Judicial Activism Research Articles

Judicial Activism and Governance: A Comprehensive Analysis of Constitutional Principles

The research examines the evolving role of the judiciary in shaping and influencing public policy, emphasizing the delicate balance required to maintain the separation of powers while ensuring effective governance. The study encompasses a broad spectrum of constitutional doctrines and judicial decisions to provide a comprehensive understanding of the dynamics between the judiciary and the other branches of government and it also acknowledges the potential benefits of judicial activism in addressing societal issues. It not only helps in protecting fundamental rights but it also scrutinizes the concerns surrounding overreach and the erosion of democratic principles. A central focus of the paper is the intricate relationship between judicial review and the separation of powers. The analysis evaluates how judicial activism can serve as a check on the legislative and executive branches, ensuring that constitutional rights are safeguarded. However, it also underscores the need for judicial restraint to prevent the judiciary from encroaching on the policymaking domain reserved for elected representatives. The paper discusses the evolving nature of constitutional interpretation and the potential impact on governance, with a specific emphasis on how judicial decisions can influence the legal landscape and societal norms. Furthermore, the analysis considers the role of judicial activism in addressing contemporary challenges such as social justice, environmental protection, and technological advancements. In conclusion, this comprehensive analysis provides a nuanced understanding of the relationship between judicial activism and governance, emphasizing the importance of striking a balance that upholds constitutional principles while respecting the roles of the other branches of government. The paper contributes to the ongoing discourse on the evolving nature of judicial power and its implications for effective and accountable governance within a constitutional framework.

Judicial Activism and Comparative Analysis of Suo Motu Notices Taken by Chief Justice Saqib Nisar and Iftikhar Chaudhry

This research study explores the concept of judicial activism and conducts a comparative analysis of the Suo moto notices taken by Chief Justice Saqib Nisar and Iftikhar Muhammad Chaudhry, two prominent Chief Justices of the Supreme Court of Pakistan. Judicial activism refers to the proactive role of the judiciary in addressing societal issues and promoting social justice, often through the use of suo moto notices, where the court takes cognizance of a matter on its own initiative, The comparative analysis has focused on the similarities and differences in the approach, scope, and impact of the suo moto notices taken by Chief Justice Saqib Nisar and Iftikhar Muhammad Chaudhry during their respective tenures. This research study has examined the key areas of intervention, such as human rights, governance, public welfare, and accountability, This study has utilized a qualitative research methodology, including a comprehensive review of relevant literature, case analysis, and comparative examination of the judicial decisions and outcomes, This research study found that excessive and miss use of Suo moto power has badly affected political system of the country, This research study recommends that judiciary should play a balance role in order to have in effective federal parliamentary democratic system in the country

JUDICIAL ACTIVISM: A LIVING IMAGE OF LAW REFLECTED IN THE SOCIAL MIRROR

This article analyzes the instrumentalization of law for the purpose of promoting social emancipation. It hypothesizes whether the leading role attributed to the Judiciary in the Democratic State of Law at the turn of the last century to the 21st century fulfills the promises of modernity based on the theory of the social contract and driven by the Enlightenment ideals to make effective the rights of freedom and social rights of the Constitution. To this end, first, legal positivism is presented, in search of recognition of subjects and equal participation; second, the historical bases of the constitutions are established, to confirm the metamorphosis of law and the model of jurisdictional control through the main and incidental channels; and third, to show judicial activism, mapping the decisions of the Supreme Court. The conclusion is about the importance of the Judiciary in the effectiveness of positive and negative rights. The article was guided by the hypothetical-deductive method and was based on books, scientific articles, legislation and jurisprudence.

The Evolving Jurisprudence of Environmental Protection in India: A Critical Analysis of the Judiciary’s Role.

