Judicial Activism Research Articles

THE RULE OF LAW THROUGH JUDICIAL ACTIVISM IN SOUTH AFRICA

The South African Courts frequently juggle different roles within the country’s governance. This causes discomfort among some of the role players within the polity as it is seen as judicial encroachment in matters outside the court’s role. In the South African context of separation of powers, the role of each branch of government is not always clearly defined, and now and again, it gains perspective as courts interpret parliamentary legislation and executive policies. The court’s role and limitations often come under scrutiny. This causes conflicts between the respective branches of government regarding the extent of judicial intervention concerning other branches of government, namely the legislature and executive. This article examines the role and limits of judicial intervention in the terrain of other branches of government within the context of separation of powers as envisaged by the South African Constitution. The doctrine of separation of powers entails the establishment of a trilateral government. The envisaged government consists of the legislature, which enacts laws, an executive that recognises and executes the law and an independent judiciary to regulate public power when all else fails. The article attempts to clarify the place and role of the judiciary in upholding the rule of law in a constitutional state such as South Africa amid rampant complaints of judicial overreach.

The split ladder of policy problems, participation, and politicization: constitutional water change in Ecuador and Chile

There is debate about whether complex problems should be addressed technocratically or whether they should be politicized. While many tend to favour technocratic decision-making and evidence based policy, for others politicization of policy problems is fundamental for significant policy change. But politicization does not always lead to problem solving. Nor is it always necessary. This paper addresses the question: Under what circumstances should problems be politicized, and what is the effect of such politicization? It adds politicization, through windows of opportunity, to the split ladder of participation to assess policy change through two case studies: successful and unsuccessful constitutional change in Ecuador (2008) and Chile respectively (2022). It argues that where there is no agreement on either science or policy, politicization is required to address lack of consensus in values, but constitutional protection is needed to protect minorities and the vulnerable, their access and human right to water. De-politicization stymies policy change potentially harming democracy. This paper argues for a citizen engaged exploration of the complex problem of climate change and its impacts on water, but a targeted politicization coincident with, but developed well in advance of, windows of opportunity. Moreover, policy framing correlated with complex problems continues to be a key consideration. Furthermore, alliances of disparate actors, elections of new political leaders and considerations of property rights and justice issues are paramount. Significant constitutional policy change reflects social learning, but subsequent court actions by policy entrepreneurs is required to effectively implement this change. Framing constitutional change to protect rights to water and effect international agreements (including the Warsaw International Mechanism under the climate change regime) advances water justice and may increase success.

Criminal Acts Against the Judicial Process (Contempt of Court) According to the New Criminal Code about the Right to Immunity of Advocates in Court

The birth of the new Criminal Code brought nuances of renewal in the world of justice in Indonesia. However, it also caused upheaval and differences of opinion regarding regulating several aspects of criminal law, including regulating Criminal Acts Against the Judicial Process (Contempt of Court). The regulation of Contempt of Court actions in the new Criminal Code raises pros and cons in society, including advocates who often intersect with the judicial world. The existence of several articles regulating multi-interpretive contempt of court actions is considered to threaten the existence of the Advocate's Right to Immunity in Court. This study aims to analyze the regulation of the Contempt of Court criminal acts regarding the right to immunity of advocates in Court. The research method used is normative legal research using an analytical descriptive approach. This study found that the articles of Contempt of Court in the new Criminal Code, which are multi-interpretive, can limit the space for advocates to express opinions and defend themselves before the court. If these articles are not interpreted properly and correctly, they can become a medium for criminalization by specific individuals against advocates in court.

Ensuring Environmental Justice (EJ) through Public Interest Litigation (PIL) in Bangladesh

The legal system in Bangladesh has recently adopted the term Public Interest Litigation (PIL), which is a novel idea that provides complete rationale for the widely acknowledged notion that humans are social animals. It is founded on the necessity of the public interest or the violation of the public rights and is known as constitutional jurisprudence. The Public Interest Litigation (PIL) mechanism was established to enable common persons to submit a letter and bring this matter to the attention of the highest court. PIL proceedings are now an essential component of the nation's legal system. Notwithstanding these drawbacks, judicial activism is a highly significant potential tool that the judiciary can use in Bangladesh to uphold and advance the rule of law and human rights. Enhancing the rule of law, advancing fundamental rights, and applying the law equally to citizens and states are the responsibility of the judiciary. Laws can be shaped by the judiciary, which can also provide them direction and consistency. However, the nomination mechanism of the current government and judges' commitment to uphold the values of their specific jurisdictions serve to restrain the radicalism of the judiciary. Judges in Bangladesh are more inclined than other government bodies to make unpopular but ultimately wise verdicts since they are not engaged in political politics. The public anticipated that the courts would play a more significant role in resolving environmental problems as a result of the court's broadening of the definition of the right to life to include environmental protection. This essay explores the concept of access to justice via public interest litigation in a number of Bangladeshi court rulings.

