Is The Judiciary Really The Weakest Arm Of Government?

BY OGBA KENDRICK PELA; ESQ

The American Politician and Legal scholar Alexander Hamilton released a plethora of essays popularly termed “The Federalist Papers” on May 28, 1788 written to galvanize the ratification of the United States Constitution. In these Federalist Papers, political issues, legal doctrines and governmental powers were major topics that were expatiated viz-a-viz their subsequent consequences. Federalist Paper Number 78 titled “The Judiciary Department” comprehensively expounded the nature of the judicial arm of government. In his paper, Alexander Hamilton termed the Judiciary as the weakest and the least dangerous branch of government because the Judiciary lacked the vires to enforce decisions and control the wealth of the Nation like the other branches of Government. In Alexander Hamilton’s own words;

“The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment… the judiciary is beyond comparison the weakest of the three departments of power: that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”

The 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) shares similarities with the United States Constitution which provides for a tri-cameral system of government to reflect the principle of separation of power. The sacred principle of separation of power as envisaged by Baron de Montesquieu is a division of governmental powers between the three arms of government; the Executive, Legislature and Judiciary in order to uphold the principles of freedom and liberty, and to prevent tyranny and despotism. Montesquieu opined that; “Political liberty is to be found only when there is no abuse of power. To prevent this abuse, it is necessary from the nature of things that one power should check on another …. When the legislative executive and judicial powers are united in the same person or body …. There can be no liberty …. Again there is no liberty if the judicial power is not separated from the legislative and executive …. There would be an end of everything if the same person or body, whether of nobles or of the people, were to exercise all three powers.” The Nigerian constitution vests the power of the sword in the Executive branch by virtue of section 5 of the 1999 CFRN. At the federal level, the executive branch is headed by the executive president who is recognized as the head of state, head of government and commander in chief of the armed forces. The legislative branch which is the National Assembly has the influence over the purse by virtue of section 4 of the Nigerian constitution; the legislative body approves the manner in which the executive spends funds and expenditure from the consolidated revenue fund of the Nation. The National Assembly is also primarily vested with the vires to make laws for the good governance of the Nation. The constitution by virtue of section 6 of the 1999 CFRN vests the judicial powers of the Nation in the courts. The Judiciary is the third arm of government whose principal responsibility is to interpret laws enacted by the National Assembly and apply such existing law to make decision and settle disputes in the Nation. In Shell Petroleum Development Company of Nigeria Limited V Ijaw Aborigines of Bayelsa State, the National Assembly at the end of an investigative hearing resolved that S.P.D.C.N should pay $1,500,000,000 to the Bayelsa indigenes as compensation for the severe health hazards, economic hardship and sundry maladies as consequences of multiple oil spillages. When S.P.D.C.N refused to pay the compensation, the Bayelsa indigenes instituted an action against the appellant at the Federal High Court, Yenagoa seeking a declaration that the appellant was bound to comply with the resolution of the National Assembly. Aggrieved by the decision of the Federal High Court, S.P.D.C.N appealed to the court of appeal. In arriving at a final decision on the Monday, the 21st of May 2012, the Court of Appeal predicated their decision on the principles of separation of power and posited that: “The National Assembly…does not enjoy the privilege of judicial inherent powers. The powers conferred on the National Assembly by the constitution do not extend to the power to pass resolutions awarding damages or compensation…In other words, the investigative powers of the National Assembly do not extend to the exercise of judicial power…the National assembly can only exercise powers subject to the limitations placed by the constitution on the purpose for the exercise of such powers.”

The principle of separation of power aims at removing a situation whereby one arm of government wields too much power which may eventually result to tyranny, as absolute power corrupts absolutely. For this reason, power is shared between the three arms of government to create a tri-cameral division of power, so they can each carry out their different constitutional functions without encroaching on each other. However, it is observed that there cannot be a clear cut separation of power, as the three arms of government must work conjunctively for there to be good and proper governance in a democracy. This is in pari materia with the hollowed doctrine of checks and balances; the system that allows each branch of government to amend or veto acts of another branch so as to prevent one branch from exerting too much power.

