ARE THE Contours OF Judicial Activism THAT Sometimes GO WITH Transformative Constitutionalism Undefined PDF

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ADMISSION NUMBER:BARRISTERS.ARE THE CONTOURS OF JUDICIAL ACTIVISM THAT SOMETIMES GO WITHTRANSFORMATIVE CONSTITUTIONALISM UNDEFINED?TABLE OF CONTENTSI. Introduction....................................................................................... II. Definition of judicial activism A. Convention...

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ADMISSION NUMBER:113325 BARRISTERS.

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ARE THE CONTOURS OF JUDICIAL ACTIVISM THAT SOMETIMES GO WITH TRANSFORMATIVE CONSTITUTIONALISM UNDEFINED? TABLE OF CONTENTS I. II.

Introduction…………………………………………………………………………...4 Definition of judicial activism A. Conventional understanding……………………………………………………....5

III.

Criticisms of the conventional approach……………………………………………...9

IV.

Definition of judicial activism B. The other approach………………………………………………………………15 Solutions to the criticisms……………………………………………………………15

V.

Conclusion…………………………………………………………………………...19

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ABSTRACT It is clear that in the context of transformative constitutionalism, the judges enjoy a pivotal position given the prominence of law and its constitutional mandate to interpret and enforce fundamental rights.1However with this power comes great responsibilities.2 Karl Klare clearly states that South Africans have chosen to compromise the supremacy of Parliament, and correspondingly to increase the power of judges, each to an as yet unknowable extent. 3 Therefore, judges have been given a lot of freedom as per South Africa which if abused may lead to serious consequences. That is why the judge’s limitations and accountability should be highlighted. With the rise in judicial activism, there has to be corresponding increase in the need for judicial accountability. The subject of this article is to highlight the current understanding of judicial activism as per modern America mainly Christopher Wolfe, Rory Leishman, and other scholarly works, which is the more widely accepted definition, and to bring to the attention of the reader the dilemmas the conventional approach faces in various countries, due to the lack of limitations present. Jim Rohn stated: “Never attack a problem without also presenting a solution ”. 4 The solutions will begin with the second understanding of judicial activism that stems from an earlier era of American judges who operated on a different view of judging, which distinguished judgment from will and interpretation from legislation. With this view, there will be a few pointers that will help with the problems facing modern understanding of judicial activism. The section below gives a brief overview of the conventional understanding when it comes to defining judicial activism.

I.

INTRODUCTION.

1 Kibet E & Fombad C, ‘Transformative constitutionalism and the adjudication of constitutional rights in Africa’ 17 African Human Rights Law Journal 1,2017, 366. 2 The House of Commons Hansard Report, Session of the Parliament of United Kingdom of Great Britain and Ireland, 614. 3Klare K, ‘Legal culture and transformative constitutionalism’ 14 South African Journal on Human Rights 1, 1998, 147. 4 https://www.azquotes.com/author/12558-Jim_Rohn on 26th February 2018.

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Judge Frank Hoover Easterbrook, a United states Court of Appeal judge, said: “Everyone scorns judicial activism that notoriously slippery term.”5 Furthermore, he adds that “activism” remains a term of opprobrium.6 Some legal scholars agree that indeed it is not the best alternative while others ,continuously support it.7The question still remains what is judicial activism? Early history of judicial activism began with Arthur M Schlesinger, who first introduced it in 1947.8The idea has been present before that but under different terms. 9During Lochner V New York in 1905(Lochner era), the vague contours of the substantive due process provided judges with an opportunity to read their own economic philosophy into the constitution. 10 This case was held to be virtually synonymous with “judicial activism.”11 Though Arthur M Schlesinger does not clearly define the term, he brings in place the idea present when one speaks about judicial activism. His article profiled a few Supreme Court judges, these judges were later split, Justices Hugo Black, William O Douglas and Murphy were termed as “judicial activists”. 12Justice Frankfurter, Jackson and Burton on the other hand were “champions of self-restrain.”13 According to Schlesinger “judicial activists” in summary believe the Supreme Court can play an affirmative role in promoting social welfare, employment of judicial power in their own conception of social good to achieve desired social results and the belief that law, and politics are inseparable.

