Separation Of Powers, Checks And Balances (2)

By Mike Ozekhome SAN

Last week, we started this discourse, the doctrine of separation of powers, the present Nigerian judiciary vis-à-vis the government’s anti-corruption fight. A true government of separated powers assigns different political and legal powers to the legislative, executive and judiciary branches. Today, we shall further x-ray the doctrine of the rule of law and the concept of separation of powers as it relates to the doctrine of judicial review.

realm and amenable to the jurisdiction of the courts (equality before the law); secondly, no man can be made to suffer either in body or goods except for a distinct breach of the law established in the ordinary process of the courts; and, thirdly, there is the principle of legality, which requires that those exercising state power or political authority must be able to justify their actions as authorised by the law.

It is this third aspect of the rule of law that courts seek to enforce. In the exercise of its executive authority, the government must not infringe the limits which the legislature has ordained. The courts will invalidate any order, if the government has gone beyond the province of its executive competence. The doctrine of judicial review was invented to check and control governmental power and to limit the application of the principle “quod principi placuit legis habit vigorem” (the sovereign’s will has the force of law) that gave the government unrestricted discretionary powers so that everything they did was within the law. It is this missionary spirit of the quest for administrative justice and the need for improvement of the technique of government that is the connecting thread throughout the doctrine of judicial review in pursuit of a harmonious whole.

Similarly, the basis of parliamentary sovereignty is the constitutional authority of legislature to positively legislate. In exercising that political sovereignty when positively legislating, Parliament is not so bound. Parliament is sovereign not by statutory device or grant, but through political reality and, in essence, the common law. However, the rule of law dictates that there is need for balancing the coercive authority of Parliament in terms of positive legislative competence against the need for that authority to be limited and justified. Therefore, if Parliament acted without reason, the courts have the power to review Parliament’s decision and declare it null.

The case most commonly associated with the origin of the power to strike legitimately and properly enacted legislation under judicial review is Marbury v. Madison. Marshall, J. examined the constitutional structural arrangement created by the founding fathers of the American Constitution and reasoned from three premises that, in America, under the Constitution, the judiciary has the power to refuse to apply legislation: the Constitution is the “superior para- mount law” over “ordinary legislative acts,” and when in a conflict with any other law, the Constitution must prevail. The judiciary, in its role of applying and interpreting the law, must be the organ charged with the final determination of the law against the Constitution.

The Nigerian judiciary, in a bold defence of its constitutional role to adjudicate, challenged the ousting of its jurisdiction by various decrees in the famous and historic case of The Attorney General (Western State) & Ors. v. Lakanmi & Ors. The separation of powers provided for under the 1963 Constitution, though not as sharp as that of the 1979 Constitution, was relied upon by the court in this popular case, which was considered the primus inter pares of the cases against ouster of court’s jurisdiction and executive usurpation of judicial power. In that case, the Supreme Court had the opportunity of having a clear interpretation of the provisions of the 1963 Constitution and made adequate pronouncement on the principle of separation of powers contained therein, when it held thus:

“We must here revert once again to the separation of powers, which, the learned Attorney General himself did not dispute, still represents the structure of our system of government. In the absence of anything to the contrary, it has to be admitted that the structure of our constitution is based on the separation of powers, the legislature, the executive and the judiciary, our constitution clearly follows the model of the American constitution. In the distribution of powers, the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the state.”

However, to prevent the judiciary from overreaching its constitutional mandate, the doctrine of stare decisis has been used to limit the courts. If the court rules that a law is unconstitutional in a particular case and then different parties petition the court with another challenge on the same legislation, a court bound by stare decisis must again rule that the law is unconstitutional. If the court lacked the command of stare decisis, perhaps the court might feel more inclined to rethink its decision, but a court limited in its discretion does not have the luxury. Therefore, judicial review is claimed as a right of the court to limit the legislature and executive, and stare decisis is imposed as a political product of the common law limiting the court. The jurisdictional competence

of the courts to review the decisions of the executive and the legislation of the National Assembly can be seen as the limitation of stare decisis on the court being extended by structural necessity to the co-equal branches. If all the three branches are co-equal and co-sovereign, and yet one branch is bound by precedent, by necessity that constraint must also limit the co-equal branches to the extent that the court will review the other branches actions.

The place of the judiciary

In some nations, under doctrines of separation of powers, the judiciary generally does not make laws (which is the responsibility of the legislature), or enforce law (which is the responsibility of the executive), but interprets law and applies it to the facts of each case. In other nations, the judiciary can make laws, known as common law, by setting precedent for other judges to follow, as opposed to statutory law made by the legislature. The judiciary is often tasked with ensuring equal justice under law.

Time again and again, the Nigerian judiciary has come to the aid of our democracy, churning out groundbreaking judgments to sustain democracy.

Charles Hughes (1862-1948), U.S. jurist and politician, echoed these famous words, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”

The Nigerian judiciary, since the inception of democracy in Nigeria in 1999, has stood out among other arms of government. For many years the Nigerian public has been inundated with corrupt practices of members of the executive and the legislative arms, excluding the judiciary. This is why the recent brutality on the judiciary has come as a shock to the majority of Nigerians.

The National Judicial Council, which is the apex body for the nation’s judiciary, is a creation of the 1999 Constitution of the Federal Republic of Nigeria, as amended, by virtue of Section 153. The powers and functions of the NJC are clearly specified in Paragraph 21 of Part 1 of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria, as altered.

Now this

The judiciary is assigned the delicate task of determining the extent and scope of the power conferred on each branch of government, what the limits on the exercise of such powers are and the determination of the question whether any action of any branch transgresses such limits. The judiciary is the guardian of the Constitution and of democratic values.

Secondly, the judiciary ensures that every exercise of power by other organs of government is in accordance and in compliance with the requirements of Rule of Law. In Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court held that: “The Nigerian Constitution is founded on the rule of law, the primary mean- ing of which is that everything must be done according to law.”

Thirdly, the judiciary, of the three arms of government, only has the competence to supervise and review
the actions of the other two and, where necessary, declare them null and void. This viewpoint was emphasized by Fatai Williams, CJN (as he then was), in Attorney General of Bendel State v. Attorney General of the Federation & 22 Ors. (1983), 3 NCLR 1 at 40, when he held that, “Courts of law in Nigeria have the power and indeed the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural as laid in the relevant provisions of the Constitution.”

This is the more reason why judges are highly revered in the polity.

Fourthly, the judiciary adjudicates on disputes between states, between the state and individuals, between individuals and corporations or corporate entities, among others. The judiciary determines the meaning of the laws of the country.

And this…

Sounds and bites

Week after week, henceforth, this column will deliberately include short bites on some sounds and bites. It would include jokes (to soothe our aching nerves), philosophical platitudes (to redirect our steps), and scriptural quotes (to pave the way to eternity). We commence this week.

“I sold my fridge of 130K for 35K, you come back dey tell me say the fridge dey shock. The price no shock you.”

– Anonymous

“To all husbands, 2 very important tips for a happy married life:

#1. Keep quiet when your wife is talking.

#2. Don’t talk when she is quiet.” – Anonymous

Thought for the week

“ON the mountains of truth you can never climb in vain: either you will reach a point higher up today, or you will be training your powers so that you will be able to climb higher tomorrow.”

(Friedrich Nietzsche)