How did the court, and so the judiciary, come to be seen as the proverbial “last hope of the common man” and woman? How could it earn that distinction when the law which it interprets is, perhaps, the most effective weapon of domination of the poor and weak by the rich and powerful?
How did the court, and so the judiciary, come to be seen as the proverbial “last hope of the common man” and woman? How could it earn that distinction when the law which it interprets is, perhaps, the most effective weapon of domination of the poor and weak by the rich and powerful?
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The law, needless to say, is more often than not written and enforced by the rich and powerful, a historical fact captured by that cynical expression “might is right.” The answer lies, I think, in the one legal maxim that best describes the evolution of law as a tool of social engineering. Ubi jus, ibi remedium. The ornate Latinate means, Where there’s a right, there’s a remedy. In the midst of the shame and opprobrium brought on the judiciary by the recently retired chief justice, Aloysius Katsina-Alu, with the active connivance of President Goodluck Jonathan, we may very well re-write that maxim for special application to Nigeria as Ubi jus, ibi briberium. Or, where there’s a right, there’s a bribe. We can take the liberty since Latin is a “dead” language.
In the ugly sequence of events that led to this judicial show of shame, one word, corruption, sums up the accusations levelled against Katsina-Alu by the now suspended president of the Court of Appeal, Justice Ayo Salami. That the motto of the justices of our courts has effectively become “money for pocket, judgement for hand,” making it inseparable from the prostitute’s credo, is something well understood by every Nigerian who knows the cost of justice as of yam and fish. But if you ponder the idea of a remedy for every right, you must wonder if there is any other abstract concept more democratic and humane. Other than the claim that all human beings are equal in individual rights and liberties, I can’t think of another more powerful and which must allow no derogation or qualification. This idea of universal justice is the original impetus behind the principles of equity which did away with the horrors of the common law. This barbaric phase is mostly unknown to the twentieth century, never mind the twenty-first. But you will get a glimpse of the evil it unleashed without remorse in Shakespeare’s The Merchant of Venice and in the grim pages of Charles Dickens’s novels. The stylised macabre drama of Shylock’s unconscionable desire to cut a pound of flesh from Antonio’s breast closest to his heart paints, perhaps, the most accurate picture of the unconscionable role of law without morals in any society. And the withering face of law would forever make leering faces at Dickens who was permanently scarred by the experience of entering debtor’s prison as a boy with his father, hence his undying effort to expose its countless inhumanities.
Yet, imagine the material force of the idea of a remedy for every wrong, every breached right. It is the kernel of the concept of natural law, as opposed to positive or man-made law, wherein the former is seen as founded in our irreducible integrity as human beings because it accords with reason and morality, and the latter deemed the embodiment of the vices and prejudices of “man.” In this dualism, natural law is good and universal; positive law, such as emanates from potentates and parliaments, bad and limited. To attain the lofty goal of the former, one must be forbidden to be a judge in one’s own cause, and be strictly enjoined to always hear the other side before pronouncing judgement. Lawyers and lay-persons alike know these injunctions even in Latin: Nemo judex in causa sua and Audi alteram partem.
So fundamental is impartiality to justice that the courts set an extremely high standard of bias. Thus, it is not enough to say that justice has been done; it must be manifestly seen to have been done. Here’s the fine but crucial point: the actual rendering of justice is not the same thing as the perception that justice has been done. For an unflattering truth of human existence is that perception very often trumps reality. This is the point so memorably depicted by Guy de Maupassant in his classic short story, “The String,” where a man erroneously accused of theft tragically fails to restore his name despite copious evidence absolving him.
And it is the point famously established nearly one hundred years ago in the case of R v Sussex Justices, Ex Parte McCarthy. The simple question raised on appeal by the applicant was whether the mere fact of the clerk to the lower court justices being also a member of the firm of solicitors in a civil claim against the applicant arising out of the charge of dangerous driving that had given rise to his prosecution was enough to establish bias. As his duty demanded, the clerk had retired with the justices who had subsequently found the applicant guilty. Worthy of note is the fact that bias was not alleged against any of the justices. Shouldn’t that have sufficed to make the conviction stand?
Famously, the appellate court said no. It ruled that the clerk’s involvement in the case created a perception of bias and so quashed the lower court’s conviction. It was a landmark decision whose rationale led to the imperishable words of Lord Chief Justice Gordon Hewart. I will end this piece with a long quotation from the judgement and a short comment. “It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way,” said Hewart. “But while that is so … it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. … “[The clerk’s] twofold position was a manifest contradiction.”
The question every reasonable person asks in the light of Katsina-Alu’s parting gift is this: could the National Judicial Institute, custodian of legal propriety, and could the said Chief Justice (as he then was) who chaired the body, have been unaware of this stern standard? The issue of a pending court case aside, could there be a clearer instance of a suspicion of bias than the chief judicial officer of a country presiding over a disciplinary process in which the person to be “tried” is his accuser? In a related case, one that could have been a local reminder if the 1924 English case was too distant —Legal Practitioners Disciplinary Committee v. Gani Fawehinmi of 1985 — one of Katsina-Alu’s more learned predecessors described the expected result of such an exercise as a case of “come quickly to your assured condemnation.”
Or maybe it wasn’t that the retired CJN was not aware of his acute conflict of interest, seeing that he took care to act a minute before retiring from his powerful office. He had simply sought to give his seal of approval to the perversion of the maxim of universal justice, so that judges on the low and high benches in Nigeria can henceforth sell justice to the highest bidder without shame or remorse., for where there’s a right, there is a bribe.
Ifowodo, poet, writer and lawyer teaches poetry and literature at Texas State University in the United States.
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