, activism and vigilance of the Court in whatever PILs have reached its docket is not complacently optimal. Most PIL decisions appear to be either inadequately reasoned or extremely brief in analysing rights, 130 See Galanter (1974). See also Brown-Nagine (2005), pessimistically questioning the use, by social movements, of litigation as a tool of social change.

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duties and justice issues. It seems that the over-reliance on the technique of enforcing statutory public duties has underrated the tonic value of constitutional rights and justice arguments. Without refuting the enormity of the Bangladeshi problem of non-enforcement, or the executive’s twisting, of existing laws, one should emphasise that, for increased effectiveness of PIL, there has to be proper articulation of constitutional rights and justice while enforcing statutory public duties. Inadequate attention to the deeper constitutional thrust of justice led to the maintenance of a relatively traditional remedial regime. This is, however, not to discredit certain remedial innovations, which are again confined to activism by a few entrepreneurial judges.131 Judicial conservatism in expanding remedies became evident in an old case, Sultana Nahar v Bangladesh,132 in which the Court not only refused standing to a lawyer but also held that constitutional remedies were unavailable against the illegality (eviction of sex-workers) committed by private parties. It is intriguing that the Court let a legal wrong go un-redressed only because private parties were involved, when the petitioner sought remedies against the government’s failure to protect the rights of citizens from being infringed by private actors. Moreover, a narrow constitutional construction in Sultana Nahar led to a failure in appreciating that horizontal enforceability of fundamental rights was clearly envisioned in article 102 (1) of the Constitution that empowers the Court to issue “appropriate” directions or orders against “any person or authority”, including ones in the affairs of the Republic.133 Furthermore, despite scope and leeway in the existing laws and the Constitution,134 there is no instance of ordering costs 131 See particularly ASK v Government of Bangladesh [2003] 4 CHRLD 147, in which the HCD instructed the commercial banks not to advance loans to any garments industry unless it could furnish a safety fitness certificate. In Md. Kamal Hossain, BLAST & Others v Bangladesh, WP No. 3566/2005, the HCD by an interim injunction barred a company, one of whose industrial buildings collapsed killing and injuring many workers, from disposing its property to increase the victims’ chance of compensation. 132 (1998) 18 BLD (HCD) 361, a decision by a third judge, Rahman, J., agreeing with Ameen, J. The other judge of the split-Court, M. M. Hoque, J., beautifully rebutted objections to public interest standing of the petitioner, allowing her to stand for those “poor, neglected, wretched, unfortunate, downtrodden, hated, homeless and helpless”. 133 It is interesting that, until recently [see Mainul Hosein (2006) 58 DLR (HCD) 157, discussed above in ch. 4.6.2], the remedial potential of article 102 (1) of the Constitution remained beyond the judicial gaze. 134 As per s. 35 of the Code of Civil Procedure 1908, awarding of costs is on a ‘cost follows the event’-basis, but courts have discretion to decide on costs

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or “public law compensation” in any PIL against any public law breaches or misfeasance. 135 Thus, despite recent techniques of ‘rolling review’ (retention of jurisdiction) and time-bound reportage directives, the Court has not so far treaded the path of robust post-decisional monitoring of PIL decisions by, e.g., effectively engaging public officials in the courtdirected reform activities, or by appropriately using its contempt jurisdiction to ensure executive compliance. In this context, also mentionable is incoherence and unpredictability in the Court’s standing jurisprudence. Because of a low stream of PILs, as opposed to virtually a flood of PILs in India, there is not that much “obstructive bureaucratisation” (Ahuja 1997: 791) of PIL in Bangladesh. Yet in a number of cases, particularly concerning issues touching the principle of legality,136 the Court took quite a rigid view as to standing, thereby negatively impacting on the country’s cause-lawyering. For example, standing was refused to some well-known and bona fide social activists, 137 decisions that were inadequately explained and which could have been well dealt with otherwise than by unnecessarily clogging the standing of social activists. Obviously, there are reasons to inquire into the sufficiency of a particular petitioner’s interest even in a PIL for the sake of effectiveness of the judicial process,138 and it “may be well appropriate for otherwise. Notably, costs and compensations may be awarded also under article 102 (1) of the Constitution which empowers the High Court Division to issue appropriate ‘orders’ in enforcement of fundamental rights. 135 In a singular exception, a magistrate’s court awarded costs to the complainants in a criminal case (claimed as a PIL) brought to stop lotteries in trades because they fought the case “on behalf of the whole country”: K. M. Zabir v Amanullah, CR Case No. 1097A1/1988 of the CMM Court, Dhaka. 136 There is judicial conservatism even in rights matters. E.g., in a 1998 case, BNWLA v Jahangirnagar University, WP No. 3271/1998, the High Court Division refuted a women’s organisation’s standing to challenge legal inactions by a university authority against perpetrators of several incidents of rape, reasoning that the victims were not so socio-economically disadvantaged as to be unable to litigate themselves. This kind of non-sensible reasoning brings us back to the question what is then ‘public interest’? 137 See Prof. Muzaffer Ahmad v Bangladesh Bank (2000) 20 BLD (AD) 235 (a famous economist was disallowed to challenge breach of the law in allowing a social welfare NGO to initiate a banking business), and Rokeya Kabir v Bangladesh (2000) 52 DLR (HCD) 234 (a constitutional challenge by a noted rights activist to the system of ‘safe custody’ was not regarded as a PIL). 138 S. N. Goswami v Bangladesh (2003) 55 DLR (HCD) 332, at para. 16, per S. Amirul Islam, J. (the petitioners challenging the superseding elevation of some HCD judges to the Appellate Division were, not un-controversially, considered “busy bodies”, as the Court found them lacking minimum constitutional

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a single legal system to operate different standing rules in relation to different substantive areas” (Miles 2003: 404). But there should be a coherent, generally liberal standing jurisprudence in place in order to minimise risks of public injustices going un-redressed due to unprincipled gate-keeping by the very masters of justice, the judges. Given judicial awareness that taking up people’s causes at one’s own expense is a rare phenomenon in Bangladesh, 139 there is now a need to recognise that to thwart “good intentions” of those few public interest litigants, except for good compelling reasons, would be “completely demoralising” 140 in societies like Bangladesh where breaches of the law are a regular phenomenon, and the legal system is still poor-unfriendly, while free legal assistance is simply elusive.141 The above-mentioned deficiencies in Bangladeshi public interest jurisprudence do not, however, mean that PIL-based judicial activism in Bangladesh is without a future, about which the cases discussed above enable us to be rather optimistic. To give a neat account of PIL’s achievements in Bangladesh is not possible, but it has certainly had some impact on social ordering and the executive’s behaviour including its compliance habit.142 To take an instance, it is indeed because of PIL that the environmental law and policies of Bangladesh, at the minimum, are gradually taking a pro-people shape and have been attracting some measure of legislative-executive activism.143 Also, as seen above, public interest legal actions served to minimise arbitrary mass arrests in the recent past. To take a more specific illustration, while the beneficial decision in the Slum Dwellers Case [(1999) 19 BLD (HCD) 488] could not knowledge about those appointments). Judicial cautiousness about misuses of PIL was developed in FAP 20, above n. 12, at p. 52, and in Saiful Islam Dildar v Bangladesh (1998) 50 DLR (HCD) 318 (no standing to an “interloper”). 139 FAP 20, above n. 12, at p. 53, per Kamal, J. 140 Iyer, J., cited by L. Rahman, J. in FAP 20, ibid., at p. 63. 141 Effectiveness of Bangladesh’s legal assistance regime is largely blurred due to cumbersome, prohibitive and bureaucratised rules of the Legal Aid Act, 2000, and other legal provisions regarding court fees for the pauper and the state-sponsored criminal defence in cases involving capital punishment (see Order XXXIII, CPC; Rule 1, ch. XII of the Legal Remembrancer’s Manual 1960). Unfortunately, the Legal Aid Act, 2000 does not explicitly cover PIL. See further Faruque and Khaled (1999). 142 For a brief evaluation see Asia Foundation (2002: 22-5). 143 For example, following the Vehicular Pollution Case, above n. 30, government gradually withdrew petrol-run two-stroke scooters, and introduced CNG-run vehicles. A complete ban on the plying of two-stoke scooters in Dhaka city became effective on 31 Dec. 2002.

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prevent similar incidents that evicted quite a large number of vulnerable slum dwellers, even soft decisions of this type were not wholly ineffective. On several occasions, PILs filed immediately after the initiation of clearout actions resulted in judicial interventions, stopping the eviction of slum dwellers at least temporarily (until those petitions were disposed of),144 or procuring a government promise not to simply throw those unfortunate people on the streets without providing them with suitable shelter elsewhere. 145 More encouragingly, following a prominent anti-eviction PIL, Hasina Begum v Bangladesh,146 some dramatic impact emerged in the form of a rehabilitation scheme (recently halted) for slum dwellers.147 These cases promisingly reveal how judicial activism can yield an environment of executive-judiciary cooperation in the public interest. It seems, however, that the future of PIL-based judicial activism depends much on the judiciary’s willingness to increase its society-andjustice-consciousness, a task that turns on the judges’ intellectual and functional change-mindedness as to the concepts of law, rights, justice, and the judicial role. Building a just society demands sustained efforts on many fronts, of which PIL is but one, albeit essential, strategy (Hershkoff and McCutcheon 2000: 295). Clearly, PIL is not a wonder-drug providing “deliverance from all [social] evils” (Menski 2002). But it surely widens public access to justice and increases the particular legal system’s efficiency in providing justice through various means such as the enforcement of existing legal guarantees and explosion of the widespread existence of a particular injustice (Cooper 1998: 13; McCann 1994) such 144

See BLAST & Others v Bangladesh, WP No. 3326 of 2003, and several other litigations by ASK (WP Nos. 7585/2003; 4698/2003; 7585/2003; 3535/2004; 5588/2004). Regrettably, however, the police/administration breached court orders in these cases in several ingenious ways. 145 This occurred in Kalam v Bangladesh (2001) 21 BLD (HCD) 446. 146 WP No. 567/2003 (Vhasanteck Slum Eviction Case), issuing some directives regarding resettlement of the slum residents. 147 Under this housing project some 2600 families were each promised Tk. 200,000. Some other similar schemes have also been instituted. Some notable old instances of impact are Dr. Mohiuddin Farooque v Bangladesh (Doctors’ Strike Case), WP No. 1783/1999, leading to immediate withdrawal of the threatened ‘strike’ by doctors); and Syed Borhan Kabir v Bangladesh, WP No. 701/1993, leading to a governmental banning of import of toxic Paracetamol syrup; BLAST, ASK and BNWLA v Bangladesh, WP No. 6309 of 2003, challenging a discriminatory advertisement of jobs in the health sector requiring women candidates to be married, which soon resulted in an out-of-court comprise to lift the condition. For a recent instance, see Human Rights and Peace for Bangladesh v Bangladesh, above note 123.

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as government corruption or sheer violations of the law or basic constitutional norms. These enforcement and explosion jobs of PIL in fact refer to the force of what can be said to be court-centric aspect of public interest law,148 optimum instrumentality of which calls for judges’ actions. I do not, however, claim to defy the role of legal and civic activism in maximising the benefits of PILaw. In his fascinating study, Epp (1998) argued that successful legal mobilisation or what he called a “rights revolution” depended more on a strong “support-structure” consisting of rights lawyers/organisations, financial resources for litigation and governmental rights enforcement agencies than on the conventional factors such as rights consciousness and judicial leadership (Epp 1998: 18-9). I would, however, argue that while a strong support base is crucial for effective and sustained judicial rights and constitutional activism, it is often judicial leadership that is more important in creating, and keeping active, such a support-structure, at least in countries such as Bangladesh. Evidently, apart from helping to create a culture of respect for human rights and dignity, PIL also drives socio-legal activism or mobilisation that ultimately produces reforms (Hershkoff and McCutcheon 2000: 283). Apparently, the supply side of judicial public interest activism is quite weak in Bangladesh where public interest groups suffer from a multiplicity of chronic problems such as funds and resource (legal and human) crises, government interference, and internal policy problems. Moreover, civil societies are weak, unorganised and less rights-centric. While individual lawyers are not generally apathetic towards PIL, they are largely ignorant of its importance and pro-people ramifications. Barring certain notable exceptions, a committed group of willing and able PILaywers is clearly absent there, and those few lawyers who have litigated in the public interest have often been what Galanter (1974: 97) would call “oneshooters” rather than “repeat players” and have focused mostly on issues concerning the judiciary. Given that these are the usual problems, I would rather argue that a strong patronising base somewhere above, or, judicial activism in simple terms, would have cemented the support structure below. The most demonstrable support for this claim comes from the wellworking Indian rights regime and an active network of social actors, constructed and strengthened by the “world’s most active judiciary” (Baar 1992). 149 In the Bangladeshi context, the under-use of PIL, its limited 148 Other aspects of PILaw concern social activism in the form of, e.g., community advocacy and lobbying, and reshaping legal education so as to facilitate cause lawyering (Cooper 1998). 149 Epp (1998: chs. 5-6), however, identified, I think inaccurately, the Indian “rights revolution” as a weak one for its weak support-structure.

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subject matters, and the dearth of PILawyers, all provide a pointer at the absence of sustained judicial activism as a reason. To take a practical example, while the courts are more sympathetic toward institutional rather than individual public interest litigants, rights groups have still to fight for standing, and most judges insist that PILs by these organisational litigators be argued by the most senior lawyers rather than by their junior ‘staff lawyers’ (Rafiquzzaman 2002: 142-3). This sort of judicial high-mindedness has inhibiting effects on these organisations’ PIL strategy, since they sometimes find it difficult to engage senior lawyers (Rafiquzzaman, id.). This also explains why there are an extremely inadequate number of individuals-or-victims-initiated public interest litigants. All of this, therefore, reinforces the middle class nature of Bangladeshi PIL and its deficiency in basic justice-consciousness.

5.7 Fundamental rights and fundamental state policy principles: Bridging the divide Another major factor that blurs the effectiveness of PIL as a tool for realising wider justice is the conservative judicial attitude towards justiciability of fundamental principles of state policy (FPSPs). Although the Constitution promised a social-justice-based society, it placed the socio-economic rights beyond judicial enforcement, guaranteeing only individualistic rights (ch. 4.1.1, above). Historical antecedents, however, suggest that this ambivalence in the articulation of the constitutional philosophy is unintentional. 150 Moreover, apart from creating a constant rather than ad hoc interpretive obligation for the judges to draw on FPSPs, these principles also obligate the state as a whole [(Art. 8(2)], of which the judiciary is a part (Art. 152), to act towards their realisation. Exactly here lies both the dilemma for the judges and the possibility of judicial craftsmanship while adjudicating generally and deciding PIL cases in particular. If PIL has to deliver its promises of wider social justice, the judiciary in Bangladesh, like its counterpart in India, must essentially assume a social-engineering role by radically interpreting these ‘fundamental’ principles. As seen in chapter 3. 3 above, the most potent strategy that the Indian judiciary employed to successfully exercise social activism was the transformation of the rhetoric of the ‘Directive Principles of State Policy’ (DPSPs) into enjoyable rights by teleologically interpreting the fundamental 150 Hassan and Faruque (2001) analyse the contradictions in the constitutional provisions about social justice and their impact on social equality.

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rights in PIL cases and creating affirmative state obligations. 151 It is fascinating to see that the Indian judiciary could make this happen, although India’s Constitution, unlike Bangladesh’s, did not categorically mandate interpretations of law and the Constitution in reference to the DPSPs. Following initial aberrations based on lack of legal realism, the Indian judiciary eventually moved from according absolute primacy to fundamental rights to a position which underlines the need to determine their scope in a way that does not negate or ignore the DPSPs (Hossain 1997: 46), i.e. the policy of harmonious interpretation of fundamental rights and directive principles. 152 The Court recognised that while the Directive Principles were the “goals” of Indian society, fundamental rights were the “means” of achieving them. 153 This kind of sophisticated reconstruction of judicial rights discourse gave birth to many cases that converted the state’s ‘non-enforceable’ obligation regarding most basic rights such as education and medical care into “enforceable” rights.154 As some of the above PIL cases show, over the years attempts are underway in Bangladesh to establish the FPSPs, at the very least, as a ‘shield’ (Malik 2002a: 443) if not a sword in rights protection. Nevertheless, despite the apparent constitutional mandate for harmonisation between fundamental rights and fundamental principles of state policy, 155 the judicial task of constructing an effective bridge between them has not been performed effectively enough. This explains why there is still limited success in the engineering of new rights,156 or, as L. Rahman J once hoped, in stretching PIL’s operation beyond the violation of the “defined” fundamental rights alone.157 In the past, non-justiciability of the FPSPs has been “unduly magnified” (Alam 1993: 4), sometimes even to an extent of rendering the FPSPs as having no legal significance (Alam, id.), and thus 151

Bhagwati (1987: 243) sees this technique as having led to a new era in Indian judicial activism. 152 See e. g. re Kerala Education Bill AIR 1958 SC 956. For different phases of judicial development in this field, see Aikman (1987), Sharma, B. R. (1990: ch. 14), Sharma, S. K. (1990), De Villiers (1992), Sharma, G. (1993), Jaswal (1996) and Singh (2003). 153 For details see Minerva Mills v Union of India AIR 1980 SC 1789, esp. pp. 1847-53. 154 See above ch. 3.3.2, particularly Unni Krishan v State of Andra Pradesh AIR 1993 SC 2178. 155 This mandate can be read from Art. 8 that regards the FPSPs as a guide to legal/constitutional interpretations, and from Art. 47 that saves certain types of social welfare laws from being void for being repugnant to fundamental rights. 156 So far, the right to a healthy environment seems to be the only new right. 157 FAP 20, above n. 12, at p. 63.

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disregarding their fundamentality altogether. 158 Latterly, the Bangladeshi Court has on several occasions affirmed that the FPSPs, though judicially unenforceable, cast an obligation upon the government to act in accordance with them,159 and that these must necessarily inform its interpretation of the Constitution. 160 Nor has the Bangladeshi Court, unlike the postindependence early Indian Court, over-applied fundamental rights, retarding the state’s socio-economic reformative actions. 161 Bangladeshi judges are seemingly aware of “strik[ing] a right balance between public good and fundamental right[s] of an individual,” 162 and have begun to employ a holistic interpretation of the FPSPs and the fundamental rights. Despite this, however, they seem generally to prefer a straightforward approach to non-justiciability of the FPSPs. For instance, in an important decision in Kudrat-E-Elahi Panir v Bangladesh,163 S. Ahmed, J. made the following remark about the legal stature of the FPSPs: The reason for not making these principles judicially enforceable is obvious. They are in the nature of People’s programme for socioeconomic development […], [i]implementation of [which] requires resources, technical know-how and many other things including mass

158

In Bangladesh v Winifred Rubie (1982) 2 BLD (AD) 34, 37, the Appellate Division disapproved the HCD’s engagement with these issues: “As for the state policy of education, it is unfortunate that the learned Judges have taken […] an inquiry which is [not] warranted by […] the Constitution […]”. 159 Wahab v Secretary of Ministry of Land (1996) 1 MLR (HCD) 338; A. T. Mridha v The State (1973) 25 DLR (HCD) 335, 358 (describing the FPSPs as the manifestation of the people’s “freedom”). 160 Aftab Uddin v Bangladesh (1996) 48 DLR (HCD) 1. Interpreting Art. 116 of the Constitution in light of the FPSPs, N. Ahmed, J. stretched the principle of judicial independence in Art. 116 (consultation obligation) to cover secondment of judges to posts outside of the judicial service. 161 This is largely due to the Constitution’s scheme [Art. 47 (1); see n. 148 above]. But see an early case, Winifred Rubie v Bangladesh (1981) 1 BLD (HCD) 30 (overruled by the AD; above n. 158), quashing acquisition of land for private schools by misconstruing the relevant principle of state policy. 162 Per S. H. Khan, J. in Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (HCD) 190, 200. Interestingly, however, Khan J took an ambivalent position on the question of harmonious construction, by according primacy to the fundamental rights over the FPSPs. See also Ali Ekabbar Farazi v Bangladesh (1974) 26 DLR (HCD) 394, showing respect to the state’s welfare objectives but knocking down a legal provision for retrospectively divesting rights of only agricultural tenants but not others. 163 (1992) 44 DLR (AD) 319.

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education. Whether all these prerequisites for a peaceful socio-economic revolution exist is for the state to decide.164

In a similar vein, Kamal, J., while concretising his reasoning that a law cannot be declared void on the ground of being contrary to the FPSPs alone,165 strenuously pronounced that equating “principles” with “laws” is to go against the Constitution itself, since the Constitution itself declared the FPSPs as principles and not laws.166 The Court apparently over-stressed the non-justiciability of the FPSPs, and gave a carte blanche to the executive on the question of the state’s obligation to abide by these socio-economic responsibilities, thereby unexpectedly obscuring the “vital relationship” (Hossain 1997: 43) between the two sets of constitutional imperatives, FPSPs and the constitutional rights. While it is strategically plausible to declare judicial inability to strike down a law merely for breaching or not implementing a FPSP, the above kind of oversimplification of the distinction between rights and non-enforceable fundamental principles without shedding light on the latter’s constitutional normativity seems to portray an Austinian approach to law and the constitution, purely based on the conception of enforceability of laws. 167 One might well ask if these pre-PIL interpretations of the FPSPs have not shadowed the PIL-era interpretations of socioeconomic rights. Apart from their legal values, the FPSPs offer moral values for legislators, judges, executive and the people at large (Alam 1993: 3). There is nothing in the non-enforceability phenomenon to prevent the Court from declaring a law or an executive action incompatible with these principles (Narain 1985: 200; Minattur 1975). Judicial non-enforceability is not the same as judicial non-recognisability 164

Ibid., at p. 331. A straightforward, ‘non-enforceable’ approach was earlier taken in Sheikh Abdus Sabur v Returning Officer (1989) 41 DLR (AD) 30. Recently, in Mosharraf Hossain v Bangladesh (2004) 56 DLR (AD) 13, the Court once again revealed, somewhat out of context, its conservatism by remarking that article 9 of the Constitution (local-level democracy) having contained a policy matter was beyond its concern. 165 Compare with Abul Kashem v Member (Excise), NBR (1981), above n. 125. 166 (1992) 44 DLR (AD) 319, 346. Compare with Dworkin’s (2005) and Baxi’s (1969) arguments, as in respectively n. 167, and n. 168 below. Alexy (2002: 45) sees both constitutional principles and rules as ‘norms’ because they both say what ought to be done. 167 For the classic jurisprudential exploration of the value of ‘principles’ see Dworkin (2005: chs. 2-3) (although the distinction between principles and rules is a logical one, the rules-based legal positivism misses the important role played by ‘principles’ in adjudication or lawmaking).

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(Baxi 1969: 25; Friedmann 1967: 16) and it does not de-clothe a law of its capacity to legally bind (Narain 1985).168 An incompatibility-declaration without actually striking down a law/administrative act is not impossible, 169 and can ultimately achieve realisation of these important social rights in a constitutionally feasible way. However, it must be recognised that Kudrat-E-Elahi Panir (ch. 4.6.1, n. 122) provides a trend-setting instance of utilising the values in FPSPs in the logic and reasoning of judicial decisions. Here, the Court, while asking the government to introduce elected local government bodies, reminded it to take account of the constitutional provision for special representation for women (Art 9). Despite this symbolic and strategic activism, the above-noted orthodox judicial stance about the salience of fundamental constitutional principles should receive a judicial reversal. A good attempt in that end was the opinion of Chowdhury J in FAP 20, 170 where His Honour significantly remarked in passing that the FPSPs are not merely programmes for socio-economic development of the people, but are “much deeper” in content, firmly recognising “human sensitivity for fellow citizens and state responsibility for the protection of human rights”.171 Moreover, in addition to playing down the aspects of positivity or constitutionality of the people’s right to basic necessities (Conrad 1981-2; Pande 1989; Singh 2006), uncritical judicial approaches to nonenforceability of the FPSPs also sidetrack the important constitutional history that the framers of the Bangladeshi Constitution never intended to keep these legally binding mandates in abeyance or inoperative for an indefinite period of time.172 Although there were not much debate during

168

There was an intense, complex debate between Narain (1966; 1969) and Baxi (1969) about the ‘lawness’ of the FPSPs. Baxi (1969: 245-51) then refused to regard directive principles as “rules” of constitutional law, if not as a “part” of constitutional law. 169 This was done in, e. g., BLAST v Bangladesh (2003), above n. 96, and in Bangladesh Italian Marble Works Ltd v Bangladesh (2005), as in ch. 4.6.4 above. For Baxi (1969: 261-2), a law contrary to the FPSPs would be ‘unconstitutional’ but not ‘illegal’ as the court cannot legally strike it down. 170 (1996) IX BSCR (AD) 27. 171 Ibid., at p. 66. 172 In an interview on 17 Nov 2005 at London, M. Amir-Ul Islam, a member of the Constitution Drafting Committee, told me that the framers intended the FPSPs to be used as a ‘shield’. A similar argument from the Indian context is found in Minattur (1975). In Radioactive Milk Case (1996), above n. 25, Hoque, J. recognised the theory of negative enforcement of the FPSPs when he held that even if state obligation regarding public health cannot be enforced, the state can be

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the drafting-process of the Constitution about the judicial role vis-à-vis the FPSPs,173 it is logically clear that it is only for pragmatic reasons that the judiciary was deterred from ‘enforcing’ these principles immediately.174 A permanent disability of the judiciary in elevating the FPSPs to the level of rights through creative interpretation of the Constitution was never intended by the framers. Less was their intention that the judiciary, expressly or by implication, would slow down legislative realisation of these legally binding principles, or acquiesce in executive rendition of them into a mere “veritable dustbin of sentiments” (Sharma, S. K. 1990: 55). The Constitution of any society is a living instrument capable of development at pace with the changing time. And, these principles should continue to remain as a juridical powerhouse of ‘social justice’ in a wide sense of the term. It is understandable that in a country with constrained resources, the relationship between fundamental rights and fundamental principles of state policy is necessarily “delicate and dialectic” (Alam 1993: 8). But, as argued above, their interconnectedness (Koch 2003; Gavison 2003; Ewing 1999; 2003) must not be undervalued with reference to the practical difficulties involved in implementing socioeconomic entitlements. It is also true that constitutional conversion of the FPSPs into enforceable rights seems politically if not legally impossible in Bangladesh. Given this state of affairs, the Bangladeshi judges have to be more creative and activist in realising the Constitution’s transformative goals by enlivening the FPSPs, bearing in mind the national needs and the inadequacy of an individualistic concept of justice. This will require them to strike a right balance between recognising other state organs’ special responsibility/competency in the field of social entitlements and their duty of upholding the Constitution as the supreme law. Such a proactive, balanced judicial role is not only a constitutional mandate (ch. 4.1.1

compelled to remove any threat to public health. See also Kalam v Bangladesh, above n. 44. 173 In a singular exception, Mr. Suranjit Sengupta, the only opposition member in the Constitution Drafting Committee, objected that judicial non-enforceability [Art. 8(2)] of social rights made the whole content of Part II of the Constitution nugatory, and suggested the deletion of this bar (Huq 1973: 62). 174 The position of social rights in the Bangladeshi Constitution seemed to be influenced by their similar status in the Indian and Pakistani constitutions. Judicial non-enforceability of social rights is a reflection of the then and still continuing international politics of rights (see de Senarclens 2003; Dennis and Stewart 2004). Notably, some contemporary scholars like Van Bueren (2002) and Fredman (2004) are increasingly urging for justiciable social rights in the West. Van Hoof (1984) rebuts some traditional views about the legal nature of social rights.

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above) but also a social imperative. Justice Bhagwati’s stirring urge, made in the similar context as that of Bangladesh, is pertinent here: The judiciary has […] a socio-economic destination and […] cannot remain a mere bystander […] but must become an active participant in the judicial process, ready to use the law in the service of social justice in […] goal oriented approach.175

To conclude, this chapter has shown that Bangladeshi judges are becoming increasingly more justice-conscious, willing to apply PIL for improving justice and enforcing principles of constitutionalism. But, when measured vis-à-vis the magnitude of problems of constitutional breaches and social injustices or what can be called the “growing [social] divide” (Hasan 2006), Bangladeshi judicial activity in PIL clearly seems to be a case of underperformance rather than excessiveness. This can be attributed more to the judges’ lack of adequate robustness in implementing the Constitution’s socio-political goals than to the PIL’s elitist use.

175

S. P. Gupta, above n. 16, at pp. 196-7.

CHAPTER SIX JUDICIAL (IN)ACTIVISM DURING THE 2007 EMERGENCY

The preceding chapters have shown that the Bangladeshi judges have so far appeared vigilant more in public interest challenges and during democratic times than in other areas and during crisis periods. Chapter 4, above, more specifically showcased that Bangladeshi judicial activism has suffered certain strains produced both by political circumstances of the day and judicial tradition. In these backdrops, the present chapter seeks to analyse the judicial role during Bangladesh’s recent 2007-08 Emergency. On 11 January 2007 the then interim government in Bangladesh declared a state of emergency in the face of escalating political clashes that ensued ahead of scheduled general elections in early 2007. This prolonged state of emergency (withdrawn on 17 December 2008), which effectively but off-constitutionally deferred general elections by 2 years, put the country’s judiciary under certain challenges, with a far-reaching bearing on judicial statesmanship. The Emergency regime initiated an array of reform works involving politics, law and the judiciary, but at the same time clipped the rights of the people as well as the protective role of the courts,1 thereby bringing to the sharp focus the old but complex question of the proper role of the judge during an Emergency. In this chapter, we shall examine whether the Bangladeshi top court judges, performing under an Emergency, took refuge to legal positivism as a convenient technique to abdicate their constitutional duty or helped the ‘law’ “speak the same language”2 as it speaks during peace. In other words, the present chapter examines how the judiciary during the Emergency dealt with the executive's interferences with the liberty of the people and principles of constitutionalism, and how it has reacted, if at all, to the 1

See the Emergency Powers Ordinance 2007 and the Emergency Powers Rules 2007. For accounts of political anecdotes to the 2007 Emergency and its impacts on the democratic culture, see Hossain and Siddiqi (2008), and Odhikar (2007). 2 A phrase used by Lord Atkin in dissent in Liversidge v Anderson [1942] A.C. 206. See further Dyzenhaus (2004).

