Judicial activism the way to go



Utloang Kajeno

It is imperative to quote these seminal words from the book of Isaiah so the reader can fully appreciate the basis of this column.  They go thus: (1:17) “learn to do right! Seek justice, encourage the oppressed.  Defend the cause of the fatherless, plead the case of the widow.”

Indeed the cornerstone of the teachings of Christianity is to fight for the cause of the downtrodden, poor, oppressed, marginalized and less privileged.  The Bible is abound with a plethora of the scripture of the above that I need not cite herein but observe that these belong to another column as today my piece is about judicial activism.  However, mention cannot be ignored that Jesus Christ, the central character around whom the Christian faith revolves, was born poor and of poor parents, he was born in a cattle shed as His mother could not find the place in the inn as it was full.  He was the son of a carpenter, a profession that was looked down upon during biblical times, and throughout His living and teachings Jesus was always on the side of the above sections of people.  Even in His earthly death Jesus was crucified with two robbers one on either side of Him as if he was a sinner, yet He was the son of the Lord.

I am citing these anecdotes because it is my sincere belief that judiciaries during the times of hardships for the populace should be at the forefront of liberation and upliftment, the theory of judicial activism.  This theory is in conformity with its biblical cousin, if you excuse my French, of liberation theology.

Briefly, liberation theology started in Latin America in the 1950’s when a certain Bishop Romero, a catholic priest who advocated the cause of the downtrodden, poor, oppressed, less privileged and marginalized was gunned down before the crucifix in San Salvador, the capital of El Salvador, before his own church.  This was because of the principles that he espoused and stood vigorously for.

Because of the symbolic nature of his teachings and assassination, the death of Father Romero became the rallying point of what became known internationally as liberation theology.  It spread from Latin America to Asia, Africa and throughout the world.  This concept epitomized the struggle for the marginalized throughout the world.

In the Asian sub-continent, Mother Theresa epitomized sympathy for the poor in the religious order, Missionaries of Charity, Calcutta, India, that was founded to improve the lot of the poor in India.  She was later canonized, a Saint, a step above beatification, the Blessed One.  Sainthood is the highest honor that can be bestowed upon the faithful in catholic mythology just below the Holy Father, who is the spiritual leader of the planet’s more that one billion Catholics.  These are therefore the highest honors that can be bestowed in catholic theology, in recognition of the faithful’s contribution to humanity and the Christian faith generally.  However, let me hasten to add that Mother Theresa did not espouse liberation theology.  In apartheid South Africa, religion played a huge part in the fight against apartheid.  In South Africa too, Emeritus Archbishop Desmond Tutu and others epitomized liberation theology.

Like religion which is also a social vehicle, therefore, law has its own honors that it can bestow on individuals that have done a significant contribution towards the advancement of their field of work.  Law is a social vehicle, as earlier stated that can be used to fight for the upliftment of the marginalized, oppressed and poor.  Law should be used to promote the cause of human rights and justice.  The best form for the promotion of these ideals at least in the mainstream forum, is the judiciary.  Hence my clarion call for the need to embrace judicial activism as a key tool in the fight for human freedoms and basic human rights as well as emancipation.

In the United States and South Africa, perhaps some of the most polarized societies back then, the judiciary embraced the need to play a pivotal vanguard role in the fight for social justice, human, rights, peace, stability and emancipation. Prominent among these legal scholars who were at the forefront of this crusade were Justice Thurgood Marshall in the United States who has a judicial training center outside Washington named in his honor as that country’s first black top judge and in South Africa, Chief Justice Ishmail Mohammed has the main thoroughfare in Pretoria, the nation’s capital, named after him, in recognition also of the immense contribution he made in the fight for social justice.  Incidentally, he was also a judge of appeal in Lesotho.

