Judicial Activism: an international problem.

In a thoughtful article, Justice Katju a former judge of the Indian Supreme Court who studied and started his law practice in a city now in Pakistan - explains how the actions of the Chief Justice of the Pakistan Supreme Court is creating a constitutional crisis: http://www.thehindu.com/opinion/article3553558.ece?homepage=true Judicial activism has created political crises in many countries. During the 1970s and `80s, political infighting allowed the Italian magistrates to become active and encroach on the functions of the executive. After initial enthusiasm, public became disenchanted and Silvio Berlusconi came to power as assertive prime minister. He remained popular until recently in spite of inquiries on his professional and personal life by magistrates. Fragmentation of parties that dominated politics in the early years after Indian independence, created administrative and political vacuum and encouraged judicial activism. Though it is not widely discussed in India, it should be a source of concern. Abundance of mineable natural resources has become a bane for India as for so many countries in Asia and Africa. The extent of alleged corruption by ministers at Federal and State levels is mind-boggling. The Indian Supreme Court passed a number of judgments nullifying some of the executive decisions. Did or did not these judgments transgress powers vested on the executive? Is it not better to leave it to the Parliament to decide whether the executive erred or not? In the United Sates, judgment on the Affordable Care Act is awaited any day now. In this country there is a vigorous debate on judicial activism. Conservatives argue that liberal judges in the past have a twisted interpretation of the Constitution to allow the executive to expand its powers and limits freedom of choice by individuals. Others argue that the original intent of the framers of the constitution do not give enough guidance to judge legal issues arising from economic and political developments that they could not have envisaged. 1 In Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, Justice, Harvie Wilkinson of United States Court of Appeals of the Fourth Circuit argues at length that both liberal and conservative judges are pushing, through their theories of constitutional interpretation, their ideological predilections. Constitutions and laws are not systems of mathematical equations into which data can be plugged and unambiguous conclusions drawn. Interpretations are unavoidable and it is the very reason why executive and judiciary should exercise restraint. Footnote: 1. A short, readable review of the rise of liberal state and the expansion of individual right to make decisions is in Opportunities and choices: Understanding our economic decisions, pp. 1315 & 3-5.

Rama V. Ramachandran
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Copyright 2012 Rama V. Ramachandran