The Indian judiciary has played a significant role in the environmental protection, utilizing its powers to interpret and enforce environmental legislations, upholding constitutional provisions, and address Public Interest Litigations. The environmental judgment of the court, in many cases, have significant impacts on the overall environmental protection and improvement process in India. Judicial activism, particularly in present times, has given new direction in the protection and improvement of the environment. The landmark judgments and orders of the Supreme Court and High Courts have triggered a wave of environment awareness and consciousness in our country. The Indian judiciary has developed certain environmental principles while dealing with the cases of environment protection. The aim of this paper is to analyse how the Supreme Court and High Courts make decisions about the environment. For this purpose, most of the important decisions made by our Supreme Court on important environmental issues have been collected and analysed. Analysing the case law is primarily focused on the influence or role played by the court on environmental issues.

3.F. Round table: Legal action & capacity building: essential for climate action to protect and promote public health

Abstract The climate crisis is the single biggest threat to global health, peace and security, a crisis multiplier, and a significant driver of health inequalities within and between countries. In many areas of public health policy, legal action and litigation have delivered significant and long-lasting impacts. Court action is a strong domain of legal policy and practice to address climate change and related air pollution in many countries, and increasingly in international courts and tribunals. Examples include the 2021 landmark UK Coroners Report on the asthma-related death of Ella Kissi-Debrah, the 2023 UN General Assembly Request for an Advisory Opinion from the International Court of Justice on states’ obligations to address climate change, and the 2024 European Court of Human Rights decision in Klimanseniorinnen v. Switzerland. Climate litigation also creates opportunities for public scrutiny and debate by raising awareness of inaction or harm caused by governments or private sector polluters, generating wider community mobilisation for action. Since 2021, the EUPHA Law and Public Health Section, Faculty of Public Health (UK), Aletta Jacobs School of Public Health, Global Network for Academic Public Health, ASPHER and other partners have collaborated to build ethicolegal competence and capacity of public health professionals for climate action. Initiatives have also included research, advocacy, and resource development, and exploring opportunities for legal action and litigation, including at the International Conference on Strategic Litigation and Public Health (Liverpool, 2023). The roundtable will present key findings from an evaluation of the course on climate change organised by the ASPHER and the Global Consortium on Health and Climate Education (GCHCE), and learnings and feedback from the publication ‘From analysis to action: climate change litigation. A guide for public health professionals’, which was launched at the 16th European Public Health Conference. The expert panel will also reflect on whether the nature of current educational materials, means and methods in curriculum and training initiatives are effective, appropriate, adequate, and sufficient. Should climate change be part of One Health and Planetary Health programmes rather than a distinct entity? What is the role of, and what are the opportunities for, public health professionals to be engaged in climate litigation? What are the gaps and opportunities through strategic networking with environmental and legal experts, and affected communities? The roundtable will be interactive and invite input and insights from the participants to explore opportunities to further advance the agenda. Key messages • Public health professionals have a key and increasing role in climate law and litigation: interdisciplinary collaboration is essential. • Public health professionals have multiple avenues for capacity building on opportunities to address climate and environmental impacts on public health through law. Speakers/Panelists David Patterson University of Groningen, Groningen, Netherlands Farhang Tahzib Faculty of Public Health, Haywards heath, UK Liz Green Public Health Wales, Wrexham, UK Ana-Catarina Pinho-Gomes University College London, London, UK

The Impact of Political Interference on the Judiciary: India Vs. Pakistan

This paper investigates the significant effects of political interference on the judiciary in India and Pakistan, two countries with a common colonial history but differing paths since gaining independence. The judiciary serves as a fundamental pillar of democratic governance, designed to function independently while protecting the rule of law and upholding constitutional rights. Nevertheless, in both nations, political influences have notably affected judicial operations, compromised judicial independence and eroding public confidence. Through a comparative examination, this study highlights important historical moments, landmark rulings, and constitutional frameworks that demonstrate the degree and nature of political interference within both judicial systems. In India, such interference has emerged through executive control over judicial appointments and crises, notably during the Emergency period from 1975 to 1977. In contrast, Pakistan's judiciary has experienced direct meddling from military governments and political authorities, frequently rationalized by the contentious Doctrine of Necessity. Additionally, the paper investigates how the judiciary has responded to these interferences, including instances of judicial activism and civil society initiatives that promote judicial independence, such as the Lawyers' Movement in Pakistan. Ultimately, this research emphasizes the urgent need for strong protections to ensure judicial independence, bolster public trust in the judiciary, and maintain democratic principles in both countries. By highlighting the comparative experiences of India and Pakistan, this study aims to enrich the broader discussion on judicial independence in South Asia.

