Oyebode: Judiciary, public trust in emerging dispensation (1) MONDAY, 24 JUNE 2013 00:00 BY AKIN OYEBODE OPINION - COLUMNISTS User Rating: / 0 PoorBest THE JUDICIARY which an American commentator once described as “the least dangerous branch” is quite definitely the most important element in any system which operates under the principle of separation of powers and the rule of law. As the branch which ensures checks and balances in the interaction of all the branches of government, the judiciary is well placed to act as sentinel of due process, democracy and good governance. Indeed the rule of law is inconceivable without an independent, impartial and fearless judiciary, dedicated to their well-appointed task of serving as ministers in the temple of justice. In a society such as ours, which is currently experiencing leadership deficit in nearly all sectors of human endeavour as well as tremendous self-doubt among the generality of the people, the judiciary has been battling to rise above the decay afflicting various state organs and institutions. Nevertheless, that is a most daunting task as the judiciary has found it very difficult, if not, in fact, impossible to escape the sense of doom and disillusionment which seems to have enveloped the entire country as many people have since been giving vent to their frustration and bewilderment on account of the diminishing faith and loss of confidence in an otherwise revered institution. It is against this background that we are called upon to re-visit the condition of the judiciary in a rapidly changing environment. It is intended to begin this presentation with an examination of the place and role of the judiciary in the scheme of things generally before assessing where the institution is at the present point in time and, finally, attempt a prognosis of the judiciary within the unfolding scenario. The Role of the Judiciary in the Polity It would indeed amount to preaching to the converted in a gathering such as this to be extolling the overarching role of the judiciary within the legal order. Yet, it is necessary to restate and re-affirm the centrality of the judiciary in any society that espouses fidelity to due process or “subjection of human conduct to the governance of rules”, to borrow the expression of my teacher, Lon Fuller, late Carter Professor of General Jurisprudence at the Harvard Law School. Ever since the publication of Montesquieu’s Spirit of the Laws in the 18th century and Dicey’s Introduction to the Study of the Law of the Constitution in the 19th, it had become conventional wisdom among constitutional lawyers that the twin notions of separation of powers and checks and balances constitute the bulwark against all forms of authoritarianism, arbitrariness and chicanery. More significantly, the judiciary is called upon to act as guardian angels for the optimal functioning of the government of laws as against a government of men by seeing to it that all arms of government act in conformity with the limits of their powers as prescribed by the laws setting them up, that is to say, the Constitution and other laws pertaining thereto. In other words, in a system of separation of powers, the judiciary is located higher than the other arms of government and maintains this position by ensuring compliance with the strictures of checks and balances without which it becomes most difficult, if not, in fact, impossible to contemplate the niceties of the rule of law and desiderata of democracy and good governance. Although members of the judiciary are not always elected in accordance with the tenets of popular democracy but more often than not appointed to office by the executive arm, their competence and legitimacy are never in doubt since judicial officers constitute a veritable repository of the public trust and are widely recognized as such. Admittedly, judges, like the rest of us, are human and could be given to socio-ethical values and cultural idiosyncracies and sometimes expose their biases and ideological preferences in their pronouncements, the general attitude of the population tends towards giving them benefit of the doubt, more so, as they are sworn to do justice to all manner of men “without fear, affection or ill-will…” Indeed, the figurine of Themis, the Lady of Justice which adorns our court-houses, blind-folded and wielding a sword in one hand and scales of justice in the other, depicts equality before the law as well as commensuration of crime and punishment, an ideal image in the eyes of the ordinary people, even though some critics allege that it was about time the lady peeped through her blindfold, if not, in fact, totally remove it so that she can then adjust her scales appropriately by according recognition and preference for the poor and lowly-placed vis-à-vis the more affluent and highly heeled litigants! None the less, it must be emphasized that the judiciary has across the ages striven to uphold its image as an objective dispenser of justice to all persons who appear before it. If, by any act or omission, it forfeits this position of respect or, I daresay, reverence before all and sundry, the consequence could really be calamitous for society as a whole. For, the judiciary is indeed the last stop before chaos and catastrophe hence the aphorism that it is the last hope for the common man. So important is the public trust placed on the shoulders of judicial officers that strenuous effort is made by society to uphold security of their tenure as well as attractive conditions of service for them in order to ensure effective discharge of their awesome responsibilities and protection from any untoward influence either from litigants or the powers-that-be. However, whenever any judge is found to have run foul of the code of ethics of his office, there are usually well-laid down guidelines and procedures for separating such a judge from his office, lest one rotten apple spoils the rest. Either through impeachment and, or investigation by his peers, trial and fine or imprisonment, a judge found guilty, one way or another, of infamous conduct would be ruefully reminded of Thomas Fuller’s admonition: Be you ever so high, yet the law is above you! It needs be stated that the public must be well aware that the judiciary operates at its behest and should, therefore, be constantly kept on its toes. An unduly obliging people could quite easily be taken advantage of and become helpless in the face of judicial tyranny and oppression. Accordingly, there is a felt need for conscientization of the people in terms of awareness of their rights and duty to play the role of whistle-blower whenever occasion demands it in order to maintain sanctity of the judicial process as well as the lofty position occupied by judicial officers who are indeed keepers of society’s conscience. The penchant for petition-writing among the people is to be deprecated. Yet, it must be ensured that the baby is not thrown away with the bath-water by upholding the right of the people to wash everything they encounter with a much needed dose of cynical acid. After all, the people are, in the final analysis, the protectors and guarantors of the independence of the judiciary. The Judiciary and the Public Trust in the Emerging Dispensation It must be admitted that there has been tremendous disquiet in many quarters in the recent past regarding the role and conduct of some members of the Nigerian judiciary. When it is not accusation of frivolity with the granting of ex parte injunctions, it is laziness, outright ignorance or imperial behaviour on the bench as well as influence-peddling and compromise of judicial independence through unnecessary communication and fraternization with counsel involved in matters before them. However, what has proven most distasteful in the recent past is allegations of bribery and corruption and other outrageous and unacceptable conduct, especially in relation to electoral petitions and other political cases over which they are presiding. The embarrassment which such infamous conduct by some judges had wrought on the prestige and reputation of the Nigerian judiciary in recent times is such as to make many wonder aloud if gold rusts what could be expected of iron? As the custodians of societal values of probity, fairness and objectivity, the judiciary is cast as a beacon of hope and integrity in the eyes of ordinary Nigerians so much so that whenever any case of malfeasance or impropriety occurs in our national life, a judicial commission of inquiry was usually the first recommendation made to investigate such as well as impose requisite penalty accordingly. In today’s Nigeria, however, people are no longer altogether sure if the judiciary can still be considered an exemplar of proper conduct within the polity. The mode of appointment as well as qualifications of many of our judges have also since become suspect with consequential loss of status and regard in the eyes of right-thinking members of society generally. A situation where the most celebrated of our lawyers would not, for one moment, consider taking up judicial appointment constitutes a clear evidence of the loss of esteem of an otherwise prestigious and highly revered vocation. Not even the allure of presiding over the affairs of fellow humans, including the power of playing God by sentencing accused persons to long terms of imprisonment, not to talk of the death penalty any longer attracts successful legal practitioners to judicial office. Today, the best and brightest shun judicial appointment without batting an eye-lid so much so that most of the appointees to high judicial office are now mediocre and run-of-the-mill jobbers. TO BE CONTINUED • Oyebode is Professor of Law and Chair, Office of International Relations, Partnerships and Prospects, University of Lagos.
Posted on: Mon, 01 Jul 2013 20:23:58 +0000
Trending Topics
Recently Viewed Topics
© 2015