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Emergency itself. While emphasising and contextualising the need for judicial activism during Emergencies, we herein below re-question the efficacy of dominant legal-constitutional theories about the judicial role (ch. 2).

6.1 Emergency and the Constitution of Bangladesh The Constitution of Bangladesh as adopted in 1972 did not stipulate provisions for a state of emergency. It was through a constitutional amendment in 1973 3 that the constitutional provisions granting the Executive emergency powers were first introduced. 4 According to the newly inserted article 141A of the Constitution, the President may proclaim a state of emergency if he is “satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance”. Such a state “shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament”.5 Importantly, however, in order for it to be valid, the Presidential Proclamation of Emergency needs to be countersigned by the Prime Minister 6 except when a Care-taker Government is in charge of the country (Art. 58E).7 The Constitution provides for two legal consequences of the invocation of emergency. First, during the period of operation of emergency, the state may make any law or take any executive actions in derogation of six fundamental rights enshrined in articles 36-40, and 42 (Art. 141B), meaning, by implication, that the laws and executive actions can not derogate from other constitutional fundamental rights. 8 Second, the President may declare that the right to judicially enforce such fundamental rights as he may specify be suspended (Art. 141C). 3

See The Constitution (Second Amendment) Act 1973 (w. e. f. 22 Sept. 1973). The Constitution of the People’s Republic of Bangladesh, Part IXA, articles 141A, 141B, and 141C. 5 Ibid., article 141A (2) (C). 6 Ibid., article 141A; introduced by virtue of the Constitution (Twelfth Amendment) Act 1991, s. 17. 7 The exception to the rule of concurrence by the Prime Minister in the proclamation of emergency during the time of Care-taker Government was introduced by the Constitution (Thirteenth Amendment) Act 1996, s. 3. 8 These rights are, respectively, the rights of freedom of movement, freedom of assembly, freedom of association, freedom of thought and conscience, freedom of profession, and the right to property. 4

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The Constitution is, however, silent about (i) the justiciability of the President’s satisfaction as to the existence of reasons warranting imposition of emergency, and (ii) whether he can suspend the judicial enforcement of all constitutional rights on a wholesale basis. The latter issue concerns the question of the extent of derogation from fundamental rights during a state of emergency. It is interesting to note that in Ataur Rahman v B. M. Muhibur Rahman,9 decided only a few days before the Emergency was lifted, the Supreme Court’s Appellate Division held that the President’s power to pick and choose fundamental rights for suspending their enforcement is unlimited under the Constitution. Speaking for the Court, Abedin, J. reasoned that it is the ‘security’ concern that invests in the President such an unbridled power that is necessary ‘to maintain the welfare of the state’. 10 By taking this line of argument based on literal interpretation, the Court studiously avoided the established international norm of inviolability of certain fundamental rights such as the right to life from which no derogation is possible even during the war time.11 Also, the Constitution remained reticent as to how long the state of emergency can continue particularly when Parliament for long stands dissolved as was the case during the 2007 Emergency. During the waning hours of the 2007 Emergency, this and the above two questions made their way up to the Court. Bangladesh has so far experienced four states of emergency, including the latest 2007 Emergency. 12 Not too long after the introduction of constitutional provisions for emergency, the first state of emergency was declared on the ground of internal disturbances on 28 December 1974, which lasted till 27 November 1979.13 The next emergency was invoked on 30 May 1981 following the assassination of the President, while the third state of emergency was invoked on 27 November 1987 obviously to suppress political upsurge against the then unelected autocratic regime.14 As noted earlier, the latest and the 4th state of emergency was declared in 9

(2009) 14 BLC (AD) 61. (judgment 28 October 2008) (Abdein, J. blamed the High Court Division for enforcing fundamental rights during emergency). 10 Ibid., at p. 70. 11 On the interface between constitutional rights and international human rights norms, see, among others, Sinha (2007; 2009). 12 Another state of emergency was invoked by the then military-turned-civilian President in 1990 just days before his resignation on 6 December 1990. This emergency, declared on 27 November 1990, was, however, not put into effect. 13 See the Presidential Proclamation of 28 December 1974. 14 See the Bangladesh Gazettes of 10 July 1981 and 27 November 1987. See further Omar (1996).

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early 2007, which being proclaimed by a Non-party Care-taker Government is a class by itself, putting novel challenges for the Court in particular. Interestingly, it is only during the first (1974) and the fourth (2007) Emergencies that the constitutional provisions permitting the suspension of the right to judicially enforce fundamental rights has been invoked. The first Emergency, however, coexisted with a graver situation of martial law, thereby occasioning little judicial engagement with constitutionality of Emergency legislative and executive actions, which is in contradistinction with the scope for judicial activity during the recent emergency. As I shall discuss in passing below, the Court during the first emergency nevertheless played a laudatory role by checking political and bureaucratic arbitrariness in curtailing the citizens’ liberty and their property right.15 Also, during the past emergencies the fundamental question of constitutional validity of one or the other proclamation of emergency was not posed for judicial determination. Unlike the 1974 Emergency, thus, the 2007 Emergency brought this constitutional question into sharp focus, albeit lately.

6.2 Emergency and the role of courts There are long-standing debates regarding the ‘emergency and courts’ phenomenon. What should be, and what actually is the role of the judiciary in a democracy is a subject matter of a continuing constitutional discourse.16 On the other hand, the traditional constitutional-legal theories, particularly those loaded with formalistic ideals, doubt and sometimes refute a role for the Court in helping the troubled nations restore democracy.17 Traditionally, the courts facing emergencies, or omnipotent or extraconstitutional executives across the world have often tended to defer to the executive and to legitimate extra-legal legislative powers, holding that, for ‘separation of powers’ it is for the executive, and not the courts, to decide what is in the best interest of the country or what constitutes the interests of national security. 18 For example, in the oft-quoted case of A. D. M.

15

See, e.g., M/S A. T. J. Industries v Government of Bangladesh (1976) 28 DLR (HCD) 27. 16 For recent analyses, see Dyzenhaus (2006) and Ginsburg and Mustafa (2008). See also Mahmud (1993). 17 For a discussion of the place of state of emergency in legal theory, see Dyzenhaus (2005: 65). 18 Secretary of State for the Home Department v Rehman [2003] 1 AC 153, at paras. 53-55, per Lord Hoffman. Lord Hoffman, however, changed this deferential

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Jabalpur v Shivakant Shukla (1976),19 the Indian Supreme Court interpreted ‘emergency’ as having excluded judicial review power even to examine whether the state was lawfully depriving its citizens of their unconditional constitutional right to life during the emergency. In this case, “the majority adjudicated only legalistically, effectively giving unqualified sanctity to the Presidential Order of 1975 [emergency], and thus depriving the right of any person to move a court for the enforcement of the rights conferred by [the Indian Constitution]” (Khan 2007: 48). 20 The majority judges “overlooked the fact that sometimes a law can be formally legal but at the same time substantially, completely illegitimate” (Khan, id).21 Similarly, in an early Pakistani case, Pakistan v Moulvi Tamizuddin Khan (1955),22 the top court of Pakistan in effect refused to decide on issues concerning emergency. Before Pakistan could adopt its first Constitution, the then Governor-General of the country, Ghulam Muhammad, unleashed his paternalistic dominance over the Constituent Assembly by issuing on 24 October 1954 a proclamation effectively to dissolve the Assembly. In Moulvi Tamizuddin Khan the legality of this proclamation “was controversially upheld by the country’s highest court through a purely technical and unpersuasive interpretation of the [relevant] laws” (Osama 2006: 625), and even without entering into merits. In this case and other subsequent legal proceedings which additionally concerned the legality of state of emergency that followed,23 the Federal Court indeed engaged in politicization of legal interpretations so as to legitimise unconstitutional actions of the omnipotent executive. The Court invoked the doctrine of civil/state necessity to establish the so-called ‘legal bridge’

position in A v Secretary of State for the Home Department [2005] 2 WLR 87. For a critique of Hoffman, see Dyzenhaus (2005). 19 AIR 1976 SC 11207. 20 On Indian courts’ role during emergencies see, among others, Derrett (1978), Divan (1982), and Omar (2002). See also Tate (1993). 21 See, however, the powerful dissenting opinion of Khanna, J., who later had to pay price for his dissent as he was superseded by another judge for the position of Chief Justice. Khanna, J. remarked that without the sanctity of life and liberty, the distinction between a lawless society and one governed by laws ceases to have any meaning (Khan 2007: 48). 22 7 (1995) PLD 240, 240-45 (Fed. App. 1955), Cornelius, J. dissenting. 23 A state of emergency was declared on 27 March 1955, which the Court declared ultra vires in the case of Usif Patel, PLD 1955 FC 385. As fallout of Patel a second proclamation of emergency was made on 16 April 1955, which was controversially endorsed by the Federal Court.

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in order to close the legal gaps in the creation of which it contributed significantly.24 As opposed to the traditional view of the Court in situations of emergency, some judges, imbued with dynamic judicial job perceptions, preferred the path of upholding high legal values through the judicial process. In the Sindh Chief Court case of Tamizuddin Khan v Pakistan (1955), 25 for example, the judges employed a dynamic interpretation of the legal text holding unlawful the proclamation dissolving the Constituent Assembly, thereby respecting the representative institution rather than the Governor General (Naseem 1997: ch. 3.1.1). Appreciably, in a more recent case, Sardar Farooq Ahmed Khan Leghari v Federation of Pakistan (1999),26 the Court held for its jurisdiction to review the continuation of the Proclamation of Emergency of 12th October 1999 at any stage if the circumstances so warrant. Interestingly, the liberal jurisprudence of reviewing conditions leading to state of emergency dates back to the colonial British Indian era. In a lawsuit concerning the Governor General of India’s declaration of the state of emergency in 1930, the Lahore High Court held that the Court could inquire as to whether there existed valid reasons for declaring a state of emergency, while a Bombay Court further advanced this dictum by saying that the legality of actions taken during emergency is justiciable when the normalcy is restored.27 While for an assertive judiciary a guarantee of judicial independence or the existence of democracy is a prerequisite, a self-confident and willing judiciary even in an adverse political regime can help achieve democratic values. In contemporary times, it is being increasingly recognised that that Constitutional Courts, charged with the duty of enforcing the Constitution, have a duty towards the ‘establishment and maintenance of democratic systems of government’,28 although it is a different question, altogether, whether a particular judiciary has stood up to its democratizing obligation.

24

The Governor General’s Reference No. 1 of 1955, PLD 1955 FC 435. PLD 1955 Sind 96 = 7 DLR (WP) 121. See also Sardar Farooq Ahmed Khan Leghari, below note 26, in which the Pakistani Supreme Court held unconstitutional the blanket suspension of constitutional rights pursuant to the 1999 Emergency. 26 PLD (1999) SC 57. 27 AIR 1930 Lahore 781; AIR 1931 Bombay 57. For this piece of information, I am indebted to Justice Gholam Rabbani’s newspaper article in The Prothom Alo, Dhaka, 09 Nov. 2008, at p. 11. 28 For details, see Epstein et al (2001). 25

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Doubtless, under extra-constitutional regimes or in difficult political situations like the state of emergency, the judiciary has to act in a forcebased or authoritative political system and often has to face moral dilemmas of standing against the regime or legalizing it. There are accusations that judges often end up in legitimising such oppressive regimes or applying harsh and unjust laws, and thus breach their oaths to protect the Constitution. Against these accusations, arguments are often made that the judiciary then is deprived of the political guarantee of enforceability of its decisions, but rather is put at the risk of being retaliated and humiliated at the hands of an all-powerful executive. To avoid their judgments being defied and ignored, judges usually take strategic decisions fitted into political contexts. 29 As Alexander (1984) rightly puts it, the judicial protection of human rights during periods of emergencies may thus remain illusory30 for, among other things, executive non-cooperation and the threat perception among the judges.31 As seen in chapter 4, Rahman, J. in the Supreme Court of Bangladesh vividly described the judge’s dilemma during difficult situations of emergency or martial law, claiming that when such an abnormal situation occurs a Judge has two options from which to choose one_ either to resign or to hold on to his post (Rahman 1988). As he argued, one who has not lost faith in the rallying power of law may prefer a temporary deprivation of freedom to desertion, and may wait to be able to protect the people’s rights and to assert against the 'overbearing’ (Rahman 1988: 5). 32 Arguably, Rahman, J. preferred a strategic judicial silence for the grater cause of justice to leaving the administration of justice at the hands of submissive judges.33 It is, however, crucial that judges uphold the high

29

Shankar (2008: 20, citing Jeffrey Rosen). See further Ackerman (2004) who argues for new constitutional concepts to better protect civil rights against repressive laws during crises, but does not think that judges can do better than they have done in the past during an emergency. On the impact of emergency on fundamental rights, see further Singh (1966) and Huda (1992). 31 For example, Baxi (1985b: 81) thinks that Chandrachud, J.’s “belief that ... when enforcement of rights threatens the survival of the Supreme Court as an institution, the Supreme Court should not intervene against the Supreme executive even if fundamental rights are thereby jeopardized’ influenced his role in the A. D. M. Jabhalpur Case (above). 32 Anwar Hossain Chowdhury v Bangladesh (1989) 9 BLD (Spl) 1, 180. 33 This strategic position resembles Naseem’s (1997) consideration of the Pakistani judiciary’s silence during martial law regimes as a central necessity. See further Mahmud (1993: 225). 30

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values of justice even during the intermittent time, and exercise principled activism vis-à-vis injustices of the regime. Essentially, judicial responses to the breach or twisting of principles of constitutionalism have been society-specific and are positively co-related with practices of constitutionalism by the other two organs of the state.34 Additionally, background factors of the judge including his view of the judicial role and approaches to legal theories significantly contribute to the resultant jurisprudence of emergency. It is in the background of this postulate that the role of any judiciary during Emergency needs to be assessed. Before analysing the judicial role under the 2007 Emergency in Bangladesh, judicial responses to its first Emergency (chap. 4) may be quickly recollected. During the first Emergency, the Court had often to engage in scrutiny of preventive detention orders, legal challenge to which was barred by the Emergency Rules. In personal liberty cases which nevertheless came before them, the Court offered a mixed response of evasion and creativity, travelling from mechanistic application of the law35 to a relatively broader course of legal interpretation (ch. 4.4.2, esp. n. 70). Thus, when the fundamental right to invoke constitutional judicial review in order to enforce constitutional rights remained suspended, the High Court Division gave remedies on sub-constitutional grounds by, e.g., widening the scope of s. 491(1)(a)(b) of the Criminal Procedure Code that provided for habeas corpus-type remedies to secure release of any person detained “illegally or improperly”.36 This the Court attained by creatively dislodging the statutory bar that made this remedy inapplicable vis-à-vis preventive detentions [s. 491(3), CrPC]. Similarly, in Emergency preventive detention challenges, the Court strategically interpreted the ouster of judicial power. Without invalidating such ouster clauses,37 it held that they are ineffective when an improper, colourable, unlawful or “arbitrary action” is challenged.38 In arriving at these conclusions, the Court exercised sort of strategic activism in that they avoided being engaged in reviewing constitutionality 34

In transitional democracies or in the so-called third world countries the onus on the judiciary vis-à-vis constitutionalism is thought to be relatively more vigorous than elsewhere. See generally Conklin (1984: 81). 35 See, e.g., Munim, J.’s holding in Ahmed Nazir, noted above in chap. 4.4.2, n. 69. 36 See also the cases of Nurunnahar Begum and Amaresh Chakravarty, ch. 4.4.2 above, n. 71. 37 See, e.g., s. 34 of the Special Powers Act 1974 that precluded “any court” from questioning actions (such as preventive detention orders) taken thereunder. 38 Md. Humayun Kabir v The State (1976) 28 DLR (HCD) 259, 262.

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of laws/actions during emergency. The Court’s strategic silence was not always principled, though. For example, the judges sometimes unnecessarily focused on their legal inability to enforce constitutional rights. In Kripa Shindu Hazra v The State (1978),39 Chowdhury, J. remarked that during Emergency neither the constitutional remedial clause nor the criminal procedural law is available to enforce fundamental rights.40 It thus appears that, short of placing a serious pressure on executive transgression under the shadow of emergency powers, the Court in Bangladesh by and large “endeavoured to uphold basic notions of legality during [the earlier] Emergency rule” (Omar 1996: 200).

6.3 The 2007 Emergency: Judicial passivity or submissivism? During the 2007-08 Emergency, citizens as well as legal actors have resorted to the instrumentality of legal actions in order to protect the fundamental rights and ensure constitutionalism. The use of the Court and the ‘law’ has been through the channels both of traditional concrete-injury lawsuits and public interest litigations. Notably, the Supreme Court’s public interest jurisprudence, analysed in the previous chapter, has played a major role in changing the way the people and civil society see the judiciary (Hoque 2007: 426-27). Although public interest litigations on constitutional rights grounds have became stalled due to the operation of emergency law, public-spirited citizens or ‘interested’ politicians repeatedly accessed the Court under the operative part of the constitutional remedial clause to secure justice by challenging the legality of several actions by the government. 41 For example, in an early challenge during the current regime, a petitioner was partially successful in challenging the alleged internment of the immediate-past Prime Minister Begum Khaleda Zia. At the preliminary hearing of this petition, the High Court Division seriously questioned the petitioner’s legal standing to sue, but ultimately agreed to call an explanation from the government whether or not Begum Zia’s liberty was curtailed, and also 39

(1978) 30 DLR 103. Ibid., at p. 114. Here, a comparative reference may be made to a powerful dissent by Subba Rao, J. in Makhan Singh Tarasikka v Punjab, AIR 1964 SC 381, who held that access to the court for habeas corpus under s. 491 of the CrPC survived the suspension of the constitutional right to move any court. 41 Although the right to enforce fundamental rights [Art. 44 and thus Art. 102(1) of the Constitution] has been suspended, judicial review power concerning other issues of legality [see article 102(2)] remained unaffected. 40

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directed (by order of 7 May 2007) the concerned Ministry to re-connect Begum Zia’s telephone lines within three days. There have been some other instances of public interest court actions, including the ones challenging the lawfulness of Emergency provisions in the Constitution, that have been instituted to challenge unconstitutionalism, in which the ‘law’ has been used both as a tool of governance and legal pressure on the government to make it remain stick to its post-Emergency commitments of restoring democracy. In Masood R. Sobhan v The Election Commission (2008),42 for example, the High Court Division employed a purposive interpretation of the Constitution’s 90 days’ timeframe for holding general elections after the dissolution of Parliament.43 The Court dismissed a constitutionality challenge to Election Commission’s (EC) deferral of general elections beyond this time limit, leaving the issue of EC’s non-compliance with the Constitution for elected Parliament to settle while observing that the EC’s promise of holding elections by December 2008 was not unreasonable. 44 In this case, the Court insisted that the EC submitted an affidavit of its pledge of holding elections within the declared time, a strategy that acted as a check on the emergency government. Below, I analyse certain other high-profile cases implicating ‘emergency’ to fathom the judicial responses to the Emergency regime.

6.3.1 Moyezuddin Sikder v State (2007) In a significant, early emergency-period decision, the High Court Division in Moyezuddin Sikder v State (2007) 45 effectively held that its inherent power and wider judicial authority to grant bail to the accused can not be foreclosed by law even during the state of national emergency. 46 The Emergency Powers Rules 2007 (hereafter EPR), rule 19Gha (19D), provided that notwithstanding the general legal provisions concerning bail,47 no application for bail can be made to “any court or tribunal” by a person against whom an inquiry, investigation, or trial is pending

42

WP No. 709 of 2008 (judgment 22 May 2008). See article 123 (3) of Constitution that provides that parliamentary elections shall be held within 90 days of the dissolution of Parliament. 44 Ibid., per Rashid, J. For similar observations, see also Advocate Sultana Kamal, as in section 6.3.3 below. 45 (2007) 59 DLR (HCD) 287 (judgment 22 April 2007). 46 Ibid. esp. at p. 297; per Nozrul I. Chowdhury and S. M. Emdadul Hoque, JJ. 47 See the Code of Criminal Procedure 1898, ss. 497-498. 43

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concerning an offence under the EPR or certain EPR-covered statues.48 Mr. Sikder, charged under a law covered by the EPR, sought bail from the High Court Division where the government unconvincingly argued that, in the face of the term ‘any court’ in the above-mentioned restrictive law, the Court lacked jurisdiction to entertain the petition. Employing a historical and liberal interpretation to the law in question and by relying on comparative constitutional decisions, the Court held that the term “any court or tribunal” in rule 19D of the EPR was not meant to include the Supreme Court, reasoning that in the absence of a clear ‘ouster’, the Supreme Court’s constitutional supervisory jurisdiction can not be interpreted to be curtailed or limited by implication. In this bold, libertyfocused decision, the principle of rule of law was thus upheld against the prerogatives of a powerful, emergency-government. Unexpectedly, however, the Appellate Division in Moyezuddin Sikder v State (2008) 49 overruled the High Court Division’s decision. By narrowly interpreting the term ‘any court’ and the non-obstante clause in rule 19D of the EPR, it argued that there was a “manifest” legislative intention to oust the High Court Division’s jurisdiction to grant bail in EPR-cases. 50 The Court read this legislative ‘intention’ readily from a laboured, textual interpretation of s. 498 of the Criminal Procedure Code that empowers the High Court Division to grant bail. In its view, since the EPR reserved the effect of s. 498, the term ‘any court’ should be meant to include the High Court Division. It is submitted that this legal-formalism inspired reasoning,51 which avoided constitutional arguments altogether, is open to question in terms of compatibility with wider constitutional norms. The following comment of the Court reveals its jurisprudential attachment to excessive legalism: “[t]he question whether the lawmakers have disregarded justice ... in framing [rule] 19Gha is not for the Court to decide”. 52 It seems that the Appellate Division in Moyezuddin Sikder skilfully abdicated its judicial duty of ensuring justice under the shadow of positivistic legal interpretations.53

48

See rules 14 & 15 of the Emergency Powers Rules 2007. (2008) 60 DLR (AD) 82. 50 Ibid., at p. 88. 51 On ‘legal formalism’, see, among others, Schauer (1988: 501). 52 (2008) 60 DLR (AD) 82, at paragraph 54. 53 In a statement reacting to this judgment, the Asian Human Rights Commission (2008) critiqued that the Court abdicated its ‘power’ regarding bails. 49

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The decision also stands at odd with earlier liberal constitutional decisions of the Supreme Court. 54 Appreciably, however, the Appellate Division in Moyezuddin Sikder opened a small space for judicial justice by holding that bails in EPR-cases can nonetheless be granted if the concerned charge is in bad faith, or if it shows a case of ‘no jurisdiction’ and coram non judice. 55 This reasoning resonates the style of judicial decisions during the past malaria law regimes, as seen in chapter 4 above. It appears that the Appellate Division created a high threshold for the accused to overcome, requiring him to prove a case of malafide or ultra vires, and thus narrowed the access to justice.56 Despite the Appellate Division-endorsed jurisdictional bar to grant bail under ordinary legal provisions, however, the High Court Division innovatively granted bails in a number of EPR-cases invoking its inherent power under s. 561A of the Criminal Procedure Code in order to “secure the ends of justice”. In a well-reasoned decision in A. K. M. Reazul Islam v State,57 the High Court Division held that the Court “should not put its hands off” when no remedy in law is available to the accused, but rather intervene so as to serve “the cause of justice”.58 This decision indicates that a justice-conscious and willing Court may discover appropriate legal technology to secure citizens’ liberty even in the face of restrictive legal provisions.

54

Here, reference can be made to a decision by the High Court Division in Afzalul Abedin and Others v Government of Bangladesh and Others (2003) 8 BLC (HCD) 601, striking down the Public Safety (Special Provisions) Act 2000 (PSA). In this case the Court considered a complete ouster of judicial power to grant bail (PSA, s. 16) a breach of constitutional due process (per Aziz, J., at p. 643) and of the principle of judicial independence (per Huda, J., at p. 671). 55 (2008) 60 DLR (AD) 82, 89. 56 That this threshold had negative implications soon became clear in Ali Ahsan Mujahid v State (2008) 60 DLR (HCD) 60, where the accused unsuccessfully sought bail on the ground of ‘malice’ in prosecuting him. The Court refused to grant him bail reasoning that “allegation of mala fides [...] can not be readily accepted” and is a matter of proof at the trial”. 57 (2008) 13 BLC (HCD) 111. (Judgment 3 December 2007). 58 Ibid., at p. 119, paragraph 44. In invoking its inherent jurisdiction, the Court was prompted by the fact that the authorities failed to finish investigation against the accused within the EPR-prescribed time, a failure which, the Court held (ibid., at para. 45), gives rise to an implicit right to seek bail.

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6.3.2 Bangladesh v Sheikh Hasina (2008) The next important case that highlights the issues of proper judicial role and judges’ dilemma during Emergency is Bangladesh v Sheikh Hasina (2008)59 in which the Appellate Division has, not un-controversially, held that the retrospective operation of the EPR 2007 concerning the trial of specified criminal offences is not unconstitutional. The case arose from a judicial review at the High Court Division, Sheikh Hasina v Bangladesh, 60 in which the petitioner, a former Prime Minister, challenged the legality of a governmental order putting within the purview of the EPR the trial of a criminal charge brought against her for an alleged offence that pre-dated the promulgation of emergency. The effect of this governmental action was that Ms. Hasina was effectively deprived of the right to seek bail. The EPO [s. 3(3a)] authorised the government to initiate special measures to effectively and speedily conduct any investigation, trial, and appeal regarding any offence during the continuance of Emergency, and provided that any byelaws (Rules) made in this regard may be given retrospective operation. Accordingly, rule 19Neo (19E) of the EPR provided that the government may sanction the placement within ambit of the EPR any case concerning offences under certain laws. The High Court Division found the language of these provisions “clear and unambiguous” and concluded that they contemplated only retrospective operation of the byelaws (‘Rules’) and did not clearly authorize trial of offences committed before the promulgation of Emergency. 61 Importantly, it further embarked on the prohibition of ex post facto laws in article 35(1) of the Constitution and examined whether or not the curtailment of judicial power by administrative legislations is constitutional, and concluded that the retrospective operation of the EPR to conduct trial of pre-Emergency offences was unlawful.62 The Court then quashed the criminal proceeding against the petitioner Further, the Court declared that the restrictive rules no. 10(2), 11, and 19D of the EPR ousting its power to grant bails were unconstitutional for breaching the constitutional right to life and the guarantee of equal legal protection.63 It asserted forcefully that “[e]mergency has not curtailed [its] power and authority … to deal with the bail and other matters in

59

(2008) 60 DLR (AD) 90. (2008) 13 BLC (HCD) 121. (Judgment 5 February 2008). 61 Ibid., at p. 123. 62 Id. 63 Ibid., at pp. 144-45. 60

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accordance with existing laws in force”. 64 The Court also qualified the extent of application of constitutional emergency provisions, arguing that, by virtue of article 26 of the Constitution which prohibits lawmaking breaching fundamental rights, any Emergency-law that breaches inviolable fundamental rights is liable to be adjudged unlawful.65 The reasoning that the HCD advanced in its judgment was logically attractive and was premised on constitutional values and the Constitution-inspired judicial role perception. The Court remarked that having taken an oath to ‘preserve, protect, and defend’ the Constitution they had an ‘extra’ duty to examine the Constitution-compatibility of executive actions when citizens’ rights are at stake even during emergency.66 On appeal, however, the Appellate Division followed quite a different path, allured by a merely textual interpretation. It found that the constitutional prohibition as to operation of ex post facto laws concerned only ‘conviction’ or ‘sentence’, and not the trial of the offence concerned.67 It argued that since the government applied the EPR only for the purpose of trial of an offence and since the EPR did not create any new offence in retrospection, there has been no violation of the rule against ex post facto criminal laws as provided for in the Constitution. 68 The Appellate Division also bashed the High Court Division for not following the principle of judicial minimalism, i.e., for embarking on issues which it 64

Ibid., at p. 148. This reasoning resembles the Pakistani Supreme Court’s view in Sardar Farooq Ahmed Khan Leghari and Others v Federation of Pakistan PLD 1999 SC 57, 76, that despite the ousting of the Court’s jurisdiction by ‘emergency’, the Court has jurisdiction to examine the compatibility of any exercise of state power with the Constitution/statute. 65 Ibid., at p. 142, para. 42. 66 Interestingly, the Court distinguished their duty to “protect and defend” the Constitution from their Indian and Pakistani counterparts’ duty to “uphold” the Constitution. This distinction reflects the Court’s readiness to exercise judicial vigilantism in times of extra-ordinary political situations like an emergency. In the Court’s words (ibid., at para. 48), the duty to ‘defend’ the Constitution, in addition to protecting it, cast upon the judges an additional duty to “‘read and apply’ the provision of the Constitution strictly” when a citizen’s rights are infringed. See also Sen (2008). 67 (2008) 60 DLR (AD) 90, at p. 100. 68 Notably, the Court boosted its reasoning by relying on identical comparative constitutional decisions. The Appellate Division (at pp. 100-01) particularly relied upon Rao Shiv Bahadur Singh v State of Vindhya Pradesh AIR 1953 SC 394 in which the Indian Supreme Court interpreted Art. 20 (1) of the Indian Constitution, the words of which correspond to those in article 35 (1) of the Bangladeshi Constitution, as having prohibited only ‘conviction’ through ex post facto laws.