Judicial Activism in Pakistan: A Comparative Study of CJP Saqib Nisar and Umar Ata Bandial

This paper provides a detailed discussion of judicial activism in Pakistan, comparing the eras of two vastly different Chief Justices, Saqib Nisar and Umar Ata Bandial. This paper explores the core and contentious issues of activism on the court, the gains and pains of judicial activism, the impacts of activism on rights and freedoms, the impacts of activism on the executive, and the impacts of activism on social justice. Through discussion of the Mukhtar Mai and Blasphemy cases in the context of the cases, the study focuses on the additive role of the judiciary in common legal and social questions. In addition, the paper addresses the problems of caseload, public perception challenges, and security issues affecting the judiciary. For this reason, international views are incorporated to situate Pakistan’s judicial processes. Moreover, the paper compares the aggressive behaviour during the tenure of Chief Justice Nisar to the passive stance of the present Chief Justice Bandial and how they caused either favourable or unfavourable shifts in legal norms and society. Finally, the study provides specific suggestions for judicial reforms in the scenarios of case management, access to justice, and cooperation with international organizations in order to strengthen the judiciary as a result of Pakistan’s developing legal structure.

Judicial Populism and Corruption Prosecutions in the Mani Pulite Operation

Abstract I provide a new analytical framework to understand the effectiveness of corruption prosecutions in the so-called Mani Pulite (Clean Hands) operation by showing how this operation was rooted in a populist interpretation of criminal rules and criminal procedure. The Clean Hands operation represented a successful breakthrough against the vast and complex corruption system that had sustained Italian politics for decades. I show that prosecutors in the Clean Hands operation interpreted legal rules through the lens of a deep-seated hostility between a vague conglomerate of “corrupt elites” and “virtuous citizens.” This populist interpretation of criminal and procedural rules introduced significant legal innovations that empowered judicial actors against systemic corruption by creating unprecedented incentives for defendants to cooperate with legal authorities. Consequently, the judicial professionals leading the Clean Hands operation also felt the need to shield themselves against retaliation for the use of these novel approaches to corruption prosecution by bringing their fight before the court of public opinion. To this end, the Clean Hands prosecutors made use of targeted media interventions to rally public support around their investigation and protect their work from political interference.

Explaining the Comparatively Less Robust Human Rights Impact of the ECOWAS Court on Legislative and Judicial Decision-making, Process, and Action in Nigeria

Abstract This article outlines and tackles two inter-related puzzles regarding the comparatively much less robust human rights impact that the ECOWAS Court (in effect, West Africa’s international human rights court) has had on the generally more democratic legislative/judicial branch of decision-making and action in Nigeria vis-à-vis the generally more authoritarian executive branch within Nigeria, the country that is the source of most of the cases filed before the court. The article then discusses and analyzes the examples and extent of the court’s human rights impact on legislative/judicial branch decision-making and action in that key country. This is followed by the development of a set of analytical, multi-factorial, explanations for the two inter-connected puzzles that animate the enquiry in this article. In the end, the article argues that several factors have combined to produce the comparatively much less robust human rights impact that the ECOWAS Court has had on domestic legislative and judicial decision-making, process, and action in Nigeria, through restricting the extent to which the latter could mobilize more robustly the court’s human rights-relevant processes and rulings.

