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ISSN 2049-8918 Issue 1 Vol. 1 nov 2012 – jan 2013 2-8 Beaumont Grove, Stepney Green, London E1 4NQ Tel: 0207 481 0700 Email:[email protected], Website: www. thetestimonyonline.com 1 2 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 Testimony ISSN 2049-8918 Issue 1 Vol. 1 Nov – Jan 2013 Editor: Emeritus Professor Philip A. Thomas Joint Editor: Prashanta B. Barua Consulting Editor: Sarat C. Das Editorial Board: Chairman of Editorial Board: Emeritus Professor Philip A. Thomas Prashanta B. Barua Prof (Dr.) Zakir Hossain Rajib Mustofa Sarat C Das Art & Design: Krishna Sharma & Md. Abu Musa Iftekhar Publisher Prashanta B. Barua ISSN 2049-8918 Copyright@Testimony 2012 Address: 2-8 Beaumont Grove Stepney Green London E1 4NQ Tel: 0207 481 0700 Email:[email protected] Website: www.thetestimonyonline.com A joint publication of London East Bank College and Centre for South Asian Studies (UK) All rights reserved Printed in UK All rights reserved. No part of this publication can be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the copyright holder. Requests for permission to use or reproduce material from this publication should be directed to [email protected] Or Testimony, 2-8 Beaumont Grove, Stepney Green London E1 4NQ Tel: 0207 481 0700 ISSN 2049-8918 Price: £5 3 4 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 25 5 30 7 39 17 52 21 57 5 6 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 Dear Reader, ESTIMONY, A BI-ANNUAL The publication aims to contribute to scholarly law journal focusing jurisprudence with a revealing insight into T on legal issues, is jointly civil rights and civil liberties, international published by Centre for South law, or human rights, and statutory, Asian Studies (UK) and London East Bank regulatory, and public policy issues. College (LEBC). The publication draws its Testimony accepts contributions of interest contributions from a cross-section of legal to a wide cross-section of readers. practitioners, judges, law teachers and students. The diverse body of content The reviews of law articles are primarily includes legal commentaries, reviews, those which have been influential in the analysis, 'notes' and 'comments.' These development of legal jurisprudence in the papers aim to articulate the views of legal UK and Europe. However, contributions specialists with regard to current legal from overseas, particularly south east Asia issues and their potential solutions. The are welcome. The common law journal is broadly based both regarding its jurisdictions are indeed global and content and the academic disciplines that Testimony seeks to reflect that level of are covered. outreach of this legal system. 7 8 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 supremacy of the rule of law above of Parliament rather than limiting itself to arbitrary exercise of power by the the powers traditionally given to the Sovereign. This may be termed judicial judiciary.' In other words judicial activism activism par excellence. However, is the term used to describe the actions of nowadays the term offers different j u d g e s w h o g o b e y o n d t h e i r meanings to different persons. It constitutionally prescribed duties of acting commands popularity from the quarter as arbiters in a case, of applying law to the benefitted and scorn from others. In the facts of individual cases, and "legislate" context of judicial pronouncements in from the bench. These judges create new judicial activism that is good for the poor Bangladesh, particularly in relation to constitutional rights, amend existing ones, and oppressed, who are otherwise decisions concerning women and children, or create or amend existing legislation to fit it appears to be used as synonymous with their own notions of societal needs. prevented from getting proper and judicial pro-activism. proportional treatment under the law and By the same token, the nomenclature denied redress due to various hurdles- Black's Law Dictionary defines judicial "activist judge" is used to describe a judge economic, social, educational etc activism as "a philosophy of judicial who actively and knowingly subverts, decision-making whereby judges allow misuses, grossly misinterprets, ignores, or ABSTRACT: their personal views about public policy, otherwise flaunts the law and or legal among other factors, to guide their precedence due to personal opinion, be that In order to unravel the true meaning of s a concept, judicial activism o p i n i o n i d e o l o g i c a l , r e l i g i o u s , 'judicial activism' as a philosophy of has been in existence for more philosophical, or otherwise. than a hundred