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thought were not necessary for resolving the case in question and also for giving ex gratia relief. It is submitted that the Appellate Division’s objections and disapprovals rest mostly the above technical grounds and are of doubtful justification. It did not appreciate that it was nearly impossible for the High Court Division to determine the legality of the assailed decision without determining the constitutionality or otherwise of retrospectively applying the EPR to try pre-Emergency offences.69 On a plain reading of the Constitution disassociated with concerns for justice and fairness, the Appellate Division’s interpretation that the constitutional prohibition of ex post facto laws does not apply to a procedural law may seem blameless. The interpretation is, however, fraught with logical un-sophistication, and is open to question on a number of counts. First, the Appellate Division ought to have noticed that the law did not in express words provided for retrospective operation of the EPR even for mere trial of offences. Second, the Appellate Division ignored a strong and sophisticated argument of the High Court Division that EPR’s retrospective operation effectively deprived the accused of her/his right to seek bail under existing statutes, which cannot be taken away by a subordinate legislation like the EPR. The Appellate Division’s response was that the accused does not have a right to ‘bail’; bail is a mere privilege. This reasoning appears to have missed the distinction between the right to obtain a bail and the right to access the court seeking bail, and to have sidelined constitutional implications of the wholesale statutory prohibition of bails. Denying the accused the right to seek bail doubtless runs counter to the constitutional value of equal protection of law and to human dignity. Thirdly, the Appellate Division’s endorsement of retrospective operation of the EPR could be avoided in light of the possibility of violence to the norm of fair trial, as the defendant may consider himself deprived of ‘justice’ and legal security. The Appellate Division failed itself in understanding the constitutional objection concerning the underlying political objectives behind the selective or individuals-based enforcement of the emergency laws. It will not be out of place to quote Justice Jackson in the Supreme Court of the United States who famously observed in a 1949 case that “[c]ourts can take no better measure to assure that laws will be just than to require that laws be equal in operation”.70 The Appellate Division in the above case apparently failed to require the law to be applied equally. Just and equal 69

As a further example, the Appellate Division bruised the High Court Division for quashing the criminal proceeding traveling beyond its powers, although such quashing is within the ambit of its judicial review power. 70 Railway Express Agency Inc v. New York 336 US 106, 112–113 (1949).

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application of the law is a basic pillar of the rule of law itself (Bingham 2007: 75), and this altruistic principle of constitutionalism was missing in the Appellate Division decision in Sheikh Hasina.

6.3.3 Advocate Sultana Kamal and Others v Bangladesh (2008)71 In this public interest litigation, three eminent citizens of the country challenged the constitutionality of certain provisions of the Emergency Powers Ordinance 2007, and the EPR. It is interesting that these public interest litigators did not challenge the state of emergency as such, nor the constitutionality of the EPO as a whole. Presumably, these and other legal activists had for their further action been waiting for a more appropriate time to come. In late 2008, thus, full-fledged challenges to the constitutionality of Emergency provisions made their way up to the Court, which we discuss below. The Court invalidated section 5 of the Emergency Powers Ordinance 2007 that precluded judicial review of any executive order issued under any Emergency laws.72 The Court also declared unlawful some provisions in the EPR 2007 that either limited or pulled off the judicial power to grant bails, to hear appeals from interim lower court orders, and to suspend sentences.73 Although the Court stopped short of striking down the 2007 Emergency as unconstitutional, it observed that emergency can not legally continue for an indefinite period.74 In essence, the Court here addressed the question whether the President’s ‘satisfaction’ about the existence of reasons for imposing emergency is subject to judicial review, and seems to answer the question in the affirmative.75 Notably, there already is in place a series of decisions holding that President’s satisfaction as to the need for promulgating an Ordinance when Parliament is not in session is justiciable. 71

(2009) 14 BLC (HCD) 141 (judgment 04 December 2008). Against this decision, the government quickly appealed to the Appellate Division and obtained a stay of the decisions’ efficacy. 73 See rules 11(3), 19Gha and 19Uma of the EPR 2007. Rule 11(3) barred any appellate court from staying any sentence given in any corruption case and granting bail to anyone accused in a case under the EPR. Rule 19Gha barred the accused in any EPR-case from seeking bail in any court at any stage of the proceeding, while Rule 19Uma prohibited appeals against judicial orders or administrative decisions concerning the case. 74 (2009) 14 BLC (HCD) 141, at pp. 190-91. 75 Cf Abdul Baqui Baluch v Pakistan (1968) 20 DLR (SC) 249, in which the Pakistani Supreme Court held that once a proclamation of emergency had been validly issued, the question whether conditions for emergency ceased and the emergency needed to be withdrawn was not for the Court to decide. 72

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However, a more fine-grained argument in favour of judicial reviewability of President’s satisfaction as to the existent/emergent conditions for emergency remains due. It is worth noting here that according to a leading Bangladeshi constitutional authority, the validity of the proclamation of emergency can be challenged on the ground that there was no satisfaction at all or that it was wholly in bad faith or based on totally irrelevant or extraneous grounds (Islam 2002: 320). Further, in striking down the emergency law provisions denying the accused the right of bail, the Court observed that right to petition the court for bail is a fundamental right, which can not be infringed “even during war”. 76 Its reasoning appears to be informed of the principle of constitutionalism, i.e., constitutional limits of each state organ, and of the overriding values of constitutional fundamental rights. As the Court observed, although the proclamation of emergency enables the state to enact laws affecting certain but not all fundamental rights, the Supreme Court has the legitimate power to review the constitutionality of the laws and actions taken during emergency. 77 This reasoning has thus further advanced the High Court Division’s reasoning in Sheikh Hasina (above) that the State bears a continuous obligation not to breach fundamental rights while making laws.

6.3.4 The cases of M. Saleem Ullah (2008) and M. Asafuddowla (2008) In M. Saleem Ullah and Others v Bangladesh (2008),78 a public interest litigation, a well-known PIL-initiator challenged the constitutionality of the EPO 2007 and the EPR 2007. After a preliminary hearing, the High Court Division issued a rule nisi asking the government to explain why the proclamation of emergency and the suspension of fundamental rights should not be declared unconstitutional. 79 The Court also directed the government to let them know of how and when it was planning to handover powers to elected representatives, and observed that the promised handing-over of power must be transparent.

76

This echoes Lord Atkin’s dissent in Liversidge, above n. 2, holding that law should speak the same language amidst the clash of arms. 77 By resorting to the principles of constitutional supremacy and separation of powers which the Court held are basic structures of the Bangladeshi Constitution, it held: “None in the state can go beyond the Constitution [....] even during war”. 78 Writ Petition No. 5033 of 2008, per K. I. Chowdhury and M. H. Ahmed, JJ. 79 By an order of 14 July 2008.

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While M. Saleem Ullah was awaiting final determination, in M Asafuddowla and Others v Bangladesh (2008), the last challenge concerning Emergency,80 three public-spirited citizens challenged the constitutionality of the constitutional provisions enabling the President to declare a state of emergency, apart from specifically challenging the Emergency Proclamation Orders 1 & 2 of 2007 that respectively stayed the constitutional right to enforce fundamental rights guaranteed by the Constitution, and stripped the Supreme Court off its authority to decide upon pending petitions involving fundamental rights.81 In effect, in this constitutional petition based upon arguments of constitutionalism and democracy as particularly enshrined in the Preamble to the Bangladeshi Constitution, the litigants challenged the vires of the Constitution (2nd Amendment) Act 1973 that inserted to the Constitution provisions concerning the state of emergency. A convinced Court issued a rule nisi against the government asking it to explain why the imposition of the 2007 Emergency suspending the enforcement of constitutional rights as well as the constitutional provisions vis-à-vis Emergency would not be declared unconstitutional. The case thus brought to the Court a chance to reflect upon this fundamental constitutional issue 35 years after the constitutionalisation of provisions for Emergency. Before the Court could hear the case, the state of emergency was withdrawn, leaving it with a challenge of choosing between refusing to decide the question on the ground that it has been rendered ‘academic’ by change of circumstances and deciding the issue as a fundamentally public law question. 82 The question whether enabling provisions in the Constitution concerning the state of emergency is constitutionally legitimate can never become a moot question, since Emergency in effect negates the Constitution itself.83 80

A Writ Petition of 24 November 2008. These Proclamation Orders, promulgated respectively on 11 & 13 Jan. 2007, simply invoked article 141C of the Constitution. See above notes 5-6 and the accompanying text. 82 See Bangladesh Italian Marble Works Ltd v Bangladesh (2006) (Special) BLT (HCD) 1, in which the Court embarked on the issue of legality of a past martial law regime. Constitutional courts elsewhere are increasingly building up a jurisprudence that supports judicial determination of issues which concern public law questions, even if they are rendered ‘academic’ for the concerned parties before the Court. See, e.g., Secretary of State v Sakthevel Prabakar, Misc. Proceeding No. 18 of 2003 (Civil) (HKCA, 3 October 2003, per Bokhary, J.). 83 Khan’s (2007: 49) forceful argument is worth noting: “The state as a legitimate association ceases to exist when the law or laws, which found it, cease to exist. ‘No person shall be deprived of life or personal liberty save in accordance with law,’ (Art. 32) and ‘All citizens are equal before law and are entitled to equal protection 81

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6.4 Judicial role during the 2007 Emergency: A critique The above shows that judicial responses to the 2007 Emergency regime in Bangladesh in terms of protecting fundamental constitutional values, including individuals’ autonomy, are a mixed bag of assertion, passivity, and abdication or submission. For example, alongside mostly conservative judicial decisions during the period under review here, there had been some decisions with significant positive implications for constitutionalism. The Court, however, seemed more confident in asserting its authority regarding issues that did not directly concern the legality or efficacy of the emergency regime.84 To make a note of once such decision, the HCD in Md. Idrisrur Rahman v Bangladesh 85 adjudged unconstitutional the Supreme Judicial Commission Ordinance 2008 on the ground that the Ordinance breached the constitutional principle of judicial independence by providing for a Commission with majority members being outside of the judiciary. In Pirjada Syed Shariatullah v Bangladesh,86 handed down amidst the state of emergency, the High Court Division held that the President’s Ordinance-making power must closely conform to the Constitution, and his satisfaction as to the existence of circumstances necessitating the promulgation of an Ordinance is subject to judicial review.87 Interestingly, in deciding the cases concerning emergency the two Divisions of the Supreme Court took largely differing approaches. While the High Court Division of the Supreme Court employed a dynamic interpretation of the Constitution in most if not all cases concerning the Emergency laws, its Appellate Division followed a formalistic and conservative method of constitutional construction and sometimes overly interfered in judicial freedom of the High Court Division. The Appellate of law (Art. 27) are two such laws. It is important to realize that they do not stand on an ostensibly adopted Constitution that founds a State. On the contrary, it is the state itself that rises or falls with them.” 84 See, e.g., also Shahabuddin Chisti v RAJUK (2009) 61 DLR (AD) 73, in which the Court endorsed the government’s right to acquire personal property for the preservation of environment. 85 Writ Petition No. 3228 of 2008. 86 (2009) 61 (DLR) (HCD) 647. 87 The Court invalidated the Muslim Marriages and Divorces (Registration) (Amendment) Ordinance 2008, on the ground that it was not inevitable for the discharge of duties by the Care-taker government as mandated by the Constitution. Similarly, in Md. Shamsul Hoque and Another v Bangladesh, a Writ Petition of 2008, the Court through its 24 July 2008 decision declared the Contempt of Court Ordinance 2008 unconstitutional.

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Division’s approach stands at odds even with its previous style of legal interpretation involving issues of fundamental rights and constitutionalism. In almost every single decision, until at the very last hours of the Emergency regime, the Appellate Division unveiled its policy preference for not interfering with the executive, although in the wake of democratic transition it reluctantly but appreciably opened a little space for liberal interpretations particularly in granting bails of the accused facing prolonged detention.88 It is unclear whether the Appellate Division wanted to extend, in a legal way, some measure of legitimacy to the allegedly extra-constitutional emergency government so as to support the latter’s purportedly noble mission of institutionalizing democracy, or it became subjugated to the external pressure coming from the military-baked government that imposed Emergency. A pertinent question is whether the political-constitutional contexts giving birth to the 2007 Emergency did not influence judicial responses assessed above. Taking of account of local social specificities is what the theory of judicial constitutional activism requires of judges willing to improve constitutional justice. This demand from the judges, however, needs to be distinguished from their complicity in subverting the Constitution itself by unduly deferring to the emergency-government. 89 The Appellate Division either ignored or seriously under-read the colonial pattern of the emergency (Khan 2007), 90 while it over-emphasised the government’s declared objective of restoring democracy. Judges in an emergency-laden country must strike the delicate balance between respecting internal security concerns and protecting the rights of citizens and constitutional values. There has always been some impact of any regime or political change upon law, courts and judicial elites (Schmidhauser 1992: 223-33). The developmental history of judicial activism vis-à-vis democracy in South Asia, as seen above in chapter 3, testifies to this. 91 It is undeniable that the Court during the 2007 88

Surprisingly, there was not even any dissenting opinion in the discussed cases of doubtful logical correctness. 89 As Kentridge (2003: 42) puts is, “[s]ometimes there will be pressure on the judiciary to pay special heed to the difficulties of government. [...] [A]ny yielding to such pressures, whether on the plea of avoiding chaos, preserving peace or some lesser ground, may be the first step on a slippery slope. Such pressures whether from government or the press or sections of the public must be valiantly resisted.” 90 See further, Posner and Vermeule (2006). 91 Political environment’s impact on activist judicial decisions can be explicated by a reference to two decisions of the Bangladesh Supreme Court. While in Abdus

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emergency had to work under tremendous political pressure. 92 The effective protection of rights and principles of constitutionalism largely depends on the existence of judicial freedom. Nonetheless, judges charged to dispense justice and with oaths to uphold and defend the constitution can not abdicate their duties altogether, pleading limited judicial power during over-bearing regimes. Why is it that the Appellate Division throughout the emergency regime played an executive-minded role? There are allegations that the current regime created an atmosphere of fear and humiliation for the top judges which allegedly compelled them not to ‘speak’.93 The question, then, is how one should evaluate the legal reasoning that underlies the Appellate Davison’s excessive deference and reprehensible decisional silence. On the other hand, a deeper analysis of the decisions of the High Court Division that asserted constitutional authority against the legal misuses by the ‘emergency-government’ suggests that a willing and able court, informed of the limitations of legal formalism and mechanical adjudication, can protect values of constitutionalism even amidst a hostile or crisis-type political environment. An investigative mind might ask how the judges in the High Court Division overcame the threat factor. To be cynical, they probably took the advantage of the fact that their assertion or otherwise would be subject to appellate scrutiny, thereby shifting the risk of executive retaliation. Optimistically, however, their vigilantism might be explained by their willingness and perceptiveness.

6.5 Post-emergency new judicial activism Following the withdrawal of the emergency and after the instalment of a new democratic government in 2009, the Bangladeshi top judges seem to

Shukoor Dada v The State (1976) 28 DLR 441, decided during an undemocratic regime, the Court glorified martial law by treating it as a “known concept” of jurisprudence, in Bangladesh Italian Marble Works Ltd v Bangladesh (2006) (Special) BLT (HCD) 1, decided during a democratic era, it adjudged martial as ‘no law’. On the influence of the nature of political regimes on judicial behaviour in India, see a recent work by Shankar (2008: chs. 1-2). 92 Immediately after his retirement, a judge of the High Court Division remarked that “the Supreme Court had to function under ‘severe stresses’ arising from the profound crisis in the public life created by the absence of democracy and the curtailment of people’s fundamental rights during the last two years of unelected government [i.e., during the emergency]” (Rashid 2009: 10). 93 There has been some rumour in the air that government posed threats of bringing corruption charges against some Appellate Division judges.

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be increasingly regaining their constitutional agency in order to overcome the crisis of public confidence in the judiciary incurred during the emergency. This post-emergency period can to some extent be likened with that of India that gave birth to the most powerful and activist court in the world and also with Pakistani Supreme Court’s post-emergency (2009 onward) new activism.94 The Supreme Court of Bangladesh in recent times has been issuing activist judgments in the protection of fundamental rights and the principles of constitutionalism (see chaps. 4-5 above) with novel remedies and policy suggestions having been issued. For example, as already mentioned, it is in this post-emergency period that judicial declaration of unconstitutionality of martial law has emerged and the Appellate Division confirmed the High Court Division’s invalidation of the 5th Amendment that constitutionalised a martial law regime.95 Further, unlike earlier suo motu interventions solely in the area of criminal injustice, it has also recently unconventionally acted on its own in other areas of constitutionalism by issuing mandamus and prohibitive orders.96 We have also seen renewed court activism in post-emergency PILs (ch. 5.5 above), in which the Court set out to augment the post-verdict-supervision and to create an atmosphere of cooperation with the administration and civil society members including experts. To conclude, this chapter has in effect shown that, in addition to the atmosphere of judicial subjugation and other background factors that often influence the judge’s mind, it is the embracement by judges of legal formalism, whether ignorantly or deliberately, that may count for their passivity and intolerable silence during difficult times such as an 94

For example, in Sindh High Court Bar Association through its Secretary v Federation of Pakistan, Constitutional Petitions 8 & 9 of 2009, the Supreme Court declared unconstitutional the imposition of emergency on 3 November 2007 and the Provisional Constitution Order. Somewhat unconventionally, the Court observed that “no validation, affirmation or adoption of unconstitutional … acts of a usurper of power could be made by … Parliament”, assertions which come close to establishing the doctrine of basic structure. 95 See the cases of Khondker Delwar Hossian and Siddique Ahmed, chap. 4.6.4 above, at nn. 190-191. 96 See, for example, Government of Bangladesh v Ministry of Home Affairs and Others (2008) 16 BLT (HCD) 264 (a suo moto intervention following the death of a college student from an accident, in which the court directed the government to install speed governor in all vehicles as per the Motor Vehicles Ordinance 1985), and Seema Zahur v State, Crim. Misc. Rule (suo motu) No. 10541/2008 of the High Court Division (protecting a dumb woman victim against unlawful incarceration in prison).

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emergency. It can also be claimed that the judiciary’s pro-establishment role during the past undemocratic regimes (1974 to 1990) in Bangladesh has produced some negative impact on the state of judicial abdication of duties examined above. The next chapter analyses factors that might retard or promote principled and sensitised judicial activism.

CHAPTER SEVEN OVERCOMING THE BARRIERS OF JUDICIAL AGENCY: CHANGING DISCOURSES OF REMEDIAL EXPANSION AND COMPARATIVISM

Still focusing largely on Bangladesh, the principal aim of this comparative chapter is to prepare a more detailed analysis of certain juridical means that may strengthen judicial agency. The first part analyses various barriers to the effectiveness of judicial power, drawing on comparative jurisprudence examined in chapter 3, especially that of India. While positivism-focused, legocentric legal training has stifled the consistent growth of an activist jurisprudence in Bangladesh as well as elsewhere, the Indian judiciary has marvellously overcome this barrier by introducing conceptual shifts into its legal thinking and thereby refusing to blindly adopt Western-dominated legal theory. Apart from traditional legal training, another conceptual barrier appears to be the avoidance of international human rights standards in domestic adjudication. Alongside an analysis of these negative conceptual factors, particular attention is given to the much-discussed institutional factor of judicial non-independence. The remaining two parts of this chapter specifically cover those factors that may lead to strengthening of judicial agency. As seen in chapter 3, courts across the world have been developing certain means, particularly the expansion or innovation of certain remedies, by which to deliver improved justice. Chapter 3 demonstrated how the imperatives of specific local conditions persuaded particularly the Indian and South African judges to craft a constitutional jurisprudence of ever-widening social rights remedies. It can also be shown that the post-HRA human rights awareness in the UK has led the British judges to issue more effective remedies than before. Apparently, there is an increasingly evolving common judicial policy of delivering effective remedies which, the present chapter argues, potentially enhances the agency of any particular judiciary.

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Built on such evidence of increasing global judicial empowerment, the second part of the present chapter specifically focuses on the novel remedy of public-law compensation as a tool of ensuring better public accountability. The discussions in this chapter eventually draw us to the issue of the utility of legal borrowing or legal comparativism. In today’s globalising world, the question for any judiciary is not whether to draw on legal developments elsewhere but what and when to compare. The final part of this chapter therefore develops a framework of judicial legal comparativism as a conceptual and practical instrument of increasing judicial power to improve justice, providing important empirical evidence. It urges for national context-specific comparativism based on justiceenhancive commonness among jurisdictions, not blind borrowing from others.

7.1 Factors retarding judicial activism The adoption by any particular judge or judiciary of an activist role may in practice be impeded by a number of often intertwined factors. The factors that typically retard judicial activism may be factors internal to the judge’s behaviour pattern, philosophy or intellectual understanding of the law and his/her role, or to the judiciary’s internal environment, as well as factors external to the judge or the judiciary such as resource-constraints and political environment. Drawing of a neat and exhaustive catalogue of factors that impede judicial activism is almost impossible. Moreover, the degree of inhibiting force of these negative factors is context-specific, and is variable along the line of courage, creativity, and pragmatism of judges. For example, while the executive’s non-respect for court decisions is a cross-country problem of judicial activism, some judiciaries have attained more competency and efficiency than others in tackling their defiant or deviant governments. Below, I analyse, mostly from the Bangladeshi context, how judicial non-independence and other conceptual and practical factors might deter or significantly militate against judicial activism.

7.1.1 Institutional factors: The case of judicial non-independence This sub-section reflects on the impact of judicial non-independence on judicial activism, instead of detailing theoretical nuances of the elastic concept of judicial independence which lacks a general theory or a common definition despite a universal recognition of its normative character (Russell 2001). Accordingly, scholars have sought to identify

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certain core features of judicial independence such as security of tenure, financial security, functional independence of individual judges, and institutional independence of the judiciary as a whole. The key idea here is to develop a framework where judging is entrusted to a neutral “third” (Shapiro 1981: 1) who can apply the law objectively, disinterestedly and without fear and fervour, even against the government. Larkins (1996: 59) has described this in the form of two necessary traits of judicial independence: impartiality1 and “political insularity” (Fiss 1993: 59).2 It must however be noted that, unless further explained and improved, the above line of exploration of the notion of judicial independence may immediately fall victim to a traditional notion of separation of powers that sees judicial activism and judicial independence in a dialectic setting (ch. 2.2). Thus, even though ‘political insularity’ in a wider sense refers to the idea of an all-out protection of judges from any kind of retaliation or harassment for their decisions, a wider definition of judicial independence conducive to judicial activism is inevitable. Larkins (1996: 610), therefore, rightly adds a third element to the above-mentioned two necessary attributes, namely the scope of the judiciary’s institutional authority vis-àvis other parts of the political system and society. Larkins’ (1996: 611) more accurate definition of judicial independence emphasises “a judicial branch which has the power as an institution to regulate the legality of government behaviour, enact ‘neutral’ justice, and determine significant constitutional and legal values”. Inclusion of ‘justice’ in this definition is no doubt distinctive, but the prefix ‘neutral’ leaves it unclear whether judicial emphasis on justice for marginalised social groups by imposing obligations on states and through a liberal judicial process like PIL would be neutral or partisan. One would certainly do better by inserting within the above definition a judicial ability to force the state to perform its constitutional responsibilities in ensuring social and political justice, beyond merely noting judicial power to prevent arbitrary state actions. From a wider perspective, liberalised ‘access to courts’ (Bond 2006: 63), and a broader judicial authority over all “issues of judicial nature” (The Syracuse Draft Principles On the Independence of the Judiciary 1981, cited in Shetreet and Deschenes 1985: 421) or to engage in fact-finding (Shetreet 2000: 156) are important elements of judicial independence.

1

The objectivity of the judge, an integral part of judicial independence, is difficult to define and attain but not impossible, and there are internal limits in a legal system that set the framework for such objectivity (Barak 2006: 104-5). 2 ‘Insularity’ in the sense that judges should not be used as tools to further political aims nor punished for preventing their realisation (Larkins 1996: 609).

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However, we lack universal standards or parameters for measuring judicial independence as broadly conceived in the above manner. Even the most forthright and personally impartial judges may not be able to assert their authority in a state where the judiciary either enjoys no independence or is substantially interfered with by the executive. The judiciary in Bangladesh during military and emergency regimes bears ample witness to this (chapters 4 & 6). By contrast, even despite apparent political insularity (in terms of security of judges’ service and ostensibly lawful judicial appointments, for example), a judiciary may still incur substantial nonindependence arising from certain less visible inhibiting factors that may exist in a given political society, which as we will see below is the case now in Bangladesh. Indeed, judicial ‘authority’ to a large extent depends on the creativity, intellectual foresightedness and personality of individual judges and the judiciary as a forum, as well as on the public confidence in the judiciary or its judges. Therefore, what appears to be needed is a combination of formal constitutional guarantees and real socio-politicolegal incentives for judicial independence. The fluidity of the variables of judicial independence notwithstanding, the existence of judicial institutional non-independence is nevertheless capable of detection. It can be seen in myriad forms such as covert and overt political interference, court-packing, or the executive’s retaliation against or blandishments of the judiciary. It is in this context that the argument of judicial non-independence as a deterrent to judicial activism is analysed here. There is now a growing literature concerning the interface between judicial independence on the one hand and democratisation, the rule of law, rights-protection, the intensity of judicial review, and the quality of courts on the other (Lamer 1996; Herron and Randazzo 2003; Berkowitz and Clay 2006; Bond 2006). In a fascinating study concerning judicial activism in post-communist central and eastern European states, Bond (2006) shows that judicial independence is positively co-related with the frequency of judicial review, which ultimately increases judicial power. Though context-specific, these findings offer valuable assistance in understanding, testing and reshaping general theories about constitutional adjudication or judicial activism from wider perspectives. The positive interface between judicial activism and judicial independence is clearly borne out by empirical evidence from South Asia (ch. 3.5; ch. 4) and elsewhere, although there is no systematic study about the impact of judicial independence on judicial activism. Chapter 3 showed that Indian judicial activism emerged as a post-Emergency phenomenon, largely facilitated by the removal of political clutches over

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the judiciary and by the judiciary’s own realisation about its role as an independent institution. It was also demonstrated how the Pakistani judiciary’s shift towards a state of passivity and reticence is linked with judicial non-independence under the recent-past non-democratic regime. Similarly, judicial activism in Bangladesh is principally a post-autocracy phenomenon (post-1990). This catharsis and the post-emergency new judicial self-realisation as assessed in chapter 6 above are comparable to the post-1977 Indian scenario,3 which reinforces the importance of judicial independence for the growth of judicial activism. 4 Notably, however, despite the formal constitutional guarantee of independence, activism by the senior judiciary in Bangladesh has not yet attained operational sophistication (chs. 4-5), which probably suggests that the Bangladeshi Supreme Court still suffers a significant degree of non-independence. With the increase in judicial activity that entails politico-legal consequences for the government and with the recent dramatic increase in political importance of the Supreme Court of Bangladesh, 5 successive modern governments have indulged in various overt and ingenious actions to manipulate, or exert political influence on it.6 These include: import of political considerations into the judicial selection process, wide and nontransparent political discretion in appointing High Court Division judges to the Appellate Division and in appointing the Chief Justice, the misuse of the ‘convention’ of consulting the Chief Justice while appointing ‘additional’ judges or when confirming their service,7 and the secondment or post-retirement appointment of judges to various constitutional and

3

For theoretical insights into how institutional instability affects judicial behaviour under dictatorship and democracy see generally Helmke (2005). 4 Accordingly, the existing pattern of judicial over-passivity by lower courts in Bangladesh, which often leaves growing injustices in the country’s criminal justice system un-redressed, can be largely attributed to institutional non-independence of the Bangladeshi junior judiciary. For a relevant report see Ashrafuzzaman (2006). 5 Initiated mainly by the new system of caretaker government. See note 15 below. 6 Farooqui (1996) captures aspects of political pressure on the Bangladeshi judiciary. 7 See article 95 of Bangladesh’s Constitution. Although the consultation obligation was deleted from the Constitution in 1975 (through the 4th amendment), consultation with the Chief Justice while appointing Supreme Court judges was being followed as a matter of convention until February 1994 when nine additional judges were appointed without such consultation. On appointments process in the Supreme Court, see generally Idrisur Rahman & Others (with Shamsul Huda & Others) v Bangladesh (2009) 61 DLR (HCD) 523.