Compensation for the damage caused by the errors of prosecutors, public prosecutors and courts. Analysis of judicial practice, problems and prospects

In criminal proceedings, a person who is acquittal of the accused is entitled to compensation from the state. Although this right is realized on the basis of Law no.1545 of 25.02.1998 on the compensation of damage caused by unlawful actions of criminal prosecution bodies, public prosecutors and courts, the jurisprudence of the Supreme Court of Justice finds grounds for compensation of damage only in the case of the existence of the act of rehabilitation of the accused person (order of removal from prosecution or acquittal). Unlawful actions, as specified in the law, do not give rise to a right to compensation, but are taken into account when determining the amount of damages. In order to exclude contradictory interpretation of the legal rules on compensation for the damage of the person rehabilitated in the criminal process, we propose to replace the phrase "unlawful actions” in Law no.1545 with the lexeme "errors".

Public Interest Litigation and the Protection of Women against Rape: A Comprehensive Study

Abstract: Public Interest Litigation (PIL) has emerged as a powerful tool for social justice, particularly in cases concerning the protection of women against sexual violence. This article provides a comprehensive study of PIL in the context of rape cases, focusing on its impact on legal frameworks, judicial activism, and societal attitudes towards women's rights. The article begins by tracing the historical development of PIL in India and its evolution as a mechanism for addressing systemic issues, including gender-based violence. It then examines landmark cases where PIL has been instrumental in shaping legal precedents and driving policy changes aimed at enhancing the protection of women against rape. Furthermore, the article explores the role of PIL in expanding the definition of rape, enhancing access to justice for survivors, and promoting gender-sensitive reforms in the criminal justice system. It also highlights the challenges and criticisms associated with PIL, including concerns about judicial overreach and the need for balanced decision-making.

Uniform Civil Code in India: Impact On Its Implementation

“Secularism is a religion, a religion that is understood. It has no mysteries, no mumblings, no priests, no ceremonies, no falsehoods, no miracles, and no persecutions” by Robert Green Ingersoll. The paper briefly talks about various aspects and the essentials of the Uniform Civil Code. The paper talks about concerning factors that gave rise to the requirement for the implementation of Uniform Civil Code. It mainly aims to replace Personal Laws based on the scriptures and customs of each major religion in India with a common set of rules governing every citizen. Personal Laws are distinguished from Public Law and it basically covers marriage, divorce, inheritance, adoption, succession and maintenance. The paper briefly deals about challenges to implementing the Uniform Civil Code and its pros and cons of Uniform Civil Code. The paper discusses about judicial activism involved in personal laws and judgments of the Supreme Court where the court has emphasis for the need for the implementation of Uniform Civil Code. The paramount objective of this paper is to understand the detailed concept of Uniform Civil Code i.e. its beginning, contemporary developments, advantages, disadvantages and Role of Judiciary. Thus, at last in the paper, critical analysis and conclusion has been provided. In the process of making this paper, several journals, books and articles were referred and taken into consideration.

2 - Corruption and Human Rights: Positioning Judicial Activism as an Anticorruption Strategy in Kenya

This article locates the conceptual foundations of corruption and human rights by examining the normative and definitional challenges of these terms. By focusing on socioeconomic rights and the principle of equality in access to public services, the paper demonstrates the implications of corruption for the realisation of human rights. It then examines how the thin and thick conceptions of the rule of law interact with corruption. The article further explores legal corruption and the mechanisms by which graft corrupts the law-making process and compromises the rule of law. At the same time, the paper studies the role of judicial activism in fighting institutionalised and legal corruption in Kenya. In conclusion, it maintains that public interest and human rights considerations should be central to the law-making and interpretation processes. To effectively deal with corruption, activist judges should pursue the ends of justice rather than the law in the case of conflict between the two.

The Trend of Judicial Activism in Indian Context: Emerging Issue Areas

Since the dawn of Independence from the British rule, Indian democracy has been on an experimenting trajectory route. Despite all the pragmatic loopholes in its claim to be one of the largest democracies in the world, it is by far a reasonably successful electoral democracy. The fundamental pillars of the government are functioning in tandem with a reasonable democratic ethos. Being a large country with a market in countless divisional and segmented diversities, the government at times tends to look shaky and irresolute. During such situations, the judiciary becomes proactive in reminding the government about its constitutional obligations. This article seeks to address the historical evolution of judicial activism in India along with the reasons that catapult the trend of activism in the Indian judiciary. It also explores the recurrent impasses between the executive and the judiciary.

