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Was the N/Assembly wrong in relying on BBC broadcast?

By  Anthony Idigbe, SAN

According to Cross, Bell and Engle [1987], “interpretation is the process by which the courts determine the meaning of a statutory provision for the purpose of applying it to the situation before it.” It follows that in interpreting any section of the Constitution, the court and I dare say National Assembly would usually seek to discover the intention of the legislature or Constitution maker.

There are different approaches to achieving correct interpretation of a constitutional provision. It is in the light of the above background that I intend to consider whether the National Assembly was wrong in their interpretation of s.145 of the 1999 Constitution by relying on a BBC broadcast by President Umaru Yar’ Adua in passing a resolution declaring  Vice President  Goodluck Jonathan the acting president.

S.145 provides as follows, “whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary, such function shall be discharged by the Vice-President as Acting President.”

The first approach to interpretation of s.145 is the literal rule. It seeks to discover the intention of the legislature or constitution maker only from the words used. It follows that the literal rule would give the words used their ordinary meaning and effect would be given to those words, even if they lead to absurdity.

Applying this rule, the words “written declaration” used in s.145 can mean only what the words say that is, written declaration and nothing more even if it means that the country is left without an Acting President where the President for instance is struck down by sudden stroke and is unable to physically write a declaration. This situation is clearly absurd.

The second approach is the golden rule of interpretation. Under this rule of interpretation, where the ordinary meaning of words used in a statute would be repugnant to or inconsistent with other provisions or lead to absurdity, then the words may be ignored. The golden rule is closely tied to the third approach which is known as the mischief rule or purposive approach to interpretation.  Since the Heydon case in 1584, the mischief rule or purposive approach has contemplated that the court may fill in gaps and add or ignore words in a statute in order to enable the purpose of the statute to be achieved.

Despite initial criticism of this rule, the UK House of Lords (now Supreme Court) accepted the mischief rule in the recent case of Inco Europe Ltd and others V First Choice Distribution and others [2000] 2 All 109 at 115. Lord Nicholls,  in a unanimous decision, said, “I am left in no doubt that, for once, the draftsman slipped up.

I freely acknowledge that this interpretation of s.18 (1) (g) involves reading words into the paragraph. It has long been established that the role of the Courts in construing legislation is not confined to resolving ambiguities in statutory language. The Court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function,  the Court will add words, or omit words or substitute words.”

Applying the purposive rule as far back as 1964, Udo Udoma, J (as he then was), in the case of Awolowo v Federal Minister of Internal Affairs (1962) LLR 177, in interpreting the provisions of the 1963 Constitution on fundamental right to counsel of ones choice against the right of the Minister of Internal Affairs to deport any foreigner without giving reasons, added the following words “who can come to court” to the right to counsel in the constitution.

So he held that where your choice of counsel is one who could not come to court because the Minister deported him, your right to counsel of your own choice was not breached. You are, notwithstanding the meaning of the ordinary words of the Constitution, not entitled to a counsel who has some impediment to coming to court. Even today, the decision is applied to prevent parties from delaying cases on basis that business of court must wait for whenever counsel is medically fit enough to perform his function for those parties.

Now applying the above approaches to interpretation to S.145 and the action of the National Assembly in passing a resolution declaring the vice-president as acting president, it seems that two issues arise. First, what is the purpose of s.145 of the 1999 constitution or the intention of the constitution maker or the mischief sought to be prevented by that provision? The second is whether the words used fully express the intention and, if not, whether the court would recognise the filling of the gap so as to avoid the absurdity and give effect to the purpose and intention of the constitution maker.

No doubt, S.145 is intended to prevent a power vacuum in Nigeria. Such a vacuum could be dangerous for the country in time of peace and even more so in time of war. So, the section deals with not just where the president goes on vacation but uses the word “or” which is construed as an alternate word to extend the provision to where  “….he is otherwise unable to discharge the functions of his office…” [Emphasis supplied]. By use of the word “otherwise”, the circumstances under which the president may transmit a written declaration was made limitless. For instance, what if the president is captured by enemy forces during a war, will he continue to act as president whilst held by the enemy?

Would the command and control for resistance to enemy forces not be compromised if there is a vacuum? Again the use of the words “transmit” is significant. According to The Chamber Dictionary, the word transmit means “to send on; to pass on; to  hand on; to communicate; to hand down to posterity; to send out or broadcast (radio signals, programmes, etc)…”. It follows that use of the word means that the President can send the message by many ways including broadcast. If it was intended to be by say only personal service on the president of the Senate and speaker of the House of Representatives, different words would have been used.

On the second question, it seems that the use of the words “written declaration” is unduly restrictive in the midst of words like “transmit” and “otherwise” already discussed above. No doubt, the intention of the words “written declaration” was to have a permanent record of the decision of the president. With technological development, this record can be expressed by the president in other permanent media other than writing.

It has been held that an oral defamation of a person recorded and transmitted by way of broadcast was libel and not slander. The rationale for such decision was that broadcast was construed as a permanent medium of expression very much like writing which is the traditional mode of libel. It follows that a court would consider that a BBC radio broadcast amounts to a permanent medium of broadcast and that since the purpose of written declaration in s.145 of the Constitution was to have a record of the decision of the president on a permanent medium, the words “or other permanent medium of expression” was to be added after the words “written declaration” wherever they appear in s.145.

