Election and Defection: Who Owns the Votes? (Part 6)

Introduction 

The concern of party defection is rampant in Nigeria’s democratic system due to some flaws in the country’s democratic process. It is on this premise that there is need to maintain accountability, fair representation, good governance, and rule of law and Democracy and democratic consolidation will be defeated and by no means guaranteed if politics of party defection should continue. On this note, we shall discuss attitude of courts to defection of politicians in other climes.

Examples of Judicial Activism in Interpretation of Statutes (Continues)

Other Jurisdictions 

Although the term, judicial activism was first coined and is often used in the United States (where from Nigeria borrowed her presidentialism), judicial activism has also been applied in other countries, particularly common law jurisdictions. Let us see some of them. 

India

India has a recent history of judicial activism, originating after the Emergency in India which saw attempts by the Government to control the judiciary. Public Interest Litigation thus, became an instrument devised by the courts to reach out directly to the public and take charge, even though the litigant may not be the victim. Thus, “Suo motu” cognisance emerged, allowing courts to take up such cases on its own. 

All such rulings, carry the force of Article 39A of the Constitution of India. Fundamental Rights as enshrined in the Constitution have, using judicial activism, been subjected to wide review, and have now been extended to include and to encompass a right to privacy, right to livelihood and right to education, among others. But, even then, the Supreme Court of India has admonished that the ‘basic structure’ of the Constitution not to be alterable, notwithstanding the powers of the Legislature under Article 368. This doctrine of activism has been recognised by several other countries such as Bangladesh, Pakistan and Malaysia as part of their jurisprudence. Other countries such as Singapore, Belize and Uganda have also generated important cases regarding the use of this doctrine of judicial activism in their own countries. 

Generally, however, in spite of this activist posture, the approach of the Indian Judiciary has always been to interpret the Constitution literally, and to apply to it more or less the same canons of interpretation as are usually applied to the interpretation of ordinary legislative enactments. This is known as the positivist approach. See also CHIRANJIT LAL v UNION OF INDIA, A.R 1951, 41, at 58.

Israel

The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention, having regard to the intensity of public life and the challenges that the country faces, including security threats. 

United Kingdom

The British courts had been largely deferential towards their attitudes against the government, before the 1960s. Since then, judicial activism has been well established. One of the cases of this activism was CONWAY v RIMMER (1968) AC 910. This trend has led to, more government actions being overturned by the courts. Judicial activism is greatly established throughout the UK, as the courts are becoming more prone to scrutinise at their own will, and at times, reject government legislation that they consider to be against the UK Constitution. 

With the mind-set of Lord Denning in PARKER v PARKER (supra), in refusing to “do anything” because “it has not been done before”, he had set to remake many laws, drawing the ire and opprobrium of higher courts in the process on many an occasion. For example, in SEAFORD COURT ESTATES LTD v ASHER (1994) 2 KB 481; (1949) 2 ALL E.R. 155, 164.

Lord Denning daringly declared, in what appeared to be quite an unorthodox method of statutory intervention and construction of words used by the Legislature. He believed that the Judge should go ahead and “supplement the written word where necessary, in order to give force and life to the intention of the legislature”. He went on to theorise, with great lucidity, that:

“When a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and then he must supplement the written words so as to give ‘force and life’ to the intention of legislature. A Judge should ask himself the question how, if the makers of the Act have themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should, iron out the creases”.

What then should a Judge do under such circumstances, where, as Lord Denning himself realised in the ASHER case, that he “must not alter the material of which the Act is woven” but merely “iron out the creases”? He provides the answer himself in his inimitable prose in the case of MAGOR & ST MELLONS RURAL DISTRICT COUNCIL v NEWPORT CORPORATION (1952) A.C. 189, at 191, where Lord Denning went further and insisted that a court must:

“in order to find the intention of the Legislature, also do better by ‘filling the gap’ and ‘making sense’ of the enactment. We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out, and we do this by filling in the gaps and making sense of the enactment by opening it up to destructive analysis”.

Surely, Lord Denning went beyond the duty of a court, which is to interpret the words used by the Legislature. Those words may be ambiguous. Even then, the power and duty of the court does not extend to remaking the statute, or reading into it what is not contained therein. That will amount to judicial rascality, impertinence and irresponsibility [See DADA v FRN (2014) LPELR-24255(CA)].

This was why when the MAGOR case went up to the House of Lords, Lord Denning was greatly upbraided by an incensed Bench, in most caustic words. Lord Simonds found it to be “a naked usurpation of the legislative function under the thin disguise of interpretation, and it is the less justifiable when it is guesswork with what material the Legislature would if it had discovered the gap, have filled it in”. “The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery, are strictly limited. If a gap is disclosed, the remedy lies in an amending Act”.