From Discrimination to Dismissal: Navigating Obstacles on the Path to Workplace Justice

Abstract This article explores the challenges faced by employees in the Czech Republic when seeking legal redress in cases of discrimination and unfair dismissal. It emphasizes the importance of accessible legal recourse as a means to rectify individual grievances and reinforce equitable employment practices. In the context of discrimination, the article discusses challenges such as low awareness of anti-discrimination rights and the ancillary nature of sanctions. Recommendations include aligning the Anti-Discrimination Act with the Civil Code, empowering NGOs or the Ombudsman to initiate lawsuits in the public interest, and raising awareness among potential victims. In the section on unfair dismissal, the article outlines the complex process involved in disputing terminations from an employee’s perspective. It discusses obstacles such as complex, costly, and lengthy legal procedures and the requirement for reinstatement. These challenges contribute to the low number of employment lawsuits in the Czech Republic. Recommendations for improvement include enhancing the visibility of court actions, providing free or subsidized legal advice, shifting the focus of lawsuits towards monetary compensation, promoting mediation, and expediting proceedings. The article identifies common challenges in discrimination and unfair dismissal cases in the Czech Republic, highlighting the need for reforms to improve access to justice, reduce financial barriers, expedite legal proceedings, and enhance the dissuasive impact of remedies. These reforms are seen as essential for creating a fair and equitable workplace environment for all employees in the country.

Occupational Impact on The Rights of the Children of Manual Scavengers: A Critical Analysis

Objective: The Children of Manual Scavengers suffer socio-legal exclusion based on their traditional occupation of manually remove human excreta. As it is inhuman practice enforced by the caste system they are stigmatized as socially untouchable, economically disadvantaged, and legally neglected. Moreover it leads to continuous human rights violations. The aim of this study is to examine the occupational impact on the rights of children of manual scavengers and critically analyse the legislative protection and judicial consciousness on the empowerment and protection of these children’s rights. Methods: The legal research as it aims to analyse the legislative provisions, precedents along with legal principles and programs this research is a type of normative legal research. Results and Conclusion: Despite the Constitutional protection of child rights, the children of manual scavengers suffer on the violation of their right as right to education, wellbeing, social inclusion and protection against child. The legislative protection on child rights and judicial activism on the empowerment of child rights are not positively effected in the life of the children of manual scavengers against the occupational impact. Therefore it is imperative to have special legislative measures along with executive mechanism to effectively enforce and special judicial care in protecting and promoting the rights of these children whose rights are violated due to the occupation of manual scavenging as traditional and caste forced work. Research implications: The research highlights that the traditional occupation of manually removing the human excreta as caste forced occupation impacts in the violation of child rights in the entire facet.

Contextualizing Gender, Law And Judiciary: An Observation On Judicial Activism In Protecting The Rights Of Women In India

Contextualizing Gender, Law And Judiciary: An Observation On Judicial Activism In Protecting The Rights Of Women In India

Manual Scavenging at Early Age: a Critical Analysis from the Perspective of Children of Manual Scavengers as Child Labour

Objective: The Children of Manual Scavengers' suffer the socio-legal marginalisation as daily reality. They are legally abandoned, monetarily impoverished, and socially tainted. Due to the caste system, they are compelled to take up their parents' traditional occupation of manually removing human excreta. The hidden reality causes children of manual scavengers to live in constant agony. The aim of this study is to examine the legislative actions and judicial activism to uphold their human dignity and equality throughout their lives and prohibiting manual scavenging. Methods: The research is a type of doctrinal research. It is normative legal research based on analyzing the legal measures, case laws and principles. Results and Conclusion: The children of manual scavengers enter into the traditional occupation of manual scavenging along with their parents as caste forced occupation and suffer the child labour. Moreover, the legislative measures on protection of child rights have not affected in their life. Research Implications: The research highlights that the children of manual scavengers who are engaged in manual scavenging at their early age suffer the deprivation of human rights and dignity.

The Colorful Tapestry in Indian Legal System: Delving into Colorable Legislation in India

The Colorful Tapestry in Indian Legal System: Delving into Colorable Legislation in India

Indian Constitutional Perspective of Environmental Justice: an Analytical Study with Reference to PIL and Precedents

The problem of environmental pollution has assumed massive and grave proportions over the decades. It has been left to the courts in India to go behind the letter of the law into the spirit of the law to find out the plausible solutions for the problem though evolution of the law of public nuisance into environmental law. Though the implementation of statutory provisions, as also by embracing various international doctrines, the Supreme Court of India as well as various High Courts have tried time and again to develop environment-friendly justice in India through the recognition of the principle of Sustainable Development. However, the actions of the judiciary had been under attacks from other organs of the State alleging that the judiciary is transgressing its boundaries and stepping into the realms of the executive and the legislature. This paper is an effort to trace the environmental justice in India and to find out whether judicial activism can actually lead to sustainable development.

