A thought for the Bar and the Bench
I hope I am correct in believing that only a plural society can effectively or effectually command patriotism, and further that only a society which respects the rights of individuals and minorities can justly be referred to as free or just. But there are consequences which have to be confronted headlong.
First, we must identify freedom to do what other people think to be wrong or objectionable as the only freedom that is worthwhile. The demand for freedom to do that which everybody will applaud or approve is otiose. Liberties or rights are quantities which have to be asserted or demanded firmly and confidently against others who claim that were such quantities to be allowed, their own rights will be infringed or their own liberties threatened. This is an all-time truth even when we speak of the freedom to worship, of the rightof free speech or association, or public assembly.
Secondly, for an effectual free society there must be a maximum agreeable division of political power. Absolute power in human society is an anathema – it is, in fact, un-attainable. It is obvious enough to know that where power is concentrated, there can be no freedom.
The third and easily the most important point, however, is the dynamic historical role which freedom has played in the last three or four hundred years regarding the progress of the human race. Looking back, we can discern eras or periods in human history when everything seemed to stand still for centuries; even perhaps for thousands of years. Compared with the last three hundred years, however, our own age manifests unprecedented accelerating change (no pun on the now muffled ruling party’s “Change!” sing-song).
This change has been noticeable in religion, politics, art, music, the literature of all languages, philosophy, leisure, travel etc. even as its visible influence on technology is singularly notable. There is no branch of human activity that has not been affected.
In our bid to evolve a free society with all the incidents for the protection of rights, freedoms, and so on, we have developed machinery or rules for safeguarding the independence of the adjudicatory sphere. Even as the independence of the judiciary from the government is every bit as fundamental to the maintenance of a free society enjoying liberty under the law (as is representative government or a multiplicity of political parties) the requirement for the courts to wean themselves from self-censorship is as creative as it is desirable.This independence is necessary today as the area of political control is constantly being extended. The more important necessity, however, is that justiciable issues should be left to the courts and not dealt with by the Executive or the Legislature.
The thinking is gaining ground, albeit insidiously, that on arriving at their decisions, judges are influenced by their political affiliation or prejudice. Of course, judges are the products of their up-bringing, their predilections, primordial attachments and social relations. They too are ordinary human beings. It is idle to expect far-reaching clairvoyance or supernatural prophecies or predictions on the part of ordinary men and women (judges not excepted). Even the views or opinions of far-sighted purveyors of the law or of any art for that matter may not be acceptable to their contemporaries. So the pronouncement of a court may appear coloured by the social circumstance, prejudice or world view of the presiding judge. What should not be in doubt, however, is the strict application by him of the clear and un-ambiguously formulated rule of law to the fact in issue or the case.
A judge sitting in Nigeria is hedged about by a suffocating restrictive view of precedent even as most decisions consist in the interpretation and application of statutes.The rules for construing statutes to be followed by the court are in themselves rigid and limiting. Further, our draftsmanship is obtuse and un-necessarily prolix – too detailed as to fetter judicial independence or creativity. Even in matters that we truly desire to leave a question to a judge’s discretion, his employment of it is subject to the prying (sometimes, malevolent) scrutiny by the pyramidal system of appeal to the Court of Appeal and the Supreme Court which sit on panels of three and five respectively and are necessarily composed to counteract any individual idiosyncrasies in the lower tribunals or even among their own members on their panels.And yet these idiosyncrasies are much welcome and desirable. They propel in the direction of the desired de-mystification of the process even as they surely lead to or excite originality and profundity, two essential ingredients for the effective or creative dispensation of justice.
All said, there is a requirement for a clever, forward-looking and intensely cerebral Supreme Court in the mould or manner of the U.S. Supreme Court justices. Our Supreme Court requires to move away from trite or jejune interpretation of the law or constitution. Our Justices must interrogate the sociological underpinnings of the law and of the issue under review. They should probe the circumstances that led to the enactment of the law in place. They should be creative, perhaps in the tradition of the American Supreme Court, to make constructive interpretation of the constitution; and in respect of matters bearing on the interpretation of legal and political issues to adopt clear-headed or insightful models or prescriptions through a dynamic process of re-minting the law.
The restrictive view of the law as what its letters connote or denote is not only lazy and unprogressive, it is denying of the profundity and depth which are the legitimate possession of a judge’s mind. Judicial courage required all the time of a judge is more particularly required when he is inadequately protected by the government, assailed by the opposition, and criticised by name or by reference in the press or in the media. Any wonder that in these circumstances buoyed by reputedly respectable instances (including brazen Government disobedience of court orders) unsuccessful litigants are showing alarmingly decreasing respect for orders or decrees of courts.Many now smugly ignore the hallowed pronouncements of courts, when they do not show open or impudent discourtesy or contemptuous disregard therefore.
Any lawyer who surrenders his independence or shirks his duty by constricting his professional course to fit the guts or predilections of popular opinion in my judgment, not only dishonours himself but disparages and degrades the great profession to which he should be proud to belong. The cream of our profession, otherwise referred to as the Inner Bar has a lot of soul searching to do in this regard. A call to the membership of this distinguished caucus is an eloquent statement regarding the dignity inherent in the profession of law and the self-respecting satisfaction that no alternative way of life is superior to the practice of one’s profession in accordance with the highest standards.
There is, however, a sorrowful trend in this clime whereby leading lawyers are engaged mainly in supporting claims of corporations, the fancies of political office holders, and the inanities of government even as the people and their interests have been represented generally by men of meagre legal means. Regrettably, our Senior Advocates, with all their gifts, befog the public mind with false conceptions as to the social implications or relevance of the legal profession by self-gratifyingly aligning themselves with the triumphs and travails only of the high and mighty in society.
The Bar owes it as a bounden duty to restore to the legal profession the attributes of dignity, social relevance, and the requirement of poise and adroitness all of which it stands the frightening risk of losing permanently or forever.
• Rotimi-John, a lawyer and commentator on public affairs, contributed this piece from Abuja via email@example.com