In December of last year I wrote here about the issue of the Australian High Court overturning the Australian Capital Territory law legalizing same-sex marriage and lamented only half-seriously that it would not perhaps be such a tragedy if the Court dabbled in a bit of ‘social activism’. While I was being facetious on the matter at the time, recent news has brought the issue back up: Namely, the ousting of prime minister of Thailand Yingluck Shinawatra by a court order on grounds which some suspect are not judicially justified. (Thailand has seen a wave of protests against her which many presumed would oust her from power.) This once again brings to question the role of judiciary in acting for social ‘good’.
As I have said before, in general I favour the more conservative view that the law is to be upheld dispassionately. There is a view, however, which points out that this could be wishful thinking. As Arthur Schlesinger summarized this ‘Yale theory’ in 1947 in the first recorded use of the word ‘judicial activism’: "A wise judge knows that political choice is inevitable; he makes no false pre tense of objectivity and consciously exercises the judicial power with an eye to social results.”
From personal experience in conversations with lawyers and past judges, there appears to be a distinct demarcation when it comes to where one draws the line between acceptable and unacceptable activism. In other words, even the biggest supporters of judicial activism believe it should be limited to those issues either grossly unjust under the current law and those which go against strong majority of public opinion. The latter I have a problem with for any number of reasons. For example, I don’t think majority of public supported the car seat belt law when they came into effect, but its a law that every statistic on the planet has proven saves lives. I can think of dozens of others which I will not bring up for fear of arousing unnecessary passions derived from personal opinion on subjects such as abortion, death penalty, and gun control. Regardless, it is not hard to imagine that many laws enacted for the greater good would not be likely to find strong public support for them. The former point, on the other hand, is much more difficult to reconcile with.
Justice in terms of the law is not controversial. What we are talking about here is law implemented by the legislative branch and, for argument’s sake, unopposed by the majority of the public, but one that is unjust in the eyes of the judge. For the easiest example see race laws of any Western country going back hundreds of years. Countless judgments can be found where the judges expressed their distaste for slavery and segregation laws, yet upheld them as legislatively valid. (Though just as many, if not more, enforced them with a certain eagerness, if not glee.) Legal jurisprudence has much to say on this philosophically, but Western legal system has never quite addressed this issue systematically.
Australian Chief Justice French, in his November 2009 speech at the LAWASIA Conference, spoke on the subject as one encompassing the separation of powers: judiciary is there to provide checks and balances upon the executive and the legislative branches of government. In other words, the judges are not there to make laws, they are there to make sure they are validly enforced and consistent. Yet as French CJ rightly points out, any judicial review by its very nature involves ‘activism’ in that it forces the judge in question to apply what he or she considers ‘right’ and ‘proper’. While this does indeed "shifts the definitional problem to the boundary between proper and improper”, I believe that is where the discussion should lie. If we are to accept that ‘activism’ in all it’s forms is an inescapable byproduct of a judge’s position, it would be more productive if we shifted the discussion away from its merits and towards the extent of this ‘activism' we as society are willing to grant the judiciary. So far, this has remained primarily within academic arena. That is a shame.