Judicial activism Essay Example for Free

Judicial activism EssayJudicial activism continues to attract a modify debate in numerous parts of the world. Judicial activism loafer in general terms be delineate as arbitrator legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case establish on his or her governmental or person-to-person thoughts. The judgment may also be beginningd on pressures that emanate removed the constitution. Judicial activism therefore occurs when the court of rightfulness fails to abide by the provisions of the constitution in return judgment. There stimulate been arguments in different parts of the world on different provisions that gives get on for judicial activism. The basic argument has been overdue to the ability of judicial activism to result into violation of separation of powers of the legislative body and the judicial system. This is because it gives the judge the power to create laws rather than conforming to interpretation of the existing law. This is the give-up the ghosts of the legislative arm of government. On the other hand, proponents of judicial activism stupefy fence ind that it creates a situation where the decide regnants be non limited which gives style for the broader application of the law.Gener totallyy, judicial activism has been criticized because of the possibility of it being used by liberals or conservatives to create new laws by avoiding the traditional legislation processes that atomic number 18 subject to public opinions and debates (Roosevelt, 2008). It is important to raze that the officials in the judiciary argon appointee while the legislative body is flat elected by the citizens in the country. This means that the judiciary does not have the ability to legislate. For this reason, judicial activism has been accused of being responsible for unimagin satisfactory judgments in the courts of law.It allows both conservatives and liberals in the justi ce systems to transgress the jurisdiction of the law court and make judgments that are inconsistent with the law of the land. close to people have reacted judicial activism arguing that the judge does not create any law. However, the effects of the judge basing his judgment on his political and personal thoughts have the same effects as a create verbally law. Both either limit or allow an action against an offender. Depending on the legal systems in a country, the level of judicial activism varies.For example, judicial activism has been found to be more likely in Canada compared to the United States due to the high dependence of Canadian judicial systems on judges discretion (Roosevelt, 2008). Judicial activism in Canada The Canadian judicial systems allows the judge to make judgments fit to his interpretation of the constitution, the common law, grateful policies in the judiciary and gives them discretionary powers in the rules. This creates a room for judicial activism in th e Canadian justice systems.However, it is important to note that there is eminent separation of powers of the judiciary and legislature in Canada. The traditions of the Canadian justice system have a very strong respect for the total function of the legislature. It is the responsibility of the court and the justice systems to warrant that the law of the land is applied impartially as it is written (Kelly, 2006). The Canadian justice systems are based on the British and the French legal systems. These legal structures rely more on the judges discretion, the judicial policies as well as the common law.Therefore, compared to legal systems in other countries such as the United States, the Canadian systems are more susceptible to being accused of judicial activism. Consequently, there is a glowing concern over judicial activism in Canada as a response to the Charter of Rights and Freedoms where the adjudicate have been accused of overstepping their formulas and making unreasonable ju dgments. Of greater concern is handling of cases involving same sex marriages where the judges have been accused of basing the judgments on their personal thoughts about the topic (Kelly, 2006). The Charter of Rights and Freedoms was enacted in 1882.This law was followed by other parliamentary and provincial enactments that have increasingly widened the scope of human rights and freedoms in Canada. The principle function of the bring and the subsequent legislation has been safeguarding the rights and freedoms of individuals in the country constitutionally. However, the big question has been whether the charter has been able to bulletproof the rights and freedoms of all individuals living in Canada. There have been arguments that the law creates excuses for the judiciary and tribunals to deny Canadians their fundamental rights and freedoms and dampen the principles of democracy.Initially, the charter was praised by its admirers who argued that it was the greatest achievement in th e history of Canada making it more democratic and just. However, any(prenominal) people have argued that the charter has done centrally to the expectation by empowering the judges to make unacceptable persuasions (Kelly, 2006). According to Leishman (2006), before the enactment of the charter into law, the legislative bodies in Canada which includes the parliament and the provincial legislatures had well defined functions in the country which made them supreme.They had the constitutional authority to make new laws and amend or purloin the existing ones. However, the situation has changed since the enactment of the charter. Today, the judiciary has taken over the legislative duties as well as its judicial duties. It has become a common occurrence in the Canadian legal systems for judges and juries, who are not elected except appointed, to impose guidelines on key policy issues to the parliament and the provincial legislators who are elected democratically by the people.Democratic ally, these representatives are evaluate to form the legislative arm of government but the Supreme Court has dodged the principles of democracy and has allowed judges to legislate on the bench resulting into unacceptable and unrealistic judgments. Leishman (2006) provides some(prenominal) cases in the Canadian legal systems where the judges have made unacceptable judgments based on their personal ideologies about an issue. An analysis of these cases indicates that individuals, corporate organizations and social entities are affected by the unacceptable rulings in many ways.Some of the court ruling that is aimed at promoting rights and freedoms have in reality resulted into injustices and biasness because they are based on the judges personal opinion which may not be in the best spare-time activity of all individuals or entities involved in the case. An example of such as case was Linda Gibsons picketing case. Gibson was a pro-life advocate who had a personal opinion against abor tion in the country. Being a dupe of the