IS JUDICIAL ACTIVISM A PROPER TOOL FOR LEGAL DEVELOPMENT IN A DEMOCRATIC SOCIETY? (Essay Sample)

IS JUDICIAL ACTIVISM A PROPER TOOL FOR LEGAL DEVELOPMENT IN A DEMOCRATIC SOCIETY? Introduction The term judicial activism usually refers to a tendency of the courts to consider attitudinal preferences, outcomes, and extralegal elements when interpreting applicable laws. It has further been defined as the control or influence that the courts have over political institutions. More so, judicial activism has denoted the deliberate ignoring, flaunting and subversion of the law by judges. Judicial activism has been more prevalent in some areas of law than in others. For example, it has taken root in human rights, corporate governance, environmental protection, and international human rights. Judicial activism is present in Australia just like other jurisdictions, such as the US, the UK and Canada. However, there has been a recent trend by the US Supreme Court to overturn many previous cases like Roe v Wade, which have been accused of being products of judicial activism. In Australia, this trend is present. Sir Harry Gibbs has argued that in Australia, there has been a tendency among judges to think they can reform the law if they believe a law or statute appears defective. It is argued that such an approach conflicts with the distinction between legislative and judicial functions and violates the principles of constitutional governance. The proponents of judicial activism have argued that the tool allows for an approach which reflects the interpretation of the Constitution that aligns with contemporary values and conditions. Despite the above desirability, there has been a strong opposition to judicial activism based on grounds of constitutionality and democracy. The essay will look at the desirability of judicial activism and, while doing so, answer the question as to whether its use is efficacious considering various factors. Rule of law and the Constitution The rule of law and the constitution are fundamental principles in the Australian legal system. The constitutional powers provide for the separation of powers between the judiciary, legislature and executive. The increased judicial activism has led to, in many cases, the erosion of the rule of law and constitutional principles. The doctrine of the rule of law in constitutional law has often historically aimed at ensuring that the courts can effect checks and balances on the government. An increase in hero judges has curtailed the power of the court to put checks and balances on the government. This is because judicial activism has favoured more government. The judges seem to be partners with the government in the achievement of national building objectives. This can be seen in many cases where the courts have exponentially increased the mandate of the Australian central government and limited the powers of the States. This is a consequence of judicial activism. The problem with judicial activism is that it erodes the same principles which are designed to protect fundamental freedoms and liberties. Judicial activism operates on liberal values, which are pegged on the expansion of the powers of the state and public officials by interpreting the constitution more broadly for the constitution to cover many issues which were not initially contemplated by the drafters. This ultimately leads to granting vague, often non-regulated mandates to government agencies, which are prone to abuse and more often violate the rule of law. The above creates a danger for democracy due to the nature of judicial activism supporting constitutional progressivism. This idea contradicts democracy. The dangers of activism on constitutional structure are seen in the expansion of the federal government through cases like the Work Choice case. The federal government used judicial activism to expand its powers at the expense of state legislation. The court disregarded the checks and balances placed by the Constitution between the federal and state governments by holding that federal government law will be directly and indirectly regarded as law, whether or not it may affect other subject matter altogether and hence removing the narrow reading of federal mandate. This recognised federal law, even if the same violated other heads of power, including state mandates. As a tool, judicial activism is seen as a tool which infringes on key constitutional values such as Australian federalism. The idea of ignoring the intention of the drafters and interpreting the constitution as a living constitution (an idea invented in the US jurisprudence) simply ignores classical methods of interpretation and puts the constitutional structure in danger. For example, a judge is more likely to interpret the constitution or statute based on an approach which is result-oriented by working backwards to justify a given decision. It should be that the rules of interpretation should determine the outcome and not the reverse. Judicial activism and political democracy The hero judge has been defined as a judge who is a political activist and would seek to hijack politics in his or her courtroom. Any naïve observer of such a court would conclude that such judgments are a sneaky passage of changing the law for market or politically oriented rationales without the vigorous and thorough demands of the parliamentary process. The danger of hero judges and judicial activism in Australia is the fact that the judges are not held accountable like politicians. If the judges want to engage in law-making, then they should be held accountable and elected just like the political class. Sir Owen Dixon a highly decorated High Court Chief Justice famously said that ‘there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. This principle of a proactive and responsive government is pegged on the elected officials making decisions; if they make ‘bad’ decisions, they can be voted out. The safeguards of democracy prevent elected officials’ tyranny. However, the same accountability does not apply to the judiciary, which enjoys security for tenure and cannot be removed by elections. Also, judicial activism waters down the integrity of institutions of law since the courts are seen as political adjudicators, offering biased interpretations based on the political inclination of the judge. This hero-judging is a catastrophic style of government, even though some people have hailed some decisions as being important. The role of the judge is to guard liberty with a healthy suspicion that the government and not partner with politicians. Taking a more activist approach exposes the judiciary to political influence in appointments. Across the pond, the politicisation of judge appointments in the US, UK and Australia shows the real danger of judicial activism. Despite the good intentions, judges who make judicial activism a norm bring about the risk of the judiciary being used as a political tool, which hampers democracy. The effect is that hero judges participate in economic, social and political governance, a task that the courts are ill-equipped to deal with. Judicial activism often exposes the judges to political areas which are controversial and better left in the realm of legislation and constitutional change. Since judges are not elected, their participation in those areas with no clear legislation in place or contrary to legislation often hinders democracy. The result is that elected officials will often avoid dealing with politically sensitive matters and transform the law through a constitutional and legislative process best seen in appointments of judges, and hence water down the concept of judicial independence. The democratic mandate is usually given to elected officials. The people expect the parliament to make laws on issues which are not legislated upon, especially very contentious political and social issues. However, judicial activism does not allow this process. The court is engaged in policy-making, and the government has to play catch-up with the courts. This is contrary to law and policymaking. It is the parliament which is supposed to make laws and the executive to make policy. The judiciary's role ought to be limited to interpretation of the law and holding the government accountable – and not making laws and policies for the executive. This, in turn, made the courts the enemy of the rule of law and democracy. Lack of judicial coherence Legal coherence theory is the theory based on the principle of coherence, which illustrates that there must be common principles and values used by judges in similar cases. Hence principle of coherence works hand in hand with that of precedent. The two principles play a role in the manner in which statute and common law interact in Australia and other common law jurisdictions like India, the UK, Canada and the US. The importance of this coherence in a legal system is that it brings a judicial system which is traceable, foreseeable and reliable. Despite some uncertainties in common law, there have been reasonable certainties which have made common law the success it is. Judicial activism allows the judge to ignore statutes, precedent and express provisions of the Constitution. It allows the court to have powers that it ought not to have because of obvious constitutional and democratic reasons. The court can override existing laws or make legal doctrines with no underlying support of the legal doctrine of precedent. This situation leaves room for multiple interpretations and ignores the importance of precedent and coherence. Litigants cannot predict the courts, and the courts become unreliable with varying interpretations based on unknown legal canon. The existence of judicial coherence on account of this has been demonstrated by cases like Miller v Miller, where courts held that if courts allowed an appellant to recover damages from negligence arising from an illegal act, there would be incoherence between common law and statute law. In so...