The judiciary which plays an important role in checking the excesses of the other two branches exercises the hollowed doctrine of checks and balances through a special court procedure termed “Judicial Review”. Judicial review is a court proceeding utilized by the court to strike down laws, statutes and government practices which the court finds as unconstitutional and repugnant to law. Judicial review may be evoked in cases where an administrative body has acted beyond its jurisdiction, and where the body fails to conform to the rules of fairness and natural justice in its administrative practices. This principle was established in a United States landmark Supreme Court case of Marbury V Madison decided in 1803. Then US Chief Justice John Marshall while giving his opinion in Marbury V Madison stated that: “It is emphatically the province and duty of the judicial department to say what the law is.”

To address the looming elephant in the room, it is axiomatic that the three arms of government are charged with different functions and duties to oust tyranny in a democracy. The judiciary is the sacred branch charged with the sacrosanct duty of making decisions and upholding the rule of law in the Nation. This means that the Judiciary functions to pronounce judgments and not enforce judgments, as enforcing judgments is beyond the constitutional powers of the Judiciary. It is rather unfairly prejudicial to say the judiciary is the weakest branch of government because it lacks the power of enforcement as that power belongs to the executive branch and not the judiciary. It is also highly imbalanced to say the judiciary is the least dangerous branch because it does not have the power over the purse of the Nation as the legislature is charged with the duty of controlling the funds of the country. When one calls the judiciary weak for these unconstitutional reasons, that is tantamount to saying the executive is weak because it does not have the power to pass laws which is the duty of the legislature, or rather the legislature is weak as the legislature does not possess the power to nominate appointees for the offices of ministers and chief justice of the federation which is the duty of the executive president. These are completely non sequitur statements and serious blunders in reasoning, as a body is not weak because it cannot do what it is not meant to do. Nemo dat quod non habet! The powers of the government are distributed equally between the organs of government causing a tri-cameral governmental system, to prevent Hitlerism, Stalinism, Abachaism, tyranny and despotism. To wit, the three branches are co-equal and are all supreme in their acting capacity and performance of their constitutional duty as it is very possible for the existence of different supreme authorities acting conjunctively to achieve a common goal, as it was the same Alexander Hamilton during the constitutional convention of 1787 that said; “To say that “there cannot be two Supremes” is curious sophistry. That two supreme powers cannot act together is false. They are inconsistent only when they are aimed at each other or at one indivisible object…These supreme laws may act on different objects without clashing; or they may operate on different parts of the same common object with perfect harmony.”
The supremacy of the Judiciary is becoming more evident in the 21st century because of its involvement in civilization than any other branch of government. The caliber of cases that reaches the court today mirrors man’s desire for improved liberty, as US Chief Justice Roberts put it “We do seem to be getting more and more involved in every aspect of society in a way that would have been surprising to the framers of the constitution.” Through the judgments of the courts both globally and in Nigeria, schools have been desegregated, racial and gender discrimination has been systematically eradicated and the majority of the rights of the people have been protected through the institution of the judiciary; the judicial philosophy of judicial review and judicial activism. The Nigerian Federal High Court, Port Harcourt in a landmark case of Dr. Priye Iyalla Amadi V Director General of the Nigerian Immigration Service in 2009, utilized judicial review, to strike down the administrative practice of the Nigeria Immigration service which compelled a married woman to produce a letter of consent from her husband as a condition for issuance of international passport. Justice G.K Olotu made a declaration stating that the requirement for processing of application for international passport as it concerns married women violated section 42(1)(a) of the 1999 CFRN as being discriminatory on grounds of sex. In Muslim Students’ society of Nigeria V Government of Lagos State, the court of appeal, Lagos division in a unanimous decision in 2016 set aside the judgment of a Lagos state high Court which prohibited female students in Lagos state primary and secondary schools from putting on hijab with their school uniform. Justice A.B Gumel in his opinion held that the use of hijab is an Islamic injunction and also an act of worship, hence prohibiting the Muslim students from wearing hijab will constitute a violation of the appellants’ constitutional right of religion and freedom from discrimination enshrined in section 38 and 42 of the 1999 CFRN respectively. In Olisa Agbakoba V Federal Government, the Federal High Court in 2018 held that the executive president cannot concurrently hold and occupy the office of a minister or any paid employment as such act constitutes a violation of the constitution.

