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ABSTRACT It is common knowledge that the age long principle of Separation of powers allocates the governmental functions of law making, law implementation and law interpretation to the Legislative, Executive and Judicial arms of government respectively and each arm is to function independently without any unwarranted intermeddling. It is trite that the function of lawmaking for peaceful coexistence and orderliness in the society is vested in the recognized law making organ, in the Nigerian case being the National or States House of Assembly as the case may be. It is however evident in practical reality, due to the application of certain concepts like Judicial Review, Checks and balances amongst others and the evolution of the idea of case law and stare decisis that the law interpretation duty of the Judiciary and the legislative duty of law making appear overlapping. This seeming power usurpation on the part of the judiciary has been a subject of great debate for centuries. While some opine that the functioning of the judges is simply reflective of law interpretation others reason that judges are intruding into legislative business and accuse judges of judicial activism and a seemingly more objective school project that effective judicial functioning is inevitably linked to legislative functioning. In the mist of all these the judges themselves have taken both affirmative and dissenting stands and one wonders where to get answers the seemingly unanswered question “Do judges make laws?” This work touches the practical and legal stand on the issue of whether Judges make laws giving cognizance to ex cathedra Statutory and Judicial authorities alongside scholarly arguments relevant to the issue. CHAPTER ONE GENERAL INTRODUCTION 1.0.0: INTRODUCTION Law is central to national governance and a nation can succinctly be described as a group of persons within a defined geographical confine and guided by given set of laws with a recognized governmental structure to make, execute and interpret the given set of laws. The whole idea of governance is circumvented around the idea of law hence the governmental functioning cannot be successfully defined without reference in one way or the other of the idea of law. For the governance and smooth running of any society, law has to be made, executed and interpreted. Recorded history started with the periods when the tripartite function of law making, execution and interpretation were either entirely or to a large extent left in the hands of a unilateral body – in most cases being the monarch and his/her council. Everyone assumed that government required unification of authority. Louis the XIV of France puts bluntly: “L’etat est moi” (the state is mine). This no doubt led to tyranny since as scholarly opinion puts it. 2 “It is foolhardy to give to law-makers the power of executing law, because in the process they might exempt themselves from obedience and suit the law (both in making and executing it) to their individual interest”1. This tyrannical posture thrived until the early period of renaissance when scholarly and social scientific ideology led to the development of the idea of separation of powers which advanced that the functions of law making, execution and interpretation be put in the hands of three distinct bodies namely; the Legislature, the Executive and the Judiciary. These bodies were subsequently coined the three arms of government and are ordinarily expected to function independently without any unwarranted interloping. With this structure in place, the judges being the arbiters of the Judiciary were given the function of law interpretation. The Legislature on the other hand being the elected representatives of the people served as law makers. The legislators by conceited effort try to ensure that laws are made with utmost clarity of diction/words and that laws cover for all anticipated and unanticipated situations and exigency but this has seemed elusively impossible and as a result the legislature is faced daily with the onus of not only of creating clarity in the face of unclear and ambiguous legislation but also of “filling in the gap” where the legislature fails to legislate on an 1 Aihe D. 0 et al “Cases and Materials on Constitutional Law in Nigeria”( University Press Plc, Ibadan,1979)132 3 unanticipated issue which may arise from changing societal trends and scientific advancement. The legislature may also by the inherent weakness of human nature use words which cannot reasonably be held to reflect legislative intention and as such cannot be given effect to unless such errors are corrected by judicial pronouncement. Legislation is also filled with the use of words like “reasonable time”, “inordinate delay” amongst others which require time and circumstance related interpretation. The above practice of creating clarity, correction of seeming legislative errors, giving fixed circumstantial interpretation to vague words and “filling in the gaps” has led to the development of what is referred to as case law which is binding through the doctrine of stare decisis which dictates that the decision made by a court in one case is binding on the court and other lower courts in later cases involving similar issue. The evolution of case law and the seemingly overlapping function of the judiciary have led to the recurring question of whether judges are law makers. 