Virtual Court Proceedings: Supreme Court Opts for a Subtle Advisory Opinion

Background

The Supreme Court Ruling on virtual court proceedings handed down on 14th July, 2020, is an Advisory Opinion in every sense but name. A seven-man panel of the Supreme Court (as is constitutionally mandated when invoking its original jurisdiction) led by Justice Olabode Rhodes-Vivour held that, the suits filed by both Lagos and Ekiti States seeking an interpretation of the constitutionality of virtual court proceeding, was premature.

The Supreme Court said Judges across the country should continue to conduct virtual court proceedings, until such time that the National Assembly concludes its ongoing efforts to amend the 1999 Constitution to accommodate virtual court proceedings. Justice Rhodes-Vivour stated that it is only after the National Assembly has passed its pending Bill seeking to include virtual court proceedings in the Constitution, that anyone can then challenge the constitutionality or otherwise of such an enactment, and question whether it violates the powers of Heads of Courts across the country to regulate proceedings.

The Attorney-Generals’ of Lagos and Ekiti States, had taken this case on virtual court proceedings to the Supreme Court. The Lagos State Attorney-General Moyosore Onigbanjo, SAN, had argued that this was necessary in order to prevent a situation where after virtual court proceedings are conducted, they would be declared to be unconstitutional as in Udeogu v (1) FRN (2) Orji Kalu & Anor SC 622C/2019 in relation to Section 396(7) of the Administration of Criminal Justice Act. On his part, the Attorney-General of Ekiti State, Olawale Fapohunda, argued about the importance and the need to have certainty to the law, on the constitutionality or otherwise of the virtual court proceedings. He pointed out that Judges in his State are reluctant to sit and conduct virtual court proceedings, out of concern that their decisions and proceedings will be declared unconstitutional on Appeal. Justice Rhodes-Vivour in addressing the Attorney-General of Lagos State said that: “As of now, virtual sitting is not unconstitutional……go and tell your Chief Judge to ask the Judges to continue to sit virtually if it’s convenient for them”. In view of the position expressed by the Justices of the Supreme Court, to the effect that the suits are premature and that the directive on virtual court proceedings enjoys the presumption of regularity, the two Attorney-Generals proceeded to withdraw their cases.

What is Advisory Opinion and its Historical Significance?
The Supreme Court, in my view, has subtly attempted to give an Advisory Opinion on this subject of virtual court proceedings, even though they have no original or specific jurisdiction to do so under the 1999 Constitution (as amended). The ruling highlights yet another imperfection in our Constitution, in that the 1999 Constitution (as amended) does not have any specific provision for Advisory Opinion, and neither is there an Act of the National Assembly empowering the Supreme Court to do so. An Advisory Opinion is a Court’s non-binding interpretation of law; it states the opinion of a court upon a legal question submitted by the legislature, executive or another court, but does not attempt to adjudicate upon a specific legal case. It merely advises on the constitutionality, or interpretation of a law. It is obvious that the Supreme Court does not at this point in time, want to adjudicate upon the constitutionality or otherwise of virtual court proceedings, only to be subjected to the same issues all over again once the National Assembly has amended our Constitution to include virtual court proceedings. The Supreme Court has therefore, side stepped the issue and adopted the safe approach of rendering what is akin to an Advisory Opinion (which of course is non-binding), until such a time that it is called upon to adjudicate upon a specific legal case that comes before the Court. If both Lagos and Ekiti States withdrew their cases filed before the Supreme Court, it stands to reason that any statement by the Supreme Court on virtual court proceedings could only have been advisory in nature.

As already pointed out, there is no specific provision under the 1999 Constitution empowering the Supreme Court to render an Advisory Opinion, and neither does the Supreme Court have any clear or specific jurisdiction in this regard. This was not the case in the past. Section 109 of the 1960 Constitution gave the Supreme Court jurisdiction to render an Advisory Opinion on any question upon which the Governor General desired the advice of the Court, for the purpose of deciding whether or not any power was vested in or could be exercised by virtue of Section 94 of the same Constitution relating to the Prerogative of Mercy. A Governor of a Region could equally seek an Advisory Opinion of the Supreme Court, in the exercise of its power on the Prerogative of Mercy. Section 116 of the 1963 Constitution, also gave the Supreme Court power to render Advisory Opinion to the President or Governor of a Region. However, Decree No. 1 of 1966 suspended this right to Advisory Opinion, and upon our return to civilian rule, both the Constitutions of 1979 and 1999 failed to capture this important provision.

Advisory Opinion in Other Common Law Countries
Advisory Opinion is a common feature, in most Commonwealth Countries. In India for example, the President of India can request the Supreme Court of India to provide it with advice on certain matters. This procedure is called “Presidential Reference”. However, it is not binding on the Supreme Court to answer questions raised in the reference.