Lord Morton (with whom Lord Goddard entirely agreed) observed that, “these heroics are out of place”. Lord Tucker warned, “Your Lordships would be acting in a legislative rather than a judicial capacity, if the view put forward by Denning L.J., were to prevail”.

Lord Denning was not alone in using judicial activism to attempt to remake the law to bring it in line with current political, socio-economic, cultural and commercial realities of an ever evolving and dynamic society. Justice Cardoso in his book, “The Nature of Judicial Process” (1921), pages 30-31, believes there is a “point of contact between the legislator’s work and his… Each indeed, is legislating within the limits of his competence. No doubt, the limits for the Judges are narrower. He legislates only bwetween gaps. He fills the open spaces in the law… The law which is the resulting product is not found, but made”. Lord Campbell in FELL v BURCHETT (1857) believed a Judge should “make sense of nonsense, and to reconcile the irreconcilable”.

Judicial Activism in Nigeria

In OPUTA v BABANGIDA (2003) 1 SC (Pt 3) 86, the Supreme Court courageously held that the power of Parliament to make laws with regard to Tribunals of Inquiry as reflected in the legislative Lists contained in the relevant provisions of the schedule to the 1963 Constitution was, for whatever reasons, denied the National Assembly in both the 1979 and 1999 Constitutions of Nigeria. Without such constitutional provisions, no valid law can be made, or can exist, standing on its own and of a general nature, to apply throughout the Federation of Nigeria on the strength of which the President may set up a tribunal or Commissions of Inquiry.

Similarly, in AG OGUN STATE & ORS v AGF (2002) 18 NWLR (Pt. 798) 232, the Supreme Court held that, in so far as any Act of the National Assembly provides for Joint Local Government Account Allocation Committees for each State to regulate the manner the amount allocated to the States for the benefit of the Local Governments is to be distributed, such Act is inconsistent with Section 162 (8) of the 1999 Constitution. Also, in AG ONDO STATE v AGF & ORS (1983) 2 SCNLR 269, the Apex Court held that the provisions of the Act (ICPC) impugned on the cardinal principles of Federalism, namely, the requirement of equality and autonomy of the State Government and non-interference with functions of State Government. This is true, notwithstanding, both the State and Federal Government share the power to Legislate, in order to abolish corruption and abuse of office. See also AG ABIA STATE & ORS v AGF (2002) 4 SC (Pt 1) 1, where the court held that apart from the power conferred in item II of the Concurrent Legislative List and Section 7(6)(a) of the 1999 Constitution, (Power to make provision for statutory allocation of public revenue to Local Government Councils in the Federation), the National Assembly does not possess any power to enact laws affecting local government.    

Judicial Activism v Stare Decisis

A court of law must not in the name of judicial activism, violate the hallowed principles of stare decisis governed by Judicial precedents.

In DADA v FRN (2014) LPELR-24255 (CA), the intermediate court wondered aloud thus:

“How can a High Court refuse to abide by this Court, on the ground that its decision is based on a decision that has been overruled? Surely, the Respondent’s stance is nothing but a call to judicial anarchy. See LMB LTD. v PTF (2006) 5 NWLR (Pt. 974) 463, wherein it was held “The principle of stare decisis , I think, has imposed an obligation on lower courts to be bound by the decisions of higher courts. Deliberate refusal to so be bound amounts to judicial impertinence, which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. This must be eschewed and discouraged by Judges”.

In UNILAG v OLANIYAN (1985) 1 SC 295, Eso JSC, observed:

“A lower court has no business with whether or not the decision of this court therein, is right or wrong. In the hierarchy of courts, one principle has been established beyond par, and that is, that lower court is bound by decision of higher court”. 

In SHELL (NIG) EXPLORATION AND PRODUCTION CO. LTD v NOSDRA (2021) LPEL53068 (CA), it was held that:

“The law is well settled on the fundamental principle of stare decisis which literally means judicial precedent, that all courts of law of subordinate hierarchical jurisdiction must follow and apply the decisions of superior courts of record, even where they believe that these decisions are wrong. The wisdom behind it, is to guarantee consistency in judgements handed down by the courts and also avoid judicial anarchy”. (Concluded).     

THOUGHT FOR THE WEEK

“The intelligent ruler makes the laws select men and makes no arbitrary appointment himself; he makes the law measure merits and makes no arbitrary judgement himself”. (Han Fei)