Address delivered on Sunday, 27 January, 1980 at the luncheon arranged by the Tribune Croup to mark the Silver Anniversary of the introduction of Free Universal Primary Education in the former Western Region of Nigeria.
NIGERIA has now lived for a full one year and two months under the long awaited and much-heralded civil rule. Previously, for upwards of thirteen years, we had lived under a succession of military regimes whose common characteristics were gross acts of misrule and corruption which reached near-suffocating proportions by the end of September, 1979.
As if these depraved antecedents are not enough, the civil rule itself was ushered in under shady circumstances. The conduct of the election was, in many cases, rigged; and the results were falsified. In the latter connection, to make assurance doubly sure, determined efforts were made, in some cases successfully, to hallow the falsified results with judicial authority.
Thus, in the new dispensation, our ship of state had to put to sea ill-equipped and with serious disadvantages. The Judiciary came under a cloud of unprecedented distrust. The Federal Captain himself was also thoroughly distrusted for unfitness and because even the initial goodwill usually enjoyed by a newcomer to a high office of historic nature, was completely dissipated at the very point of entry.
Of the three organs of the Government, the most important of them, from the point of view of the defence of the Constitution, is the Judiciary. The deep and widespread distrust, to which this organ was subjected at the commencement of the civil rule, has recently been further deepened by Chief N. B. Graham-Douglas, S.A.N and further, as long as Mr. Justice Justice of Nigeria.
Because of the crucial role of the Judiciary in any organized and orderly society; and because of its unique role under our Constitution, I would like to seize this opportunity to dwell at some length on two topics: Chief Graham-Douglas’ new judicial doctrine; and the present role of Mr. Justice Fatayi-Williams.
In a Paper entitled “Judicial Process Today; Constitutional Interpretation” read at the Commonwealth Law Conference held in Lagos last September, Chief Graham-Douglas made a number of points which are worthy of note and comments.
The title of Chief Graham-Douglas’ Paper looks general but the contents of the 44-page octavo-printed document are devoted wholly to the case of Awolowo v. Shagari and others.
He opened his discourse with the following words:
The cynical observer of contemporary Nigerian political society may deride it as one in which the president – the Head of State the Chief Executive and Commander-in-chief of the Armed Forces – of the nation is in essence not chosen by the popular will of the electorate as expressed through the ballot box but foisted n the nation by a judicial decision …
In the course of this discourse, Chief Graham-Douglas deals with a good number of topics which are relevant to the Awolowo case. But the one which is germane to the remarks which I propose to make later, and which I believe will interest you is the one entitled “Public Policy and Public Interest as Judgment Producing Factors in Constitutional Interpretation.”
He opens this part of his discourse in the following words:
However pretentious the lawyer may be in his insistence on strict and complete legalism when one looks at certain specific cases it is difficult to escape the inclination that the public interest is a potent – not just potential – factor in the production of the judicial decision in cases of constitutional significance and consequence. Just so important is the related concept of public policy: in fact the two may appear at first sight to be justifiably inter-changeable. To take a few examples the criticisms \ \which such lases as Liversidge v. Anderson and Joyce v. D.P.P. have attracted down to this day have been built around the suspicion that if the national interest in either case had not been so obvious the result might well have been different. As to the former the critics have been greatly strengthened by the strong dissenting judgment of Lord Atkin, whose reasoning was years later approved by the Judicial (committee of the Privy (Council.
In addition to Liversidge and Joyce, Chief Graham-Douglas refers to two other cases Nakkuda AU v. Jayaratne and Enderby Town Football Club v. Football Association Ltd. He makes specific and approving references to the views of two famous British Judges: the dissenting judgment of Lord Atkin in Liuersidge case, and the judgment of Lord Denning in the Enderby case.
Without citing any Supporting cases, he makes generous reference to what he calls the more forthright and unpretentious attitude of Judges of the Supreme Court in America in contra-distinction to the traditionalism of Commonwealth Judges in the matter of allowing their decision to be influenced by considerations of public policy or public interest. He stresses the role of the court in social bridge-building which necessitates a judicial response to the sociology of law; the relativity of the legal norm, that is an empirical awareness of the relevance of prevailing political social economic and moral pressures and values of law-motivating factors which would impose on the court the duty of making the law- relevant to the particular time and place by interpretation and application …
“On the other hand,” he further emphasizes, “it is questionable whether there is need for any judicial philosophy; the need for neutrality, which alone would accord with the impartiality that is a fundamental property of the judicial obligation …”