Last week, we started this discourse, the doctrine of separation of powers, the present Nigerian judiciary, vis-à-vis the government’s anti-corruption fight. A true government of separated powers assigns different political and legal powers to the legislative, executive, and judiciary branches. Today, we shall further x-ray the doctrine of the rule of law and the concept of separation of powers as it relates to the doctrine of judicial review.
JUDICIAL REVIEW
The doctrine of the rule of law and the concept of separation of powers is further buttressed by the doctrine of judicial review which allows the Courts to review the exercise of executive authority as well as the decisions of the Legislature in the form of legislation. It is the postulation of the rule of law that in the first instance, that not only is that no man is above the law, but that every man is subject to the ordinary laws of the realm and amenable to the jurisdiction of the courts (equality before the law); secondly, no man can be made to suffer either in body or goods except for a distinct breach of the law established in the ordinary process of the courts; and thirdly, is the principle of legality which requires that those exercising state power or political authority must be able to justify their actions as authorized by the law.
It is this third aspect of the rule of law that courts seek to enforce. In the exercise of its executive authority, the government must not infringe the limits which the Legislature has ordained. The Courts will invalidate any order if the government has gone beyond the province of its executive competence. The doctrine of judicial review was invented to check and control governmental power and to limit the application of the principle “quod Principi placuit legis habit vigorem” (the sovereign’s will has the force of law) that gave the government unrestricted discretionary powers so that everything they did was within the law. It is this missionary spirit of the quest for administrative justice and the need for improvement of the technique of government that is the connecting thread that runs throughout the doctrine of judicial review in pursuit of a harmonious whole.
Similarly, the basis of Parliamentary sovereignty is the constitutional authority of the Legislature to positively legislate. In exercising that political sovereignty when positively legislating, Parliament is not so bound. Parliament is sovereign not by statutory device or grant, but through political reality and, in essence, the common law. However, the rule of law dictates that there is a need for balancing the coercive authority of Parliament in terms of positive legislative competence against the need for that authority to be limited and justified. Therefore, if Parliament acted without reason, the courts have the power to review Parliament’s decision and declare it null.
The case most commonly associated with the origin of the power to striking legitimately and properly enacted legislation under judicial review in Marbury v. Madison. Marshall, J. examined the constitutional structural arrangement created by the Founding Fathers of the American Constitution and reasoned from three premises that in America, under the Constitution, the judiciary has the power to refuse to apply legislation: the Constitution is the “superior paramount law” over “ordinary legislative acts,” and when in a conflict, with any other law the Constitution must prevail. The judiciary in its role of applying and interpreting the law must be the organ charged with the final determination of the law against the Constitution.
The Nigerian judiciary in bold defense of its constitutional role to adjudicate challenged the ousting of its jurisdiction by various, Decrees in the famous and historic case of The Attorney General (Western State) & Ors vs Lakanmi and Ors. The separation of powers provided for under the 1963 constitution, though not as sharp as that of the 1979 constitution was relied upon by the court in this popular case, – which was considered as the primus inter pares of the cases against the ouster of court’s jurisdiction and executive usurpation of judicial power. In that case, the Supreme Court had the opportunity of having a clear interpretation of the provisions of the 1963 constitution and made an adequate pronouncement on the principle of separation of powers contained therein, when it held thus:
“We must here revert once again to the separation of powers, which, the learned Attorney General himself did not dispute, still represents the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our constitution is based on the separation of powers, the legislature, the Executive, and the judiciary, our constitution clearly follows the model of the American constitution. In the distribution of powers, the Courts are vested with the exclusive right determine justiciable controversies between citizens and between citizens and the state”.
However, to prevent the judiciary from overreaching its constitutional mandate, the doctrine of stare decisis has been used to limit the Courts. If the Court rules that a law is unconstitutional in a particular case and then different parties petition the Court with another challenge on the same legislation, a Court bound by stare decisis must again rule that the law is unconstitutional. If the Court lacked the command of stare decisis, perhaps the Court might feel more inclined to rethink its decision, but a Court limited in its discretion does not have the luxury. Therefore judicial review is claimed as a right of the court to limit the legislature and executive, and stare decisis is imposed as a political product of the common law limiting the court. The jurisdictional competence of the courts to review the decisions of the executive and the legislation of the National Assembly can be seen as the limitation of stare decisis on the Court being extended by structural necessity to the co-equal branches. If all the three branches are co-equal and co-sovereign, and yet one branch is bound by precedent, by necessity that constraint must also limit the co-equal branches to the extent that the court will review the other branches’ actions.
THE PLACE OF THE JUDICIARY
In some nations, under doctrines of separation of powers, the judiciary generally does not make laws (which is the responsibility of the legislature), or enforce the law (which is the responsibility of the executive), but rather interprets the law and applies it to the facts of each case. In other nations, the judiciary can make laws, known as Common Law, by setting precedent for other judges to follow, as opposed to Statutory Law made by the legislature. The Judiciary is often tasked with ensuring equal justice under law.
Time, again and again, the Nigerian judiciary has come to the aid of our nascent democracy churning out groundbreaking judgments to sustain our democracy.
Charles Hughes (1862 – 1948), a U.S. jurist and politician, echoed these famous words, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the constitution.”
The Nigerian judiciary since the inception of democracy in Nigeria in 1999, has stood out amongst other arms of government. For many years The Nigerian public has been inundated with corrupt practices of members of the executive and the legislative arms, excluding the judiciary. This is why the recent brutality on the judiciary has come as a shock to the majority of Nigerians.
The National Judicial Council which is the apex body for the nation’s judiciary, is a creation of the 1999 constitution of the federal republic of Nigeria, as amended, by virtue of section 153. The powers and functions of NJC are clearly specified in paragraph 21 of part one of the Third Schedule of the 1999 Constitution of the federal republic of Nigeria, as altered.
NOW THIS
Secondly, the judiciary ensures that every exercise of power by other organs of government is in accordance and in compliance with the requirements of the Rule of Law. In Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court held that. “The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.”
Thirdly, the judiciary, of the three arms of government, only has the competence to supervise and review the actions of the other two and where necessary declare them null and void. This viewpoint was emphasized by Fatai Williams CJN (as he then was) in Attorney General of Bendel State v. Attorney General of the Federation and 22. Or, (1983) 3 NCLR 1 at 40. When he held that, “courts of law in Nigeria have the power and indeed the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural as laid in the relevant provisions of the constitution.” This is the more reason why judges are highly revered in the polity.
Fourthly, the judiciary adjudicates disputes between states, between the state and individuals, between individuals and corporations or corporate entities, among others. The judiciary determines the meaning of the laws of the country.
AND THIS
SOUNDS AND BITES
Week after week henceforth, this column will deliberately include short bites on some sounds and bites. It would include jokes (to soothe our aching nerves); philosophical platitudes (to redirect our steps); and scriptural quotes (to pave the way to eternity). We commence this week.
“I sold my fridge of 130k for 35k, you come back dey tell me to say the fridge dey shock, the price no shock you”.- Anonymous.
“To all husbands, 2 very important tips for a happy married life:
#1. Keep quiet when your wife is talking.
#2. Don’t talk when she is quiet.” –Anonymous.
THOUGHT FOR THE WEEK
“On the mountains of truth you can never climb in vain: either you will reach a point higher up today, or you will be training your powers so that you will be able to climb higher tomorrow”. (Friedrich Nietzsche).