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ostensibly quasi-judicial posts such as that of Election Commissioners,8 a practice that quietly suppresses judges’ activism. 9 The most notoriously deterring element appears to be the executive’s leverage over confirmation of the service of any particular judge after her or his provisional service in the High Court Division (Art. 98), 10 often in disregard of the Chief Justice’s advice. Of similar effect is the executive’s frequent disregard of the tradition of elevating the most senior High Court Division judges to the Appellate Division.11 To the extent that activist decisions might displease the government, it is likely that judges wishing to be confirmed in the service or to be duly elevated to the Appellate Division will prefer cautionism to activism. Accounts of insiders confirm that while some judges think that their appointments are correlated with their activist stance while at the Bar, others think that their non-confirmation as permanent judges or non-elevation to the Appellate Division are prices they had to pay for their activist decisions.12 8

Although judges’ appointments to the Election Commission (EC) are no more constitutional after the judgment in Ruhul Quddus v Justice M. A. Aziz (2008) 60 DLR (HCD) 511, post-retirement appointments of judges to some other offices are still being made. 9 As insightfully observed in Abdul Bari Sarker v Bangladesh (1994) 46 DLR (AD) 37, 41, this practice is very likely to tempt a judge aspiring for lucrative postretirement appointment to be influenced in favour of the authorities concerned. See further Malik (2003a: 34-6). 10 Although direct permanent appointments to either Division of the Supreme Court is possible under Art. 98, provisional appointments to the High Court Division for 2 years, followed by what is known as ‘confirmation’ as permanent judges, has become an established practice. Also, it is a practice to appoint Appellate Division-judges from amongst the High Court Division judges. 11 In S. N. Goswami v Bangladesh (2003) 55 DLR (HCD) 332, the Court, apparently from a highly technical stance, overstated the non-obligatory character of this convention (indeed refuted this as a constitutional convention). Almost in the same vein, interestingly, the High Court Division in a more recent decision on 26 October 2010 has held that appointing the most senior judge as the Chief Justice is not obligatory. Contemporary scholars like Elliot (2002) and Allan (1993: 244; 2003a: 182) suggest that constitutional conventions can be judicially enforceable. For contrary views see Jaconelli (2005). 12 See e.g. a report in the Prothom Alo, Dhaka, 10 April 2005, p.1, reporting allegations by a non-confirmed HCD judge that, among other activist decisions, one particular decision by him in a case where the concerned Minister for Law unsuccessfully appeared as a counsel resulted in non-confirmation of his service. In 2000, K. Shafiuddin, J. resigned and alleged that the then government on three occasions deprived him of being appointed in the Appellate Division apparently for one of his decisions that declared unlawful parliament-boycotting by the then

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There is yet another element, internal to the court administration, which entails a significant obstacle to the HCD-judges’ functional independence and hence to their activism. This is the Chief Justice’s personal administrative power to constitute or de-constitute any particular bench of the HCD, the court of original constitutional review jurisdiction.13 The potentiality of this aspect of judicial governance in deterring judicial activism at the HCD-level may be hidden but not unreal, and new evidence is emerging that the Chief Justice has in practice de-constituted certain activist High Court Division-benches. 14 The apprehension so registered is supported by a number of interlocked factors. First, the government retains enormous power to appoint the Chief Justice by superseding the most senior judge(s) of the Appellate Division and thus to empower itself to manipulate the judiciary through an arguably nonindependent Chief Justice. 15 Second, the Chief Justice is under no obligation to explain the reasons for reshuffling HCD benches. Third, there are neither formal criteria nor any judicial body to ensure transparency in this important function of the Chief Justice. It appears that despite the formal constitutional guarantee of judicial independence in Bangladesh, camouflaged political factors like those discussed above have created an atmosphere where judges are not fully free from fears of political retaliation, manipulation and harassment. The question, however, remains whether the judiciary can overcome such problems of judicial independence. Doubtless, mitigation of the factors of judicial non-independence in Bangladesh as depicted above depends on opposition party, which was now in power. The government, however, rejected this allegation (the Daliy Manavzamin, Dhaka, 10 November 2000). 13 Cases in the High Court Division are usually heard by two-judge division benches and exceptionally by a few single-judge benches. Access to the Appellate Division is only via appeals against decisions of the High Court Division (article 103). 14 Recently there have been several allegations from the Bangladesh Supreme Court Lawyers’ Association that the Chief Justice has deformed some HCD benches with judicial review power following their decisions disfavouring the government. While the leaders of the Association have their own political affiliation, these allegations are not baseless but rather substantial. See the Prothom Alo, Dhaka, 21 June 2006, p.1. 15 The politics of appointing the Chief Justice have become more intensified with the 13th Amendment to the Constitution (1996), providing that the immediate past Chief Justice (unless he/she declines or is unavailable) would lead the NonPartisan Care-taker Government [Art. 58C (3)-(5)] that is put in power during the interregnum between two elected governments, with a mandate to hold a free and fair national election.

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political will to abide by both the letters and spirit of the Constitution, which is not an imminent reality. In such a scenario, the judiciary’s assertion of its authority and autonomy, particularly when deciding cases touching the constitutional principle of judicial independence, would arguably have impacted on the executive’s behaviour vis-à-vis the judiciary. As well demonstrated in Masdar Hossain (ch. 4.6.3), while judicial independence is a precondition for judicial activism, a vigilant and activist judiciary in a democracy can capitalise on core constitutional principles and guarantees in order to consolidate judicial independence.

7.1.2 Non-institutional factors:16 Practical constraints and legal training There are many factors, practical, internal, external, and functional, that operate as constraints on errant or transgressing judges. For example, judges are legally required to give reasons (Ho 2000), a mechanism that enhances judicial accountability (Le Sueur 2004) and public acceptance of court decisions, and provides rationale for (activist) decisions. Also, judicial decisions are subject to the appellate process or, in case of the apex court, a majority endorsement. Moreover, judges’ training potentially restrains them from breaking institutional comity. 17 Kirby (2000) developed certain guiding principles, which are indeed systemic constraints, in order to help judges avoid excessive activism. He referred to “inclination” of any particular judge to become activist and to the constraint of the adversarial common-law “methodology” itself, while emphasising on judges being aware of their limited “opportunity” to take up issues and of their “need” to defer to other organs of state, when needed (Kirby 2000: 93-7). Moreover, the possibility of severe professional criticism, legislative override, and logical public criticism may prevent socially unacceptable judicial decisions. We are here not concerned with these desirable and legitimate constraints which do not eliminate judicial creativity, sought by critics of judicial activism (Thomas, E. W. 2005a:

16 This term is used here to mean non-organisational factors that, needless to say, are factors related to legal institutions. 17 Thomas, E. W. (2005a: 241-45; 2005b) discusses these restraints inherent in the judicial method rather than the texts of the law (ibid., 2005a: 227). See further Daley (2000).

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241). 18 Instead, below is an examination of imposed or self-imposed judicial restraints that affect judicial activism in the sense of this study. The imposed constraints are practical constraints, arising from legal, political, and social systemic structures, that operate as significant disincentives for activist judges. For example, lack of resources- monetary, structural and technological- as well as unavailability of sufficient time for judges due to excessive work-load are retarding factors that potentially reduce Bangladeshi judges’ capacity and willingness to be creative in dispensing justice. In this regard, one might wonder if want of staff and enough money has not been one of the reasons behind the Bangladeshi judges’ eschewal of activist strategies of appointing fact-finding commissions or judicial post-decisional monitors. On the other hand, political non-cooperation with the courts and the executive’s flouting of court decisions have impinged on their readiness to exercise activism, for example, through providing extraordinary remedies or issuing structural interdicts. After all, judges everywhere are by tradition fond of providing orders that are more likely than not to be complied with. Similarly, the social and institutional contexts of judging may also influence judicial activism (Tamanaha 2004: 225). In a system less receptive of judicial socio-political roles or where senior judges or the judiciary as a whole are dismissive of activist judging, judicial activism is more likely to be constrained.19 However, notwithstanding the externality of these negative factors, there is empirical evidence from many judiciaries, prominently that of India, that these barriers are removable or at least manageable by activist judges. For instance, while overburdening of dockets is as acute a problem in India as in Bangladesh, Indian judges consider speedy disposal of cases a matter of public interest and prioritise hearing of particularly PIL cases,20 a practice absent in Bangladesh. 21 This comparative evaluation equally 18

See further Rosenberg (1993: 9-21), analysing what restraintivists call constraints preventing courts from producing significant social change (or judicial activism). 19 As Freeman (1973: 181) put it, the legitimacy of judicial creativity in a society has to be understood in reference to “the shared expectations” in it which define the role of judges. 20 “It is in public interest that there should be early disposal of cases. Public Interest Litigation should, therefore, be disposed of at the earliest […]”: BALCO Employees’ Union v India (2002) 2 SCC 333, 383, per Kirpal, J. 21 For example, Salma Sobhan v Bangladesh, below n. 52, lingered for 9 years in the High Court Division. The average time needed for disposal of a PIL case is 5 years.

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applies to the areas of judicial resistance against a defiant executive and judicial post-decisional managerial engagement, where the resourceconstrained Indian judiciary’s performance is stimulatingly pedagogic (ch. 3.3). On the other hand, there are a number of self-imposed constraints derived mostly from rules of legal interpretation that put fetters on judges’ review power or prevent their activism. These judicially developed maxims of self-restraint (Abraham 1998: 386-410) are ubiquitous, albeit diverse. Kamal (1994) has catalogued some such maxims developed by Western judiciaries, showing how most of them have been applied by the Bangladeshi judiciary. These restraints, inter alia, include: (i) no judicial intervention unless there is a concrete controversy or ‘standing’; (ii) no challenge to law or action after reaping benefits; (iii) no constitutional remedy unless other remedies are exhausted; (iv) no remedy in case of unreasonable delay; (v) no judicial review if determination of disputed facts is involved; (v) doctrines of presumption of the validity of acts and of avoiding decisions on constitutionality if the dispute can be decided otherwise (Kamal 1994: 139-46).22 While some of these principles like the doctrine of presumption of validity of statutes positively contribute to the exercise of balanced judicial activism, most of them have the potentiality of significantly impairing judicial capacity to provide effective remedies in particular circumstances. For instance, the doctrine of judicial non-intervention when disputed facts are involved has often caused the Bangladeshi judges to remain passive on many serious issues. Also, the US-origin doctrine of non-intervention except for a concrete controversy or without requiring the claimant to prove ‘standing’ has long caused judges in Bangladesh to avoid assuming greater social and constitutional responsibilities. 23 Further, the rule of exhaustion of other remedies before invoking judicial review, too, has been applied rigidly in Bangladesh until recently, although the Constitution makes this rule inapplicable when fundamental rights are at stake [Art. 102(1)]. 24 22

On these and other doctrinal constraints such as the doctrine of non-justiciability of political questions, see Ferejohn and Kramer (2002), and Epstein and Walker (2004: 91-120). Ahmed (2010) argues that many English principles of judicial review do not quite match the needs of the Bangladeshi society. 23 Judicial abstract review or a broader standing rule is a recent trend in Bangladesh (ch. 5.4 above). 24 Appreciably, the court has been gradually, if not coherently, discarding its orthodox approach to the exhaustion rule when rights violations are at issue. Of a series of decisions showing this, see, for example, Faruque Hasan v Titas Gas Ltd

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It is to be noted that most of the above self-restraining maxims were developed as certain pro-establishment judicial review principles by Western judiciaries such as the English, with a view not to remedying personal wrongs but to preserving order in the legal system (Wade 1992: 47) by ensuring that public officers perform without being delayed by irresponsible or protracted lawsuits. 25 It remains, therefore, seriously questionable if such a pro-establishment approach to judicial review is appropriate in a jurisdiction like Bangladesh where public accountability is at a very low threshold and the existing conventional mechanisms to ensure it are largely flawed and inactive.26 While there undoubtedly is a need for checking irresponsible legal challenges against public functionaries in every jurisdiction, the need for more intensive legal control on public power is imperative in Bangladesh, where increased judicial activism should be a priority. Further, even the useful pragmatic self-restraining norms need to be continually contextualised. For instance, the doctrine of avoiding constitutionality decisions or the rule of judicial minimalism27 may not always be desirable in Bangladesh as there is a greater need for the judiciary not only to exercise substantive activism but also to adopt strategic activism by clarifying and disseminating constitutional values and thus to construct a strong base for future activism.28

(2006) 58 DLR (HCD) 316. But see Sheik Jahangir Husain v Bangladesh, unreported WP No. 3293/2004 in which a District Judge, who complained of a breach of his constitutional rights by his allegedly mala fide transfer, was forced to seek remedy at the Administrative Tribunal. This decision arguably stands as an affront to the concept of judicial independence. It should be noted that although Art. 102 (2) requires exhaustion of “equally efficacious remedy”, there is ample judicial discretion to disregard this bar since other remedies, if ever provided, are hardly as efficacious as those under Art. 102(2). 25 O’Reilly v Mackman [1982] 3 All ER 456. 26 Encouragingly, in Dr. Mohiuddin Farooque v Bangladesh (1998) 50 DLR (HCD) 84, 111, the Court noted the public interest function of judicial review in Bangladesh by highlighting its role in ensuring the protection of law for the citizens and the administration’s compliance with the laws of the land, a realisation that needs further and continuous judicial reinforcement. 27 From the US context, Molot (2004) attacked strict observance of this principle and urged for “principled minimalism” as a balanced jurisprudential stance. 28 As seen in chapter 4, the Bangladeshi judges have in some instances rightly overlooked this theory. See e.g. Kudrat-E-Elahi Panir v Bangladesh (1992) 44 DLR (AD) 319; Dr. Nurul Islam v Bangladesh (1981) 1 BLD (AD) 140 (K. Hossain, J. refused, in dissent, to strike down a law by applying this minimalism doctrine; S. Ahmed, J. concurred).

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Of course, the level of strength of the constraining forces largely depends on the judicial philosophy, background understanding and legal training of a particular judge. While legal training itself tends to inhibit excessive judicial activism (judges typically stand aware of limitations of their institutional capacity and adhere to values of judicial independence), uncritical legal training may make judges unduly wary of their limitations and induce them to blindly apply the existing constraints that may vitiate socially-relevant judicial activism. In simple words, depending on a judge’s willingness to innovate in the realm of judicial process or to intellectually refashion the existing juridical principles and her/his perceptions about the judicial role, s/he might be able to overcome the constraints that impede judicial activism. For Bangladeshi judicial activism, apart from the negative factors discussed in the previous two subsections, orthodox legal training that helps the judges maintain uncritical approaches to legal theory and principles is a potentially strong restraining factor.29

7.1.3 Judicial indifference to the value of international human rights norms Conservative and wary positions of the judges in Bangladesh and elsewhere in invoking international human rights norms are a potentially negative factor for judicial activism. In contrast, activist domestic judges across the world are increasingly using, with demonstrated benefits, the widely agreed international human rights standards. This gradually flourishing global trend is, however, marked by divergent national practices accruing from monism-dualism theories of international law application. Many courts nonetheless shy away from international human rights law. Judicial conservatism in embracing international human rights standards is fed by a number of factors, mostly by the judges’/lawyers’ deficient theoretical understandings and judicial misgivings about the domestic application of international law (Benvensiti 1993). The domestic judicial utilisation of international human rights norms is naively seen by some as an act of foreign domination or as ‘judicial incorporation’ of international human rights occasioning a breach of 29

However, broader views of the judicial role are not altogether absent. Rather, such views among some judges have ushered in contemporary Bangladeshi judicial activism, of which three hallmark decisions are: Anwar Hossain Chowdhury v Bangladesh (1989) 9 BLD (Spl.) 1; Dr. Mohiuddin Farooque v Bangladesh (1997) 17 BLD (AD) 1; Secretary, Ministry of Finance v Md. Masdar Hossain (2000) 52 DLR (AD) 82. See respectively ch. 4.5, ch. 5.1, and ch. 4.6.3.

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separation of powers. 30 These general accusations are part of a larger positivistic project that sees the business of judging as merely “a final act of automatons […] dispensing edicts based upon clear rules” (Kirby 1988: 529). That this is travesty of truth and judging nearly always involves making choices was shown in chapter 2. Therefore, an activist or “human rights judge” (Dyzenhaus 2004b: 3) seeking to improve justice would be justified in looking at international human rights standards for legal sources to inform and substantiate her/his decisions. There are other conceptual factors that generally contribute to the avoidance of international human rights norms particularly by domestic courts which follow the dualist theory concerning the domestic impact of international law. Most notorious among them is the deceptively straightforward dualist view that international treaty-based human rights norms are only ‘persuasive’ and not locally binding unless specifically incorporated into national laws.31 Also regrettably, even where customary international law is regarded as a directly applicable part of national laws,32 this notion has remained more of a judicial rhetoric than reality.33 Put differently, most dualist judiciaries adopt virtually an all-or-nothing approach to the domestic applicability of international human rights law, an approach that takes rights-protection and associated state obligations rather lightly and undervalues the desirability of harmonious interpretation between domestic constitutions and international human rights laws.34 Happily, the boundaries of the existing debate about the judicial application of international rights that marginalises the judicial role in this field are gradually shifting.35 Scholars like Moran (2004) are critical of the traditionalist view that everything else is persuasive which is not binding. Moran (2004: 389) adds an important insight into the debate by according an “influential authority”, which is an authority between binding authority 30 See further Knop (2000). Lillich (1990) supports ‘judicial incorporation’ as a legitimate approach. 31 This is not to say that there is no problem with monism. While monism rightly contemplates international law and domestic law as just two manifestations of one singular concept, ‘law’, monist judiciaries have also been largely conservative in enforcing or even drawing on international human rights. The attitude of the ‘monist’ US judiciary provides the best example of this, on which see Bayefsky and Fitzpatrick (1993) and Alam (2004). 32 Bangladesh adopted this in Bangladesh v Unimarine S. A. Panama (1977) 29 DLR (AD) 252. 33 On this see Bayefsky (1994: 363) and Blake (1998: 675). 34 I have further developed this elsewhere. See Hoque and Naser (2006). 35 Space constraints do not permit a detailed discussion on this debate. For details see, inter alia, Conforti and Francioni (1997), Brudner (1985) and Bahdi (2002).

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and ‘pure’ persuasive authority, to international human rights norms, since these contain a whole range of norms with relevance to the concerned domestic decision (pp. 389-91). However, neither Moran’s thesis nor the traditional ‘persuasive/binding’ binary approach to international norms focuses on the obligations that a state assumes under international conventions. I would, therefore, argue for a broader approach that supports an obligation on the part of a national judiciary, whose government has undertaken international human rights obligations, to draw on those international legal sources in order to improve the level of rightsprotection domestically. Once this interpretational obligation is accepted, it is for the judiciary concerned to devise appropriate ways of using international human rights norms. Undoubtedly, the greatest obstacle to the obligatory approach to the use of international human rights instruments would be the dualists’ dogma that unincorporated international conventions are non-selfexecuting (Conforti 1997: 7). Contemporary scholars like Higgins (1997) challenge this simplistic understanding of the national legal status of international human rights instruments, arguing that obligations expressed therein are of a special class, different from obligations of states per se. Moreover, when states assume international obligations they agree unconditionally to guarantee justiciable rights to individuals (Higgins 1997: 31), and certain human rights treaties are so fundamentally universal that norms contained therein have seemingly attained self-executing character. Importantly, domestic constitutional rights are rarely in conflict with, but rather identical to, international human rights. Further, most state constitutions including Bangladesh’s do not categorically require specific incorporation of international human rights. Thus, it is jurisprudentially and logically sound to argue that it is a judicial duty to read international conventions, not inconsistent but rather harmonious with the spirit of the domestic constitution, into domestic fundamental rights so as to strengthen constitutional guarantees.36 Despite ceaseless theoretical debates as briefly explored above, activist judges across the world, including those from Asia and Africa (Commonwealth Secretariat 1989; 2001), have remained cognisant of the valuable role of international human rights standards in advancing domestic constitutional rights (Kirby 1988; 1995; 2005). The dominant 36

See the Indian Supreme Court’s view in Vishaka v State of Rajasthan AIR 1997 SC 3011. The Sri Lankan Supreme Court has also adopted such a view. See Weerawansa v Attorney-General, SC Appl. No. 730/96 (Judgment of 3 August 2000), Sunil Kumara v Chandrananda de Silva [1997] 2 Sri LR 265, and Gomez and Gomez (1999: 42-50).

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orthodoxy of premising the use of international human rights law only upon the existence of uncertainty in domestic statutes is seemingly being replaced by a developing trend of using international norms on a more regular basis. Accordingly, irrespective of the existence of uncertainties in domestic law, several domestic courts have used unincorporated international norms for a number of purposes such as to enforce reasonableness in the exercise of administrative discretion particularly when human rights are concerned, 37 to guide the exercise of judicial discretion (Lacey 2004) with greater legitimacy (Kirby 1988: 526), and to enlarge the ambit of constitutional guarantees. How judicial activism in the sense of invoking unincorporated international human rights treaties can increase justice by compelling more humane administrative decisions is well illustrated by the Australian High Court’s famous decision in Minister of State for Immigration and Ethnic Affairs v Teoh,38 overruling the Minister’s refusal of permanent resident status to a convicted woman having three Australian-born children on the ground that her conviction amounted to lack of required good character. By arguing that ratification by Australia of an international convention is not to be dismissed as a merely platitudinous act, the Court relied on the principle of best interests of children enshrined in the UN Convention on the Rights of the Child (CRC) and held that Australia’s ratification of the CRC gave rise to an enforceable legitimate expectation that the concerned Minister would act in conformity with it. 39 In addition to using international human rights norms to illuminate judicial and administrative discretions, creative judges have also utilised them to expand remedies, to strengthen existing rights and to craft new rights.40 The Indian judiciary provides a series of good examples of these possibilities. For example, when framing detailed rules to regulate sexual harassment of women at

37

Even the traditional UK House of Lords emphasised the need for “the most anxious scrutiny” in the light of even unincorporated treaties when executive actions/discretions impinge on one’s fundamental rights: R v SSHD, ex p. Launder [1997] 1 WLR 839 (HL), 867, per Lord Hope. 38 128 ALR 353 (1995). 39 This is what has come to be described as the theory of ‘mandatory relevant consideration’ (Geiringer 2004: 73). The Teoh principle found support in a groundbreaking similar Canadian case, Baker v Canada (Ministry of Citizenship and Immigration) [1999] 2 SCR 817, recognising that values in unincorporated treaties may inform the contextual approach to statutory interpretation and judicial review. 40 See, e.g., the Indian decision in Hussainara Khatoon v State of Bihar (1980) 1 SCC 161 (crafting the right to speedy trial).

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work, the Supreme Court in Vishaka and Others v State of Rajasthan41 heavily relied on the ratified but unincorporated CEDAW 1979.42 In view of the above, the level of activism of the Bangladeshi courts vis-à-vis the use of international human rights norms can now be examined. The most convenient point of departure might be a brief reflection of the Court’s stance in this area, the so far most sophisticated expression of which is a famous passage by Roy Chowdhury, J. of the Appellate Division in H. M. Ershad v Bangladesh:43 Universal [h]uman [r]ights norms, whether given in the Universal Declaration or in the Covenants, are not directly enforceable in national courts [unless] […] incorporated into the domestic law, […]. The local laws […] are not always in consonance with the norms contained in the international human rights instruments. The national courts should not, […], straightway ignore the international obligations which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principle incorporated in the international instruments. But in the cases where the domestic laws are clear and inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect the national laws, but shall draw attention of the law-makers to such inconsistencies.

No doubt, the above dictum removed mental barriers to the domestic invocation of international human rights norms in Bangladesh, but the deficient model of dualist approach as explored above still seems to sway the Bangladeshi judiciary. In H. M. Ershad, the Court refused to harness the usefulness of invoking Article 13 of the UDHR (right of movement) alleged to be breached by the government through the seizure of the claimant’s passport, reasoning that the Constitution provided a “complete answer”. 44 Although the Court recognised the possibility of such invocation to compensate for deficiencies in national statutes, it clearly undervalued the importance of construing domestic legal or constitutional rights in harmony with international human rights norms when domestic laws are ‘clear’. 45 Further, the Court’s extraordinary realisations that 41

AIR 1997 SC 3011. See above ch. 3.3.1, n. 99. Similarly, by drawing assistance from Art. 9(5) of the ICCPR, the Court in Nilabati Behera v Orissa [1993] 2 SCC 764 crafted the constitutional law compensation for gross violation of human rights. See also D. K. Basu, below n. 115. 43 (2001) 21 BLD (AD) 69, 70. 44 Ibid., at p. 75, per A. M. M. Rahman, J. 45 Earlier, Justice Rahman extra-judicially emphasised that “in interpreting a national law touching a human rights question the Court may prefer an 42

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international obligations should not be straightway ignored and that domestic law’s inconsistency with international law should be drawn to Parliament’s attention stand unmatched with its deeply implausible view that unincorporated universal human rights norms are in no circumstances directly enforceable in national courts. 46 This view clearly negates the established rule that customary international human rights law constitutes part of Bangladesh’s domestic law,47 and seriously undermines the widelyaccepted fact that many of the UDHR standards have attained a customary and hence directly enforceable character over the years (Hannum 1996: 289). Although since the early 1990s the Bangladeshi judges are showing increasing enthusiasm in using international human rights standards as a source of inspiration, 48 the above-noted deficiencies in the Court’s understanding of the issue have in fact retarded any meaningful use of these legal sources. This is, however, not to discredit the benefits the Court has derived from even traditional uses of international human rights norms in its reasoning. Thus, in the now famous case of State v DC, Satkhira,49 the HCD referred, perhaps for the first time in its history, to the UDHR and the CRC to inform its understanding of domestic statutory and constitutional rights while ordering the release of a young person after 12 years of unlawful imprisonment. In some other instances, the Court referred to resolutions and declarations of international institutions so as to interpretation which is in consonance with international norms to one that is not” (Rahman 1995: 4-5). 46 (2001) 21 BLD (AD) 69, 70, per Chowdhury, J. Compare this with the dictum from the Indian Supreme Court: “Provisions of the [C]ovenant [on Civil and Political Rights] which elucidate and go to effectuate the [constitutional] fundamental rights […] can certainly be relied upon [...] and hence enforceable as such”: PUCL v India (1997) 3 SCC 433, 442. 47 This is impliedly endorsed, inter alia, in Dr. Mohiuddin Farooque v Bangladesh (1997), below n. 48, and M. Saleem Ullah v Bangladesh (1995) 47 DLR (HCD) 218. 48 See, e.g., Dr. Mohiuddin Farooque v Bangladesh (1997) 49 DLR (AD) 1 (the Appellate Division referred to the Rio Declaration on the Environment and Development and to the UDHR when progressively interpreting the rule of standing, a trend soon followed by the HCD while deciding this case on merits: (1998) 50 DLR (HCD) 84, 101). This practice can be traced back to Kazi Mukhlesur Rahman v Bangladesh (1974) 26 DLR (AD) 44, where the Court consulted international and comparative law to draw “authoritative support” (p. 55) for its conclusion, thereby impliedly endorsing the constitutionality of the domestic invocation of international human rights norms in Bangladesh. 49 (1993) 45 DLR (HCD) 643.

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strengthen its legal reasoning while protecting the welfare of children,50 and banning tobacco advertisements in pursuance of the constitutional right to life.51 However, despite clear benefits of the infusionist use of international human rights in domestic rights adjudication, the Bangladeshi judiciary lacks a coherent practice in this field. There are instances even in the area of most basic civic rights where the Bangladeshi Court has unduly avoided invoking posited international norms despite scope for their invocation. This has resulted not only in growing criminal injustices being left unredressed or inadequately addressed, but also in the impairment of judicial capacity to effectively protect constitutional rights. For instance, in Salma Sobhan v Bangladesh, 52 in which the Court refused to strike down as unconstitutional the grossly misused practice of chaining prisoners, Bangladesh’s obligations under the Convention against Torture (CAT) were straightforwardly ignored. Indeed, the Court appears to be continually failing in taking Bangladesh’s international human rights obligations into account seriously enough,53 thereby missing an available opportunity to use international standards in its everyday judicial activity as a strategic tool to increase public accountability vis-à-vis people’s rights.54 50

Abdul Jalil v Sharon Laily Begum (1998) 18 BLD (AD) 21 (citing the 1959 UN Declaration on the Rights of the Child while entitling a non-Muslim mother to Muslim law custody rights). 51 Prof. Nurul Islam v Bangladesh (2000) 52 DLR (HCD) 413, 421-22 & 433, (reminding the government of its constitutional obligation to respect international law and the principles enunciated in the UN Charter and the WHO resolutions relating to the protection of public health). In BLAST v Bangladesh (1999) 4 BLC (HCD) 600, the Court simply wished the government to frame a Police Code on the basis of a UN Resolution in order to reduce police excesses. 52 WP No. 2852/1997, as in ch. 5.2.2, n. 59. The Court also ignored an observation by the initial Bench (while giving an interim remedy in 1997) to the effect that the practice of chaining prisoners with bar-fetters was incompatible with international norm prohibiting cruel and inhumane punishment (cited in Rahman 2001: 60). Also, in Rokeya Kabir v Bangladesh (2000) 52 DLR (HCD) 234, the HCD trivialised arguments based on the CRC that incarceration of a minor victim girl in ‘safe custody’ was unconstitutional. 53 Bangladesh has ratified or acceded to almost all major human rights treaties such as the CRC (in 1990), the CERD (in 1979), the CEDAW (in 1984), the ICESCR and CAT (in 1998), and the ICCPR (in 2000, but excluding the Optional Protocol). However, none of these has been legislatively incorporated. 54 In Shamima Sultana Seema v Bangladesh (2005) 57 DLR (HCD) 201, interveners made specific references to the UDHR and CEDAW, arguments not

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The potential of international human rights norms in uplifting the effectiveness of domestic rights and enforcing state obligations have largely remained blurred by the Court’s generalised dualist approach to international human rights treaties and by its continuing orthodoxy in premising their use merely on the existence of ambiguities in municipal law.55 Resultantly, reliance by Bangladeshi judges on international human rights instruments has remained confined to merely decorating the judgments by citing or making lenient references to them. The emerging diverse uses of ratified but unimplemented international human rights treaties, as discussed above, seem almost unknown to Bangladeshi judges.56 Although in recent times the Court has shown more sensitivity towards, and willingness to use, international legal norms, its approach to international sources can still be termed largely conservative.57 The court’s conservatism in more actively engaging with international norms appears to be deeply influenced by its orthodox comprehension of its own constitutional role in invoking international human rights norms. There is thus a twin need of shunning the existing orthodox approach to the relevance of international human rights and of a recognition that judicial invocation of these universal standards is not only constitutionally feasible but also to some extent obligatory.58 reflected in the Court’s decision. The Court could do well by reminding the government of its intentional obligation not to discriminate against women. 55 Bangladesh v Samboon Asavhan (1980) 32 DLR (AD) 252. In Dr. Mohiuddin Farooque v Bangladesh (1997) 49 DLR (AD) 1, 16, Kamal, J. refused to apply the principle of intergenerational justice to strengthen the petitioners’ right to a safe environment because the principle lacked any legislative/constitutional basis. By contrast, the Indian judiciary in similar situations has internalised many principles of international environmental law (Anderson 1998; Razzaque 2004). 56 In M/s Supermax International (Pvt.) Ltd. v Samah Razor Blades Industries Ltd. (2005) 2 ADC 593, involving a commercial treaty, the Appellate Division passingly observed that international conventions “could be recognized upon ratification” but stopped short of detailing how such recognition can be given. 57 A recent good example of relying on international human rights treaties while interpreting national constitution is BNWLA v Bangladesh (2009) 14 BLC (HCD) 694 (drawing on international conventions while formulating guidelines to regulate sexual harassment at work). The Court observed (at p. 700): “The international conventions and norms are to be read into the fundamental rights in the absence of any [relevant] domestic law […]”. See another similar case: State v Metropolitan Police Commissioner (2008) 60 DLR (HCD) 660. 58 An obligation on the part of the judiciary to refer to international human rights treaties ratified by Bangladesh can be gleaned from a combined reading of the Constitution’s Preamble, its Art 25 (state’s obligation to “respect” international law), and Art. 8(2) (declaring the FPSPs including the one in article 25 to be

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7.2 Strategic factors that enhance judicial activism The above analyses point to the fact that the removal or at least minimisation of the above-discussed negative factors would have increased judicial authority. It can thus be deduced that judicial independence, a favourable socio-political atmosphere, and a willing judiciary blessed with a progressive vision of the law and legal principles are some positive factors that might facilitate judicial activism. However, generally speaking, there are certain other factors that strengthen activism, as well as strategic tools that the judges use to exercise judicial activism. ‘Access to justice’ can be cited as an example of such factors. While legal systems providing for a wider judicial access or a liberal standing regime positively influence judicial activism, activist judges in a system with relatively rigid access to courts may also increase access to justice through procedural innovations of the kind the Indian judiciary has accomplished (ch. 3.3). South Asian jurisprudence generally demonstrates the positive co-relation between availability/frequency of judicial access and judicial activism. Having said this, it needs to be recognised that once judicial access is widened or the minimum conditions for judicial activism are established, enactment of better judicial justice depends on a number of strategic means being adopted, such as the expansion of rights, innovation of remedies, and designing of ways to make remedies effective, including judicial capacity building for postdecisional monitoring. 59 The following discussion captures some most prevalent strategic tools of judicial activism.