The Role of Judicial Activism in the Enforcement of Human Rights in Pakistan and its Impacts on Governance in Pakistan

This study examines how judicial activism impacts governance in Pakistan after the lawyer's movement with a focus on its effect on human rights, the rule of law, and accountability. The study uses mixed techniques to examine Supreme Court decisions and interventions that demonstrate the judiciary's role in protecting civil liberties and checking executive powers. Apex Court's activism on extrajudicial killings forced disappearances, and gender discrimination has advanced human rights, according to the findings. The research also shows how the judiciary has strengthened the rule of law by upholding and enforcing legal principles fairly, boosting public faith in legal institutions. The research also notes that alleged judicial overreach has caused problems between the legislative and executive branches due to the courts' wide interpretations of their authority. This detailed analysis highlights the delicate balance between judicial interventions and democratic government.

Judicial Activism in Pakistan and its Impacts on Tripartite Governance: Lessons from the US Constitutional Construct

The judiciary played a significant role in the evolution of democracy in Pakistan. Throughout history, the military remained at the core of politics and as an avoidable stakeholder influenced the judiciary in validating its extraconstitutional actions. However, after 2009, the judiciary emerged as exceptionally independent invalidating extraconstitutional actions and stretching its authority to take up matters else within the jurisdictional province of the other state organs, resulting in judicial overstretch. Excessive judicial activism had evident adverse impacts on the equilibrium of the state organs, imposed financial liabilities, and compromised its dignity. By employing qualitative research methodology, this article considers the judiciary as a double-edged weapon and critically examines the cases where the judiciary deviated from the international treaty obligations, leaving the fragile economy of Pakistan to a blow of penalties. Lastly, the research contributes to what Pakistan can learn from the US Constitutional construct.

The Existence of Supervision by Non-Governmental Organizations in Providing Legal Protection for Consumers with Bad Credit

Convoluted formal procedures have led to a crisis of public confidence in state institutions, this is what happens with bad credit, in fact the public prefers to take bad credit issues to complain to YLKI rather than going to state institutions that handle consumer protection. This research is intended to examine and analyze the role of Indonesian consumer foundations in providing protection to consumers with bad credit. The research method used is normative legal research which is carried out by conducting research, using library materials or secondary data. This research concludes, first, the problem of consumer protection for bad credit is that the public does not have confidence in resolution through consumer protection institutions under state institutions and through legal action in court as a litigation step. The reason is that complicated bureaucracy and the weak response of state institutions to the issue of bad credit have encouraged the public to choose YLKI to advocate for the issue of bad credit. Second, the existence of supervision by non-governmental organizations since 1970 has been able to respond quickly to consumer protection issues, especially regarding bad credit, namely through advocacy to save bad credit consumers who experience arbitrary collections. The problems experienced by YLKI are a lack of budget and the number of human resources that are unable to keep up with the volume of handling advocacy cases such as bad credit issues, causing YLKI to not optimally handle bad credit cases.

Gender Affirmative Actions and Greater Participation Female in Politics: Overcoming “Inaptitudes” With Amartya Sen

Objective: The objective of this study is to investigate affirmative actions within the framework of John Rawls' and Amartya Sen's theories, with the aim of analyzing how these theories have influenced the strengthening of the idea of human dignity in contemporary times and the promotion of female political participation. Theoretical Framework: This section presents the main concepts and theories that underpin the research. The focus is on John Rawls' theories of justice and Amartya Sen's capabilities approach, providing a solid foundation for understanding the context of the investigation. Method: The methodology adopted for this research comprises a jurisprudential review and an analysis grounded in a dialectical perspective. Data collection was conducted through the analysis of judicial cases and legal documents, particularly within the Brazilian context of fictitious candidacies and the demand for the implementation of gender equality policies. Results and Discussion: The results revealed the necessity for decisions by national courts in cases of gender quota fraud to also be based on a gender perspective. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting the implications and relationships identified. Possible discrepancies and limitations of the study are also considered in this section. Research Implications: The practical and theoretical implications of this research are discussed, providing insights on how the results can be applied or influence practices in the field of gender equality in politics. These implications may encompass the formulation of public policies and judicial actions in cases of electoral fraud. Originality/Value: This study contributes to the literature by proposing the maintenance of legitimately elected female candidates who did not participate in electoral fraud, and, from this number, the recalculation of the legal quota proportionality, as a means of strengthening the fundamental right to gender equality. The relevance and value of this research are evidenced by the potential application of its results in improving the effectiveness of affirmative actions in the political context.

