Mohammed Adamu
5 January 2009
analysis
Issues in the debate: Most Nigerians were not necessarily concerned with these orthodox or radical technicalities. They simply insist that 'this was a lost opportunity for the Supreme Court to help salvage our country's faltering democracy'.
Again a reflection of the radical views of the Critical Legal School which argues that judges should base their decisions on "scientific knowledge" (not about law,) but about the "impact which their rulings (are) likely to have on society". That it is inexcusable for judges to say: "this decision is correct from the legal point of view but regrettable politically" because there is no "legal point of view" distinguishable from the "political," "ethical" or "moral" points of view. Yet the question is: whose ethical or moral points of view?
greater good of the society or the perspectives of the judges who also 'honestly' believe that public opinion expressed via an "honest" media, is a 'sacred judicial quotient' of interpretation (and not strict law,) that guarantees the greater good? Some jurists say that both views are not necessarily "contradictory" but "might instead be merely competing, contrasting or complementary". Radical realists insist they are inherently contradictory and that judges, whether of the liberal or orthodox extraction, have the duty of "resolving" them. Non radicals like J. Habermas, prefer to "urge" judges to "facilitate" a dialogue aimed at "reconciling" them.
One may wonder therefore whether the majority and minority decisions of our judges in the last verdict, both have attempted to perform the same moral duty; one by strict reliance on the "form" of law (to preserve "political stability") and the other by reliance on the "content' of its logic (to add 'electoral value' to democracy"?) And if so does this therefore reconcile David Ingram's "political nature of democratic jurisprudence with the rule of law? Again that is neither here nor there!
Lawmaking: But then could our lawmakers be the un-subpoenaed culprits behind these unending schisms? Lord Simond said that "if a gap is disclosed (in statutes), the remedy lies in an amending Act" but Pollock claims that "Parliament generally changes the law for worse." Lord Campbell rightly observed that "ill-penned enactments (by lawmakers) put the judges in the embarrassing situation of being bound to make sense out of nonsense and to reconcile what is irreconcilable." D. Ingram believes that unless it possesses "internal coherence and principled integrity", 'law' cannot be applied in a manner that guarantees justice. To Lord Eldon "it is better that law should be 'CERTAIN' than that every judge should speculate upon the improvement of it". Thus when Lord Denning said that a judge must work to find "the intention of the parliament.... from the language of the statute,... from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy", the House of Lords, in Magor and St. Melons said such stance amounted to "a naked usurpation of legislative functions under the thin guise of Interpretation." This aptly symbolizes the 'sacred, inviolable' nature of the words of the statute and perhaps metaphorises Justice Tobi's "Rock of Gibraltar" on "non-serialization" of ballot papers. Again that is neither here nor there.
Supreme Court: The Supreme Court is said to be 'infallible' because it is 'final', it is not 'final' because it is 'infallible'. Thus in democratizing its bench, there is the presumption that its judges can disagree both on points of law and on principles. Yet this does not detract from its "infallibility" nor does it prejudice the "finality" of its determination. It is also 'given' that when its judges differ; as they did in the last judgment, the majority ruling and not that which appears "populist", is the judgment of the Apex Court. In fact minority decisions, no matter how legally or morally sound, are not even a source of judicial precedent. It must be conceded to judges not only the right to differ but also the judicial freedom to subscribe to liberal or orthodox ideas. Though these ideas must be exercised in consonance with the greater good, 'public opinion' cannot arrogate to itself, (outside the due legal and democratic process) a better enunciation or espousal of that common good or the means by which to achieve it. Thus it makes no democratic or legal sense to collapse all reasoning into the expectation that judges are obliged, morally or otherwise, to rule one way or the other. To do so is not only to ignore the law in statute and in action but it is also to foreclose the necessity for the judicial process and to propose the "Court of Public Opinion" as the new judicial order!
I think that the Supreme Court did not, as is claimed, miss the opportunity to "call our politicians and INEC to order". Rather it has seized the moment to confirm to Nigerians what that order 'IS'; just like it did on Atiku's indictment. It is left to our lawmakers to decide if that order should remain! Some say, in anger, that the 'three' dissenting judges are heroes but that the names of the other 'four' will live in 'infamy'. I say that all seven judges are heroes, the 'three' for having the courage to reason out an activist judicial approach to the inherent socio-political realities of our clime and the 'four' for being steadfast in projecting those painful realities without necessarily violating the sanctity of our laws! The view that Yar'adua now has legal and not moral authority to govern does not find favor in the fact that "democratic majorities" confirmed by a democratic judicial majority (no matter their imperfections), are prima-facie, entitled to both legal and moral authority to govern. Liberal view of the Positive school believes that 'whether a rule of recognition places law-making power in a democratic legislature or a single dictator is irrelevant to the question of legal obligation'. Thus it follows that if an unelected dictator is entitled to the legal authority to govern, why should a "democratic majority," backed by a judicial majority decision, not assume both legal and moral authority?
Bush's authority to govern after the U.S Supreme Court's ruling, was both legal and moral. To the Americans, that wasn't even to be submitted to the realm of contemplation! Al Gore's humble, unconditional concession was a fitting metaphor for that. Notwithstanding any imperfections, or system-default, citizens have the obligation, ab initio, to respect the decisions of the constitutionally established courts of their land. The U.S. Fugitive Slave Act of 1793, in keeping with Article IV of the Constitution, required an escapee slave across State borders to be returned, on claim, to his Master. Supreme Court Justice Joseph Story was not only an anti-slavery judge, he believed that the law was 'unjust'. Yet he upheld it in a case before him on the grounds that he had a prior obligation to uphold the Constitution. Notwithstanding the preamble farce of "We the People" contained in our Constitution, it is still the grundnum from which all our actions must be justified. Bruce Ackerman argues that only during 'revolutionary' upheavals, when the Constitution itself is being "challenged" by "supermajorities", should judges abandon "settled procedure" (law) and give voice to the supermajority's revolutionary mandate (public opinion)! Again that is neither here nor there.
Epilogue: But what is certainly NOT "neither here nor there" is the fact that in addition to the legal and judicial sermons rightly directed at INEC to take proper 'electoral dressing', during future elections, the salvation of our 'electoral democracy' greatly lies in a sincere and circumspect legislature which makes laws containing neither towering, immovable rocks of "Gibraltar" nor even less heady little "Mount Sinais".
Not being a lawyer, I rest my pen!
Concluded
Adamu is an Abuja-based journalist.
Be the first to Write a Comment!
Copyright © 2009 Daily Trust. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
