THE JUDICIARY AS A DYNAMIC AGENCY OF THE RULE OF LAW



        Judiciary, as we all know, does not and can never perform its roles which are to resolve dispute and administer justice, in isolation. It has to anchor whatever it does on the Rule of law.
        Indeed, the Rule of law has always been the regulator of every arm of government to ensure prudence and efficiency. Judiciary, however, if allowed to operate outside the Rule of law would occasion arbitrariness in the dispensation of justice by Judges. Though, the Judiciary should be independent that does not mean to operate without the proper monitoring of the rule of law. This is because where the rule of law is not observed; the society remains the same as
during the time of Thomas Hobbes – when man was insecure, vulnerable and predatory.
        With utmost regard and sincere humility once more, May I state what the Hon. Justice Chuwkudifu A. Oputa, had to say on this issue, that is-The judiciary as a dynamic agency of the rule of law:
        “An independent judiciary is an indispensable requisite of a free society under the rule of law. Before courts were established, every man was law unto himself. This is situation reminiscent of Hobb’s Leviathan when man was wolf to his fellow man. The establishment of court was a big step forward on the road to progress for then men lay down their arms and carried their causes to the courts. This presupposes a tribunal to which men when they are in doubt or in anxiety, may freely have recourse to. It also presupposes a tribunal which is not incapable of giving a verdict. The rule of law implies and requires the existence of courts alright, but these should be courts where the judges are completely insulted from all pressures from the Legislative or Executive arms of Government; where the judges secure from any fear of interference or removal, do their duty fearlessly, holding the balance and the scales evenly, not only between man and man but also between man and the state.

The independence of the judiciary under the rule of law does not mean that a judge is entitled to act in an arbitrary manner; not at all, after all he too, is ruled by the law, under the Rule of law, and his duty is to interpret the law and the fundamental principles and assumptions that underline it. The Rule of law also implies the unremovability of the Judiciary as their security of tenure for the Rule of Law. A judge who enjoys security of tenure for his working life will be less susceptible to pressure than a judge who has no security of tenure. There is one thing that people tend to forget and that is that the courts occupy a unique position under the Rule of Law. They (courts) are the watch-dogs of the people and they must feel themselves free, to prevent any unjustifiable attempt by the Executive to encroach on the liberty of the subject or make itself the Supreme Authority in the mater of conscience. The courts are among the last (if not the least) lines of defense in a free society. When the courts are overrun by the ever–advancing avalanche of moral decay or of interference or pressure, or of all three, then warning shots are being fired for the inauguration of a terror and chaos. And the Rule of Law is the complete antithesis and negation of the reign of terror and chaos”. From this averment by the eminent Jurist, it therefore brings to the fore the need to ensure an uninterrupted judicial system for the assurance of individual freedom, good governance; the hallmarks of democracy.   

As Lord Atkin in the celebrated case of LIVERSIDGE V. SIR JOHN ANDERSON,1 observed:

In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of person and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
        The dynamic role of Judges under the Rule of law is aptly epitomized in a speech delivered by the late Sir Winston Churchill:
The judge is not only to do justice between man and man. He also- and this is one of his important functions considered incomprehensible in some large parts of the world- has to do justice between the citizen and the state. He has to ensure that the administration conforms to the law, and to adjudicate upon the legality of exercise by Executive of its powers.
To achieve this seemingly incomprehensible feat, Judges should be thoroughly and apparently independent. Here again you will permit me to quote another passage from Sir Winston Churchill:
The only subordination which a judge knows in his judicial capacity is that which he owes to the existing body of legal doctrines, enunciate in years past by his brethren, and upon the laws passed by parliament which have received the Royal Assent.-(commons 1954)2

To be effective, Judges are also required to maintain a very high and vigorous standard of probity and decorum in and out of court. Talking about British Judges, Churchill again remarked:
Judges had to maintain and did in fact maintain a far more vigorous standard that was required from any class I knew of in the realm. What would be thought of a Lord Chief Justice if he won the Derby? Yet I could cite a solid precedent where such an act had been perpetrated by a prime minister who, on the whole, had got away with it alright- (commons March 1954)3
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