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On the other hand,

champions of self-restraint, resist judicial supremacy either of the left or of the right in the name of deference to legislative will and rests on the faith of separation of powers and the democratic process. Just like Justice Holmes stated:"If the legislature makes mistakes, it is up to the legislature to remedy them. Any other course will sap the vigour of our democracy by encouraging legislatures in an irresponsibility based on an expectation that the courts will backstop their wild pitches."15 5 Easterbrook F, ‘Do Liberals and Conservatives Differ in Judicial Activism’ 73 University of Colorado Law Review 4, 2002, 1. 6 Easterbrook F, ‘Do Liberals and Conservatives Differ in Judicial Activism,’ 1. 7 Kmiec K, ‘The Origin and Current Meanings of Judicial Activism’ 92 California Law Review 5, 2004, 1442. 8 Schlesinger A, The supreme court:1947, New York, Fortune, 1947. 9 Kmiec K, ‘The Origin and Current Meanings of Judicial Activism,’1444. 10 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security, 2 Ed, Rowman and Littlefield Publishers, Louisville,1997,18. 11 Kmiec K, ‘The Origin and Current Meanings of Judicial Activism,’1445. 12 Schlesinger, The supreme court:1947, 74-76. 13 Schlesinger, The supreme court:1947, 76-77. 14 Kmiec K, ‘The Origin and Current Meanings of Judicial Activism,’1447. 15 Schlesinger, The supreme court:1947, 76-77.

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II.

DEFINITION : THE CONVENTIONAL UNDERSTANDING.

The basic tenet of activist judges is that they should use their power to protect human dignity, equality and personal liberty, and that through the use of their power they should remedy a wide range of social wrongs.16 This approach can be fleshed out in a series of corollaries: 

Avoidance of strict interpretation of the text

According to legal scholar Christopher Wolfe, judges should not be tied down by constitutional interpretation as per the intention of the framers because it is difficult to know the framer’s intent.17Furthermore, he states that it is difficult to know the intention due to questions such as; which “framers” are the reference point? How are judges to know their intent if there are absence of records of debate for about half the ratifying conventions? Is it possible for judges to keep their strongly held convictions from influencing interpretation of ambiguous texts?18 Then what counts as correct interpretation? Karl Klare, states that what counts as “legally sound” or “legally correct” is partly a question of the practitioners training, skill and insight and partly a question of choices of moral and political convictions. In summary, he states that judges personal or political views cannot be excluded from interpretation.19 The constitution demands that all decisions should be substantively defended in terms of rights and value and it is no longer enough for judges to rely on the “say-so” of parliament or technical reading of legislation for justifications for their decisions.20 

Activists are believed to place less emphasis on precedents

Interpretive stability is whereby in as much as precedent is still valued for the elements of certainty and uniformity, activists believe that the Court has considerable amount of flexibility to overrule outdated precedents.21 Then brings the question, who decides what is correct precedent and what is not correct precedent? From my analysis, judges do not act in vacuum but employ principles from earlier cases that are applicable to the current cases and taking into consideration appropriate 16 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,2. 17 Wolfe , Judicial Activism: Bulwark of Freedom or Precarious Security ,3. 18 Wolfe , Judicial Activism: Bulwark of Freedom or Precarious Security,3. 19 Klare K, ‘Legal culture and transformative constitutionalism,’163. 20 Langa P, ‘Transformative constitutionalism’ 17 Stellenbosch Law Review 3, 2006,353. 21 Canon B, ‘Defining the dimensions of judicial activism’ 66 Judicature 5 ,1983,1.

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differences. Plessy V Ferguson was overturned by Brown V Board of Education because it advocated for racial segregation in America . 22 In the cases of Bush V Gore, Roe V Wade, Mapp v. Ohio, Miranda v. Arizona, and New York Times v Sullivan ,to name a few, simply overturned precedents, common law doctrines, or old understanding about the constitution.23In addition to that Courts can weaken and don’t need to formally overrule a precedent.24 

Less bow down to other organs

Justice Murphy stated; We sanction the decisions of the rule of the majority when they come from the duly and democratically elected representatives of the people. When that majority will try to undercut or impair the basic principles upon which it rests, namely, the free play of opposing views, practices, parties, etc., then the Court, as guardian of the Bill of Rights, must step in. We will not tolerate democracy to be destroyed in its own name.25

