It is of
such notoriety that the judiciary which is better known as the judicature in
the 1999 Constitution cannot operate if there are no issues to entertain,
whether from the federal, state or local governments, including the entire
populace.
Judiciary, right from the time
immemorial, has actually been the spokesman of the masses. Judiciary gives hope
to the hopeless. It gives succor to the indigent and the messiah to those who
run to him.
Meanwhile, with utmost humility and
respect, may I state what the Hon. Justice C.A oputa, JSC1, said
concerning this particular issue-“the citizen and the
judiciary”
“A greater part of the country’s basic
and supreme law- the Constitution is taken up by a chapter dealing with the
judicature. And that is right, for without the judiciary (judicature) all the
other provision of the constitution may never be enforced. Without the
judicature there cannot be any adjudication. And the degree to which a country
pins its faith in adjudication reflects its stage of advancement and progress
on the tortuous and painful road from the rule of force to the rule of law. The
importance any country attaches to adjudication reflects also the importance it
attaches to its courts. The legislature generally passes law in the abstract
that is without any particular person in mind.
The executive overseas the enforcement of those law as they apply at
large. These two arms of government are by necessity and as a matter of public
policy preoccupied with the needs of the moment. They have the task of assuring
that economy is buoyant and that there is sufficient foreign exchange reserve
to support and back up our external trade. It is also their duty to ensure that
the state is protected from external foe or from internal convulsion and
revolt. They therefore have in the nature of things to act expeditiously and
sometimes they are forced to obey the sirens of power, or else to act on the
basis of expediency. They thus pay more attention to short term advantages
rather than to principles or to fine legal distinctions. The rulers of the
country decide upon a certain measure or policy of social regulation and they
carry that into effect with all the power at their disposal, with all the
machinery which is at the command of the state.
In that process, doubts, contradiction,
competing claims and conflicts inevitably occur and there must be an impartial
agency to judge between them. Also if the law is defied or even unwittingly
transgressed a penalty must be extracted. Which institution is best suited to
adjudicate upon rival or conflicting claims; or to redress the balance
occasioned by an infringement of the right of the citizen, or to declare a law
oppressive and unconstitutional or to declare act of the executive ultra vires
and viod? The objective of justice- social justice if you please- demands an
institution to stand between the citizen and the laws, to stand between the
citizen and any abuse or excessive use of power by the executive to represent
the moral force and pillars upon which society is built and the long time
interest of the citizens. That institution is the judiciary – the courts.
Judges therefore sit astride the crucial nexus where the citizen meets his
government. Judges adjudicate between the citizens inter se and also between the citizen and the state itself. This
later function is considered quite in comprehensible in totalitarian state
where the judicial function is deemed to be essentially the fulfillment of a
preordained policy of an enforce ideology.
In a democracy, the power resides in the
people and the citizens is supreme not the state. All our post independence
constitution affirms this. In a democracy the search is for justice. Justice is
the end, which the laws passed by legislature the executive function of
government and the administration of the law by the court should all endeavor to
attain. The judge has no other end to serve except the impartial dispensation
of justice. The effect of his decision o policy or administration is only secondary,
if these oppose or outweigh the dear demands of justice. The judge is not
primarily concerned immediately with policy at all but with the rights and
wrongs of the dispute of which he is seized. The courts deal with people, with
the citizen and third individual problems on a case to case and day – to – day basis.
If the law passed by the legislature or if the acts of the executive is working
hardship or is inequitable then the judges are likely to be the first to know, since
they are the ones called upon to send innocent citizens to prison or to deny
legal claim, which, in justice should be granted. A good judge will do his best
to avoid hardship or public inconvenience, or any embarrassment of the
government, but if his policy, he is a weak and unjust judge if he shrinks from
that consequence.
It should be observed that while people usually
go to court to take care of a personal problem – to obtain a divorce, to get
damages for injuries received in an accident, to get or to settle the estate of
a deceased relative, people also go to court to challenge the way government is
going about its business of governing. Our judicial system is equipped to
provide a forum for debate on many social questions. In a criminal case for
instance, the defence of an accused person may raise very important social
questions. Also a man may be dismissed from his job by an administrative
action. This may spark off a court case involving serious social questions. In
other words, court cases do decide not only the narrow factual background which
gave rise to the claims or counter – claims, but also challenge and agitate.
They broad social or legal policy which as it was originally gave rise to the
law suit also in land cases, in chieftaincy claims and counter – claims are
generated. The courts seem to be one of the agencies that can easily defuse the
time bomb which these cases conceal. The courts occupy a very unique position
in a free and democratic society. They are the watch-dogs of both the
constitution itself and the rights of the citizen entrenched in that
constitution. The democratic nature of any constitution is therefore measured
by the amount of independence it gives to this judiciary. In England, for
example on no constitutional question would there be greater unanimity
throughout the country than upon the independence of the judiciary. I wish one
could say the same of our country, Nigeria. The constituent assembly
however has done a lot to focus attention on the place and importance of a
powerful and independency judiciary. That is progressive step in the right
direction.