It is not gainsaid that an office that voids and nullifies the acts of another must be in a higher authority to exercise this power as Alexander Hamilton in his federalist number 78 paper says: “It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.” It is non sequitur for Alexander Hamilton to then say the organ that declares what is constitutional and what is not, is the weakest because it does not have power over the sword or the purse, which is beyond the judiciary’s constitutional powers. When a judiciary is said to be weak because they do not have power over the sword or the purse, that constitutes an affront to the principles of separation of power, checks and balances, rule of law, democracy, freedom and liberty. However, Alexander Hamilton would be forgiven because Federalist Number 78 paper was written in the 18th century, at a time when the sacred doctrines of separation of power, checks and balances, rule of law, liberty and democracy was still expanding and had not reached the level in which the empirical doctrines are being practiced today, as Wendell .L. Willkie puts it “all doctrines must expand, it must constantly search out for new areas or else it would die.” The doctrines of separation of power and checks and balances are actively alive today, but these doctrines have taken a rather different status and form from what it was in the 18th century; a century of wars, revolutions and counter revolutions. The 18th century is referred to as the “Age of Enlightenment”, a period when philosophical ideologies of previous centuries were being implemented initially on a comprehensive scale. Some other philosophers call the 18th century the “century of reason” because thinkers like John Locke, Charles Montesquieu, Jean Jacques Rousseau expatiated on the doctrines of freedom, liberty and rule of law. In the 21st Century, the Judiciary has become more independent and autonomous than the 18th century, as in Nigeria, an executive order was signed on the 20th of May 2020, by President Muhammadu Buhari seeking to make the Judiciary financially autonomous and more independent. In the 21st century, the Judiciary is now more equipped with the modern technologies and computer devices to reduce the burden and workload of the judges, to enable them exercise their decision making power in their best capacity. Some of these new innovations in the courtroom may include video conference, remote witness testimony, projectors, electronic storage of exhibits, recorders, annotation monitors, VCR/CD/DVD Player, et cetera.

A Judiciary should not be termed weak because it cannot exercise powers that are not constitutionally given to it, the judiciary it is not weak because it lacks enforcement powers and powers to control the funds of the country. Rather, a dispassionate thinker would say the judiciary should be considered weak if they fail to carry out their primary duty of upholding the rule of law.

A corrupt judiciary is the weakest branch of government. In a democracy, where justice goes to the highest bidder and the judges are identified with corrupt practices, the people begin to lose trust over the judiciary and the government in total. It is the inclination and predisposition of the people towards the judiciary that determines the weakness or the strength of the judiciary in a democracy. When the people of a country begin to express genuine cynicism over the judiciary, indeed that judiciary in the words of Alexander Hamilton “is beyond comparison the weakest of the three departments of power.” Corruption is the adversary of the rule of law, and judges that auctions justice are worse than the people that steal, kill and destroy. In the words of the “Socrates of the Nigerian Supreme court” Justice Chukwudifu Oputa “Money, they say is the root of all evil. The bench is definitely not the place to make money. A corrupt judge is thus a great vermin, the greatest curse ever to afflict a nation.”

However, it is suggested that corruption in the judiciary is not the only reason why people are dissatisfied with the judiciary. When the people are also dissatisfied with the cost of justice, with the delays and with the cumbersome and rigid technicalities involved in court proceedings, that judiciary is lethargic. Other factors considered in ascertaining a strong judiciary may include restrictions of government power, court room technological advancement, transparency of government, promotion of civil and criminal justice, judicial independence and enforcement of regulatory practices. A study puts Denmark, Norway, Finland, Sweden, Netherlands and Singapore as top countries for judicial independence and promotion of rule of law.

To summarize this essay, in a democracy where judges take bribes in exchange for verdicts of reduced sentences in criminal matters; when the people bypass the court and engage the Economic and Financial Crimes Commission in debt recovery issues and other civil matters due to the delays in the system of justice; when there is a system of justice for the rich and a different one for the poor; when the courts are not well equipped to reflect the true nature of the 21st century judiciary; when there is just one single supreme court of the federation that hears every kind of trivial issues and matters whatsoever; then that Judiciary is indeed the weakest of the three arms of government. The Nigerian courts have always been quick to strike down unconstitutional practices of the other two arms of government with the prerogative of judicial review. However, the cynical view held by the good people of Nigeria towards the Nigerian judiciary remains the fly in the ointment.

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