Activists display less deference to other political decision makers because they have a stronger sense that judges have democratic credentials and capacity plus greater doubts about the other branches of government.26 Bradley C Cannon, terms this as violation of majoritarianism, whereby the court declares an act of parliament unconstitutional as was seen when policies set out by the government on public work projects, financial reforms and regulations enacted by President Franklin Roosevelt (New Deal) were struck down by the Court.27 This was held in Panama Refining Co v Ryan, Railroad Retirement Board v Alton Railway Co, Schechter Poultry Corp v US, Louisville Joint Stock Land Bank v Radford and United States v Butler, which were all caused by the Congress attempt to exercise the Interstate Commerce Clause in a manner not compatible with the constitution.28 It is a rare case that Courts can expunge enacted Act of Parliament, regularly assented by the President from the laws of Kenya. It was remarkable when the High Court nullified some 22 Brown V Board of Education of Topeka (1954), The Supreme Court of United States. 23 Canon B, ‘Defining the dimensions of judicial activism,’ 241. 24 Canon B, ‘Defining the dimensions of judicial activism,’ 241. 25 Scanlan A, ‘Passing of Justice Murphy-The conscience of a court’ 25 Notre Dame Law Review 1, 1949,38. 26 Wolfe , Judicial Activism: Bulwark of Freedom or Precarious Security,4. 27 Canon B, ‘Defining the dimensions of judicial activism,’ 240. 28http://www.answers.com/Q/What_New_Deal_legislation_did_the_US_Supreme_Court_declare_unconstitutio nal on 26th February 2019.

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clauses of the Security Law (Amendment) Act 2014 that were considered not to be consistent and in conformity the constitution and rules of human rights.29 Independent Policing Oversight Authority & another v Attorney General & 660 others, the Court nullified police recruitment after ascertaining some irregularities that fall short of the Constitutional requirements.30Furthermore, cases of impeachment of elected governors by Members of County Assemblies and the Senate in which Courts have behaved contrary to wish of the legislators.31 The judiciary has always found itself in contraposition with the Executive and Legislature, a reality that had never been witnessed before in the judicial history of Kenya. Judiciary taking clear position against Acts of Parliament, political impeachment decisions by County Assemblies in defense of the constitution and human rights is unfolding reality in the judicial sector.32 

Activists tend to deliver broader holdings and broader interpretation

Activists read constitutional phrases as very broad presumptions as opposed to “absolutes” to be construed “literally”.33They believe that constitutional phrases are open ended provisions whose content must be determined by courts over time. For example, modern interpreters have given the due process clause a very broad meaning, that it guarantees fundamental rights against arbitrary deprivation, but the constitution does not specify which rights are fundamental and what constitutes arbitrary deprivation.34 

Activist favor a broad scope of judicial remedial powers.

Not only should judges be able to declare certain acts unconstitutional but also ensure that future action will acknowledge constitutional requirements. 35 When courts find that certain conditions violate the constitution, to secure justice in such cases courts may be able to issue affirmative commands, retaining jurisdiction of cases alleging a pattern of widespread constitutional violations and maintaining ongoing judicial supervision of efforts to remedy them.

29 Onyango P, ‘Judicial Activism and disenchantment of legal formalism in Kenya’ Academia.edu 3. 30 Independent Policing Oversight Authority and Another v Attorney General and 660 others (2014) eKLR. 31 Onyango P, ‘Judicial Activism and disenchantment of legal formalism in Kenya’ Academia.edu 4. 32 Onyango P, ‘Judicial Activism and disenchantment of legal formalism in Kenya’ Academia.edu 4. 33 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,4. 34 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,4. 35 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,4.

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A clear illustration of this doctrine would be in the case of Brown V Board of Education, the federal courts used their remedial powers to desegregate schools and to order affirmative action remedies.36 

Activist believe in lowering procedural hurdles to make changes faster

A good example of a procedural hurdle is when the Executive ( in the United States of America) states that the issue of giving or revoking a visa for an alien abroad is not subject to judicial review unless Congress says otherwise.37 Additionally, the standing trilogy seen in Thorson v Attorney General of Canada, Nova Scotia Board of Censors v McNeil and Minister Of Justice v Borowski, which in summary states that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he will be directly harmed by the law. 38 If the plaintiff cannot demonstrate this , the court will find he/she lacks standing, to bring the suit and will dismiss the case without considering the merits of the claim of unconstitutionality. Overall activists believe that the general principle is not to let procedural requirements get in the way of achieving substantive principles of justice. 39They demand less insistence on legal and procedural technicalities that quite often defeat the enforcement of substantive rights and duties under the law. After all, if the court has the fundamental responsibility to vindicate great constitutional principles of liberty and equality, then resolving issues without delay and uncertainty due to legal technicalities makes considerable sense.