This approach to construction of the section is to give effect to the purpose of the section and ensure that the mischief of power vacuum intended to be overcome by the section is not left existing. Further, if a word like “transmit” which includes broadcast is used two times in the section, it makes sense to read “broadcast” as well into written declaration.

In addition, internal and external aids assist interpretation of statutes. According to Cross, Bell and Engle (1987), internal aids to construction consist of looking at other parts of the statute (preamble, headings, title, etc) and applying rules of language such as ejusdem generis and nocitur a sociis to words to be interpreted. By ejusdem generis where general words follow specific words, the general words are construed as limited to the genus indicated by the specific words [see Quazi v Quazi [1980] AC 744 at 807_8 per Lord Diplock]. By noscitur a sociis words in a provision get their colouring or meaning from the surrounding words.

In Bromley London Borough Council v Greater London Council [1983] 1 AC 768, [1982]1 All ER 129 (CA & HL), the word ‘economic’ to be construed under s.1(1) of the relevant statute got its colouring from s.7(3) of the same statute which required the transport authority to make up deficit at end of accounting period.

Therefore, ‘economic’ was held to mean that the transport system would be “run on business principles”. It follows that applying the nocitur a sociis rule, the word “transmit” should colour the words “written declaration” in s.145 and should be construed to mean that declaration should be “expressed on a permanent medium of expression”.

It may be argued that there is doubt as to the authenticity of a BBC broadcast but even a written declaration could have been tainted by the same challenge. We all recall the extorted Ngige resignation saga. The truth is the law has contemplated that issue in its rules of interpretation and evidence. There is the doctrine of presumption and of notorious facts. Presumptions are those issues taken for granted in the legislative process and which the courts construe as settled unless the person contending to the contrary discharges the burden of proof that rebuts the presumption [Cross, Bell and Engle 1987]. Thus there is presumption against unclear change in the law; against failure to produce available evidence; against ouster of the jurisdiction of the courts; and, in favour of strict construction of statutes that seek to take away vested citizens rights or are penal in nature or in any way deprive individual liberty.

By this doctrine, the law presumes certain facts in the legislative process and therefore shifts the burden of proving the contrary to any disputing party. Under the presumptions allowed by our Evidence Act, we can presume that BBC is an internationally recognised broadcast company that uses best practices to obtain information and authenticate their facts and therefore that their broadcast of their interview with President Umaru Yar’Adua is true, accurate and factual particularly in the face of lack of denial from the president’s immediate family and close aides who actually facilitated it to prove that the president was still alive.

Since nobody has rebutted the presumption at all or by any contrary credible evidence, the National Assembly was entitled to rely on the undisputed facts established by way of presumptions including the physical absence of the president from the country and the notorious fact under the Evidence Act that he is ailing in a Saudi hospital.
In conclusion, I am of the view that there was absolutely no need for the National Assembly to resort to the doctrine of necessity as the basis for exercise of its power under s.145. A proper construction of the section would have been sufficient. It is important to insist that the National Assembly acted wholly within the context of s.145 and therefore acted constitutionally. Reliance on the doctrine of necessity was dangerous.

That doctrine gives the impression that the National Assembly did something wrong under the Constitution and was only seeking to justify it using as an external aid the doctrine of necessity which itself is based on the Kelsian and positive school concept of law. Positivism is dangerous. It has been used to justify dictatorship.  It does not concern itself with moral content of the law but seeks to explain law in its “pure” sense.

Attempt at explaining law in this sense means looking only at formal parameters for law such as existence of a sovereign, command by the sovereign and obedience on pain of punishment or existence of a hierarchy of norms at the apex of which there is a grund norm with minimum effectiveness maintained by the barrel of the gun.

The infamous Decree 4 under the Buhari regime which made publishing the truth criminal was a valid law under the positive school of thought. On the other hand the natural law school postulates that for a rule to amount to law it must conform to nature and as such have moral content that is universal, immutable and inalienable. This school influenced United Nations Universal Declaration of Human Rights as well as the fundamental rights provisions in Chapter 4 of our 1999 Constitution. Under natural law school a law which criminalizes the truth is no law.

Neither school of thought is a complete explanation of law. In addition, there are other schools of thought as well such as the school of realism or social engineering. Suffice however to say that whatever school of thought you may belong to, it is now without doubt that in the long term no law is sustainable unless it has a minimum moral content. This hypothesis is confirmed by the fate of “laws” which did not meet the aspirations of the people such as those sanctioning slaves, NAZI laws, Apartheid, Decree 2, Decree 4, etc.

For us now in Nigeria, we must continue to strive to ensure that our law meets the aspiration of our people and that this aspiration be discovered not only in the words but also in the spirit of the law. Our National Assembly has acted courageously though upon the wrong premise, nevertheless they acted correctly upon a proper interpretation of the words and spirit of s.145 of the 1999 Constitution.
* Idigbe is a Senior Advocate of Nigeria, SAN.


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