Prohibition of retired judges from legal practice: Need for a paradigm shift (2)

LAST week, I considered arguments often advanced by both sides of the debate regarding the prohibition of retired judges from legal practice. I started the position in countries like India and some states in the United States of America that have relaxed the prohibition, where judges now enjoy the ability to engage in some form of legal practice after retirement.

However, without a doubt, there are certain considerations that are unique to Nigeria which in my estimation make it imperative that the prohibition be revisited here. Absence of job security First, the job of a judge is characterized by a near-total absence of job security and judges have, over the years, been victims of harsh administrative decisions of divergent political structures, particularly the military.

In Nigerian history, the first recorded incidence of the victimization of judges is the removal of Hon. Justice Taslim Olawale Elias as the Chief Justice of the  Federation, on the ground of ill-health, by the Murtala Muhammed administration through the instrumentality of Decree  No. 17 of 1984. Another recorded incidence is that of Hon. Justice Olu Ayoola, who was compulsorily retired from the Bench. In fact, he noted in his book titled “Fifty Years at the Law”that: “The treatment personally made me curse the day  I accepted the offer of coming to the Nigerian Bench, more so leaving a successful legal practice.

And as if the injury  was not enough, a Decree was also passed forbidding any of the Judges so retired to go back to full legal practice, even  though their judicial careers had been aborted without reasons being given to them or to the nation nor being afforded  opportunity to defend their names, honour and future against the reasons before they were damnified and summarily  retired with loss of name, career, and pension rights. Some were also given 21 days to vacate official quarters.

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The procedure adopted was blatantly unjust so much so that some of the judges so treated have since died prematurely, of being unable to bear the injustice.

That was briefly how the 1975 judicial purge was carried out.” In all the recorded  histories of the abysmal dismissal of judges by the military, usually on ground of decisions considered too anti-governmental, it is more saddening that brilliant legal minds who have contributed their wealth of experience to the  development of the law are rendered irrelevant, considering that they can no longer practice law after being forced out  of the Bench.

For this singular reason, other brilliant lawyers whose contributions would have further enhanced the development of the law are deterred from aspiring to the Bench, knowing that their legal careers may be untimely truncated by administrative fiat. Consequently, the quality of judgments being dished out by our courts has also been adversely affected. In my book “Impossibility made possible” I noted that: “It certainly was the wish of many successful lawyers to one day rise to the bench and avail the administration of justice with their wealth of experience.

But who would leave his lucrative practice for a bench when by military fiat he could be unceremoniously removed from office for the wrong reasons or even for no reason at all… One effect of this arbitrary sack was the depletion of the judiciary with brilliant and honest hands. Besides the issue of poor pay, nobody wanted to join a Bench when he was not sure of the security of his job, especially in a situation where a removed judicial officer could not go back to practice as a legal practitioner.“

Furthermore, most judges where legal practitioners before being called to the Bench, and this, perchance, accounts for why some judges descend into the arena by engaging counsel in legal fisticuffs. Notwithstanding, one can not take away from the fact that advocacy till runs in the blood of some of our judges and therefore, the idea of permitting the return of judges to advocacy afterlife on the Bench should not be a mere fantasy.

Personal conflict There is also no doubt that judges are sometimes faced with impossible situations – a dilemma – which creates a conflict between the jurist’s personal convictions (conscience) and the law. More often than not, Judges have been forced to discharge accused persons whom they believe actually committed the crimes alleged, but due to the ineptitude of prosecution counsel, the essential elements of the crime were not proved.

The frustration which such attracts could be enough to make a judge voluntarily vacate the Bench but, considering that his legal career will end if he makes such choice, will continue to endure being faced with another impasse in the future

. A former trial judge in the U.S.A, Neal W.  Dickert who voluntarily retired from the Bench into legal practice after 11 years gave his reason for vacating the Bench  thus: “I retired primarily because I found that it became increasingly difficult, day after day, to make hard decisions that  had a profound impact upon the lives of the people appearing in front of me. I was afraid that I would lose the strength of character to make the hard decisions or, perhaps even worse, would become callously insensitive to the feelings and interests of the litigants I encountered. Neither of these options was palatable.”

In the same vein, petitions are constantly being written against Judges by litigants and counsel alike, with the attendant psychological effect it may  have on such judges. Also, some judges may be threatened or blackmailed to tilt justice in the direction of a powerful individual in the society who could influence the continued stay of the judge on the Bench.

It, therefore, leaves judges vulnerable to the fear of dismissal and the realization of economic woe which such dismissal may attract. However, if our judges are able to return to legal practice, even after dismissal, they will still have an opportunity to earn and  therefore become more relaxed and resolute in the administration of justice, knowing fully well that they can still dust  the wig and gown and return to legal practice Likewise, judges tend to become overwhelmed with the workload and  responsibilities which life on the Bench dictates but at that time, it may be already too late to retrace their footsteps and  return to the Bar.

In such a case, one would be faced with a frustrated judge who may vent out his frustrations on counsel and unassuming litigants. Surely, such will be inimical to the effective and efficient administration of justice. The New Law Journal, in reaction to the resignation of Sir Henry Fisher from the High Court Bench to take up another appointment, noted thus: “Judges are men and men change their careers for many reasons. Prominent among those reasons is the realization that the career they are in is not really for them – the belief that they would be happier and more effective elsewhere. If a High Court Judge feels that he is unsuited to the judicial way of life, surely it is better for the administration of justice,  as well as for the individual concerned that he goes… A judge is entitled, like anyone else,  to make his life where he honestly believes he can best be himself. The judicial oath is not an irrevocable vow.”

Conclusion
Nigeria has come to a stage whereby major reforms have to be carried out in its judicial system, and certainly, the return of judges – retired, dismissed or resigned – to active legal practice is ripe for consideration. Even if such judges are not allowed to return full steam, there should still be a measure of participation in law practice that will ensure the sustained relevance of such erstwhile jurists in the nation’s development of law. In this regard, Nigeria may adopt the  quasi-restrictive style being utilized in the United States – which essentially allows retired judges to practice in court,  even the one which they once sat, but permits the sitting judge to recuse himself in the case of a conflict of interest; or  even which permits retired judges to prepare and draft pleadings, motions, appellate Briefs, among others, for a fee.

Additionally, in the appointment of new judges, there may be created a provisional five-year period to allow such new  appointees to have a feeling of how life on the Bench is, and voluntarily resign if they find that they cannot cope with  the dictates of the Bench, or if they find that life on the Bench is more than what they actually bargained for. In that scenario, such judges will be able to pick up their wigs and gowns and continue with legal practice, even if in a limited capacity. From whichever perspective one elects to approach this issue, the major consideration should be the  due administration of justice. At the moment, this requires that an urgent review be made to this prohibition of retired  judges from practicing. It is one that I expect the relevant authorities to attend to as a matter of urgency.

You may send your comment to president@abuad.edu. ng

AARE AFE BABALOLA SAN, CON, LL.D (Lond), D.Litt, FCIArb, FNAILS, FNSE etc

 

Nigerian Tribune

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