III.

CRITICISMS OF CONVENTIONAL APPROACH OF JUDICIAL ACTIVISM

36 Brown v Board of Education of Topeka (1954), The Supreme Court of United States. 37 Roberto Saavedra Bruno v Madeleine K Albright (1999), Court of Appeal of United States. 38 Thorson v Attorney General of Canada (1975) ,Supreme Court of Canada, Nova Scotia Board of Censors v McNeil (1978), Supreme Court of Canada and Minister of Justice V Borowski (1981), Supreme Court of Canada. 39 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,3.

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Below are a few cons of judicial activism that are interconnected, and for the purpose of the reader, so as not to have a block of information under one point, have been briefly broken down into 4 major ideologies. 

Limited efficacy of checks on the judiciary.

In theory there are numerous checks on judges such as impeachment, constitutional amendment to name a few ,but this are quite blunt because of how time consuming they tend to be.40 There is no argument that independence of the judiciary is vital for a democracy but without accountability some risks may occur as seen below.41 Kenya The executive, legislative and judicial branches of the state should show appropriate respect for the different positions occupied by the other branches. However that was not so when the Chief Registrar of the judiciary Anne Amadi stated that Justice Warsame will not subject himself to the process of approval by the National Assembly before formal appointment to serve in the Judicial Service Commission stating that the requirement of parliamentary approval is only in respect of persons who are not lawyers appointed by the President.42 Furthermore, the Judicial Service Commission stated: “Neither the Constitution nor the Judicial Service Commission Act contain a provision requiring Justice Warsame to be vetted by Parliament. The decision by the President to refer his name to Parliament for vetting was unconstitutional, null and void”.43 The question then arises, who then will oversee actions done by the Judiciary? In addition to that, the Judicial Service Commission has refused to be overseen by the Parliament. For instance, during the suspension of Chief Registrar Gladys Boss Sholei, the

40 Wolfe C, Judicial Activism: Bulwark of Freedom or Precarious Security,90. 41 Aziz S, ‘Who is the Judiciary accountable to?’ Express Tribune, 3 August 2017 https://tribune.com.pk/story/1472723/who-is-the-judiciary-accountable-to/ on 26 February 2018. 42 Menya W, ‘Judicial Service Commission head for clash over vetting of Judge Warsame’ Daily Nation , 22 March 2018 https://www.nation.co.ke/news/politics/JSC--MPs-in-row-over-vetting-of-Judge-Warsame/1064-4353552hjmlpa/index.html on 26 February 2019. 43 Menya W, ‘Judicial Service Commission head for clash over vetting of Judge Warsame’ Daily Nation , 22 March 2018 https://www.nation.co.ke/news/politics/JSC--MPs-in-row-over-vetting-of-Judge-Warsame/1064-4353552hjmlpa/index.html on 26 February 2019.

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commission ignored the parliamentary summons despite the Justice and Legal affairs Committee`s warning . 44 Similarly, when Justice Njoki Ndungu and Justice Ojwang participated in an illegal strike, paralyzing Supreme Court`s operations for close to two weeks, so as to protest the decision to retire the then Chief Justice Kalpana Rawal and Justice Philip Tonui. This matter reached the Court for the respective individuals as Petition 204 and 218 of 2016, whereby their actions were held to amount to misconduct and not gross misconduct as many otherwise thought.45 There is clearly a leniency in addressing lack of checks on the judiciary which is dangerous because it may have even more severe consequences in the long run. Pakistan Another case in point is the Mashal Khan case. The victim, a Mardan University student, was killed over a fake allegation of blasphemy, whereas what he was actually doing was highlighting the corruption of the university administration. The judiciary again failed, as justice was denied. Moreover, his family was denied the right to live peacefully in their country.46 Who will hold the Judiciary accountable for clear violation of the constitution ? In addition to that ,a judge’s verdict can cause havoc as seen in the controversial decision of the Khadija Siddiqui case which marred a young female student’s two-year long struggle for justice. She was stabbed multiple times and the convict was acquitted.47

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Lack of application of any law.

44 Oruko I, ‘Kenya: House Team Threatens to Disband JSC Over Shollei’ The Star , 27 August 2017

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