1.1.0: BACKGROUND TO THE STUDY The legislature is to make the law, the executive to execute the law and the judiciary to interpret the law so dictates the age long principle of separation of powers. No human person is all seeing, all wise and none can predict with utter assurance the turn of events in due course of time so dictates the inevitable law of human nature. No one, not even the legislator in whom the confidence of the people who look 4 forward to a better society is placed is above error. Error is inherent in human nature and the legislators being humans make error in legislation. Who stands to correct such error? Who but the judge who sits to grant fair hearing to the people over whom he adjudicates? Legislators are neither omniscient nor clairvoyant. Social advancement and skyrocketing scientific innovations in most instances outpace legislation when the legislators are understandably busy with other attention needing and pressing societal issues. To cover for this the House of Lords essayed ex cathedra: “The courts having discovered the intention of Parliament … must proceed to fill in the gaps. What the legislature has not written, the courts must write’2. This however must be done having due regards to the affectionate admonition that: “The judge should never while exercising his interpretative jurisdiction, be permitted to wear the cloak of an oracle or be upgraded to a demagogic fuehrer but should always remain a dispenser of justice”3. In the Nigerian milieu and under Nigerian law, the Constitution clearly allocates Judicial Powers and interpretative functions as regards the law to the Courts4 and allocates quasi-legislative powers to the courts in certain sections5. Juristic and 2 Awa Kalu “Do judges make laws?” Vanguard Newspaper (Nigeria 21st March 2003) 51 3 Kayode Eso “Interpretation of statutes in Nigeria” in Further Thoughts on Law and Jurisprudence. Pp. 310-311. 4 S.6, Constitution of the Federal Republic of Nigeria 1999 5 S.46(3), s.236 and s.248 of Constitution of the Federal Republic of Nigeria, 1999 5 scholarly postulations on the issue of whether judges make laws or not have been both affirmative and dissenting, and one wonders where to get answers to the recurring question. There is a need to create unambiguous clarity on the issues of case law, Judicial Review, Judicial activism, stare decisis and other connected issues which are central to giving a buoyant answer to the recurring question and this work stands to serve that purpose. 1.2.0: OBJECTIVES OF THE STUDY This work aims at creating unambiguous clarity on the functions and duty of the judges and their role in the law making process. It aims at recapitulating the concepts of separation of powers, checks and balances and judicial review, these concepts being central to understanding the judicial functioning and answering the question of whether judges make laws. Determining if “filling in the gaps”, creating time and circumstance related meaning for vague words used by the legislature, correction of seeming legislative errors and other judicial practices of the same nature can be regarded as law making is also an objective of this work. Summarily, the work aims at going beyond the sphere of legal theory and exploring the realm of practical reality in the midst of so many consenting and dissenting views 6 on the issue of whether judges make laws or not, to take a balanced, objective and empirical stand on the topic question. 1.3.0 FOCUS OF THE STUDY This work focuses on the jurisprudential and empirical argument on the role of the judiciary and on whether judges make laws in Nigeria. It delves into the role of the judges in the law making process having cognizance to the doctrines of separation of powers, checks and balances, judicial review, filling in the gaps and other concepts and realities relevant to giving an unequivocal answer to the question of whether judges make laws. 1.4.0: SCOPE OF THE STUDY Though this work delves into a globally significant issue, it is however concerned more with and as such restricted to the rules guiding law making and the judicial process in Nigeria and serves to answer the question “do judges make laws?” in the Nigerian milieu. Worthy of note however is the fact that despite the territorial restriction, the work is not devoid of reference (both in case law, statutory law, juristic arguments and scholarly postulations) to other Commonwealth jurisdictions. These references do not serve to widen the territorial scope of the work but to further buttress the issues therein. 7 1.5.0: RESEARCH METHODOLOGY This work explores both primary and secondary sources of information, the primary sources being the 1999 Constitution of the Federal Republic of Nigeria, Statutes and Case law while the secondary sources include textbooks, dictionaries, juristic articles and other materials necessary for the achievement of the aims of this study 1.6:0: LITERATURE REVIEW This thesis touches on eclectic scholarly views and works on the question “Do judges make laws?” The more prominent view that law is primarily made by the legislature and interpreted by the Judges is held by Francis Bacon who emphasizes that the role of the judge is only “to interpret law and not to make law or give law”6 Oguntade G. in “Dissenting judgments and judicial law making”7 takes a bifurcate stand on the issue of whether judges do make laws or not. Raising the, question directly he says; “Do judges make laws? The answer to this seemingly rhetorical question is No. but it is neither a resounding no nor an unqualified answer in the negative”. He comments further that: 6 Bacon F. “Of Judicature” in Essays (1625) (Everyman Edition 1979) p 162. 7 Ogunlade G. “Dissenting judgments and judicial law making: <www.allafrica.com/stories/201002250434.html >assessed on 20 December, 2010. 