By Ali Mashraf
On Saturday, April 29, 2017, Department of Law, Dhaka International University organized the Seminar on ‘Judicial Activism and Judicial Self-Restraint’ at the Conference Hall of Faculty of Business Studies, University of Dhaka. Veteran academicians, esteemed judges, prominent lawyers, journalists, faculty members and students of law from various public and private universities attended this seminar.
During his inaugural speech, Barrister Shameem Haider Patwary, Vice Chairman, Board of Trustees, Dhaka International University said that judicial activism was one of the least concentrated areas in the legal arena of Bangladesh and that it is India who have progressed the most in this regard among the other countries of South Asia. Barrister Patwary further commented that it was judicial activism that led to the Constitution ‘of’ India being transformed to Constitution ‘for’ the people of India.
At the onset of his keynote speech, Professor S. S. Visweswaraiah, Former Dean, Faculty of Law, Karnatak University, India, reminded everyone that while the topic of the seminar looked deceptively simple, one could not only look at the topic without dwelling on other relevant issues, such as the Constitution of a country, the doctrine of Separation of Powers, Judicial Review and PIL. He emphasized that the doctrine of separation of powers is not something that should be strictly adhered to.
He also argued that the Constitutional provisions are not static and dry and that they are ever-changing. It is in this regard that he felt the necessity of judicial activism by the courts. However, Professor Visweswaraiah said that the courts while laying down vast laws in the instances of sexual harassment, adoption by foreigners, air pollution in Delhi etc. failed to realize the cost of their implementation by the government. He believed that it is in those instances that the courts should not overstep their boundaries of jurisdiction. He concluded saying that it was imperative for the judiciary to cultivate ‘self-restraint’ and ‘self-discipline’ to coexist in harmony with the other organs of a state.
Afterwards, Dr. Ridwanul Haque, Professor, Department of Law, University of Dhaka, reflecting upon the keynote speech remarked that judicial activism should be society-specific. He said that in a society riddled with hunger and poverty, judicial activism was a duty and passivism by the judiciary in such instances would be tyranny. Nevertheless, he conceded to the fact that the line of overstepping was very blur. He concluded by lauding Professor Visweswaraiah for his keynote speech.
Following that, Dr. Muhammad Ekramul Haque, Professor, Department of Law, University of Dhaka remarked in his speech, that judicial activism was strongly connected with bad governance and that activism must always be confined by self-restraint. Citing the example of transformation of the right to education as a fundamental right by the Indian judiciary, he claimed that it was the best instance of properly guided activism. He further observed that judicial self-restraint was at times frowned upon by the mass people who felt that the judiciary needed to step up on certain issues.
But Dr. Ekram also felt that excess activism, which he termed as ‘judicial adventurism’ was not commendable. In conclusion, he said that while activism encouraged a judge to be creative, self-restraint drew a boundary for him to not go beyond the text of law or the intention of the Constitution-makers. He felt that a mixture of both was the best approach.
Professor Dr. Md. Rahamat Ullah, Dean, Faculty of Law, University of Dhaka then discussed the topic of the seminar from Bangladesh perspective and referred to the Berubari case as the first instance of judicial activism in Bangladesh. He said that judicial activism is an essential tool in order for us to uphold the constitutional provisions of a socialist society where rule of law will prevail.
Professor Syed Anwar Hossain of University of Dhaka then delivered his speech as a guest speaker of the seminar. In his short speech, he remarked that currently, a cold war is going on between the executive and the judiciary of Bangladesh and that exercising self-restraint would go a long way to overcome this tense situation. He also said that it was the duty of the media to broadcast such type of seminars so that the decision-makers could understand the viewpoints of the academicians regarding the issues.
Following that, Dr. S. Quadir Patwary, Chairman, Board of Trustees, Dhaka International University delivered his vote of thanks speech appreciating the presence of everyone at the seminar. In his concluding remarks, Professor Dr. K. M. Mohsin, Vice Chancellor, Dhaka International University said that more such seminars were needed for a healthy discourse on pressing legal issues of Bangladesh and thanked Professor Visweswaraiah for his speech.
The seminar ended with a memento being presented to Professor Visweswaraiah by Professor Dr. K. M. Mohsin on behalf of Dhaka International University. It was very helpful for professionals and students alike as they got to hear on a very time-befitting issue by prominent legal luminaries of both home and abroad. Such instances of discourse shall go a long way in forming informed opinion for law students and practitioners.
Ali Mashraf is a student of Department of Law, University of Dhaka and a contributor of The FutureLaw Initiative. To reach out to him, send an email at [email protected].