7.2.1 Expanding remedies: Lesson drawing and policy transfer60 The value of a constitution depends on people having their rights effectively protected and enjoyed and the constitutional limits against the government enforced. Thus, the question of rights-remedy gap and the “fundamental” in law-making and to be “a guide” to legal/constitutional interpretations). See further Hoque and Naser (2006: 158-62), and Alam (2007). On the constitutional status of international law in Bangladesh see Karzon and Faruque (1999a). 59 These and other strategic tools of judicial activism can be developed through “purposive” (Barak 2005) and “dynamic” (Steyn 2004b) interpretation of the law or by applying judicial discretion in a justice-enhancive way. 60 These phrases, common in comparative public policy studies, have been borrowed from Wahid (2004: ch 1.2.3).

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need for filling it are live issues in public law discourses at the global level.61 Placing a right in the text of the constitution does not necessarily increase the probability that the right will be protected (Graber 1999: 361). The important question in any state that constitutionalises rights is, therefore, how effectively its institutions can protect them in pace with changing societal conditions. This concern has been wonderfully explored by the Supreme Court of Zimbabwe: [T]he endeavour of the Court should always be to expand the reach of a fundamental right rather than to attenuate its meaning and content. What is to be accorded is a generous and purposive interpretation with an eye to the spirit as well as to the letter of the provision; one that takes full accounts of changing conditions, social norms and values, so that the [law can] meet the newly emerging problems and challenges.62

A number of factors contribute to the increasingly flourishing common global practice of expanding remedies through judicial activism. First, most national constitutions provide a substantive right to remedy for breach of one’s rights and often prescribe some broadly-worded remedies. When the right to remedy is not provided or the remedies provided are found inadequate, activist judges construct an implied constitutional right to suitable remedy vis-à-vis rights violations or legal disentitlements, and develop remedies by building on the existing rights.63 Often, the linguistic flexibility of the constitutional defence clauses facilitates such a rightsprotective remedial role,64 genesis of which can be traced back to some old decisions like Marbury v Madison (1803) (Shelton 2005: 29-30). Second, in the face of a decrease in the social welfare capacities of states, coupled with an increase in serious and ingenious violations of the people’s fundamental rights by both state agencies and rapidly spawning private actors, modern judges are increasingly underlining the inadequacy of 61

This study is mainly concerned with public law remedies, but emphasises that providing active judicial remedies in private cases is an inevitable component of judicial activism generally. 62 Smyth v Ushewokunze 1998 (3) SA 1125 (ZSC), 1134, per Gubbay, CJ. 63 Thomas, J. of New Zealand once described the Bill of Rights as a “launching pad for the judicial development of remedies”: Dunlea v Attorney-General [2000] 3 NZLR 136, 155. 64 Constitutions usually empower the judiciaries to provide ‘just and proper’ or ‘appropriate’ remedies. Such open-ended phrases promote judicial activism. To take an international example, under its power to award “just satisfaction” (Art. 41, ECHR), the European Court of Human Rights has developed the remedy of monetary damages for breaches of the ECHR. See e.g. Dulaurans v France [2000] ECHR 109 (21 March 2000).

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traditional remedies to ensure quality justice.65 Third, the post-war processes of internationalisation of civil and constitutional rights have helped domestic judges to craft novel remedies in the light of developments elsewhere and to feel themselves obliged to issue effective remedies.66 As a result, a plethora of novel remedial devices unknown to the traditional triadic model of adversary adjudication has emerged, a development most famously pioneered by the Indian PIL jurisprudence. Also notable is the remedial innovation by the US structural reforms jurisprudence (Feeley and Rubin 1998). Thus, public law remedies now include not only declarations, injunctions and affirmative orders, but also informal negotiations with public agencies, participatory decision-making, detailed structural interdicts or issuing administrative control procedures relating to public institutions, 67 appointment of facts-finding/impactassessment commissions, appointment of monitoring officers, imposition of obligations on the concerned respondents to submit reports of compliance coupled with threats of committing for contempt of court, suggestions and sometimes directions to amend/make laws, 68 orders to rehabilitate the victims, awarding of compensation and litigation costs, and so forth. A further development tied with the expansion of remedies and aimed at ensuring justice through wider enforcement of constitutional norms is the horizontal extension of judicial review over private agencies/individuals whose activities generate public-law consequences. It is encouraging that the expansion of constitutional remedies against private entities is indeed a growth phenomenon at the global level

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Domestic legal remedies are relatively homogenous, but of diverse applications. Common remedies include declaration, prohibition, compensation, costs of suits, and affirmative orders. See further Shelton (2005: ch. 3). See also Lewis (2004) (discussing public law remedies from the UK context). 66 Many judges consider States’ international obligations to develop effective remedies for the rights (as e.g. in Art 2(3) (b) of the ICCPR) as having entailed the judiciary. In the words of the Namibian Supreme Court: “[T]he recognition of a right to an effective remedy for violation of human rights […] forms part of customary international law”: Mwandingi v Minister of Defence [1991] 1 SA 851 (Namib.) 67 See, e.g., Newman v Alabama 559 F.2d. 283; 438 US 781 (1978) (the US Supreme Court ordering adequate food, clothing, medicine and other amenities to the prisoners). 68 See e.g. the South African decision in Minister of Home Affairs & Another v Fourie & Others [2006] 3 BCLR 355 (CC), directing Parliament to amend, by 1 December 2006, the statutory definition of “marriage” from a “union between a man and a woman” to a “union between two persons”.

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including South Asia, 69 although judicial approaches to the rightshorizontality are not uniform.70 In sum, there seems to be emerging a common judicial policy of extending rights and providing effective remedies. Once this is acknowledged, any judiciary may legitimately draw lessons from this or have this policy transferred, and then develop remedies appropriate and legitimate in its own social and constitutional settings. Having said this, it needs to be recognised that some remedies as effective means of ensuring and increasing public accountability are becoming increasingly more global than others. Even a snapshot survey of remedies jurisprudence of various courts across the world will show that public law compensation is such a remedy. The following section analyses this increasingly common remedy as an aspect of the transferable judicial policy of remedial expansion.

7.2.2 Public law compensation: Controlling the abuse of public power National courts willing to erect more effective checks against the misuse of public powers are increasingly awarding compensation as a public law remedy when there are rights violations or breaches of public legal duties. Despite the absence of clear articulation of this remedy in their respective constitutions, a number of countries such as Canada, 71 Ireland, New Zealand,72 South Africa,73 USA,74 Trinidad,75 as well as the major South

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Here, too, the lead is given by the Indian courts which have “travelled a great deal from the limited notion that fundamental rights are available only against the state” (Reddy and Dhavan 1994: 94). Excepting a few restrictive decisions (Chug 2005), they have frequently enforced the Constitution against both recalcitrant corporations (see the PIEL decisions in ch. 3.4) and private individuals (see e.g. Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490 in which an accused was ordered to pay compensation to a rape-victim for violating her right to life). Rights-horizontality has also occurred in Sri Lanka (Gomez 2001) and Pakistan. For Bangladesh see ch. 4.6.2 above. 70 For example, until recently the UK judges remained relatively reluctant in enforcing rights horizontally (ch. 3.2 above, n. 30). For comparative insights into rights-horizontality see Tushnet (2003) and Clapham (2006). 71 See e.g. Patenaude v Roy (1994) 123 DLR (4th) 78 (Quebec Court of Appeal). 72 Simpson v Attorney-General [1994] 3 NZLR 667. 73 See below section 7.2.2. See also The State v Baloyi 2000 (2) SA 425 (CC); President v Modderklip Boerdery 2005 (5) SA 3 (CC); Van Eden v Minister of Safety and Security 2003 (1) SA 389 (SCA).

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Asian countries,76 most exemplarily India, have discovered this extraordinary constitutional remedy through judicial activism.77 In a recent comparative study on monetary remedies for breach of human rights in the USA, India and New Zealand, Tortell (2006) argues that there is a shared commonality among, or a generic structure of, causes of actions in these jurisdictions that may result in a monetary remedy. Undoubtedly, gross violations of human rights are a fit ground that warrants compensation against the state or its responsible officials. The rationale behind constitutional law compensation or the idea of ‘constitutional tort’78 has been to provide effective remedies to the victims of injustice in furtherance of the intention of the framers of the Constitution not to allow anyone to circumvent constitutionally guaranteed rights with impunity.79 In the famous case of Rudul Sah v State of Bihar, awarding compensation against the state for breaching a man’s right to life by unlawfully imprisoning him for fourteen years, the Indian Supreme Court felt that by refusing a remedy of compensation in such a case of “gross” violation of human rights it would only “be doing mere lip-service to his fundamental right to liberty”.80 74

Although public law compensation in the USA for rights-breaches has a statutory base (42 USC § 1983), this remedy could be established solely on the basis of the Constitution: Bivens v Six Unknown Agents of the Federal Bureau of Narcotics 403 US 388 (1971). 75 See e.g. Christopher Lezama v The Commissioner of Prisons HCA Civ 2098/2002 (compensation for the Prison Service’s failure to timely deliver the claimants’ Notices of Appeals to the court). 76 For example, in a Pakistani case, Mazharuddin v Pakistan, High Court of Sindh, Karachi, D-135 of 1997, 17 Feb 1998 (unreported), involving unlawful detention of a person in police lockup for 4 days, the Court held that substantial rather than nominal compensation against the state was a viable remedy for this constitutional breach. Public law compensation is also being granted by the Sri Lankan Supreme Court. See e.g. Deshapriya v Municipal Council, Nuwara Eliye [1996] 1 CHRLD 115, and Amaratunge v Police Constables [1993] SAARC L. J. 88 (SL SC). 77 It is also a prominent feature of international human rights law (Clayton 2005: 429; Shelton 2005: chs. 9-10). 78 Coined perhaps first by the American Jurist Shapo (1966: 323-4) and established in Monroe v Pape 365 U.S. 167 (1961), the term ‘constitutional tort’ refers to constitutional violations that may result in monetary compensation against the state or its agents. 79 State v Ryan (1965) IR 70 (as observed by the then Irish Chief Justice). 80 AIR 1983 SC 1086, 1089. Before this authoritative decision, the Supreme Court first ordered compensation in PUDR v State of Bihar AIR 1978 SC 355 for deaths resulting from police shootings, supplementing the government’s ex gratia compensation.

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In Rudul Sah, judicial consciousness about local socio-political realities where breaches of the citizens’ right to liberty and life are a frequent occurrence led the Court to conclude that one of the telling ways of reasonably preventing serious violations of the constitutional right to life is to penalise the violators with monetary compensation. As such, the Indian judiciary adopted a duty-based interpretational approach to the constitutional remedy clauses (Arts. 32; 226) to forge “new tools” for-+ administering justice such as this remedy.81 Launched by Rudul Sah, the Indian judiciary’s jurisprudence of constitutional torts as a tool for enforcing constitutional rights and public duties has now become firmly entrenched, and jurisprudential objections to this remedy on grounds of sovereign immunity and the availability of ordinary tort remedies have now been effectively removed. In Chairman, Railway Board v Mrs. Chandrima Das 82 that resulted in substantial compensation against the Indian Railway Authority for gang-rape of a Bangladeshi woman, Hanuffa, by some of its employees at Howrah railway station, and in many other cases the Court established the public law-nature of the damages remedy in constitutional litigations and clarified its underlying values, that is, to call the state to account for its constitutional failings and breaches. The philosophy of enforcing constitutional limits on the executive and effectively protecting the constitutional rights stands reflected in an evergrowing line of public law-compensation decisions, now too many to be cited.83 What is exemplary of this trend is that the coverage of the Indian constitutional compensation jurisprudence has extended beyond most flagrant violations of human rights such as custodial deaths or torture,84 fake ‘encounter killing’ or ‘disappearances’ by the police or security forces 85 and rapes by public officials/employees, 86 to a diverse range of

81 Nilabati Behera v State of Orissa, above n. 42 (compensation for death in police custody). 82 AIR 2000 SC 988, per S. Saghir Ahmed J. 83 For a catalogue of such decisions see Sathe (1998: 442, n. 645) and Ramanathan (2002). 84 See, e.g., Re Death of Swinder Singh Grover 1992 (3) SCALE 15 [34] (the Court suo motu awarded compensation of Rs. 200,000 to the widow of a person killed in police custody); State of Maharashtra v Ravikant S Patil AIR 1991 SC 871 (compensation for parading a person handcuffed through the streets in a procession by the police). 85 See e.g. Gopal Sarmath v State of Assam (2001) 1 Gau LT 643 (compensation for killings by the police in the name of ‘encounter’), and Sebastian M. Hongray v Union of India AIR 1984 SC 1026 (compensations to family members of the people disappeared due to police/army actions).

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rights violations such as illegal detention, 87 culpable inactions or unreasonable decisions by the executive88 and, unconventionally, medical negligence resulting in deaths or fatal injuries to the people.89 It is also fascinating to refer to the jurisprudence of constitutional law damages of the post-apartheid South African courts that have assumed an obligation to broaden the scope of private law wrongfulness to cover the State’s failings in its constitutional duty to protect the citizens’ fundamental rights.90 Of a series of decisions of public law compensation, the most instructive is perhaps K v Minister of Safety and Security,91 which further developed the doctrine of constitutional damages. The notorious facts involved in this case are that a young woman, K, left alone at midnight by her boyfriend, was offered a lift by three uniformed police men in an official police car. Instead of taking the claimant to her home, the police men ultimately raped her inside the car. The accused were convicted of rape, but K sued the Ministers for damages for the wrongs of the state officials. By overruling the two immediate inferior courts and rejecting the defence that the state could not be held liable for faults of its officials gratifying their own selfish interest in deviation of their official functions, O’Regan, J. on behalf of the unanimous SACC held the state constitutionally liable in damages since the plaintiff placed reliance on the state through the three clearly identified police officers who as state officials breached their constitutional duty to protect members of the public.92 The decision in K not only takes constitutional responsibilities of the state seriously, but also illustrates that the constitutional values now permeate every aspect of the South African law (Lewis 2005: 519), as should be the case in any country based on such fundamental values as the rule of law and human dignity. In view of the above, the status of the constitutional remedy of compensation in Bangladesh can now be investigated. As noted in chapter 4.6.1, the theory of constitutional tort has not yet been entrenched on a 86

See, e.g., Re Judicial Inquiry into Gang Rape (1988) 1 Gau LR 489 (a suo motu action). 87 PUDR v Police Commissioner, Delhi (1983) 4SCC 730. 88 On which see Mundrathi (2002: chs. 5-6). 89 M. Vijaya v Chairman, Singareni Collieries Hyderabad, as discussed in ch. 3.4, n. 128; Muktaram Sitaram Shinde v State of Maharashtra 1997 Cri. L. J. 3458 (compensation for death in prison due to lack of medical treatment). 90 In Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC). 91 2005 (9) BCLR 835 (CC). 92 The claimant ultimately won damages in the Supreme Court of Appeal: K v Minister of Safety and Security 2005 (3) SA 179 (SCA).

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solid footing. Apart from a few compensatory-costs decisions 93 that are often inaccurately equated with compensation decisions, there are only two instances of awarding compensation in constitutional proceedings. This paucity reflects the Bangladeshi judges’ general conservatism in making the state constitutionally liable in damages for rights violations or public law breaches, a potential area of judicial activity that remained completely unexplored until new grounds were broken in a 1997 landmark decision, discussed below.94 Not that the judges are unaware of the effectiveness of compensation or the global judicial developments in this field, but judicial aberrance in this area seems to be deeply seated in a largely conservative legal culture in which the culture of compensation for criminal/administrative injuries or for grievances from rights violations is virtually non-existent.95 Moreover, despite the common law nature of the country’s legal system, the common law of compensation (tort law) is practically inoperative in Bangladesh, let alone the tort of public law breaches. 96 Arguably, this state of affairs has potentially contributed to 93

Despite the Constitution’s silence, awarding of compensatory costs in constitutional proceedings has become an established judicial practice. Two notable decisions, in addition to those discussed here, are: Mia Ahmed Kabir v Bangladesh (1998) 50 DLR (HCD) 496 (for a frivolous writ petition), and Abdul Mannan Bhuiyan v Rajshahi University (2005) 57 DLR (HCD) 14 (costs awarded against a university authority that unduly kept pending a student’s appeal for revaluating his LLB exam results; the Appellate Division later endorsed and increased the award: University of Rajshahi v Md. Abdul Mannan Bhuiyan (2005) 10 BLC (AD) 128. 94 Earlier in Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (HCD) 190, 206, the HCD expressed its inability to award compensation for rights breaches in a judicial review. 95 There are ongoing efforts by legal aid NGOs, mainly by BLAST, to persuade the courts to forge a general compensatory jurisprudence. See, e.g., Md. Kamal Hossain, BLAST & Others v Bangladesh, WP No. 3566/2005, seeking to secure adequate compensation for the victims of collapse of an industrial building. 96 My vigorous search has found only a few reported successful tort law decisions. See M/s Kohinoor Chemicals Co. Ltd v Rashida Begum and Others (1973) 25 DLR (HCD) 155, Abdul Awal v Mofasiluddin Ahmed (1975) 27 DLR (HCD) 637, and the recent case of Bangladesh Beverage Industries Ltd v Rowshan Akhter and Others (2010) 62 DLR (HCD) 483 (damages awarded for the tort of fatal motor accident causing death). Exceptionally, in an ordinary civil claim concerning breach of rights, one unfortunate Falu Mia, who lost nearly 22 years of his life (1972-1993) languishing in jail without any fault and even after being acquitted of charges, was awarded compensation of Tk. 3, 44, 333 for loss of earnings. Lamentably, this victory came after Falu Mia’s death in 2001 and was endorsed by the HCD only a further 3 years later, on 25 Sept. 2004. In a recent unreported case,

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judicial passivity and legal professional inactivity in propounding a theory of constitutional compensatory justice. Also, conservatism or legal unimaginativeness in adopting the theory of constitutional law compensation is to a significant extent attributable to judicial unwillingness to fully capitalise on constitutional values (Hoque 2009b). This can be illustrated by making reference to a judicial review decision in Md. Shahanewas v Government of Bangladesh,97 in which case the Court nevertheless appreciably exercised partial activism by awarding “compensatory” costs of Tk 20,000, if not compensation, against a delinquent police officer for negligently arresting a poor fisherman in place of a convicted criminal only on the basis of their identical names. The Court rightly felt that the poor victim should be “well compensated” for his “immense sufferings” and loss of livelihood for six months caused due to a public servant’s “sheer negligence” in discharging his public duty (at pp. 339-40), but its justice-consciousness stood unmatched with the remedy delivered. This case was thus a missed opportunity for the Court to establish the principle of monetary liability for constitutional violations.98 Public law compensation was famously introduced in Bangladesh first through Bilkis Akther Hossain v Bangladesh (1997)99 in which the HCD directed the government to pay an exemplary compensation of Tk. 100,000 to each of the four political detainees whose detentions were adjudicated unlawful and mala fide. The Constitution of Bangladesh has not made specific provision for awarding damages for breaches of constitutional rights. But there certainly exists a constitutional right to effective judicial remedies for rights violations, as evident in the fundamental right character of the right to enforce fundamental rights (Art. 44) judicially (Art. 102).100 Therefore, there is a corresponding obligation on the judiciary to develop novel remedies including public law compensation. The Bilkis Akther Hossain Court did not adequately illuminate these aspects of constitutional imperatives. Instead, the reasoning of M. M. Hoque, J. was mainly built around a technical but the High Court Division confirmed the lower court’s awarding of compensation for loss of a life from reckless driving. 97 (1998) 18 BLD (HCD) 337. 98 Korban v Bangladesh (2003) 55 DLR (HCD) 194, awarding nominal costs for abusing public power in detaining a person, was another case where the Court missed a similar opportunity. 99 (1997) 17 BLD (HCD) 344. 100 The fundamental right character of the right to judicial enforcement of fundamental rights (Art. 44) was reemphasised in Jabon Naher v Bangladesh (1997) 49 DLR (HCD) 108 (remedies given, by dis-applying the bar of limitation).

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rights-enhancive interpretation of the constitutional defence clause, namely article 102. Premising on the fact that the Constitution did not limit remedies under writ jurisdiction to mere declarations or injunctions and by relying on the Court’s inherent jurisdiction to issue a suitable remedy,101 as well as by drawing persuasive force from a series of similar foreign decisions, the learned judge clarified the High Court Division’s authority to award compensation as a constitutional remedy for breaches of fundamental rights such as unlawful detentions. This rationale was later reinforced in BLAST v Bangladesh 102 in which the HCD reasserted its competency to award compensation for rights-violations, although it did not award one in this fit case that involved death in police custody. Unfortunately, both decisions are now subject to pending appeals in the Appellate Division. Despite the absence of the Appellate Division’s authoritative decision, however, there is no legal bar for the HCD to award compensation for breaches of statutory or constitutional duties, as confirmed in the following two lone decisions of this genre, both by Justice S. A. N. M. Rahman. In Mohammed Ali v Bangladesh (2003), 103 a renowned journalist challenged the legality of midnight search without warrant of his house for a few consecutive days and sought to prevent such further activities. Having found that the police committed “excesses in abuse of their power” in the name of search and thereby caused loss, injury, humiliation and harassments to the petitioner, and by drawing on a similar Pakistani decision awarding compensation against a delinquent police officer for unlawful search, the Court awarded what it called “token compensation” of Tk. 5000 against each of the two concerned police officers personally, directing their controlling officer to realise the amount and to report compliance. 104 In the other more recent case, A. K. Fazlul Hoque v Secretary, Ministry of Housing (2005), 105 the Court again awarded a nominal “token” compensation against each of the three responsible government officials for causing “immense” financial injury and social harm to a retired public servant by withholding his pensions/gratuity in 101

Above n. 99, by analogising with the judicial practice of awarding costs in constitutional cases. Notably, Hoque J interpreted the Appellate Division’s endorsement of the HCD’s power to award compensatory costs in appropriate cases [in Habibullah Khan v S. A. Ahmed (1983) 35 DLR (AD) 72] as the Appellate Division’s tacit approval of constitutional law compensation. 102 (2003) 55 DLR (HCD) 363, as noted in ch. 5.4.1. 103 (2003) 23 BLD (HCD) 389. 104 Ibid., at pp. 401-2. 105 (2005) 57 DLR (HCD) 725, 727.

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defiance of the Court’s earlier interim order issued in this constitutional proceeding. Unfortunately, the reasoning in these two commendable decisions provides inadequate illumination about their legal basis, the Court remaining reticent about whether it was awarding compensation for rightsviolations or public law breaches. The first decision has evidently been a good instance of issuing effective remedies in the protection of the right to privacy/liberty and the expanding right to life, and of providing deterrence against future breaches. But the Court would definitely have done better by highlighting the value of these constitutional rights and associated public duties. More puzzling was the Court’s reasoning in the second decision which, in the absence of a reference to constitutional rights, gives a false impression that the concerned state officials’ defiance of court order influenced its compensation decision. 106 In this case, too, an articulation of public law breaches by the state agents was due. Further, the Court in both cases shied away from imposing financial liability on the state. Undoubtedly, even making the wrongdoing state officials personally liable in damages may have significant impact on the executive’s behaviour pattern since social costs of personal disrepute arising from judicial awards of compensation or even compensatory costs are not without implications in the Bangladeshi society. Nonetheless, unless the Court is able to make both the state and its agents liable for constitutional violations or public law derelictions, the instrumentality of public law compensation in checking abuses of public powers will remain only minimal. Clearly, the above makes a case for the Bangladeshi judiciary to adopt the preventive and curative remedy of public law compensation as a practical judicial safeguard against increasingly alarming violations of fundamental rights such as police brutalities, custodial killings and fake ‘encounter/cross-fire’ killings, as well as against negligent breaches of the law by public functionaries including even judicial officers.107 From this 106 I do not claim that public law compensation is un-awardable in such situations. Rather, given public officials’ constitutional duty to comply with court decisions, their wilful disregard of court orders may attract public law compensation, especially when such defiance results in rights-violations. See Arts. 112 & 21 (2); Southern Fisheries Corporation v King Fisheries Industries Ltd (1982) 32 DLR (HCD) 23. 107 State liability for judicial impropriety resulting in breaches of fundamental rights, although it is a complex idea, is not very uncommon. E.g. in Ramesh Maharaj v Attorney-General of Trinidad and Tobago [1979] AC 385, a barrister committed to prison by a Trinidad Court for its contempt in breach of the principle

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perspective, it is necessary to briefly reflect on the effectiveness of saddling any resource-constrained state like Bangladesh with compensatory liability for rights-violations or legal breaches. 108 Particularly in the western literature, concerns are often raised that public law-compensation against the state would lead to cuts in resources of various welfare sectors and to unacceptable judicial engagement with policy decisions (Dellinger 1972: 1532-3; Harlow 2004a-b). There have also been concerns that entrenching the trend of compensating for constitutional violations might lead the courts to become reluctant in broadening the scope of constitutional rights and remedies and the public bodies to become excessively cautious in exercising their functions (Jeffries 2000). Further, Levinson (2000) argues that compensation against the state is of very limited deterrent effect, since governments do not respond to compensatory liability in the same way as private actors. These apprehensions are indeed one-dimensional and parochial, underrating the magnitude of special problems which other societies may incur. Also, these objections undermine the value of public norms which this constitutional remedy of compensation seeks to protect in general (Park 2003). The above court decisions from India and South Africa show that public law compensation plays an extraordinary role in promoting good public decision-making and increasing public accountability, particularly with reference to the worst types of constitutional violations. When violations of human rights are at issue, the force of the plea of lack of resources becomes indeed very weak (see Singh 2005). Of course, there is a need to strike a balance between individuals’ right to remedy and the state’s economic capacities. The decisions discussed above seem to have struck the balance rightly. First, states have not been excessively burdened. Second, individual state officials have also been penalised in lieu of or in addition to states, a strategy that increases the deterrence force of the damages remedy. The overarching objective of this remedy is not to allow states to engage in constitutional breaches in exchange of money, but to exert moral-social pressure on them and their officials by imposing monetary liability for, and with an ultimate view to deterring/reducing such breaches. Moreover, since this remedy is never delivered in isolation but rather in conjunction with, and as a guarantor of of natural justice received damages in public law. See further Olowofoyeky (1998). Public law compensation against judicial officers or court administrators personally for their negligent actions is relatively less problematic, and is possible in Bangladesh. See further Islam and Solaiman (2003: 22-3). 108 In an interview on 7 December 2005, Professor Carol Harlow at the London School of Economics drew my attention to this.

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the efficacy of other general remedies, judicial willingness to innovate remedies does not become overtaken by the trend towards compensation for constitutional harms. In brief, the utility of constitutional law compensation in increasing public accountability and controlling abuses of public powers can hardly be overlooked.

7.3 Comparativism as activism It is argued below that legal comparativism offers judges a further legitimate tool to exercise activism and to increase their agency. As the court decisions examined in the preceding chapters show, activist judges are not only activated by domestic national conditions, they are also motivated by developments elsewhere. Cross-country legal comparativism as a technology of judicial activism has already turned out to be a global phenomenon, despite a growing debate, mostly US-based, about its appropriateness and impacts (McCrudden 2000: 499). It has been axiomatic in Western legal theory that comparative law has little or no place before the courts, a view closely associated with legal positivism (Glenn 2005: 217). Many scholars in the 20th century thus doubted, and some still dispute the possibility of meaningful legal comparison in constitutional adjudication (Harding and Örücü 2002: ix). Apart from this sort of negative campaign, legal/judicial ideology and “legal nationalism” (Örücü 2003a: 233) (one’s concept of self-sufficient legal system) may also insulate a given judiciary/judge from comparative exercises. Indeed, apathy against legal sharing/borrowing has been a potential conceptual barrier in the way of exercising globally informed judicial activism. The need for a framework for the judicial use of comparative public law (Tushnet 1998b; Bell 2002; Harding 2002; Örücü 2003b) for improving justice and increasing public accountability is, therefore, obvious.

