This document discusses judicial activism and the politicization of judiciaries. It defines judicial activism as judges being willing to influence public policy beyond legal decisions. It provides examples of judicial activism in the Netherlands, Philippines, and Argentina. It also discusses factors that can contribute to judicial activism, such as social actors and civil society putting pressure on courts to address human rights issues. However, judicial reforms aimed at curbing politicization have had mixed results and courts still struggle with issues like corruption. The document concludes with assessment questions comparing public policy and civil service recruitment across countries.

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S E C T I O N 1 A N D 2
P S C I 2 2 1 0
C O M P A R A T I V E P O L I T I C S
CONSTITUTIONS AND THE
LEGAL FRAMEWORK

2. JUDICIAL ACTIVISM
 Defined as: The willingness of judges to venture
beyond legal decisions to influence public policy.
 Judicial restraint : Maintains judges should leave
matters apply to law to elected political bodies such
as legislatures and executives.
 Judicial activism is also known as Judicialisation of
Politics : Reliance on courts and judicial process to
address policy questions, political controversies that
are important to politics when the process are
traditionally fall within the jurisdiction of legislature

3. ….
and executive.
Politicization of judiciary ?
Growing recognition by the public of the court as a
partisan player in politics alongside with the erosion
of court as public image as an important and
independent arbitrator of politics

4. Example of Judicial activism
1) Netherlands : The constitution explicitly excludes
judicial review. However, the Supreme Court has
produced an important case law on issues where the
parliament is not able to legislate in authorizing
euthanasia (assisted suicide). Hence we see in 2002,
when euthanasia was legalized, “the Dutch Supreme
Court has ruled that a doctor who helped an elderly
man "tired of living" to die was guilty of assisted
suicide”.

5. …..
 2. Philippines – 1986 when court served as arbitrater
function between executives and legislatures
branches on the matter whether presidential
appointments needed congressional confirmation.
The court called upon to resolve the deadlocks
resulting the court to favor for position of the
president (Aquino – post Marcos).
 3. President Gloria M Arroyo won 2004 Presidential
Elections despite claim of electoral unfairness. She
was allegedly charged of corruptions against her and
her family members during her presidency. In

6. …..
In 2004, the court used its review powers that called
Arroyo’s government policy to make street protests
as illegal as void.

7. POLITICISATION OF THE JUDICIARY
 As democratic rule opens up a system of rules
whereby the acts and decisions of policy makers and
public officials may be subjected to constitutional
review and legal control, tempting for political class
to seek control the judicial watchmen.
 Yet, there is a deep and widespread distrust of legal
institutions which are themselves discredited and
form part of the corruption.
 This is not a surprise as the principle of rules and law
and rights for protection are very weakly embedded
of the ruling elites.

8. FACTORS FOR JUDICIAL ACTIVISM (-ve and
tve)
 1. Social actors and Civil society – Human rights
movement forced the issues of rights, justice and rule
of law into public limelight. The support may come
from the bottom and up.
 1980s in Argentina – saw the persecution of a few
military officers.
 Law – empower and function as instrument for civil
society.

9.  Mexico- mobilization from below. Forced human
rights issues to be discussed and made as political
agenda, prompting the investigation of human rights
abuses committed by the political party PRI in 1970s
and 1980s.
Thus, the discovery of law by civil society has
contributed in part to the process of judicilisation of
conflict within society .

10. ….
 2. Institutional and political actors
 Political liberalization - opens up new institutional
and legal spaces.
 Judicial reform – has been carried out in several
countries but with disappointing results such as in
Latin America.
 Mexico – 1990s – judicial reform has brought to
further changing in political environment – PRI
power’s electoral dominance has been reduced. The
courts also were seen and willing to confront political
executive even on politically and economic matters.

11. ……
 Yet, it was reported that the image of justice system
has not improved- human rights violations are still
major systemic problem as well as corruption.
 Argentina- despite judicial reforms in towards
improving judicial efficiency, there was a deliberate
political decision to subvert judicial independence.
 Menem presidency – highly politicized in particular
around court rulings of freezing of banking assets.

12. QUESTIONS FOR FINAL ASSESSMENT (5%)
 Q1 = Compare public policy in liberal democracies
and authoritarian countries ( Chapter 18) – 12 font ,
double spacing , 4 pages maximum. ( 2.5 m)
 Q2 = Identify and compare the types of recruitment
to public sector (Chapter 17) – 12 font, double
spacing , 2 pages maximum. (2.5m)
 Submission : 15.12.2015 ( class hour).