Legal Certainty Principle in Judicial Activism Decision of the Constitutional Court of the Republic of Indonesia Case Number 143/PUU-XXI/2023

Judicial activism in the petition for Law Number 143/PUU-XXI/2023 concerning the term of office of regional heads / deputy regional heads can present the principles of legal certainty and substantive justice. The Petitioners in the case felt that they suffered constitutional losses due to a legal vacuum where the legislators failed to regulate the calculation of the term of office of regional heads elected in 2018 but inaugurated in 2019. As a result, the applicants experienced a cut in the term of office and could not run the full term of office for 5 (five) years. The type of research is normative, with a statutory approach, conceptual approach and comparative approach. The results showed that judicial activism carried out by the Constitutional Court could find substantive differences between Petition Number 143/PUU-XXI/2023 and Petition Number 62/PUU-XXI/2023, and the court could find a legal vacuum and restore the constitutional losses of the petitioners.

The role of the judiciary: Interpreting vs creating law – or how Hans Kelsen justified “judicial activism”

Hans Kelsen was not only a legal theorist but also worked as a constitutional judge in the First Austrian Republic between 1919 and 1930. Faced with increasing political criticism due to its “activism”, Kelsen radicalized his theory of law-application. He emphasized that judicial work generates law (i.e., it is genuinely political) and that a judge can also create new law outside the framework of possible norm meanings. In this way, he was able to refute political calls for the “depoliticization” of constitutional jurisdiction. In the paper, I present why the Austrian Constitutional Court was accused of “activism” and how Kelsen responded to it. The sociological question of how the judiciary exercises political power and how this power is perceived by politics is addressed in the paper with a focus on legal history, specifically regarding the Austrian Constitutional Court during the interwar period. Hans Kelsen no fue sólo un teórico del derecho, sino que también trabajó como juez constitucional en la Primera República Austriaca entre 1919 y 1930. Ante las crecientes críticas políticas por su “activismo”, Kelsen radicalizó su teoría de la aplicación del Derecho. Subrayó que la labor judicial genera derecho (es decir, es genuinamente política) y que un juez también puede crear nuevo derecho fuera del marco de los posibles significados de las normas. De este modo, pudo refutar los llamamientos políticos a la “despolitización” de la jurisdicción constitucional. En el artículo, expongo por qué se acusó al Tribunal Constitucional austriaco de “activismo” y cómo respondió Kelsen a ello. La cuestión sociológica de cómo el poder judicial ejerce el poder político y cómo este poder es percibido por la política se aborda en el trabajo con atención a la historia jurídica, concretamente en relación con el Tribunal Constitucional austriaco durante el período de entreguerras.

Управление судебной нагрузкой как необходимая мера в организации деятельности судов

In this article, the author analyze the problems of managing the judicial load, rationing the judicial load. System of labor standards, as well as in other types of professional activities, is used in the judicial system to optimize and increase the productivity of the workflow. At the same time, it is correct to talk about the whole range of work carried out by the judge, and not just about procedural actions. Labor rationing should include a complete analysis of labor activity, based on an adequate assessment of the employee's contribution to the court's activities, the costs of the entire range of efforts. The author propose primary mechanisms and ways to reduce the judicial burden.

Exploring the Impact of Judicial Activism on Legal Precedent: A Comparative Analysis

Judicial activism, a concept characterized by judges making decisions that extend beyond strictly interpreting the law, has been a subject of debate and scrutiny within legal scholarship and practice. This paper seeks to explore the impact of judicial activism on legal precedent through a comparative analysis of various judicial systems. By examining case studies and empirical data from different jurisdictions, including common law and civil law systems, this study aims to assess how judicial activism influences the development and stability of legal precedent. Furthermore, the paper investigates the potential consequences of judicial activism on legal certainty, the rule of law, and the balance of power among branches of government. Through this comparative analysis, insights will be gained into the complexities surrounding judicial activism and its implications for the evolution of legal systems globally.

Judicial Activism vs. Judicial Restraint: Balancing the Role of the Courts in a Democratic Society

the contrasting approaches of judicial activism and judicial restraint and their implicationsfor the role of courts in a democratic society. It explores the tensions between these approaches and thechallenges of striking a balance between judicial intervention and deference to other branches ofgovernment. Judicial activism refers to a proactive approach by courts in interpreting laws and theConstitution, often involving the expansion of individual rights and the correction of perceivedinjustices. This approach empowers courts to address social and political issues, but it also raisesconcerns about judicial overreach and the usurpation of legislative or executive authority. In contrast,judicial restraint emphasizes a more deferential approach by courts, limiting their intervention inpolitical and policy matters and deferring to the elected branches of government. While this approachrespects democratic processes and separation of powers, it can also lead to the perpetuation of systemicinjustices and the neglect of marginalized groups.