7.3.1 Comparative public law reasoning The history of comparative judicial reasoning in public law adjudication is of relatively recent origin. 109 Besides the pressure of “globalization of modern constitutionalism” (Choudhry 1999: 821) in the post-war period, 109 Excessive focus on private law comparisons, which has a very old origin, has arguably led to a neglect of comparative public law (Larsen 1998: 848), which is still a “neglected” (Harding 2000) and “marginalized” (Lasser 2003: 197) discipline in legal scholarship. On comparative legal studies see Harding and Örücü (2002) and Legrand and Munday (2003).

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other intertwined factors such as “unifying pressures” (Menski 2006a: 38) of international human rights law, the revolution of information technology facilitating transjudicial communication (Slaughter 1999; 2000) or trans-judicial influence (Thiruvengadam 2008), as well as the judges’/lawyers’ search for fresh perspectives from the outside world (Koopmans 1996: 545) have contributed to the ongoing globalisation of the judging process. Particularly in the area of public law or human rights adjudication, contemporary courts across the world, including those that had previously been excessively traditional 110 or inward-looking, 111 are increasingly taking an interest in comparative approaches to legal reasoning,112 although some are more open to the outside legal materials than others, a tendency that is shaped by one’s legal tradition and local conditions.113 The use of comparative constitutional case law “as strong persuasive authority” (Mahmud 1995-6: 47, n. 17) is also prevalent in the postcolonial South Asian judiciaries which not only exchange among themselves but also draw on other judiciaries, mostly from common law traditions. As seen in chapter 3.3, even the distinctively country-specific Indian PIL jurisprudence has benefited from overseas national and international jurisprudence when developing novel legal principles and remedies (see Thiruvengadam 2006),114 a scenario that in itself displays 110

Such as the UK courts, which, however, are recently “taking an activist approach” (Masterman 2005: 922) in increasingly relying on comparative public law jurisprudence. See, e.g., A (FC) v SSHD [2004] UKHL 56, containing a diverse range of comparative references. 111 Like the US courts that until recently remained almost totally in a legal isolation booth (L’Heureux-Dubé 2002: 235), despite urges for judicial comparativism by influential academics and senior judges (O’Connor 1997; Mattei 1998; Ginsburg 2005; Jackson 2005). However, judicial change-mindedness has also begun in the USA, as reflected, inter alia, in Roper v Simmons, below n. 117. 112 See generally Koopmans (1996), Drobnig and van Erp (1999), Glenn (2001), Canivet et al (2005) and Thio (2006). On the growing trend of judicial comparativism in human rights cases in the Commonwealth, see Harding (2003) and Anderson and Happold (2003). 113 The South African and Canadian Supreme Courts are today perhaps the leading courts in using comparative materials. The Indian judiciary is also remarkably inclined to comparative learning (Smith 2006). 114 This occurred principally in the field of environmental law. For example, in Andhra Pradesh Pollution Control Board v Nayudu [2002] 3 LRC 275, the Indian Supreme Court relied on scholarly works, domestic and international court decisions and international instruments for quashing a High Court-approved government decision allowing the establishment of an industry hazardous for

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“comparative law in action” (Menski 2000c: 142). For example, in D. K. Basu v State of West Bengal, 115 a PIL case, the Court improved the protection of the right to life and granted the torture-victim constitutional law compensation by vigorously interpreting the national constitution in the light of a number of foreign decisions, as well as by disregarding (harmoniously interpreting) India’s reservation to article 9 (5) of the ICCPR. Similarly, as seen in chapters 4 and 5, the development of Bangladesh’s public law jurisprudence generally, and PIL in particular, was also greatly influenced by contemporary jurisprudential developments in comparable jurisdictions. A number of high profile Bangladeshi decisions including the above-discussed public law compensation decisions best portray the benefits of being informed of others’ successes and experiences.116 Undoubtedly, the courts in these decisions sought to improve justice by increasing their agency in effectively enforcing constitutional rights and the public duties. The use of comparative legal reasoning in any particular system not only increases the legitimacy of judicial decision-making particularly in the area of human rights (McCrudden 2000: 532), it also advances the level of protection of human rights and thus makes a contribution to the pursuit of justice itself (L’Heureux- Dubé 2002: 247). For example, the most recent US Supreme Court decision that the execution of persons under the age of 18 is unconstitutional would have been difficult, if not impossible, to be made, had the Court not taken enlightenment from “the overwhelming weight of international opinion against the juvenile death penalty”. 117 Clearly, judicial comparativism offers judges guidance as to the approach to constitutional interpretation118 and helps them determine the objective purpose of a constitution/statute, illuminate the contents of their own constitutional rights (Fatima 2005: 145) and compensate for deficiencies therein, if any. Also, comparative public law is an important source that enriches judges’ legal thinking and

nearby water resources. On the use of comparative law in the development of PIL in South Asia, see the instructive work by Thiruvengadam (2008). 115 AIR 1997 SC 610. 116 See e.g. Anwar Hossain Chowdhury, below n. 130. See also Masdar Hossain, above n. 29, in which Canadian and Pakistani cases heavily influenced the court directives (see ch. 4.5 & ch. 4.6.3 above). Judicial comparativism was famously introduced in Kazi Mukhlesur Rahman, above n. 48. 117 Roper v Simmons 125 S. Ct. 1183 (2005), at p. 1200 (especially drawing on the UK’s abolition of juvenile death penalty). 118 See Reyes v The Queen [2002] 2 WLR 1034, 1045 (per Lord Bingham).

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makes the law more creative (Barak 2006: 200-4). 119 However, the adoption of a proper theoretical approach that justifies judicial comparativism and helps the judge use the tool in a balanced way remains a constant challenge.

7.3.2 Locally-grounded, globality-conscious comparison As indicated, there seems to be less concern with justifying the practical utility of comparative law (Örücü 2004: 1),120 if not with the “poverty of legal theory in the comparative field” (Legrand 1999: 46)121 and its lack of a coherent methodology. Comparatists thus continue to grapple with certain perennial questions, such as what to compare, when and how to compare, whom to compare with, and for what to compare. We are here constrained to be brief on these important issues. 122 But this chapter’s general objective demands illumination of how judicial comparativism can play an important role as a strategic tool of judicial activism. Chapter 2 indicated that the concept of justice-promotive judicial activism needs to be founded on a new pluralistic jurisprudential paradigm based on one’s domestic needs and conditions, rejecting in that process the idea of transplanting western legal institutions into non-Western societies (ch. 2, n. 3). Therefore, advocating judicial comparativism as a strategy of activist adjudication seems at first sight quite ambivalent. But the challenge for every judge undertaking a comparative exercise is to respond to the demands of justice by preserving her/his own legal traditions and respecting and learning at the same time from others’ experiences. What is needed, therefore, is a national context-focused but globality-conscious comparative method that remains vigilant about the harm of uncritical legal “transposition” (Örücü 2004: 93). This is possible, and an increasing number of scholars seek to promote a situation-specific approach to legal comparativism that fosters “generous, challenging and responsible engagement” (Lasser 2003: 199) with the subjects and objects of comparatists’ analyses. However, the process of globalisation that has opened up the scope for judicial comparativism itself entails risks of judicial or legal imperialism. In today’s globalising world, a key question for judges and lawyers is to 119

For other functions of comparative law see generally de Cruz (2006). See also Barak (2006: 197-212), who “found comparative law to be of great assistance in realizing [his] role as a judge” (p. 197). 121 On the link between comparative law and legal theory see Kamba (1976), Tur (1977), Samuel (1998), Twining (2000b) and Menski (2006a: esp. ch. 1). 122 For further analytical insights, see generally Drobnig (1999) and Örücü (2004). 120

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what extent globalisation means harmonisation (Menski 2006a: 38). The prevailing comparative law is powerfully driven by globalists’ urge to unify or harmonise law (Cotterrell 2002: 44). It hardly recognises differences among, or includes in its fold, a wide range of legal systems (Harding 2002: 251), and almost always ignores the “remarkable achievements of decolonised public-law theory” (Baxi 2003: 53) as created by Indian or South African judicial activism. While some amount of uniformity regarding certain core legal values like those in the domain of human rights is inevitable and desirable,123 the prevailing universality claim of rights and legal values is intrinsically unjust and questionable as it promotes dominance of some jurisdictions over others and disregards diversity among legal traditions, which will, however, continue to survive the threats of globalisation.124 A globality-conscious activist judge will, therefore, have to constantly manage the tension, or strike the right balance so to speak, between indigenous legal force and legal globalisation. Emphasising the importance of judicial comparativism, L’Heureux-Dubé (2002: 235) stressed an international judicial dialogue and “cross-pollination” between various jurisdictions, rather than simply giving by one set of judges and receiving by another.125 Many other scholars have emphasised the dialogical model of comparative constitutional interpretation (Choudhry 1999; Harding, S. K. 2003), where comparativism is a process of learning from comparable jurisdictions and improving the understanding of one’s own system and jurisprudence (Choudhry 1999: 825-36). Engagement by the judge with others’ jurisprudence does not necessarily lead to the uncritical adoption of foreign law that de-structures one’s own legal foundations. The modern South African jurisprudence, built on a constitutional mandate of juridical comparativism, shows that 123 An “appreciation of difference alongside a search for uniformity seems widely recognised as a continuing necessity” (Cotterrell 2002: 45), while, by contrast, “[i]n the complex field of human rights law, we see no universal agreement about anything” (Menski 2006a: 43). 124 Sophisticated developments of this idea are to be found in Glenn (2000), Twining (2000a) and Menski (2006a). 125 It should be noted that global movement of case law has almost always been assumed to migrate from the West to the East, and hardly ever in the reverse direction (Menski 2006a: 51). On this see also Baxi (2003: 53; 2004: 328). When the judges of the West occasionally cite non-Western judiciaries, they often regard the latter as their jurisprudential “children” and themselves as “wise parents” (Calabresi, J. in United States v Then 56 F. 3d 464, 469 (2nd Circuit, 1995). Twining (2000b: 66) attacks the idea of “parent legal systems” and argues for extending horizons of comparisons to non-Western societies.

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judicial constitutional borrowing or comparison can profitably be made by mediating with indigenous historical, political and economic conditions of the comparatist country (Webb 1999; Carey-Miller 2003). The famous decision of the SACC in The State v Makwanyane 126 affords a good example. While deciding the difficult question of the constitutionality of death penalty, the SACC was presented with a mass of conflicting international materials of diverse types touching the subject, which offered it far less than an easy guide. Ultimately, the Court had to undertake a twoway analysis of comparative jurisprudence, looking for similarities and differentiating the asymmetries. After appreciating “the differing legal, historical, and social backgrounds to the decisions of foreign courts” (Kentridge 2005: 238) that it considered, the SACC found those liberal judicial/legal opinions that detected human indignity in death penalty to be more reliable sources from the South African constitutional perspective of the unconditional right to dignity.127 Seemingly, there is a growing common practice among globally informed judges to maintain the specificities of domestic constitutional imperatives. For example, noting the social differences between Canada and the United States and the contextual differences of their Bills of Rights, the Canadian Supreme Court once instructively observed that “just as similarities will justify borrowing from the American experience, differences may require that Canada’s constitutional vision depart from that endorsed in the United States”. 128 This kind of awareness was famously demonstrated in a Bangladeshi preventive detention case in which the Court refused to adopt the Indian Supreme Court’s policy of impassivity in detention cases and deference to the ‘subjective satisfaction’ of the executive in detaining any person.129 It must be noted, however, that judicial engagement in a transnational dialogue may also lead the comparatist judge to adopt the reasoning of his 126

1995 (3) SA 391 (CC), as discussed above in ch. 3.3, n. 40. In a similar vein, the Court in Carmichele, above n. 88, discussed but rejected an unhelpful US decision (De Shaney v Winnebago County Department of Social Services 489 US 189 (1989)) that held that the state cannot be affirmatively obligated. On judicial cautiousness about unsuitability of foreign decisions see Choudhry (2004). 128 Regina v Keegstra [1990] SCR 697, 740. 129 Sajeda Parvin v Bangladesh (1988) 40 DLR (AD) 178, 183, noting that under a “radically different” constitutional jurisdiction in the concerned area it would be “dangerous” to take persuasive guidance from the Indian decisions. For similar remarks see Nasrin K. Siddiqui v Bangladesh (1992) 44 DLR (AD) 16, 26. The Bangladeshi judges’ preference for an ‘objective test’ in detention cases owes to similar Pakistani developments. 127

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or her foreign counterpart and then to place the ultimate decision within the municipal constitutional framework. This scenario of strong persuasive authority, as opposed to soft authority (Annus 2004), of foreign case law may occur not only in human rights adjudication but also in newer fields of jurisprudence or regarding more fundamental issues of constitutionalism. For example, Bangladesh’s whole new jurisprudence of ‘public interest litigation’ and its Supreme Court’s declaration that Parliament is constitutionally incapacitated to alter basic constitutional structures130 are definitely fed by the mandates of the country’s Constitution. But in discovering the breadth of these mandates the judges were greatly assisted by similar developments in their neighbouring country, India. This brings us to the question whether legal transplantation is easy, as Watson (1974; 1993) once seemingly suggested,131 or to the question from where a given judiciary should learn lessons important for it. ‘Legal transplanting’ is a notoriously misleading and multi-epistemic concept, apart from being of imperialistic implications.132 I would prefer the term ‘legal assistance’ to denote the kind of cooperative jurisprudential developments taking place in South Asia particularly in the area of public interest litigation. As to the associate issue of comparability of any given jurisdiction (covered in passing in ch. 1.4), it needs to be emphasised that the factors that should determine whether and from where to draw legal assistance cannot be stereotyped; rather, the decisive consideration for a comparatist judge must be whether her/his comparative exercise is leading to an improvement of justice in the light of local socioeconomic, political, and historical-cultural contexts (Legrand 1996: 136). While courts usually look for countries that have structurally and linguistically similar constitutions to their own (L’Heureux-Dubé 2002: 241), they can also profitably draw lesson from even geographically, culturally and historically different constitutional systems (Venter 2000) in dealing with certain problems. As such, even a traditionally ignored jurisdiction can offer another given jurisdiction significant assistance in the development of newer legal concepts if they promote justice and are locally relevant.133 130

Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl.) 1. See ch. 2, n. 3. Focusing on South East Asia’s experience, Harding (2002) emphasises legal transplants’ contemporary rather than historical role. See also Alston (1999), discussing the Japanese case. 132 I avoid delving into the debate. A vast literature exists on legal transplanting. See generally Watson ([1974] 1993; 1995), Nelken (2002), Miller, J. (2003), Twining (2004) and Menski (2006a: 50-54 and sources cited there). 133 Rahman (1988: 2) disapproves of an “unsuspecting readiness to rely on foreign precedents”, but notes that appellate decisions of “any country” may be welcome if 131

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This country-specific justice-consideration may also help the judges avoid bad or invidious comparisons (Kreimer 1999) or the misuse of comparative law (Saunders 2006), and thus mitigate the huge accusation that comparativism facilitates ‘cherry-picking’.134 There remains, then, the issue of comparability of any particular rule, doctrine or judicial principle which a judge might wish to internalise.135 Here, the most common and essential elements, rather than the unstable ones, might be the option for a comparatist judge. For instance, given that remedial innovation is a general global trend and that the remedy of public law compensation as one of its facets is becoming increasingly common in several judiciaries, the Bangladeshi judges wishing to expand remedies may draw lessons from anywhere and then constitutionally entrench this remedy, drawing special inspirations from comparable Indian and South African jurisprudence. This chapter has demonstrated that there are several barriers that clog the agency of judges in achieving better justice, as well as certain juridical means that help them exercise activism in a balanced, legitimate way. It has also shown that ultimately the task of overcoming the barriers of judicial agency and of pragmatically utilising the tools of judicial activism greatly depends on the creativity, skills, reasoning and willingness of the judges themselves. A conscientious judge committed to dispensing justice suitable in specific societal conditions and to enforcing fundamental constitutional imperatives is thus well justified in innovating remedies, or in drawing lessons from other activist courts.

they have local relevance. See also the decision by Rahman, J. in AFM Naziruddin v Mrs Hamida Banu (1993) 45 DLR (AD) 38, refusing to use English authority on matrimonial property. 134 It is not uncommon that courts sometimes tend to draw only from conservative foreign decisions. For example, in Md. Faiz v Ekramul Haque Bulbul & Others (2005) 54 DLR (HCD) 670, the High Court Division, being “in respectful agreement with the principle of law in India”, considered only selective Indian judgments to punish some journalists for contempt of court for publishing a news item disclosing an allegation of examination-corruption against a judge. Uncritical selective comparativism was also followed in S. N. Goswami, above n. 10, and in Mofizur Rahman v Bangladesh (1982) 34 DLR (AD) 321, as noted in ch. 4.4.1. See further Thio (2006: 493 ff.). 135 On comparability of public law notions see Osakwe (1985). For theoretical discussion, see Örücü (2004: 19-32).

CHAPTER EIGHT CONCLUSIONS: TOWARDS GOLDEN MEAN JUDICIAL ACTIVISM

This study has searched for a middle ground in the adjudication process, a ground that stands between judicial excessivism and an unacceptable form of judicial passivity that may lead to injustices being left un-redressed. I have here shown ‘judicial activism’ as such a golden-mean, arguing that it can indeed be exercised without disturbing the proper balance of powers among branches of government. This golden middle theory of judicial activism requires judges to constantly strike a balance between embracing meek judicial failings in dispensing justice and overstepping constitutional limits. Doubtless, this is a very difficult balance to strike, and the task is more challenging in non-western societies in particular, because judicial activism generally needs to be more robust and intervening there than in the West. Since most instances of judicial activism involve activities and remedies that seem, on an ordinary count that tends to be coloured by axioms of legal positivism, to belong to the political branches of the state, critics have often readily attacked judicial activism as a-constitutional and judicial usurpation of others’ powers. This study has sought to displace the myth of judicial activism as constitutional transgression by ‘unelected’ judges, arguing that judicial activism is quite different from excessivism. Judicial activism has jurisprudential, constitutional and moral bases, and, a particular judge or judiciary turns activist when other public functionaries avoid or breach their constitutional responsibilities and thus generate injustice and inequality. Accordingly, conventional prohibitive approaches to judicial activism have been replaced in this book by a concept of judicial activism predicated upon requirements of justice and constitutionalism. It is argued and demonstrated that apprehensions about, and objections to, activist judging are largely misplaced, and that judicial activism is in effect nothing but the conscientious exposition of constitutional norms and the enforcement of public duties of those in positions of power.

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This, of course, is not to claim that judges are infallible and may not cause injustice themselves. For example, the US Supreme Court’s certain decisions refuting slaves as human beings or denying black peoples’ right to legal equality were certainly instances of judicial excessivism causing injustice. Finding a middle ground in the exercise of activism as part of their constitutional obligation is thus a challenge for judges throughout the world because, inter alia, dominant discourses of jurisprudence and legal theory are riddled with excessive negative campaigns, according to which judicial activism is an act of judicial blasphemy (chs. 1-2). The basic thrust of any project interested in a balanced approach to judicial activism is, therefore, to develop certain parameters which would be decisive of a framework for balanced judicial activism which helps judges exercise their authority in enforcing, but not undermining, the respective Constitution’s authority. The above provides necessary materials for such a framework, further analysis of which, however, first demands a summary of the findings of the previous chapters.

8.1 Summary of the findings Chapter 1 set the objectives of the present book, underlining that in the face of deficient existing legal-constitutional theories and judicial role debates, the greatest challenge for judges aspiring to adopt an activist societal role beyond mechanically resolving legal disputes is to find a legally and morally acceptable balanced way of doing better justice to wider society. Chapter 2 found that dominant western legal theory and legal discourses do not sufficiently arm the judges of any society to assume an activist role and produce socio-political change, and are particularly unsympathetic towards the distinguished need of non-Western societies for an intervening judiciary. It was found that legal positivism, in particular, which visualises the judge largely as automaton, is the most notorious force to disapprove legal innovations for the purpose of achieving justice. On the other hand, although natural law theories and sociological schools of jurisprudence infused moral and societal inputs into theoretical discourses, they remained predominantly concerned with legislative and administrative law-making, marginalising the need for judges to creatively apply the posited law, defy unjust law and take social demands more seriously. Further, although the so-called legal realism movement usefully

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exploded the myth that adjudication is value-free,1 claiming that judges do make choices,2 legal realism hardly made any difference from legal positivism, as it largely preserved the question of morality in law for the legislators and not the courts.3 Moreover, realist claims that judicial decisions are significantly affected by a judge’s inarticulate premises, personal idiosyncrasies and political predispositions (Nicolson 1989: 281) seem to overstate the reality and indeed work against judicial activism.4 Similarly, Summers’ (1982; 1992b) pragmatic instrumentalism, although it made a case for goal-oriented legal interpretations, was not to be taken as a promoter of the kind of judicial activism needed in non-Western societies since it also encourages judges to execute whatever be the state policy without inquiring into internal elements of the law. Chapter 2 also examined the positivist accusation that judicial activism violates the constitutional doctrine of separation of powers, which is in effect a consequence of a western-inspired ‘pure’ approach to separation of powers that readily dismisses the idea of robust judicial review. By showing that ‘separation of power’ and ‘judicial review’ are not reducible to a hegemonic, universal standard, and that judicial activism and separation of powers indeed share the common objectives of justice and constitutionalism, chapter 2 argued that a justice-based and societyspecific version of the separation doctrine contemplates an activist judicial role in situations of injustice and un-constitutionalism. Chapter 2 finally examined the existing intellectual discourse about the role of the judiciary, and found that deficient legal theories and a positivistic notion of separation of powers provide a traditional framework of adjudication that leaves the judges with a passive and socially-detached role. This scenario is clearly non-conducive to justice everywhere, particularly in societies beyond the West, and hence called for a dynamic and society-specific view of the Court as an active guarantor of justice. Basically, we argued in chapter 2 that a justice-based activist judicial role requires a radically new approach to existing legal theories, the doctrine of separation of powers and the judicial role perception. Another primary purpose of this chapter was to make judges aware of the inhibiting 1

See further Sachs (1976), showing, by analysing early English judges’ male bias, that judicial neutrality is a myth. 2 Realists are not the first to admit to the existence of judicial discretion and judicial lawmaking (Atiyah 1980: 347). See ch. 2.1.1-2.1.2 above. 3 Forsyth and Schiller (1981: 228) also characterised legal realism as positivistic. 4 This view may, however, be utilised for a proposition that, if appropriately taught about the dynamism of law and legal theories, judges are most likely to engage in activist judging.

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force of legal positivism,5 and of the need to continually take resort to moral considerations so that better justice can be achieved. By building on the above findings, chapter 3 analysed judicial activism from a global context and found that judicial activism is fundamentally society-specific. The basic insight that one gets from chapter 3 is that judiciaries invariably need to operate within certain jurisdiction-specific socioeconomic and political conditions. It was also found that while judges might be significantly influenced and affected by existing legal and jurisprudential discourses, i.e., by the way they understand and practise legal theory, their level of sensitivity toward societal conditions may also greatly determine the approach they take to law, legal theory and the business of judging. Thus, as demonstrated by chapter 3, the British and American courts’ largely individual rights-based jurisprudence and their eschewal of ‘polycentric’ social issues again reflected the dominance of legal positivism and the formalist vision of judges as mere announcers of the law or enforcers of the so-called ‘original intent’ of the Constitution. By contrast, as the analyses of South African, Indian and Pakistani judicial activism showed, domestic socio-political conditions might actually provide the judges incentives to turn out to be activist by overcoming jurisprudential inhibitions and limitations and to inject certain ethical considerations into the adjudication process. Particularly through the instances of South African and Indian judicial activism, chapter 3 provided evidence that by combining their commitment toward the wider community and their readiness to respect constitutional values and limitations, judges may actually find a right balance to strike. To take, for instance, the background factors of Indian judicial activism, it was pervasive social injustice and the consequential social exclusion of a majority of people from legal entitlements and executive-legislative indifference towards public causes that made Indian judges feel that ‘justice’ would not be achieved in such situations had they blindly followed the triadic western model framework of adjudication. Similarly, chapter 3 also showed that post-apartheid South African judicial activism, in addition to being greatly empowered by an activist Constitution, owes much to judges’ personal and institutional commitment to establish justice and social equilibrium in a newly democratised society.6 Thus, 5

That there is a close connection between legal positivism and judicial conservatism and the resultant narrow reading of constitutional rights (Barnett 1987b) or the denial of justice (above ch. 2.1.2; Dugard 1971) is demonstrated above, in chapters 4-7. 6 As Chaskalson (2003: 663) put it, “[t]o avoid these consequences [social fragmentation and the lack of respect for law likely to arise if large sections of the

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judicial activism in South Africa and India, far from being judicial transgression, was indeed informed by a justice-sensitive assessment of conditions, ethos, and realities of these societies. Chapter 4 offered an analysis of the development of Bangladeshi judicial activism which was found to have swung with the ups and downs of the nation’s political life. As such, although they stayed vigilant in the post-independence era, most judges during the martial law regimes compromised with their duty to uphold constitutional foundational values. In short, Bangladeshi courts operating under undemocratic regimes failed to make the right choice between doing justice and participating in the process of injustice. Although some activist decisions were issued by the Bangladeshi senior judiciary even amidst unfavourable political atmospheres, it was not until several years into Bangladesh’s reversion to democracy in 1990 that judicial activism for the noble cause of justice and wider public interest came into the scene. Analyses of this chapter thus inform us of the impact that political changes or circumstances might have upon law, courts and judicial elites (Schmidhauser 1992). Chapter 4 showed that even the post-1990 Bangladeshi judges shied away from being adequately robust against continuing injustices produced mostly by state functionaries, probably because for quite some time they remained gripped by spill-over effects of their earlier philosophy of deferential and mechanical judging. Since the late 1980s, however, a few bold judicial assertions, touching wider constitutional issues such as judicial independence and the implied limits on Parliament, began to emerge alongside a conservative judicial trait. Broadly, these judicial ambivalences in terms of adopting overpassivity now and an assertive stance then, point to a causal link between judges’ activity and their legal training or jurisprudential orientation. It was, however, indicated in chapter 4 that Bangladeshi judges officially acknowledged PIL in the mid-1990s as the most potent tool to fight injustice with. An examination of the nature and scope of PIL-based Bangladeshi judicial activism was thus inevitable, undertaken in chapter 5 through an analysis of ‘rights’ and ‘constitutionalism’ litigations. This chapter also examined self-initiated judicial actions, which indeed provided evidence that judges have means at their disposal to do better justice. Chapter 5 found that although it has begun to harness achievements, PIL-based judicial activism in Bangladesh is seemingly underperforming in effectively realising the Constitution’s socio-political community live in conditions of indignity] we require a concerted effort from all institutions of society, and a moral and ethical commitment within the broader community, to respect and uphold the [constitutional] values[,] … a commitment that each one of us in the judiciary has already made”.

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goals. Many factors are responsible for this, and, as we saw, this underperformance was more for a degree of judicial passivity in PIL cases than the elitist use of the PIL strategy itself. A traditionalist trait in PIL-based Bangladeshi judicial activism was apparent in that there was a lack of procedural and substantive innovations including in the area of effective implementation of court decisions. Chapter 5 sought to re-assess the social-justice-role of PIL, and stressed that the proper stake for judicial activism should combine traditional civic rights, social rights, and the principles of constitutional governance. Eventually, chapter 5 sought to divert the debate about whether PIL has been serving the elites or the marginalised to the issue whether wider constitutional principles of justice are being adhered to by the holders of public power, and argued for a shift of judicial focus from mere widening of access to justice to doing actual justice. In chapter 6, the role of the judge in enforcing and preserving the constitution during a sate of emergency was examined. During the 2007-8 Emergency, the senior judiciary in Bangladesh apparently incurred a crisis of public confidence, which in the coming days is more likely to have serious implications for the reputation and ability of the Court. As we saw, there had been some measure of judicial assertion during this crisis-time, in particular at the High Court Division level. Generally, however, the chapter attempted to show a nexus between judicial abdication of responsibility during the Emergency and the prevailing threatening political environment as well as the judges' legal culture and social backgrounds (Goldsworthy 2006: 343). There were also some spill-over effects from the earlier undemocratic regimes on Emergency-judicial decisions. Also, chapter 6 argued that it would remain a challenge for the judiciary to overcome the confidence-crisis and to become a much stronger institution acting for the people, which was the case with the Indian judiciary in the post-Emergency period. It is by now clear that this study has focused, as an objective of judicial activism, on a combination of rights-enforcement and the insurance of public accountability. This involves the question of judicial agency to bring about social change and to help a rule of law-based culture formation in politics, which the ‘Constrained Court view’ (Rosenberg 1993: 3) refutes by referring to certain constraints. By contrast, the challenge of this study has been to demonstrate that judges have and can well exercise their agency in a balanced way, that is, without succumbing to unacceptable constraints but at the same time respecting necessary ones. From this aspect, chapter 7 analysed, in a comparative setting, means of overcoming the barriers of judicial agency and the factors that enhance it.

