By Mohammed Adamu
PREAMBLE: Depending on whether they are conservative, liberal or radical, judges, whenever they interpret or construe the law, are bound always to achieve one of two things: expand or constrict its capacity to do justice. The judge has the judicial luxury to decide one way or another: he can rule to ‘work justice’ or he can rule to wrought injustice. Either way, a judge has yet, the liberty also of another two choices: to resolve a matter narrow-mindedly ‘according to law’, or to do so broad-mindedly even ‘against the grain law’.
Where there is no law certain –as was the case of the lacuna in Kogi- judges can rule to make new laws – so that by a just precedent set, they correct a defect in the body of law. But even where there is a law certain, -as was the travesty in the Supreme Court’s overruling of the Administration of Criminal Justice Act, ACJA- we have seen also that judges are known whimsically, to rule ‘against the grain of law’, and to create unjust precedents that may haunt society thereafter. The ACJA had commendably outlawed interlocutory injunctions/stay of proceedings; but to help Saraki escape justice at the CCT, the Apex Court had brazenly overruled the Act and thus technically forced an amendment, by ‘judicial process’, of a legislation that was duly made by ‘legislative process’.
Thus, it is not true that judges only ‘interpret’ or ‘construe’ the law. They also ‘construct’ it, to state the position of the law amidst conflicting provisions, or they can also create entirely new laws –including even where there are extant provisions already. And so just as legislators have ‘quasi-executive powers’ single-handedly to propose and to pass their own bills; and just as they also have the constitutional power to override presidential vetoes and to cause bills passed by them to become law, so too do judges have ‘quasi-legislative power’ in their judicial capacities, to single-handedly make what is termed ‘judge-made’ or ‘court-made’ law -either in aid of an erring parliament or even in contempt of a rightly guided one. So that after all said and done, the judges’ power to determine what the law is, supersedes even the power of the constitutionally-designated lawmaking-sovereigns themselves.
On the whole, whatever a judge chooses to do with such enormous power, his conscience alone is the judge of whether he has acted ‘judiciously’ in the interest of ‘justice’ –even if to the detriment of the law; or whether he has acted ‘judicially’ in the interest of the ‘law’ -to the detriment of justice. Because the danger in judges always acting ‘according to law’ is that it is not in all circumstances that the law operates to work justice. And so to rule strictly according to such laws is sure to result in injustice –which cannot be said to be the intendment of the law. Thus, it is situations like this that make obvious the need for judges sometimes to rule not strictly according to the letter of the law, but also according to the spirit of the law. Every law is animated by the spirit to achieve justice.
As the court pleases
There is in fact, a presumption in the English system of law that Judges have a right to judge ‘as it pleases’ them. And which makes you wonder ‘why it should not please them always to judge ‘justly’ even if they have to do it not lawfully’? And maybe it is the reason that lawyers in court are obligated always to chorus: ‘as the court pleases’ any time a judge rules on a matter one way or another. Thus the judge is not your proverbial Chinua Achebe lizard that praises itself when no one praises it. Lawyers praise the judge –whether by his ruling he has perverted the law or ennobled it- including those who disagree with his judgment. Thus it is with delight as with dejection that lawyers must thumb-up a judge for having done ‘as he pleases’. ‘As the court pleases’ may be a convenient avenue underscoring the supremacy of judicial caprice, but it may not always indicate ‘justice’ unless judges always make the doing of ‘justice’ the sole object of their pleasure.
Therefore if judges have the judicial liberty to do justice ‘according to the ‘letter’ or ‘spirit’ of the law’; and if judges –as we see often in our own case- have also the right to do injustice, in spite of the law or in spite of the spirit of the law, it then goes without saying that judges cannot claim –as they always do- to be constrained by the law in statute to judge one way or another whether that pleases them or not. Judges, no matter of what ideological persuasion, have a voice of conscience within that compels them always to prioritise the ‘spirit’ of the law in order to achieve justice even if they have to do it at the expense of the ‘letter’ of the law.