Jedan pogled na rehabilitaciju – sa posebnim osvrtom na praksu Ustavnog suda

In the article is explained the mechanism of action of the Constitutional Court with regard to several selected cases of constitutional appeals that concerned rehabilitation according to the Law on Rehabilitation. All the analysed cases are based on the isolated opinions of the author of the work – as a judge of the Constitutional Court. The following aspects of the decision-making of the Constitutional Court in the matter of rehabilitation are explained in the article: 1) the question of justification/unjustification of the rehabilitation of former Volksdeutscheers and members of other national minorities - compensated in their home countries or who were part of the occupation forces during the Second World War, 2) the problem of rehabilitation of people who, during the Second World War and the occupation of the Kingdom of Yugoslavia, potentially committed war crimes, but were only "formally" declared as the „people enemies“ and not to be war criminals, 3) the issue of rehabilitating people who were legally condemned as ideological opponents in the SFRY, 4) the problem of rehabilitating people who were already "rehabilitated by history itself" and 5) the problem of rehabilitating potential war profiteers during the period of occupation Kingdom of Yugoslavia during the Second World War.

Judicial Activism vs. Judicial Restraint: A Comparative Review of Landmark Cases

Judicial Activism vs. Judicial Restraint: A Comparative Review of Landmark Cases

Reconceptualizing Judicial Activism: Intervention Versus Involvement in the Israeli Supreme Court

The paper conceptualizes two distinct yet interconnected modes of judicial activism: courts as intervening in the policies and actions of other branches of government and courts as involved in their policymaking process. It proposes empirical methods to assess these modes and investigates them using a case study of Israeli Supreme Court justices’ votes from 2010 to 2018. Contrary to common perception, the findings reveal that justices demonstrate low and declining tendencies to invalidate laws ( N = 544 votes in petitions challenging the constitutionality of laws) or policies established by the political branches ( N = 22,415 votes in HCJ petitions). Justices’ attitudes towards the ideological underpinnings of contested legislation or policies exhibit minimal to no statistically significant influence on their votes. However, the analysis reveals a discernible and increasing pattern of covert judicial involvement, wherein justices exert pressure on the state to revise its policy before issuing a final ruling. Additionally, there is a diminishing trend of dismissing petitions in limine without accepting them for substantive review. These findings suggest that ISC justices engage in relatively low levels of intervening activism but high levels of involved activism.

From Patrilineal Tradition to Gender Equity: The Evolution of Inheritance Law in Indonesia’s Batak Toba Community

The Batak Toba community in Indonesia, traditionally governed by a patrilineal kinship system, has historically excluded women from inheritance rights. This deeply ingrained custom has perpetuated gender inequality within the community. However, the landscape of inheritance law has undergone significant transformation due to the influence of national legislation and landmark court rulings. This study explores the dynamic evolution of inheritance practices among the Batak Toba, tracing the shift from a patriarchal tradition to a more equitable system that recognizes the rights of women. This research employs a qualitative approach, combining legal analysis with empirical data gathered through interviews and case studies within the Batak Toba community. The study examines customary laws, national legislation, and judicial decisions to understand the legal framework governing inheritance. Additionally, it delves into the lived experiences of individuals within the community to capture the social and cultural dimensions of inheritance practices. The findings reveal a gradual but significant shift in inheritance practices among the Batak Toba. While the patrilineal tradition remains influential, there is growing recognition of women's inheritance rights. This change is attributed to several factors, including increased education, economic empowerment of women, and greater awareness of gender equality principles. The study also highlights the role of legal reforms and judicial activism in challenging discriminatory customary laws and promoting a more inclusive approach to inheritance. The evolution of inheritance law in the Batak Toba community reflects a broader societal transformation towards gender equity. While challenges persist, the study underscores the importance of continued legal reforms, community engagement, and education to ensure the full realization of women's inheritance rights. The findings offer valuable insights for policymakers, legal practitioners, and community leaders working towards a more just and equitable society.