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Chapter 7 began by analysing certain potentially negative factors, institutional, conceptual and those internal to the judges’ behaviour, which often impact on judicial activism. From an institutional perspective, it showed that the absence of judicial independence may significantly impair judges’ ability to become engaged actors of justice. It was, however, found that judicial independence merely in the traditional sense of the term, although nevertheless important, may not necessarily stimulate judges’ enthusiasm for activism. Judicial independence was therefore seen from the perspectives of the judicial ability to force the state to perform its responsibilities in ensuring social and political justice, to widen access to courts and to acknowledge a wider rule of justiciability of issues of juridical nature, tasks which greatly depend upon judges’ visions and commitment. Chapter 7 eventually showed that despite the formal constitutional guarantee of independence, the higher judiciary in Bangladesh suffers, in subtle ways, a significant degree of non-independence with negative consequences for its authority. It also examined the impact of certain practical constraints as well as judges’ legal training on judicial activism, showing that while some constraints exist to ensure constitutionally acceptable judicial activism, other restraints (systemic and judges’ selfimposed) work as disincentives for judicial activism. It was, however, argued that these barriers are removable or manageable by willing and creative judges, and that some constraints, conservative rules of judicial review for example, require modification in light of existing societal circumstances. This chapter further saw the prevalent apathy of domestic judges towards using unincorporated international human rights standards as a barrier to judicial agency in effectively protecting rights and in drawing the state to the rule of law-path by enforcing its international human rights obligations. It was found that although the domestic judicial use of intentional human rights standards contributes to justice and is increasingly becoming a legal technology for activist judging globally, the Bangladeshi courts, as well as many others, have largely taken an all-or-nothing approach to the value of international human rights. It was, then, argued that by taking a new approach to, and by improving their theoretical understanding about the domestic relevance of international human rights instruments, judges can overcome this barrier.7

7

The lacuna in the Bangladeshi judges’ appreciation of the complex field of domestic impact of international law is reflected in A. M. M. Rahman, J.’s characterisation of the UDHR as an “International Covenant” in H. M. Ershad v Bangladesh (2001) 21 BLD (AD) 69, 75.

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Chapter 7 then specifically analysed certain juridical means that may significantly strengthen judicial agency, focusing particularly on the changing discourse of judicial remedial expansion and legal comparativism. It noted an ever-growing global judicial trend of expanding remedies through activism. It showed that while drawing of a detailed catalogue of activist remedies is almost impossible,8 commonness and better effectiveness of some remedies are not difficult to discern. Public law compensation as a means of preventing and reducing violations of constitutional rights and norms was found to be such a remedy capable of improving justice and enforcing constitutional public accountability. Also, chapter 7 demonstrated the growth phenomenon of judicial comparison as another potential tool for increasing judicial agency. It showed that, despite continuing negative campaigns against this activist juridical tool, judicial comparativism has been increasingly contributing to the pursuit of justice by practically aiding the courts across the globe, including the Bangladeshi courts. The chapter, however, noted that the challenge for a comparatist judge is to withstand the pressure of globalisation so as to sustain one’s own legal culture. From this context, chapter 7 developed a notion of socially relevant legal comparativism premised on mutually respectful crosscountry judicial legal learning.

8.2 Balanced and contextualised judicial activism A golden middle theory of judicial activism is not only desirable but also pragmatically inevitable as it is most likely to ensure better compliance with activist court decisions, which will ensure justice in the end. Balanced judicial activism has a stronger legitimational support grounded in the constitution as well as its public acceptance, and it may potentially inspire and exert moral pressure on other coordinate organs of government either to become activist or, at the minimum, to accept court activism in eradicating injustice and rectifying public-ills.9 Importantly, a theory of balanced or principled judicial activism constitutes a consistent reminder 8

Activist judges’ approaches to the remedial process vary alongside the context of a given case. For example, in Kapila Hingorani v State of Bihar AIR 2005 SC 980, the Indian Supreme Court not only ruled that unpaid employees of certain public corporations were entitled to be paid by the state itself, but also directed the government to deposit with the High Court the required money for such payments. 9 Interestingly, the Indian Prime Minister once urged the judges, appreciably in a sober tone, to use judicial activism in a restrained manner, while acknowledging the potency of PIL in rectifying public ills (Times of India, New Delhi, 11 March 2006).

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that judges must not embrace judicial excessiveness or get themselves blamed for judicial injustice, instances of which are not altogether absent.10 The important question, however, is how to mark the limits between over-activism by judges and their meek administration of justice leading to breach of their constitutional obligation to do justice. Put in other words, the challenge for a constitutionally activist judge is to make a constant choice between going too far and not going far enough in dispensing constitutional justice. The place of the ‘balancing’ metaphor in constitutional adjudication is long established (ch. 1). In every particular case a judge has to find where the line lies, and balancing between often competing norms, rights, claims, or interests is indeed an inherent part of his/her job. As such, ‘balancing’ in the context of judicial activism deserves a unique place in contemporary discourses on constitutionalism since it emphasises a constitutionally legitimate, balancing role for the judiciary. In this balancing endeavour, a judge’s committed-ness towards doing justice to the wider society, going beyond simply mechanically resolving a dispute in a given case, and her/his readiness to appropriately respond to the national needs having constitutional implications may help her/him exercise a balanced and enlightened activism. I here use the epithet ‘enlightened judicial activism’ to denote the kind of judicial activism that takes domestic national conditions and the public’s “justice expectations” (Iyer 2005: 297) into proper account, which indeed is a primordial attribute of the concept of balanced judicial activism. Expressed precisely, the task of balancing between the two extreme poles of the judicial role spectrum, judicial extremism and judicial abdication of the fundamental duty of doing justice, should necessarily be predicated upon internal conditions of judges’ jurisdiction and steered towards the attainment of justice, human dignity11 and fundamental social values. There, then, comes the question whether the above-mentioned framework of a balanced judicial activism can practicably be pursued. As shown here (chs. 3-7), judicial activism can indeed be exercised as a constantly operated middle-ground constitutionalist strategy. For example, as chapter 3.3 showed, the Indian judges have been able to balance the 10

Bingham (2005: 21) spoke of “some undoubted excesses” by the Indian judiciary. An example of its over-activism is a Supreme Court decision of 31 October 2002 in a PIL case [WP (civil) No. 512/2002], directing inter-linking of all major Indian rivers within 10 years, including those shared by other neighbouring nations. For Iyer (2003), this was a judicial error, not activism. 11 For Miller (1982: 9), increased judicial activism is both necessary and desirable “if it furthers the attainment of human dignity”.

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conflicting claims of legislative needs, social purpose, and the need for doing justice (Abraham 1999: 34). While they have often invalidated executive and legislative acts and policies for the noble cause of justice, they have at other times refused to intervene particularly on the question of the state’s economic policies (Sathe 2002: 51-2), thereby contributing to national or “human development” (Josephs 2004: 6), positively and negatively.12 This shift by the Indian judiciary from its previous rigid position did not, however, mean that it became executive-minded, as it never postponed its vigilantism vis-à-vis the state functionaries so as to ensure human dignity, public interest and social justice by increasing the executive’s accountability and rule-abidingness (Shourie 2001: 14). As also seen in chapter 3, when taking up an activist stance in terms of enforcing the Constitution’s socioeconomic goals, the South African judiciary, too, respected a margin of appreciation by the elected branches of the state. Activism by other judiciaries reflects their understanding about the dynamism of the judicial role under their respective ‘living’ Constitutions or legal systems. Apparently, these instances of balanced judicial activism were propelled by the existing social needs of the judges’ respective societies, their sensitivity to the constitutional majesty, and awareness as to their constitutional limits. For instance, Indian judges have not only justified the activist assertion of their authority with reference to their national needs, but have also candidly recognised that excessive and ill-judged activism may damage the very institution that has given birth to it (Kirby 2000: 108). Adequate sensitivity to societal conditions of a judge’s jurisdiction as a guidepost for the exercise of a balanced judicial activism can be further explained. The Indian example reminds us that it was indeed the special needs of India that propelled its judiciary into a “radical refashioning” of the traditional judicial process, resulting in the “reconceptualisation of the role of a modern judiciary in a free society”.13 Critics may dismiss this contention as an unimpressive justification for activism. But this countryspecific justice consciousness of the judges has been the igniting inspiration for judicial activists throughout the world. For instance, even occasional common law-based activism by the pre-HRA era British judiciary was prompted by the needs, values and changing circumstances

12

See e.g. BALCO Employees’ Union v India (2002) 2 SCC 333, confirming disinvestment of a state-owned company. 13 Kirby (2000: 108). As Iyer (2005: 297) put it, “India was waiting for the judicial activist”, and, had its judiciary followed conservatism, people’s post-Independence “justice expectations” (id.) would have been frustrated.

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of the British society,14 so is the post-HRA change-mindedness among the British judges.15 More importantly, this kind of society-consciousness not only facilitates judicial activism, it also determines the quality, nature, width and orientation of that activism. Thus, while western judicial activism has predominantly been individual-centric, focusing mainly on extending constitutional civil rights-protection to newer claimants (e.g. same sex couples) and issues (e.g. flag-burning as freedom of expression), the principal field of non-western judicial activism has been vastly different. Unlike their western counterparts, Indo-Pakistani and South African judiciaries (chap. 3) assumed greater responsibilities of enforcing constitutional principles of social justice and equality and of robustly calling public functionaries to account constitutionally. The interface between court activism and a particular judiciary’s national socio-political conditions and values also explicates why one kind of judicial activity may be legitimate, constitutionally due and popularly accepted in one jurisdiction, and yet quite unseen and unwelcome in other jurisdictions. Thus, South Asian-style judicial activism as analysed above can in no way be described as judicial over-activism or the usurpation of others’ powers, but rather as much-needed refutation of morally reprehensible and legally unsustainable judicial passivity vis-à-vis continuing social injustice and the perennial abuses of public powers. Legitimacy of this kind of judicial activism is grounded in the fact that South Asian judges, through PIL-based activism for example, gave expression to the meaning of the constitutional mandates, as actively interpreted, and responded to the legitimate concerns of the societies they were serving. In this context, one needs to address the objection that activist judges often enforce their personal and political preferences rather than the social-

14

As Atiyah (1987) reports, in creating the body of English contract law in the 18th century the judges were influenced by the needs and rapid development of the then English economy. See also the context of the judicial abolition of the spousal immunity for rape in R v R [1991] 4 All ER 481, noted above in ch. 3.1.2. 15 A good example is Singh v ECO, New Delhi [2004] EWCA (Civ) 1075 in which the Court of Appeal ruled that refusal of an application of an adopted child of an Indian adoption, which English law does not recognise, to join his adoptive family in the UK involved a breach of the right to ‘family life’ under Art. 8 of the ECHR. The Court here was informed not only of the HRA 1998, but also of the need to consider the case in “its particular social, cultural and religious setting” (Munby, J., para [57]). It can be noted that this kind of plurifocal justice-consciousness among judges matches Juss’s (1998; 2006) argument for a ‘cultural jurisprudence’ or a ‘global justice’-focused regime of rights.

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constitutional values,16 and hence overstep their limits. This is a valid objection when made only against judicial excessivism and not judicial activism that admits of no personal views of the adjudicators. A judge who imposes his personal views on society acts outside the bounds of law and incurs adjudicative illegitimacy (Barak 2006: 273).17 Having said this, it should be recognised that there is nothing wrong for an activist judge to go by his or her personal values when these values reflect or coincide with those of his/her society/Constitution. As reflected, for example, in tradition-bound South Asian judges’ liberalisation of locus standi for public causes, it is indeed judges’ jurisdiction-influenced personal liberal understanding of the law and the judicial process that helped them exercise activism. By contrast, personal prejudices about the law and legal theory as well as insufficient sensitivity to national conditions have led conservative judges to adopt a mechanical adjudicative process. In his interesting thesis, Shytov (2000) urged the judges to insert “conscience” and “love” into judicial decisions so that justice be maximised, arguing that judges should love all those affected by their decisions. The kind of judicial activism that has emerged in South Africa and South Asia can indeed be seen as a reflection of ‘love’ and ‘conscience’ of judges of these countries for their people, which appear to be aroused by their personal experiences and values, shaped by ground-level societal conditions. For example, the post-apartheid South African (SA) judiciary’s philosophical shift can be explained in some measure by judges’ biographical factors. As the court decisions analysed in chapter 3.2 indicate, a ‘generational’ feeling for justice among the current generation of SA judges, who saw the horrors and injustices under the earlier unjust regime, seems to have given birth to the current state of SA judicial activism.18 Similarly, there are indications that personal experiences, e.g., regarding the national independence movement, of certain leading Indian judges like Krishna Iyer and P. N. Bhagwati have impelled them to become activists in fulfilling their Constitution’s mandates for social justice. This link between a judge’s personal experience or professional mottoes and his/her activism is best portrayed by the judicial career of India’s best-known 16

This view is strong in certain quarters in the USA. See Roosevelt (2006) and Lavoie (2005) who rejected this and favoured balanced judicial activism. 17 For an early exposition of this idea see Cardozo (1921: 88-91). 18 This insight and the term “generational” are of Justice Albie Sachs at the South African Constitutional Court (in an interview with the author in London on 27 April 2006). However, my conversations with leading scholars confirm that while South African judges are by and large activists on constitutional issues, they still nurture a traditionalist view of the Court in other cases.

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activist judge, Justice Krishna Iyer, whose unjust detention for a month in his young life made him take a pro-people insight into the law and the judicial task.19 Clearly, “anxiety about social justice and a determination to remove discrimination on all irrational grounds has caused judges like Krishna Iyer to become exemplars of a kind of judicial activism that is often in tune with the deeply felt emotions of ordinary citizens” (Kirby 2000: 107). It therefore appears that, personal past experiences of individual judges, their education and social and political backgrounds, and existing circumstances, all may have certain impacts on the outcomes of judicial decisions (Griffith 1997; Zander 2004: 330-422).20 This is what legal realism tells us about the realities involved in the judicial process. But, as already indicated, denuded of moral and ethical considerations, legal realism may actually deter a justice-based judicial activism, since judges may then be tempted to enforce personal idiosyncrasies under the cover of positivistic legal reasoning.21 Therefore, the challenge for an activist judge committed to a balanced activism is to have the constitutional norms and the morally feasible social values reflected in his decisions,22 and to formulate his judicial philosophy in the mould of these higher values. The causality behind judicial activism needs to be further explained. Apart from personal experiences and professional commitment of the judges to do justice, there are other structural and constitutional reasons why judges need to become, and indeed have turned, activists particularly in non-western societies where these problems are perennial and acute. For example, it is the executive’s failings and the legislature’s “proverbial tardiness” (Sorabjee 1997: 38) to respond to the constitutional promises and to redress everyday problems of good governance that have been a major impetus for Indian judicial activism. Factors such as these have also been the source of legitimacy for South Asian judicial activism. When 19

In Iyer’s (2004: 29) own reflection, “[t]hese thirty days burnt into me with acid fury. The hatred of unjust detention and love of personal liberty became my inalienable conviction. I […] resolved to undo, if some day I could, the slings and arrows of outrageous jail misfortune for every free Indian”. 20 Ashenfelter et al (1995), however, doubts the significance of judicial background on case outcomes. Here, a Bangladeshi court’s remark, referring to judges’ perceptive differences regarding the application of death penalty, is instructive: “We judges do not share [the] same view … and this is natural because every one of us has his own philosophy of law and life […]”: Nowsher Ali v The State (1989) 39 DLR (HCD) 57, 67. 21 It is this aspect that marginalised American legal realism as a stimulator of progressive judicial activism. 22 As to the use or misuse of personal values, see above ch. 4, notes 121 & 172.

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judges see that injustices and abuses of public power by an overweening executive are a continuing phenomenon in their societies or that their cocitizens are routinely maltreated, often by agents of the state, writes an informed observer of South Asian judicial activism, “they have two options: They can shrug their shoulders and ignore such problems, or they may turn activist and try to make a difference” (Menski 2006b). For judges whose habits are moored in a traditional legal culture, this is a very difficult choice to make, and the aberration of greater responsibility is quite easy since an uncritical adherence to orthodox legal theory and the judicial method helps them remain passive amidst the scenario of injustice. By contrast, once the choice of activism is made judges need to strike a delicate balance, since their activism practically drags them into a tension with other institutions of the state, while passivism entails a constitutional failing on their part. A societal needs-based concept of judicial activism, however, raises a question whether it is something in the nature of a temporary flash of judicial activity which its causal link with other organs’ constitutional failings purports to suggest. It is argued that judicial activism is not a temporary phenomenon. We have predicated judicial activism on the need to attain justice in a society and check the abuses of the state power held in the main by the executive and the legislature as a trust for the people. With the passage of time, conditions of injustice and social deprivation in any society might ameliorate or the elected branches of government may act more democratically and responsibly than before, but the threat of injustice is a constant threat and the holders of state power may be tempted to break, and may actually break, the law at any time. The need for judicial vigilantism against injustice is thus a permanent phenomenon, although the degree of activism may necessarily vary alongside the time and societies.23 The golden-mean theory of judicial activism requires judges to resort to certain basic strategies and to adhere to certain limitations that increase their authority and at the same time help them stay within legitimate constitutional spheres. As seen in chapters 3-5, activist courts set out to liberalise access to justice, expand existing constitutional rights, engage in implementing court orders, initiate court-sponsored investigation and provide novel and effective remedies. These means, crafting of which was 23

This is why the necessity of PIL in India has not withered, but rather has “continued to grow in scale and importance” (Cunningham 2006: 14). Judicial vigilance is always necessary if the rights of the individuals are to be preserved (Edmund-Davies 1975: 9).

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necessitated by special needs of judges’ respective society, ultimately proved inevitable as tools for exercising balanced judicial activism. On the other hand, there are many ordinary constraints inherent in the very judicial process which prevent extremism or “excessive temptations to activism” (Kirby 2000: 108) by judges. Fears of unacceptable radicalism by the judiciary are also limited by judges’ personality or attitudinal factors such as their conservative inclination or a sense of obligation to reflect the values of their particular jurisdiction, as well as by other external or political factors such as the system of appointment (see ch. 7.1.1). Activist judges might also be duly self-restrained out of their consciousness that the ultimate test of judicial activism is their ability to improve the public good, i.e., the public’s acceptance of it, chances of which are potentially increased by constitutional balancing by judges. Clearly, the efficacy of judicial activism depends also on tricky political factors such as the cooperation by political elites, which significantly turn on the nature of judicial activism itself. Therefore, the challenge for a middle-course judicial activist lies in getting him/her enabled to not only balance various competing considerations, values or rights in a particular case, but also to maintain a balance between judicial assertion and institutional comity. Indeed, activist judges need to undertake the task of balancing and weighing on a number of fronts. At a very fundamental level, as shown in this study, the stronger the link between court activism and the judges’ obligation to actualise constitutional promises and respond to national needs, the more properly the balance is struck among competing authorities of the constitutional functionaries. However, apart from resting the need for activism on national constitution and socio-political specificities, judges committed to an ideology of activism as a golden-mean constitutional tool require assistance from two further categories of instrumentalities, substantive and procedural. On the substantive front, the assertion of judicial authority in a balanced way presupposes an active conception of law, jurisprudence, legal institutions (e.g. judicial review) and the judicial role (ch. 2), which ultimately fosters innovations in legal procedures/remedies so as to ameliorate justice. This ultimately may enable a judge to strike a fair balance between unsustainable passivism and undue activism. For example, as argued in chapter 2 and demonstrated in chapter 3, while a dynamic approach to the theory of separation of powers may simultaneously position judges to actively apply their constitutional power and

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legitimately constrain them overstepping it,24 a rigid view of this may lure them into judicial over-passivity that may be unsuitable in a given jurisdiction. This hypothesis was further advanced in chapters 3 to 7, and we saw that judges, aware of the limits of legal positivism/adjudicative formalism in the context of their own societies, were able to justifiably assert their agency principally through ‘strategic’ interpretations (Feldman 2005b) and enlightened exercise of judicial discretion. Developing a method of jurisdiction-specific activist judging, however, requires judges to have a working conception of law and legal theory influenced by social conditions,25 which I argue would require them to constantly appeal to moral considerations while engaging in a negotiation between law and society through a conscientious blending of legal rules, legal theory and public policy. On the procedural front, the golden-mean approach to judicial activism demands that judges develop proper strategies to achieve a dialogic or participative form of judicial activism, as developed prominently by the Indian judiciary.26 As opposed to the accusation that activist judges often nakedly usurp other state organs’ functions, enlightened judicial activism, attuned to the people’s welfare, may in reality create a dialogue on important constitutional rights, mandates and values between the judiciary and other branches of the state, which helps judges insulate rights from the majority’s encroachment while putting them at the same time on a wider dialogic enterprise with society (Hickman 2005: 326). Since this enterprise gets the people to the central stage of judicial concern, a collaborative form of judicial activism potentially enhances courts’ decisional legitimacy, ensures better compliance with their decisions and solicits legislative co-operation. It is, therefore, invariably, a pragmatic judicial strategy and hence can also be called “judicial pragmactivism” (Barnett 1985). 24

Two instructive examples of this are (i) the Indian Supreme Court’s decision in Sheela Barse v India (1986) (above ch. 3.3.1, n. 96), and (ii) the largely traditional UK House of Lords’ decision in ex parte Fire Brigades Union [1995] (above ch. 3.1.2, n. 24), respectively directing the entry into force of a statute on child rights, and using an un-executed Act of Parliament to improve justice. 25 Summers (1979) argues that having a working conception of law as reason rather than law as invariably pre-existing rules is a pragmatic necessity for judges. See further Barak (2002: 115). 26 These days, both modern constitutionalism (Bickel 1986; Fisher 1988; Friedman 1993) and judicial activism (Roach 2001; 2006) are increasingly being understood as a democratic dialogue among branches of government. Many see ‘judicial review’ as inherently dialogic (Clayton 2004; Manfredi and Maioni 2004; McDonald 2004; Roach 2004).

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Clearly, judicial activism can not operate in a vacuum, but rather needs legal, moral and physical support from other state machineries. Undoubtedly, political elites’ cooperation with the judiciary, cooperation in terms of both implementing activist court decisions and being unwilling to overrule them, is a major factor that impacts on judicial activism. A pragmatic strategy for middle-ground judicial activists would thus be to foster and advance a court-centric effective constitutional partnership with other branches of the state not only in the field of post-judgment monitoring of activist remedies but also in other areas of cooperation, for instance, when developing remedies (Strum 1991) or appointing social commissions. Importantly, in order that judicial assertiveness vis-à-vis a defiant executive or judicial managerialism in implementing court decisions may not become counter-productive, activist courts should cautiously strategise their actions and convince other state actors, through sufficient legal and policy reasoning, that the chosen course of action is a constitutional necessity and that by this they are not encroaching on others’ domain, but rather helping them comply with constitutional mandates. The above kind of strategic judicial activism may necessitate partial or complete judicial deferral of issues to other state organs, or judicial acceptance of legislative reversal of court decisions. Judicial activism and judicial self-restraint are not necessarily conflicting, but rather mutually reinforcing. Activism characterised by self-restraint increases public confidence in the efficacy of the judicial method (Rao 1997). The purpose of judicial activism may well be served even through judicial passivity/restraint or judicial creative silence when existing circumstances and the interest of justice require this. There is virtue also in “patient” (Menski 2006b) judicial activism,27 illustrated, among others, by Indian judges who have sometimes maintained “strategic silence” (Menski 2006b) in many cases apparently in the public interest.28 Activists and realistic judges are not unaware of social consequences of their judgments. They usually refrain from engaging in forced activism, leaving complex social changes in the hands of society itself or waiting for the right time to come when they can actively engage in such social issues. To take a 27

It should be noted that Bickel’s (1962: 11-98) advocacy of “passive virtue” in judicial self-restraint is not quite the same as the virtue in ‘passive judicial activism’, supported here. 28 Menski (2006b) argues that such kind of judicial silence is not just a passivist stance, but is in effect a form of patient activism. Also see Naseem’s (1997) reevaluation of the Pakistani judiciary’s role vis-à-vis extra-constitutional regimes as essential passivity, noted above in ch 3.4, n. 139.

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discrete example, the Indian Supreme Court in Ahmedabad Women Action Group v Union of India29 dismissed a set of petitions challenging the constitutionality of India’s various personal law systems including the Muslim personal law, reasoning that the remedy lies somewhere else and not in the court, and also instructing that the Uniform Civil Code could not be achieved abruptly (Menski 2006b). By such desirable passive activism, the Court indeed protected and strengthened social cohesion, pluralism and thus justice. Having said this, it needs to be reiterated that excessive deference may lead judges to compromise with their fundamental duty of doing justice, as seen for example in the top UK courts’ earlier near-universal refusal (Syrett 2000) to intervene in social welfare issues (see ch. 3.1.2). Therefore, the appropriateness of judicial deference should necessarily be decided in light of social and politico-juridical contexts of the case in hand, and, adequate sensitisation towards societal needs may help judges strike the correct balance between judicial vigilance and deference, between unacceptable passivity and impatient/excessive activism. As already seen, for example, activist judges not only keep legitimate spheres for the executive and the legislature, they also turn robust at times against the political branches of the state and refuse to defer matters to them, when doing so would ultimately result in injustices.30 Briefly stated, activist judges must avoid ‘submissive’ deference (Dyzenhaus 1997) or ‘deference’ that injudiciously abandons the need to deal with “specific claims of right” (Allan 2006: 672). To sum up, this study has theorised a concept of balanced and enlightened judicial activism and argued that judicial activism as a middleground strategy for improving justice is a realistic option for judges. This helps judges utilise their ameliorative agency maximally and in a legallymorally legitimate way. This requires a judge to fix the dilemma of avoiding over-activism and embracing unacceptable passivity, and thus to continually engage in a balancing exercise, which is a complex task of negotiating among several socio-economic, political, moral and legal forces. This study has argued that this complex and dynamic law-job of balancing and negotiating should essentially be premised upon judges’ domestic national contexts and be aligned with the need to realise their fundamental duty of dispensing and improving justice for the wider public in their respective nation. 29

AIR 1997 SC 3614. See, e.g., the Indian Supreme Court’s double assertion in striking down two sequential Acts of Parliament that sought to reverse one of its activist decisions: PUCL v India (2003) 4 SCC 399. See ch. 3.3.1, nn. 103-4.

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8.3 Judicial activism in Bangladesh: The way forward Finally, whether judicial activism in Bangladesh has taken a middle-course presupposes addressing of the issue of its nature and immensity. The present study shows that there is doubtlessly a growing awareness about judicial activism in Bangladesh, but it would be too much to claim that it has a sufficiently activist judiciary. Rather, the judiciary in Bangladesh is by and large tradition-bound. Moreover, as compared to watermark standards of Indian and South African judicial activism, Bangladeshi judicial activism appears to be missing a coherent progression towards reaching an optimally mature stage where judicial activity can effectively erect a real constraint on those who from positions of power often twist the law and the Constitution. As demonstrated above, despite some measure of change in the judicial philosophy of the post-1990 Bangladeshi judges that resulted in the entrenchment of PIL, they still seem not to be taking public obligations of the state functionaries seriously enough. This reflects the judges’ largely traditional activism even in the area of PIL, or preventive detentions and other human rights violations (ch. 4.4.2 & 4.6.1), as well as the absence of an adequately robust judicial review regime based on public law-rationales and free from self-imposed indefensible judicial restraints (ch. 7.1.2). Bangladeshi judicial interpretations are still fraught with an over-presence of a black letter approach to the law, and judges have largely been unmindful of the need to adequately reflect on constitutional fundamental values such as justice, equality, human dignity and human rights. A quick retrospection of public law decisions generally, particularly those decisions that refuted constitutional rights’ horizontality and marginalised the effect of the constitutional prohibition of torture,31 strongly confirms this. One might wonder whether this kind of judicial attitudinal laxity has not had a link with the unacceptable form of ongoing judicial quietism regarding everyday problems of human rights violations including myriad types of criminal injustices, as well as deep-seated problems of good governance. Moreover, the Bangladeshi judiciary has not yet seriously focused on the need for judicially actualising the so-called nonenforceable but constitutionally-promised social rights (FPSPs) through an expansive, goal-oriented interpretation of the guaranteed constitutional rights.32 As such, despite judicial activism on PIL issues we have seen 31

Respectively Hossain v Hosein (2006), above ch. 4.6.2, n. 151, and ASK v Bangladesh (2007), ch. 5.2.2 above, n. 58. 32 See above ch. 5.6, and compare this with the Indian courts’ approaches covered in ch. 3.3.2.

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virtually no judicial innovation of constitutional rights or effective remedies,33 or a coherent trend of judicial dissemination of basic social values.34 The above exploration of deficiency in Bangladeshi judicial performance is not, however, to claim that judges there are exceedingly passive or are absolutely unaware of their ability to legally innovate, and of the existence of functional leverages and legal technologies (ch. 7) that can help them exercise their agency creatively.35 As seen in this study, some judges have indeed shown a willingness to take the middle institutional path, acknowledging that they do not enjoy any “omnipotence” under the Constitution but have an obligation “to see if the other functionaries of the Republic are well within their bounds or are transgressing their limits”.36 In a number of cases involving parliamentary or politico-juridical issues the delicate issue of balancing between judicial failure to exercise authority and the judicial acceptance of others’ constitutional breaches received a pragmatic treatment from the courts that showed due restraint in some cases and activism in others (ch. 4.6.1). On several occasions, the Bangladeshi Court effectively demonstrated a dynamic view of the doctrine of separation of powers37 and exercised pragmatic activism. Some judges also apparently displayed awareness about the existence of unjust societal conditions and expressed a passion for making a difference through a pro-active and ameliorative role (ch. 5, n. 3; Karim 2001). This explains why PIL in Bangladesh has come to stay at a certain level, and why notable instances of judicial vigilance vis-à-vis constitutional breaches have not been altogether absent. 33

For a lone instance of attempting to craft a novel remedy see ASK v Bangladesh [2003] 4 CHRLD 147, above ch. 5.5. 34 Although Bangladeshi judges have not been reticent on constitutional values in the prominent instances of judicial activism (see e.g. FAP 20 case, as in ch. 5.1, n. 12, where the Appellate Division took into account public policies), they generally favour judicial minimalism. A notable recent exception is the High Court Division’s observations about constitutionalism in Bangladesh Italian Marble Works Ltd v Bangladesh (2005), above ch. 4.6.4. 35 Note, for example, Rahman, J.’s observation: “Where social conditions […] change, but the law fails to change, […], the Court will even then be required to […] administer justice and it will not ask the parties […] to wait on Parliament for an appropriate law”: AFM Naziruddin v Mrs. Hamida Banu (1993) 45 DLR (AD) 38, 44. 36 K. S. Ahmed, J.’s reasoning in Anwar Hossain Khan v Speaker (1995) 47 DLR (HCD) 42, 48. 37 See, e.g., Masdar Hossain (above ch. 4.6.3), and Anwar Hossain Chowdhury (ch. 4.5 above).