I am positing this comparison between Liberation Theology and Judicial Activism as both these concepts are pivotal in utilizing the church and judiciary respectively, as critical vehicles for transformation of society.  The judiciary in particular is the last bastion and the only supreme institution that is at the vanguard of promoting human rights, social justice, improving the lot of the marginalized, oppressed, powerless and the poor. Hence the importance of the judiciary cannot be over-emphasized in social transformation and social justice.

The judiciary has to reflect the heartbeat of the nation and be in sync with the ethos, culture, and aspirations of the people.  It is totally wrong and unacceptable for the judiciary to hold itself as an ivory tower that is imperious to the needs, sufferings and aspirations of the people it is intended to serve, the majority of the people at least.

The free encyclopedia, Wikipedia, defines judicial activism as rulings suspected (note usage of the word “suspected”) of being based on personal or political considerations rather than on existing law.  It is sometimes used as an antonym of judicial restraint.  The definition of judicial activism and which specific decisions are activist, is admittedly a controversial political issue in some jurisdictions.  The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers.

Black’s Law Dictionary defines judicial activism as a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among others factors to guide their decisions.

I am inclined to agree with political science professor Bradley Canon when he posits six dimensions along which judges may be perceived as activist namely, (a) majoritarianism, (b) interpretive stability, (c) interpretive fidelity, (d) substance or democratic process, (e)specificity of policy and (f) availability of an alternative policy maker.  David A Strauss has gone further to argue that judicial activism can narrowly be defined as one or more of the following actions: (a) overturning laws as unconstitutional, (b) overturning judicial precedent and (c) ruling against a preferred interpretation of the constitution.

I am inclined further to concur with yet another scholar and eminent jurist professor Brain  Tamanaha wherein he opines: “throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices.”

Still more proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of a transient majoritariasm.  Judicial activism is also most appropriate when it restrains the tendency of democratic majorities to act out of passion rather than after reasoned deliberation.

In Bush V Gore, the United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore, the judges voted 5-4 to halt the recount of ballots in Florida and as a result, Bush was elected President.

Further in India, where judicial activism has strong roots, this concept deepened its roots when the Government attempted to control the judiciary.  The courts devised Public Interest Litigation as an instrument used by the courts to reach out directly to the public and take cognizance though the litigant may not be the victim. “Sou motu” cognizance allows the courts to take up such cases on their own.  As a result of the wide and sweeping powers of India’s judges fundamental rights as enshrined in the constitution have been said subjected to a wide review, and have now been said to encompass a right to privacy, right to livelihood and right to education among others.

Lesotho already has enough room for the judiciary to maneuver itself out of every sticky situations of interpreting statutes and other documents.  In this regard resort can be heard to ordinary rules of interpretation so that the judiciary is in sync with the mainstream predilection.  Granted, this might not seem as easy as it sounds but needs an above average legal mind.

Take a hypothetical case of a father who wants to avoid maintaining his son on the basis that in terms of the Protection of Children’s Act, he is above the minimum age for protection under the said statute, yet he is still attending school.  Does the son fall within the scope of the law?  My humble view is yes, he does.  These are my brief reasons according to the rules of interpretation:

First the court has to ascertain the intention of the legislature.  This is the literal approach.  Second, the Golden Rule of interpretation avoids absurdity, repugnancy or inconsistency with the rest of the instrument. A number of factors have to be taken into account in this regard: (a) what was the common law before the making of the Act, (b) what was the mischief and defect for which the common law did not provide, (c) what remedy has Parliament resolved and appointed to cure and (d) the true reason for the remedy.  In addition there are a number of detailed rules and presumptions such as that the drafters of legislature do not intent to alter the common law or existing law as little as possible.  Further, the legislature or drafters does not intent to take away existing rights.

Admittedly these rules of interpretation above are not exhaustive but were merely intended to support the view that the judiciary in Lesotho particularly during times of transition have to be a vanguard vehicle for social transformation, basic human rights, social justice and above all else  be in sync with the changing times and societal needs.  In this regard, judicial activism is key.

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