KEWENANGAN KANTOR OTORITAS BANDARA WILAYAH IV DALAM PENEGAKAN HUKUM TERHADAP PEMALSUAN PAS BANDARA

The number of incidents of counterfeiting airport pas poses a risk of threats to aviation security that can result in aviation law violations, for that law enforcement is needed in order to provide a deterrent effect while realizing legal certainty against perpetrators of airport passport forgery. The formulation of the problem in this study is how the authority of the Region IV Airport Authority Office in law enforcement against counterfeiting airport pas, as well as what factors hinder law enforcement against counterfeiting airport pas, the objectives of this study are, first, to determine the authority of the Region IV Airport Authority Office in law enforcement against counterfeiting airport pas, second, to determine the factors that hinder law enforcement against counterfeiting airport pas. The research approach used is normative juridical, the normative juridical approach seeks to understand the law from a theoretical and philosophical perspective. This research uses normative legal research methods by analyzing various legal sources such as constitutions, laws, court decisions, legal doctrines, and opinions of legal experts. The results of this study are first, the authority of the Region IV Airport Authority Office in law enforcement against counterfeiting airport pas has not been maximized, as evidenced by the Region IV Airport Authority Office has never taken action in court against counterfeiting airport pas. Second, the factor that hinders the law enforcement of airport pass forgery is that the Region IV Airport Authority Office does not yet have the authority to investigate the criminal offense of airport pas forgery.

The Dark Side of Legalism: Abuse of the Law and Democratic Erosion in Argentina, Ecuador, and Venezuela

Why do some elected leaders use legalistic strategies to undermine democracy from within? And under what conditions do they succeed in the use of these strategies? In this article, we argue that the abuse of law is at the center of the toolkit of emerging autocrats. Executives use an ample menu of legal tools and mechanisms (laws, constitutional amendments, executive decrees, administrative resolutions, and regulations by federal agencies) to gradually dismantle each of the components of liberal democracy. We show how the co-optation of the judiciary by the executive helps create an appearance of institutional normalcy that enhances regime legitimacy. In an era of democratic backsliding, executives capture or coerce judiciaries to neutralize opposition threats, carry out their policy agenda, secure and distribute benefits among allies, and dismantle various components that make up liberal democracies. To understand how executives have different levels of success in using multiple legal tools and mechanisms to undermine democracy, we compare three Latin American countries with disparate regime trajectories: Argentina, Ecuador, and Venezuela. Our paper situates judicial actors at the center of the legal toolkit of emerging autocrats by studying how (and in what ways) courts become illiberal tools for legal reform and implementation to dismantle liberal democracy gradually. We show how, in these cases, “legal narratives” are used to legitimize the slow undermining of democratic rule.

Judicial Adaptability: Research on Judicial Activism and the Principle of Separation of Powers in Common Law

The relationship between judicial activism and separation of powers has been a hot topic in the judicial field. This paper studies the consistency between judicial activism and the principle of separation of powers in common law. Judicial activism involves judges taking an active role in promoting legal and social change, thereby challenging the traditional judicial role. The main argument is that judicial activism is essential to maintain the adaptability and flexibility of the law, especially in a rapidly changing social, technological and economic environment. Through the analysis of landmark cases such as Mabo v Queensland, No. 2 and R v Dugan, this paper shows how judicial activism can address legislative gaps to ensure justice and equity. In addition, it discusses the need to improve the legal framework to enable judges to make proactive decisions within clearly defined parameters. The conclusions highlight the indispensable role of judicial activism in maintaining a dynamic and responsive legal system, upholding democratic values, and preserving public trust.