years. decisions, usu. with the judicial decision-making the discourse A Others say, 'judicial activism' is when On the other hand, judicial activism in However, the meaning has goes beyond the point when the courts do litigation is a helpful mechanism used by changed over the decades from courts do not confine themselves to not confine themselves to reasonable reasonable interpretations of laws, but the courts to assert their powers and its earlier pejorative sense to the now more jurisdiction and to do justice strictly interpretations of laws, but instead create acceptable, and is sometimes considered as instead create law. Alternatively, judicial law. The author deliberates on judicial activism is when courts do not limit their according to law, as they would interpret it a laudable practice. Earlier it was in the facts and circumstances of the case activism in litigation as a utilitarian ruling to the dispute before them, but scathingly used to describe decisions which before them. mechanism employed by the courts to e s s e n t i a l l y r e f l e c t e d p o l i t i c a l instead establish a new rule to apply broadly to issues not presented in the specific ensure justice is delivered according to law, manipulations. [viz. Marbury v. Madison DO JUDGES MAKE LAW? action. "judicial activism" is when judges as they would interpret it in the facts and (1804)]1. Even as early as 1608, Coke CJ substitute their own political opinions for circumstances of the case before them. If stood up to King James I of England, who In the last three decades there has been a claimed absolute power to withdraw a case the applicable law, or when judges act like a while acting under the forgoing urge to do phenomenal development in the arena of from the Royal Courts of Justice and to legislature (legislating from the bench) justice in accordance with law, the judges rather than like a traditional court. In so Public Interest Litigation, particularly in decide it himself. The Chief Justice advised the sphere of Environmental Law. Here appear to be 'guilty of judicial activism', that he could not do so and that, although doing, the court takes for itself the powers then so be it. The author asserts on the the King is above man, he was under God 1 Tag Archives: Supreme Court: A novel way of ensuring transparency in the higher judiciary? Accessed 16th October 2012 http://letstalkaboutthelaw.wordpress.com/tag/supreme-court/ utility of 'beneficent activism' as a form of and the law. Thus was established the Judgment of Chief Justice Marshall of the US Supreme Court who observed that the Constitution was the fundamental and paramount law of the nation and "it is for the court to say what the law is". 9 10 ISSUE 1 VOL. 1 NOV 2012 – JAN 2013 again, it cannot be said that this is Court or otherwise to secure the ends of principle, in a case of this kind where the assault in the absence of corroborations, as lawmaking in its true sense. In reality, justice. This section emphasised that the evidence and condition of the prosecutrix a rule, is adding insult to injury.” Their judges interpret the law, sometimes Supreme Court's High Court Division has form the only evidence which the court has lordships went on to hold that following the strict letter of the law and at the widest jurisdiction to pass orders for to go upon, it is necessary in order to sustain corroboration is wholly unnecessary in the other times looking to the intendment of the ends of justice and for that purpose to a conviction, that it should at least be found context and profile of Indian society and Legislature in a way so as to cater for the entertain applications not contemplated by that the woman's statement is in accordance that the evidence of a victim of a sex needs of the populous for whose benefit the the Code. Their lordships went on to say with all the probabilities and has all the offence is entitled to the great weight. In the law was enacted. that the inherent power of the court is appearances of having been honestly case of Jahangir Hossain vs. State, 1 BLC undefined and indefinable. It is well settled made.” It appears that in that case the court 292, Gholam Rabbani, J., after discussing In a recent decision in the case of The State that the paramount consideration in was not convinced about the honesty of the in detail the above decision of the Pakistan –Versus- Seema Zahur and another, 8 BLT exercising power under section 561A of the witness, thus requiring corroboration of her and Indian Supreme Courts, as well as (AD) 69, a petition was filed by a learned Code of Criminal Procedure is that such an evidence.

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