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What, then, did make the Bangladeshi courts shy away from an adequate level of activism commensurate with the country’s constitutional framework for a just social order and a system of accountable and responsive governance (preamble; Art. 7; Arts. 8-25), even despite the post-1990 politico-juridical leeway? Moreover, considering the historicalconstitutional background contexts of Indian and post-apartheid South African judicial activism alongside Bangladesh’s similarly activist Constitution and its more demanding historical context, one would only wonder at the problematic nature of Bangladeshi judicial activism. As the present study reveals, apart from several ordinary inhibitive factors such as the lack of resources for judges or excessive caseloads, there are at least two major and strong reasons behind this scenario: (i) the impact of deficient global jurisprudence on the Bangladeshi judges, and (ii) the element of fear/retaliation, humiliation, or allurement among them. There are of course other reasons, which will comfortably fit into one or the other of these dominant two. One such allied reason is the lack of collectivised judicial philosophy about the activist role of the law or a “generational” feeling among the Bangladeshi judges (like the one among the South African judges) to build a justice-reinforcing jurisprudence.38 An activist role perception, noted in the preceding paragraph, has not yet become institutionalised and has largely remained confined to a few judges. The detailed analyses of Bangladeshi case law (chs. 4-7) including those handed down during the Emergency-period reveal that judges there still seem to be inclined towards Anglo-American judicial ideologies in a significant degree. They are still under a strong clutch of legal positivism, missing even the liberal spirit of common law.39 This is hardly surprising, and this scenario has a causal tie with the training of judges who have either received further training in Western countries (mostly in England) of the formalist judicial tradition which hardly inspires a situation-specific role of law, or have trained themselves at home with a heavily uncritical orientation in legal positivism (see ch. 2).40 38

Another potential reason that affects institutional motivation for activism is judges’ self-content about their activity and hence a general unwillingness to acknowledge and rectify their failings. 39 Rather, as said above, judges often practise a civil law tradition of not going/speaking beyond what is codified as ‘law’. 40 A great number of even modern day top judges have gone to 'law colleges' and not to university-level law schools. While law schools at universities are lagging behind in imparting world-class education, law colleges have been maintaining no standard at all.

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In fact, the colonial legal legacy has laid a strong and continual imprint on the country’s legal culture,41 affecting not only the judges but also its other stakeholders, lawyers, legal educators, lawmakers and administrators, who in their daily business seldom appear to be imbued with sensitivity for indigenous and local notions of justice. Resultantly, like everyone else, judges have not adequately taken into account legitimate concerns of their respective society while developing their role perceptions and their ideas about what law is and what its functions are. From a slightly cynical point of analysis, this can be further illuminated by showing that even some prominent instances of activism may be related to the self-interest (reputational) of the judges themselves. For example, recent Supreme Court activism in terms of requiring the submission of reports of criminal investigation to the Court ensued only after judges began to be killed by terrorists.42 Also, the kind of post-decisional judicial vigilance in Masdar Hossain (ch. 4.6.3), involving independence of the lower judiciary, is almost absent in other cases.43 This is of course not to de-legitimise these activist interventions, but this cynicism pointedly reveals that Bangladeshi judges lack proper and full sensitisation to their obligation to turn activist on wider issues of social injustice and constitutional breaches. Clearly, this lacuna is linked with their traditional legal training/philosophy. Given the existence of a justice-based Constitution, the inadequacy or the harshness of laws is indeed not a deterrent for judicial activism in Bangladesh. Rather, the problem seems to be an absence of a socially befitting and justice-focused understanding or reformulation of the existing law or the Constitution,44 a deficiency that seems deeply ingrained in the country’s outdated legal education and professional training systems.45 41

As reflected in the Bangladeshi judges’ excessive tilt towards mostly AngloAmerican decisional laws, sometimes to those very old and largely un-contextual. 42 The AD earlier rejected such a remedy of even lesser stringency in Bangladesh v Dr. Shamima S. Rita (2002), noted in ch. 4.6.1, n. 108. 43 In this regard one may also cite the ‘basic structure’ decision in Anwar Hossain Chowdhury (ch. 4.5 above) that involved decentralisation of the Supreme Court. But this decision has been considered in this study as one of a few superb instances of Bangladeshi judicial activism. 44 This is not to say that there are no harsh and unjust laws in Bangladesh. The question, however, is how the courts apply them and test their validity in light of the Constitution. See above ch. 4.6.1, esp. n. 134. But see the High Court Division’s split-verdict of 12 July 2001 where one judge declared a harsh law, the Public Safety Act 2000, unconstitutional, while the other voided only some of its provisions [Afzalul Abedin v. Bangladesh (2003) 8 BLC (HCD) 601]. 45 The law schools, the Bar Council, and the Judicial Administration Training Institute in Bangladesh continue to remain obsessed with producing skilful lawyers

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It thus logically follows that without building a society-specific judicial method and without radically re-structuring the existing eurocentric legal theory with the aid of its own legal bricks, the Bangladeshi judiciary cannot develop a socially desired form of activism. Critics might question whether this is a viable appeal in the face of an increasingly globalised legal world. This study has not suggested a parochial theory of judicial activism, but rather argued that judicial legal comparativism, sufficiently aware about judges’ domestic national conditions, is a potent strategy of consolidating domestic jurisdiction-focused judicial activism. The other cause behind the present inadequacy of judicial vigilance in Bangladesh is simply the absence of meaningful independence of the higher judiciary (ch. 7.1.1). Due to space constraint, I refrain from providing a detailed account of how this factor has been discouraging or even curbing the usual growth of judicial activism in Bangladesh. Although the unitary pattern of Bangladesh’s senior judiciary and the formal guarantee of its judges’ independence prevent retaliatory removal or transfer of activist judges, current conditions prevailing in the judiciary and its increasing politicking have not only resulted in the degradation of quality of judges but are also continually generating elements of real fear or allures for personal career interests among them, with damaging consequences for their willingness to pursue activist judging (ch. 7.1.1, esp. nn. 11 & 13).46 I do not mean that judicial activism should transfuse into a kind of judicial autonomy that is without democratic or legal controls and accountability. But these constraints and the argument of judicial accountability should of necessity be for better justice, and not for gauging judicial protests against injustices. The combined effect of the above-discussed two major negative factors on Bangladeshi judicial activism can be usefully illustrated by reference to judges’ reluctance to engage in post-decisional supervision assertively and collaboratively. As seen particularly in chapter 5, most of the activist decisions in PIL cases were simply ignored by the executive. Tackling an and judges, rather than preparing the current and would-be legal actors to “commit the law to the service of the people” (Alam 2006). The law schools, in particular, are largely imparting western-inspired positivistic rather than society-specific legal education, as evident in their reluctance to officially recognise PIL as a core subject. 46 For example, following the High Court Division’s observation in Bangladesh Italian Marble Works Ltd (2005), above n. 34, that military coups of the 1970s were grave constitutional wrongs, undercover security men entered the court room in excuse of ‘security’, and the bench of the concerned judges was dissolved by the Chief Justice.

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executive defiant of activist judicial pronouncements is thus a more challenging task for the Bangladeshi judges than merely passing good orders. But they can effectively overcome this challenge by simultaneously becoming tougher against the recalcitrant executive and attaining “a semblance of co-equal status” (Rahman 1988: 5) with the other branches of government through building a constructive partnership with them. The present judiciary generally seems to be lacking a zeal for such an entrepreneurial role. For reasons never explained, many judges simply remain unconcerned in the face of the executive’s defiance of court decisions, while others appear indifferent about what is happening after good orders were made.47 One would not be unrealistic in explaining this general reluctance by Bangladeshi judges by reference to an element of fear in them of subtle retaliation (or simply non-obedience) from the executive or from within the judiciary, as well as to lack of sufficient jurisprudential confidence to enforce compliance with activist court decisions. Whether Bangladeshi judges have been striking the correct balance between over-activism and injudicious passivity may now be revisited. When assessed in their constitutional and societal contexts, the studied instances of judicial activism in Bangladesh reveal that there has been hardly any case of judicial overstepping. Of course, one may critique a few actions by the judges in some cases as “excesses”. Rather, as this study demonstrated, Bangladeshi judges may to some extent be blamed for judicial under-activism or passivity. In particular, as seen in chapters 4-7, particularly in chapter 6, several decisions or inactions of the Appellate Division of Supreme Court are anything but promotive of justice. Thus, the reason why this study has identified the Bangladeshi judiciary as having lacked a satisfactorily activist trait lies in the fact that, as compared to the degree of social injustices and continual de-making of constitutional goals and principles, its activism is apparently less robust than it ought to be. In Bangladesh, a large majority of people live in conditions of human indignity and constitutional guarantees are routinely breached. The political 47

Examples of this abound. See above ch. 5.5. In ASK v Bangladesh [2003] 4 CHRLD 147, the High Court Division on 21 May 2001 directed the adoption of certain safety measures in garments factories so as to prevent deaths and injuries from fire. This went unheeded and the Court stayed functus officio until a new petition (BLAST & Others v Bangladesh WP No. 2019/2006) was filed in 2006 following a major fire in a garments factory, occurring from typical safety faults, that claimed many lives and left many workers injured. Obviously, had the Court followed up its earlier directives, later casualties could have been potentially reduced.

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branches have not only remained indifferent to the Constitution’s promises for social justice and the rule of law, but also have often engaged in flouting these mandates for their personalised interests. Undermining the constitutional goal of a socialist democracy, the current pattern of procedural rather than substantive democracy in Bangladesh continues to marginalise the public good, and an omnipotent executive has today emerged that has become the least controllable, legally-politically, but the most self-serving (ch. 4.1). Clearly, this scenario of socio-political injustices strongly calls for increased judicial intervention and guidance, of course in a balanced fashion, which is critical for the insurance of public accountability, good governance, and constitutional justice in Bangladesh.48 Thus, the central focus in the debate about Bangladeshi judicial activism at this point of time should not be whether it would create an institutional imbalance, but rather whether it has been adequately robust. Of course, Bangladeshi judges, too, have a challenge of pursuing goldenmean activism as a choice between embracing a culpable failing in meting out justice and over-acting. Having said this, it should also be forcefully reinforced that the existing social-constitutional specificities not only supply the principal motivation for increased judicial activism but also provide certain pragmatic limitations (e.g. legitimate legislative reversal) that act as disincentives for judges turning unacceptably radical. It is submitted that the Bangladeshi judges should enlighten and increase their activism; they should be more concerned about how much they can deliver with the aid of it rather than worrying about the limits of judicial function. In order to be able to actively exercise their agency to improve justice, Bangladeshi judges should increase their juridical ‘love’ for the people, overcome their fascination for an Austinian concept of law, and must act on what Cunningham (2006: 14) described as “the moral imperative to respond to the overwhelming evidence of injustice” in society.49 Apart from incentives supplied by the political (Galanter et al 1979: 741) and legal cultures, it is indeed a matter of judges’ orientation in law and legal theory as well as their moral concern for justice that may propel them into becoming judicial crusaders against injustices. In every society, there exist both instruments for judicial activism and obstacles that retard it. A justice-conscious judge having commitments towards his/her society and trained in a society-specific concept of law can legally 48

Dakas’ (1997) argument (in the Nigerian context) that judicial activism is a strong force to alleviate poverty and passivism is ‘tyranny’ in conditions of poverty/injustices is quite convincing also for Bangladesh. 49 Cunningham (2006: 14) noted that the radiant energy that quickened the growth of PIL in India was in reality its judges’ responses to such “moral imperative”.

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transcend the letters of law and the traditional limits of the judicial function, and capitalise on law’s spirit so as to utilise legal technologies of activism and overcome traditional positivist barriers. Fundamentally, therefore, the future of Bangladeshi judicial activism as a golden-mean constitutionalist tool depends on the quality and personality of judges themselves, alongside a vigilant citizenry and press, an activist bar and conscientious social action groups. This means that at the end of the day, there is the need, firstly, of adequate judicial training which ultimately necessitates a justice-focused and contextualised legal education system, emphasising the ameliorative agency of the law.50 Secondly, there is still the need for ensuring and protecting internal and external independence of the judiciary and judges.

50

I also strongly urge for the creation of an interactive intellectual platform of judges, lawyers and legal educators for exchange of views and cross-learning, which will hopefully rejuvenate the country’s scant and feeble legal scholarship.

APPENDIX PROVISIONS OF THE CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH CITED IN THIS STUDY∗

Preamble We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through [a historic war for national independence], established the independent, sovereign People's Republic of Bangladesh; [Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;] Further pledging that it shall be a fundamental aim of the State to realise through the democratic process to 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; Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and cooperation in keeping with the progressive aspirations of mankind; In our Constituent Assembly, this eighteenth day of Kartick, 1379 B. S. corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution. PART I THE REPUBLIC 2A. The state religion The state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic. ∗ Words in bracket [ ] denote insertions made after the adoption of the Constitution on 4 November 1972. Footnotes are omitted.

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7. Supremacy of the Constitution (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. (2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.

PART II FUNDAMENTAL PRINCIPLES OF STATE POLICY 8. Fundamental principles (1) The principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy. (1A). Absolute trust and faith in the Almighty Allah shall be the basis of all actions. (2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable. 9. Promotion of local Government institutions The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women. 11. Democracy and human rights The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, [and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured].

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14. Emancipation of peasants and workers It shall be a fundamental responsibility of the State to emancipate the toiling masses the peasants and workers and backward sections of the people from all forms and exploitation. 15. Provision of basic necessities It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens(a) the provision of the basic necessities of life, including food, clothing, shelter, education and medical care; (b) the right to work, that is the right to guaranteed employment at a reasonable wage having regard to the quantity and quality of work; (c) the right to reasonable rest, recreation and leisure; and (d) the right to social security, that is to say to public assistance in cases of undeserved want arising from unemployment, illness or disablement, or suffered by widows or orphans or in old age, or in other such cases. 16. Rural development and agricultural revolution The State shall adopt effective measures to bring about a radical transformation in the rural areas through the promotion of a agricultural revolution, the provision of rural electrification, the development of cottage and other industries, and the improvement of education, communications and public health, in those areas, so as progressively to remove the disparity in the standards of living between the urban and the rules areas. 21. Duties of citizens and of public servants (1) It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline, to perform public duties and to protect public property. (2) Every person in the service of the Republic has a duty to strive at all times to serve the people. 22. Separation of Judiciary from the executive The State shall ensure the separation of the judiciary from the executive organs of the State.

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25. Promotion of international peace, security and solidarity (1) The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter, and on the basis of those principle shall(a) Strive for the renunciation of the use of force in international relations and for general and complete disarmament; (b) uphold the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice; and (c) support oppressed peoples throughout the world waging a just struggle against imperialism, colonialism or racialism. (2) The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity. PART III FUNDAMENTAL RIGHTS 26. Laws inconsistent with fundamental rights to be void (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. (3) Nothing in this article shall apply to any amendment of this Constitution made under article 142. 27. Equality before law All citizens are equal before law and are entitled to equal protection of law. 28. Discrimination on grounds of religion, etc. (1) The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. (2) Women shall have equal rights with men in all spheres of the State and of public life. (3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition

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with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens. 29. Equality of opportunity in public employment (1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. (2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic. (3) Nothing in this article shall prevent the State from – (a) making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; (c) reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. 31. Right to protection of law To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. 32. Protection of right to life and personal liberty No person shall be deprived of life or personal liberty save in accordance with law. 33. Safeguards as to arrest and detention (1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

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(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person(a) who for the time being is an enemy alien; or (b) who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. (6) Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4)]. 35. Protection in respect of trial and punishment (1) No person shall be convicted to any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. (4) No person accused of any offence shall be compelled to be a witness against himself. (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

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(6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial. 44. Enforcement of fundamental rights (1) The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part is guaranteed. (2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers. 47. Saving for certain laws (1) No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part(a) the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently; (b) the compulsory amalgamation of bodies carrying on commercial or other undertakings; (c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein; (d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil; (e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or (f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution. (2) Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such

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law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; [Provided that nothing in this article shall prevent amendment, modification or repeal of any such law.] [(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.] 47A. Inapplicability of certain articles [47A (1) The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.] PART IV THE EXECUTIVE CHAPTER IIA NON-PARTY CARE-TAKER GOVERNMENT 58C: Composition of the Non-Party Care-taker Government, appointment of Advisers, etc. (1) Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President. (2) The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such. (3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:

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Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice. (4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article: Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge. (5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article. *** CHAPTER III – LOCAL GOVERNMENT 59. Local government (1) Local Government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law. (2) Everybody such as is referred to in clause (1) shall, subject to this Constitution and any other law, perform within the appropriate administrative unit such functions as shall be prescribed by Act of Parliament, which may include functions relating to(a) Administration and the work of public officers; (b) the maintenance of public order; (c) the preparation and implementation of plans relating to public services and economic development. 60. Powers of local government bodies For the purpose of giving full effect to the provisions of article 59 Parliament shall, by law, confer powers on the local government bodies referred to in that article, including power to impose taxes for local purposes, to prepare their budgets and to maintain funds.]

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PART V THE LEGISLATURE CHAPTER I - PARLIAMENT 67. Vacation of seats of members (1) A member of Parliament shall vacate his seat(b) if he is absent from Parliament, without the leave of Parliament, for ninety consecutive sitting days; ……………………………………………….. PART VI THE JUDICIARY CHAPTER I- THE SUPREME COURT 94. Establishment of Supreme Court (1) There shall be a Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division. ………………………………………… (4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions. 95. Appointment of Judges (1) The Chief Justice and other Judges shall be appointed by the President. (2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and(a) has, for not less than ten years, been a advocate of the Supreme Court; or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court. (3) In this article, “Supreme Court” includes a Court which at any time before the commencement of the Second Proclamation (Tenth Amendment) Order, 1977, exercised jurisdiction as a High Court or Supreme Court in the territory now forming part of Bangladesh. 96. Tenure of office of Judges (1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of [sixty-seven] years.

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(2) A Judge shall not be removed from office except in accordance with the following provisions of this article. (3) There shall be a Supreme Judicial Council, in this article referred to as the council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges: Provided that if, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or other cause, the Judge who is next in seniority to those who are members of the Council shall act as such member. (4) The function of the Council shall be(a) to prescribe a Code of Conduct to be observed by the Judges; and (b) to inquire into the capacity or conduct of a Judge or of any other functionary who is not removable from office except in like manner as a Judge. (5) Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or (b) may have been guilty of gross misconduct, the President may direct the Council to inquire into the matter and report its finding. (6) If, after making the inquiry, the Council reports to the President that in its opinion the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the Judge from office. (7) For the purpose of an inquiry this article, the Council shall regulate its procedure and shall have, in respect of issue and execution of processes, the same power as the Supreme Court. (8) A Judge may resign his office by writing under his hand addressed to the President. 98. Additional Supreme Court Judges Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judge of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified person to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period as an ad hoc Judge and such Judge while so sitting shall exercise the same jurisdiction, powers and functions as a Judge of the Appellate Division.

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Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article. 100. Seat of Supreme Court The permanent seat of the Supreme Court, shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint. 102. Powers of High Court Division to issue certain orders and directions, etc. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution. (2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law(a) on the application of any person aggrieved, make an order(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office. (3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

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(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or (b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in subclause (a) or sub-clause (b). (5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies. 103. Jurisdiction of Appellate Division (1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. (2) An appeal to the Appellate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division(a) certifies that the case involves a substantial question of law as to the interpretation of this constitution ; or (b) has sentenced a person to death or to [imprisonment] for life, or (c) has imposed punishment on a person for contempt of that division; and in such other cases as may be provided for by Act of Parliament. (3) An appeal to the Appellate Division for a judgment, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal. (4) Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division. 104. Issue and execution of processes of Appellate Division The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of

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securing the attendance or any person or the discovery or production of any document. 106. Advisory jurisdiction of Supreme Court If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President. 108. Supreme Court as court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself. 109. Superintendence and control over courts The High Court shall have superintendence and control over all courts [and tribunals] subordinate to it. 112. Action in aid of Supreme Court All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. CHAPTER II- SUBORDINATE COURTS 115. Appointments to subordinate courts Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf. 116. Control and discipline of subordinate courts The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the [President] [and shall be exercised by him in consultation with the Supreme Court].

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116A. Judicial officers to be independent in the exercise of their functions subject to the provisions of this Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions. PART IX THE SERVICES OF BANGLADESH CHAPTER I - SERVICES 133. Appointment and conditions of service Subject to the provisions of this Constitution Parliament may by law regulate the appointment and conditions of service of person in the service of the Republic; Provided that it shall be competent for the President to make rules regulating the appointment and the conditions of service such person until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law. PART IXA EMERGENCY PROVISIONS 141A Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency; [Provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister.] (2) A Proclamation of Emergency(a) may be revoked by a subsequent Proclamation; (b) shall be laid before Parliament; (c) shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament; Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless

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before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament. (3) A Proclamation of Emergency declaring that the security of Bangladesh, or any part thereof, is threatened by war or external aggression or by internal disturbance may be made before the actual occurrence of war or any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. PART X AMENDMENT OF THE CONSTITUTION 142. Power to amend any provision of the Constitution (1) ……………….. [(2) Nothing in article 26 shall apply to any amendment made under this article.] PART XI MISCELLANEOUS 149. Saving for existing laws Subject to the provisions of this Constitution all existing laws shall continue to have effect but may be amended or repealed by law made under this Constitution. FOURTH SCHEDULE TRANSITIONAL AND TEMPORARY PROVISIONS 6. Judiciary 6 (1)…………………………….. (6) The provisions of Chapter II of Part VI (which relate to subordinate courts) shall be implemented as soon as is practicable, and until such implementation the matters provided for in that Chapter shall (subject to any other provision made by law) be regulated in the manner in which they were regulated immediately before the commencement of this Constitution. 19. Ratification and confirmation of the Proclamation of the 24th March, 1982, etc. (1) The Proclamation of the 24th March, 1982 hereinafter in this paragraph referred to as the said Proclamation, and all other Proclamations, Proclamation Order, Chief Marital Law Administrator's Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, Ordinances

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and all other laws made during the period between the 24th March, 1982, and the date of commencement of the Constitution (Seventh Amendment) Act, 1986 (Act 1 of 1986) (both days inclusive), hereinafter in this paragraph referred to as the said period, are hereby ratified and confirmed and declared to have been validly made and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever. (2) All orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by the President or the Chief Martial Law Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from the said Proclamation or from any other Proclamation, Proclamation Order, Chief martial Law Administrator's Order, Martial Law Regulation, Martial Law Order, Martial Law Instruction, Ordinance or any other Law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever. (3) No suit, prosecution or other legal proceedings shall lie in any court or tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceedings taken whether in the exercise or purported exercise of the powers referred to in sub-paragraph (2) or in exercise or purported exercise or such powers.

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INDEX

Activism balanced judicial 254, 257, 259 civic 175 common law-based 99, 254 conservative 63 constitutional 152, 159, 163 degree of 258 enlightened judicial 260, 262 forced 261 judicial environmental 145, 147 judicial social 8, 56 legal 166, 175 legal technologies of 270 legislative 326, 330 over-activism 253, 255, 262, 268 pragmatic 264 progressive judicial 257 socio-legal 175 strategic 183, 216 Supreme Court 266 Activists legal 144, 147. 198 judicial 6, 254, 261 rights 17 social 148, 169, 172 Australia Australian High Court 220 Bangladesh Constitution of 97, 118, 143, 184, 233, 289 independence of 95 Supreme Court of 189, 205 Bill of Rights 68, 95, 302 modernistic 97 New Zealand 2, 226 US 60

Canada Canadian Charter of Rights 2-3, 134 Supreme Court 56, 134, 238 Constitution subversion of 74, 102, 117 constitutional breaches 182, 236, 264, 266 usurpers of 106 Constitutionalism 2, 8-9, 11, 1415, 19, 23, 33-5, 39, 48-9, 50, 52, 57-8, 59, 64, 69, 77-8, 92, chapters 4-5 constitutionalism-based PIL 170 constitutionalism litigation 139, 157, 248 in Bangladesh, ch. 4, , 14, 264, 315 defence of 113, 137 democratic 2, 69 new 64, 313, 320 imperatives of 139 principle(s) of 9, 19, 34-5, 39, 69, 139, 148-49, 157, 182-83, 190, 19899, 203-04 un-constitutionalism xxxv, 192 Constitutionality 12, 34, 52, 69, 72, 79, 101, 159-60, 165, 180, 190, 192, 200, 215-16, 222 of the death penalty 159, 242 of Emergency 186, 197-8 of martial law 204 Constitutional Court(s) xxxvii, 12, 188, 200, 297, 305, 341 Belgian 330 South African 38, 69, 118, 256, 295-7, 342

346 Conservative method of constitutional construction 201 judges’ conservative trail 67 judicial activism 120 Judicial attitude 176 judicial decision 201 rules for judicial review 251 legal culture 232 stance (of the judge) 60 Common law 21, 26, 29, 39, 59, 64, 66, 83, 101, 114, 128 liberal spirit of 265 constraint of 213 doctrine of public trust 128 English 25, 99 global common law of human rights 42 methodology 213 of compensation 232 traditions 2, 88, 238 European Convention on Human Rights (ECHR) 64, 66, 121, 226, 255 non-European culture 22 states 209 Emergency ch. 6 1975 Emergency (India) 187 2007-08 Emergency 166, 183, 191, 250 Bangladesh 184, 186, 190 constitutional provisions for 187 constitutionality of (emergency provisions) 186, 197-8 Imposition of 92, 102, 185, 284 judicial activism during emergencies 184 jurisprudence of 190 lawfulness of 192 Pakistan’s post-emergency period 92 post-emergency democratic regime 137

Index role of courts/the judiciary 186-91 state of 187-89, situations of 188-89 proclamation of 187-89 Martial law 88, 92, 96, 105-09, 112-3, 116, 123, 137-39, 186, 189 administrators 124, 286-87 proclamation 108, 113 court/s 109, 138 Independence Bangladesh’s 95 dilution of judicial 131 guarantee of judicial 180, 212 of the judiciary 95, 131-37; 208-13 judges’ 267, judicial 132-34, 167-9, 188, 194, 201, 207-8 national 256 war of 97 India judicial activism in 74-88 (Indian) Supreme Court 40, 142, 154-5, 166, 187, 196, 219, 222, 229, 238, 242, 252, 260, 262 International law theories of 217 application of 217 impact of 218 customary 218 customary international human rights law 222 inconsistency with 222 consonance with 221 Interpretation creative 8, 134, 181 constitutional 6, 89, 111, 140, 143, 242 harmonious 81, 114, 177, 218 interpretational approach (of the advocates) 43 interpretational jurisprudence 119 judicial 30, 11, 106, 109, 119-20, 263

Judicial Activism in Bangladesh literal 63, 187; liberal 141, 193, 202 goal-oriented 247, 263 legal 111, 119, 187, 191,193, 202, 215, 247 method of 30; purposive 64, 192, 226 of the constitution 37, 98, 178, 180, 192, 201, 234 positivistic 110, 196; rationalistic 109 remedy/rights-enhancive 105, 234 regressive/teleological 143, 152 statutory 220; strategic 260; textual 193 Judicial activism antagonists of 5; nature of 259 nature of Bangladeshi 139 concept of 3, 7, 77, 245, 258 constitutional 118, 124 contemporary 131; definition of 8 golden-mean 7, 11, 245 ff. legitimate xxxiii, 15 legitimate way (activism in a ) 9, 244, 262 opponents of 31 Pakistani 90-1, 248; in Pakistan 8793 purpose of 261 principled 252, 293 PIL-based 90, 168 ff, 249 rights-based 149-52, 157 South Asian 30, 168, 257 in South Africa 68 ff; 249 in the UK 63 ff; in the USA xxxiii, 60 ff theory of 5, 18, 245, 252, 258, 267 Judicial blasphemy 3, 246 Judicial discretion 8, 21, 26, 27, 37, 105, 121, 216, 220, 225, 247, 261 Judicial review conservative 251, 263 robust 247

347

Jurisprudence activist 9-10, 18, 49, 68 American rights 60, Bangladeshi PIL 145 comparative 206, 242 contemporary 69 dominant discourse of 246 economic rights 73 of emergency 190 gender 69; global 86, 265 liberal 188; neo-realistic 47; public law 127, 238-9 public interest 105, 139; 173, 191 rights 42, 60, 73 schools of 27, 246; sociological 289 social rights 74; suo motu 155 transformative 104; western models of 18 New Zealand 2, 228 Pakistan Supreme Court of 92 Passivity 44, 49 executive's 79 injudicious 268 judicial 5, 11, 14, 16, 25, 52, 153, 233, 261 legislative / legislature's 11, 81 post-judgment 136 reprehensive 11, untenable 15 state of 210 unacceptable 16, 58, 262 Legal Positivism 86, 106, 118, 179, 183, 237, 246-8, 260, 265 Anglo-Saxon 9, 36, 70 associated with 237 dominance of 248; force of 248 heydays of 106 orientation in 265 refuge to 183 strict 63, 118

348 Pragmatism 29-30, 207, 292 (Judicial) pragmactivism 260 Restraint judicial restraint 3, 36, 51-2, 125, 214, 263 judicial self-restraint 3, 261 Social justice 14, 28, 36, 53-56, 63, 74-6, 89-9-, 119, 120, 139, 143, 158, 168-9, 170, 177, 181-82, 250, 254, 256, 269 judicial activism for 8 idea of 158; principles of 255 promises for 269 realisation of 55, 170 struggle for 168 substantive 9

Index South Africa Constitution of 68 judicial activism in 68 ff; 249 Supremacy constitutional 35, 50, 59, 68, 89, 96, 101 Transgression by other branches of the state 33 constitutional 245 executive 191 judicial 5, 249 of constitutional limits 5, 52 Zimbabwe Supreme Court of 226