traumatizing effect of abortion on the woman and having witnessed the negative effects of abortion for many years, she opted to picketing outside an abortion clinic in the city.In 1994, the court lay out was issued ruling against picketing within the vicinity of abortion clinic. This is despite the charter assuring all Canadians the freedom of expression. This is one of the cases where the judicial activisms have been used to impose unacceptable judgments which part the fundamental rights of individuals. It is important to note that it is the component part of the legislature to limit individuals rights and freedom while the courts are expected to make judgments based on reasonable interpretation of the law.Another important case which indicated the level to which the judiciary has overstepped its mandate is the Vreind v. Alberta case in which Delwyn Vriend, an employee at Kings University College, had appealed against his dismissal. He wa s accused of insubordinate port for wearing a shirt that mocked the conservative codes of conducts in the college that prohibited homo innerity. Due to pressure from some unruly students in the college, the administration was forced to dismiss Vriend.He appealed to the human rights commission in the province against the discriminating dismissal and eventually the case went before the courts. The court ruled against the colleges decision to dismiss the proletarian arguing that it was an act of discrimination based on sexual orientation. This form of discrimination was against the charter and relate acts in the province (Leishman 2006). However, careful analysis of the case demonstrates that the decision was as a result of judicial activism which severely affected the college.It is important to note that by the time this ruling was made, no legislation in Alberta relating to human rights mentioned anything to do with sexual orientations. Moreover, the court admitted in its judgme nt that the legislature in the province had in many instances ignored the demands to incorporate provisions that related to the rights and freedoms relating to sexual orientations. The charter of rights and freedoms alike did not have any provision relating to sexual orientations. The parliament had rejected all proposals to include such provisions in the charter.This is a clear indication that the Supreme Court overstepped its jurisdiction by taking up legislative roles. It was wrong for the Supreme Court to ignore the decision by the legislative arms of government, who are directly elected by the people (Roach, 2001). Based on these ruling, where the judges ruled according to their personal opinions on the issue and not a reasonable interpretation of the law, the Supreme Court has made other ruling that party favour homosexuality in Canada.For example, based on the Vriend case ruling, the court ruled in favor of same sex couples in the M. . H. case in 1999. The court argued that homosexuals should be granted equal rights according to the charter despite the legislature rejecting attempts to incorporate such provisions in the charter. The court was well certain of the failed attempts by the attorney general to legally allow homosexual couples to have the same rights as legally married couples. The legislatures being the people representative rejected the bill due to the public outcry and widespread objection. However, the courts ruling on the M. v. H. case was very surprising (Cossman, 2002).Rather than amending the law, the court rugged the legislature by giving it half a year to amend that law in order to grant homosexual couple equal rights and responsibilities. The legislature responded to the order by the court and amended the law by adding statutes that give homosexual couples the same rights as heterosexual couples. Although some people may argue that it is reasonable for the charter to protect the rights of all irrespective of their sexual orient ation, it is interesting to note that the court was able to achieve a legislation function that the legislature was unable.There is no doubt that the court ruling ordering the legislature was uncalled for and unacceptable given that the two arms of government need to be separated. The role of the court is to interpret the law a while the legislative functions are bestowed on the legislature by the constitution (Christopher, 2001). There are several ways in which the law court can oversteps its mandate and make unacceptable rulings. The most interesting aspect of judicial activism in Canada is that the proponents of these moves by the court base their arguments on the charter on rights and freedoms.For this reason, the most common form of judicial activisms involves the court extending the rights and freedoms of an individual inappropriate to the provisions in the law. An example of such cases is the Vriend case where the court extended the rights of the complainant to include sexua l orientation which is not included in the charter. The court can also make unacceptable rulings by increasing the powers of the judiciary. This is the case in the M. v. H. case. In this case, the court overstepped its constitutional function by ordering the legislature to amend the law accordingly.Although it is the legislature which passed the law, its role was to rubber stamp what the court had already legislated which is not acceptable (James, 2003). There are cases where the court has made unacceptable rulings by increasing the rights and freedoms of a group of people. These groups can be an ethnic community or groups with a certain ideological believe such as homosexuals, pro-life or pro-choice. For example, in the case of Linda Gibsons picketing case, the court made a unacceptable ruling which increased the freedoms of the pro-choice group while limiting that of the pro-life group.In the same way, by the court pushing for amendment of the law in the M. v. H. case, the court i ncreased the rights of homosexuals (Leishman, 2006). Conclusion The enactment of the charter on rights and freedoms in Canada was seen by many as a revolutionary legislation in the history of the country. The law guaranteed all Canadians equal rights and freedoms. Unfortunately, the charter has turned into a threat to the citizens in the country because the courts have used it to defend unacceptable rulings that amount to judicial activism.In the enactment of the charter, the legislators rejected all attempts to incorporate issues related to homosexuals, pro-life and conservative Christian values. However, in many instances, the judges in the law court have overstepped their constitutional functions and legislated from the bench. The rulings are based on the personal and political ideologies and beliefs of the presiding judge which may not be in the best interest of the general public. Although some level of judicial activism may be essential in any democratic society, some resultan t rulings are unacceptable.