Article 143 of the Constitution of India provides:

“1. If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

2. The President may, notwithstanding anything in the provision to Article 131, refer a dispute of the kind mentioned in the said provision to the Supreme Court for opinion, and the Supreme Court shall, after hearing as it thinks fit, report to the President its opinion thereon.”

The High Court of Australia is prohibited by the Constitution of Australia, from issuing Advisory Opinions; a binding determination requires a controversy between two parties. The Supreme Court here in Nigeria appears to have adopted the Australian position by pointing out that the issue at stake is premature, since there is no existing controversy between any party before the Court, and although the 1999 Constitution does not empower the Supreme Court to give Advisory Opinion, it does not specifically prohibit them from doing so either, and some may argue that giving Advisory Opinion is within the inherent powers of the Supreme Court.

Was it Premature to Institute a Suit on Virtual Court Proceedings before the Supreme Court?
On the question as to whether or not the timing is premature for the Supreme Court to give a binding judgement/ruling on virtual court proceedings, I respectfully disagree with the position taken by the Supreme Court. For instance, can a court appropriately sentence a Defendant to prison or death, through virtual court proceedings? Prior to the suit filed before the Supreme Court, Lawyers have argued on the propriety of sentencing a Defendant via video, zoom or other internet related social media applications. This was particularly so after an Ikeja High Court Judge, Justice Mojisola Dada on 4th May, 2020 sentenced a Defendant, Olalekan Hameed to death by hanging, for murder. The sentence was delivered by virtual court proceedings, during the lockdown period. Considering those circumstances, the only way the Attorney- General of Lagos State, Moyosore Onigbanjo, SAN, could determine the legality of this sentence, was by testing the constitutionality and justiciability of virtual court proceedings at the Supreme Court. It is therefore, far from premature as far as the Lagos State Government is concerned, and a non-binding incidental Advisory Opinion of the Supreme Court is hardly helpful either.

Section 232 (1) of the 1999 Constitution (as amended) states that:
“The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”
The legal rights of Olalekan Hameed depend on a correct interpretation of the law, and as such, the Attorney-General of Lagos State was right to seek an interpretation of the law at the Supreme Court in accordance with Section 232(1) of the 1999 Constitution. The Supreme Court could have perhaps, excluded sentences of death from virtual court proceedings for the time being.

Conclusion
A lot has been said about the constitutionality or otherwise of virtual court proceedings, and the Supreme Court is perhaps, right overall to encourage it without necessarily handing down a binding judgement/ruling at this point in time. Section 36(3) and 36(4) of the 1999 Constitution, both make reference to the need to hold court proceedings in public. However, what does public mean? Significantly item 66 of the exclusive legislative list allows for-

“Wireless, broadcasting and television other than broadcasting and television provided by the Government of a State; allocation of wave-lengths for wireless, broadcasting and television transmission”.
Section 36(3) &(4) does not make reference to wireless, broadcasting and television either directly or indirectly, and online/zoom/virtual hearing could have conveniently be included under this item. Significantly, Section 39(3) of the 1999 Constitution which deals with the right to freedom of expression and the press, makes reference to wireless broadcasting and television. This leaves one to question whether it was ever the intention of the draftsman of the 1999 Constitution to include virtual hearing, online and zoom within the meaning of public hearings? A similar inclusion as with Section 39(3) of the 1999 Constitution would have indeed, helped with regard to whether online/zoom/virtual hearing could be captured within the meaning of public hearing under Section 36(3) & (4) of the 1999 Constitution. It would have brought certainty to the law, but now, until the National Assembly amends our Constitution appropriately, the Supreme Court has signalled its reluctance to adjudicate on the issue.

It was Lord Denning who once said:
“Law does not stand still. It moves continually, once this is recognised then the task of the Judge is put on a higher plane. He must constantly seek to mould the law, so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick without thought for the overall design. He must be an architect – thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society depends”.

The Supreme Court has been quite ingenious in managing to indirectly render an Advisory Opinion on this important subject without any specific jurisdiction, but do we really need to amend the Constitution to directly give the Supreme Court original jurisdiction to give Advisory Opinion? Section 232(2) of the 1999 Constitution (as amended) states as follows:

“In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly. Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter”.

Now that the Supreme Court has voiced an opinion on virtual court proceedings; apart from the need for a bill to amend the Constitution to include virtual court proceedings, it is also high time that the National Assembly empower the Supreme Court by passing an Act giving it original jurisdiction to give Advisory Opinions, pursuant to Section 232(2) of the 1999 Constitution. However, in order not to over burden the Supreme Court, it should be made optional as is the practice in India. Whatever the case, Advisory Opinion would almost certainly enrich and add value to the constitutional process.