8 “We know that judges do more than just apply the law as it is. They sometimes extend it and at other times create new laws that remain binding on all until reversed, or overruled by courts competent to do so”. Arguing without any prejudice to fact that law making is primarily the Legislatures function. Asein J. O. in Introduction to Nigerian Legal System points out that judges play some role in the lawmaking process. According to him; “The primary duty of law making is that of the legislature and judges do not go about making laws in the same manner and with the same ease as the legislators do but they are not altogether detached from the legislative process8. Arguing further he stresses that a judge faced with a legal problem does not have to resign helplessly because the legal rules are inadequate to resolve the conflict. He advocates on they ground that; “Judges are therefore encouraged to formulate fresh rules of law or to extend the existing ones to deal with novel cases”9. Reacting to denials of judicial law making, Lord Reid derides all such denials as a belief in fairy tales which has stood long for too long time. In his clerical publication 8 Asein J. O. Introduction to Nigerian legal system (Sam Bookman Publishers Ibadan. 1998) 67. 9 .ibid 9 “The Judge as law maker” he puts forth positive and empirical argument stating categorically that “we do not believe in fairy tales anymore”10. Kolajo pointing out that Judge generally deny that they do make laws in his book “An Introduction to Law” admits up front that they do. In his work he comments that; ‘‘Judges in general, do not always admit that they make new laws. The duty of making law, they contend, is that of the legislative. In reality however, Judges at times make laws. Judicial decisions and pronouncement over a period of time, especially when the decisions and pronouncements are confirmed by superior courts, more or less become law”11. Elegido in “Jurisprudence” takes a radically different posture from Bacon’s. Admitting that judges do make laws, he posits that what should be of concern is whether they should do so. According to him; “That judge engage in law making is beyond controversy… The real problem is not whether the; judges engage in law making but rather whether they should do so ,and subject to what limits”12. Imam, I. in “The myth of Judicial Activism in Nigeria: Making sense of Supreme Court Judgments”13 berated the Legislature’s failure (particularly at constitutional 10 Lord Reid “The Judge as law maker” in 12 Journal of the Society of Public Teachers of Law (1972) 22. 11 Kolajo, A.A. “An Introduction to Law (spectrum Law series, 2005) p.22 12 Elegido “Jurisprudence” (Spectrum Law Publishers, 2007 Reprint) p. 303-4 10 amendment in 2007 and rebuking the legislature for more often than not impending progressive development of Nigeria points out that judges do make laws and judicial law making is a necessity. To him; “Legislation to fill vacuum in the constitution may be cumbersome, more so the rigidity of the procedure for constitutional amendment do not help matters, thus judicial activism.., has become imperative. The pace of change may he great bringing with it new social and economic conditions and demands for the recognition of novel claims. In such circumstance there may be peculiar need for judicial activism14. Oputa taking a similar stand on the existence and necessity of judicial law making averred in “Judicial Activism. A catalyst for political stability” that: In a progressive world, the law and the administration of justice cannot afford to be static and retrogressive… we are not to fold our hands and do nothing. No. Our judges have to interpret the law such that it makes sense to our citizens in distress…15 13 Irnam, I. “The Myth Of Judicial Activism In Nigeria: Making Sense Of Supreme Court Judgments. <http://www.unilorin.edu.ng/pulications/imami/THE%2520MYTH%2520OF%2520 JUDICIAL%2520ACTIVISM%2520IN%2520NIGER%2520NO%25202.pdf’ accessed on 15th December, 2010. 14 ibid p. 19. 15 Oputa JSC: Judicial Activism: A catalyst for Political stability. Guardian Newspaper (Nigeria 16 September, 2003) 7 11 Niki Tobi in his book “Sources of Nigerian Law” rules out the justification of judicial law making on the basis of circumstantial necessity. Reacting to whether .judges make laws or not He points out that; “Although judges generally deny that they make they make the law at times, the truth is that they do”16. Reacting to the justifications of judicial law making, he laments that; While the need for the daily growth of law to reflect the daily changing circumstances of society is a desideration, the answer is not necessarily in judicial law making, particularly when the action of the judge totally changes the content of the statute this throwing over board the intention of the legislature”17. He admonishes that since the judges are quick to frown at Legislative and Executive usurpation of Judicial powers, the judges should also strictly mind their business and desist from usurpation of the legislative role of lawmaking: Concluding, he warns that; “The judge has himself to blame for him boldness which has no support in the laws the land including all canons of statutory interpretation” Lord Davis, circumventing the question and stating that there is no consensus on the precise function of judge observed that; 16 Niki Tobi “Sources of Nigerian Law (M.J. professional publishers, Lagos, 2007 reprint). P.80 17 ibid 12 “Whatever judge does, he will surely have his critics. If in an effort to do justice he appears to make law, there will be cries that he is overweening and that he has rendered uncertain what has been regarded as established legal principles. On the other hand, if he sticks to the old legal rules, an equally vocal body will charge him of failing to mould the law to social needs”18. 1.8.0: CONCLUSION This chapter sets the pace for this work. It gives a clear introduction and background to the work going further to set its scope and focus. It gives an exposure of the research methodology adopted therein and highlights some of the Juristic literatures which are of importance to the topic issue and thus used in the work. 18 Lord Davis “Judicial Activism. Current Legal problems (1975) culled from lmam. I. ibid. p.2
Keywords: ‘DO JUDGES MAKE LAW?’ A CURSORY LOOK AT THE RECURRING QUESTION
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