It is a choice that judges have the right to freely make one way or another. To listen to that inner call to do justice or to hearken to the shrill invitation to pervert injustice. It is absolutely not true that judges are constrained at any time by one option against the other. It is a clear choice –as the former Chief Justice, Musdapher would say- between ‘plata’ and ‘plomo’ –or between ‘gold’ and ‘lead’! And that exactly was what the Scottish-born British judge William Murray Mansfield said to a lay colonial governor who was about to become an administrator and a judge: “consider what you think justice requires” he said, “and decide accordingly.”
Head or tail Judges decide what’s law!
And that in a nutshell is also what lay juries do, that as judges of ‘facts’ and not of ‘law’, they are persuaded more by the facts of a case than by the law that regulates it. They are persuaded by law, but they are obligated by facts to pronounce verdict on any matter. Whether the provisions of any law are conceptually designed to work justice or to wrought injustice, the judge cannot deny that he has an option: either to pervert ‘good laws’ to miscarry justice or to interpret even ‘bad ones’ in a manner that carries justice. Good judges, feel obligated to do justice ‘according to law’ only when the law is of such quality that it can only work justice. The attainment of justice is the ultimate raison d’être for the existence of law.
The ‘law’ has not always been what the people think it should be, a beast that brooks no exploitation from selfish man, instead of the dumb, manipulable ‘ass’ that it has come to be! Nor has the law always been what even the lawmakers intend it to be, an abiding product of reasoned legislation, and not the shifting sands of capricious judges to be found more in the precedents of courts than in the statute books. After all-said-and-done, the law is always what judges or the courts say it is! Meaning that the law ‘in statute’ remains so only to the extent that judges have not put the imprimatur of their judicial interpretation to it. Said Charles Hughes, a U.S. jurist, “We are under a constitution, but the constitution is what the judges say it is.”
The law suffers a form of juristic injustice in the hands especially of conservative judges who impose on themselves ‘incapacity’ to navigate the delicate labyrinth of the legal system in order to arrive at justice. But it can even be worse in the hands of ‘liberal’ judges who may leave it prostrate at the foothill of unconscionable scavenging lawyers. Yet without necessarily being conservative, liberal or radical in their judicial world view, most Nigerian judges have this uncanny ability when dealing both with ‘good’ and ‘bad’ laws, either way to arrive at ‘unjust’ decisions! Our judges are either constrained by ‘illiberal provisions’ of the law to wrought injustice or they are overwhelmed equally by ‘liberal provisions’ of the law to arrive at injustice. Head or tail what we get always is ‘judgment’ without ‘justice’.
‘Iron out the creases’
MOST Nigerian judges persist always in elevating legal technicalities above the overarching need to engender justice. Many of them in fact, appear to have this sneaky penchant for glorifying ‘procedure law’ –making the attainment of justice a chance game- over and above ‘substantive law’ -which more likely guarantees justice.
Said Itse Sagay, “I don’t understand why (judges) would have the ‘law’ which is in conflict with ‘justice’ and (they will) prefer to apply the law”. The public should have no problem with the Courts following the law.
Provided that in doing so the Courts do ‘justice’! What the public rejects is this grotesques idea of ‘law’ for ‘law’s sake’ as if it is a work of art to be appreciated for its form and not for the justice that it occasions.
The idea that the ‘hands’ of a judge are ‘tied’ by ‘unjust provisions’ of ‘law’ so that he can only rule in a manner that does not achieve ‘justice’ is lame, escapist and untenable.
The powers of a judge to decide what the law is knows no bounds. And so if the ‘law’ contains impurities which do not conduce to the attainment of justice, it behooves a judge not to surrender to those impurities but to ‘interpret’, ‘construe’ or ‘construct’ the law –where necessary- until it works justice. or so said Lord Denning, that although a “Judge must not alter the material of which (the law) is woven”, yet “he can and should iron out the creases”.
But Agbakoba is even more radically progressive about it when he said that the idea that judges do not ‘descend to the arena’ is moribund. Nowadays, to do justice, judges must ‘descend to the arena’. -“judges handling corruption cases” he said “must balance public opinion with law.
But will they?
Re: Beyond street protests and Sit- At -home orders
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