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