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JUSTICE IS WHAT THE PEOPLE SAY

By Abraham Ogbodo

I have known Dr. Reuben Abati almost from the cradle. We were not only in the same university but also in the same department. When he was leaving the University of Calabar in 1985, he had in his bag all the prime prizes. The best graduating student of the University, which meant he was also best in the Department of Theatre Arts and the Faculty of Arts. I can, therefore, say without fear of being contradicted that he is not pretentious. He is brilliant and intellectually loaded to the brim. He left two years ahead of me, which does not in any way suggest he is older. He was apparently faster and more brilliant. His law degree at the Lagos State University was a latter-day addition after he had earned his PhD from the University of Ibadan and, in fact, was already on the Editorial Board of The Guardian Newspaper.

  Of late, however, Dr Abati has been projecting rather too forcefully his legal background on the Morning Show programme on Arise TV, which he co-anchors with two others. He gets tutorial and even magisterial as he pushes through all the fine points of law when the occasion calls for it. He was at his best last Friday following the Supreme Court’s affirmation of the election of President Bola Ahmed Tinubu in the February 25 presidential election and dismissal of the appeals of the PDP and LP candidates, Alhaji Atiku Abubakar and Mr Peter Obi the day before.

  Altogether, Abati sounded as if the law is not also common sense. As if procedural law is sacrosanct and no matter the weight of evidence, a procedure cannot be overtaken to lay substantive claims or facts. He was kind of saying the law is independent of truth, and even if justice is not served in the process, but the law is duly followed, the outcome should be applauded to the high heavens. This is taking the Realist School of Jurisprudence too far. The school that says law does not have to go on an endless excursion for meaning beyond what the court says. It is best captured in the words of an American jurist Oliver Wendell Holmes that: “The prophesies of what the courts will do, and nothing more pretentious are what I mean by the law.”

  It amounts to open acceptance of the tyranny of the court, however, on the fundamental assumption that the operating and human agent in the court system is rational and far from being a tyrant. That way, the court, for instance, will not say crime, without punishment, should be statue-barred or vitiated by the mere passage of time and a very short time, for that matter. Such is the consolation and, indeed, the intention of the realist school. It was not propounded to lead the court into a web of legalese and reverse its very essence as the temple of justice. 

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  If I may ask, what is the law if it does not serve the purpose of justice or the hopes of the people? No jurisprudence aspires higher than the aspirations of the people or subordinates justice and morality to law. Law itself fails woefully if it only massages the intellect and ceases to be an instrument for social justice. The Supreme Court in any legal system is beyond reproach. It can only fine-tune itself. Beyond it, no legal arguments stand. Its role in jurisprudence is enormous, and it does not include the convenience of hiding behind procedural infractions to obfuscate substantive law and justice. On the contrary, the Supreme Court is remarked for its boldness to rise up to the exigency of changing the position of the law to serve justice and the hopes of society.

  The strongest reference point in jurisprudence today, Lord Alfred Thompson Denning, did not ascend that height by just running with extant codes. Real jurists are defined by their audacity to push the frontiers of substantive law and morality to enrich Jurisprudence. They do not mark time forever upholding the law, even when the law has become anachronistic and a clear affliction on society. Needless to say the majesty of law is in its inherent dynamism to translate to justice. For, in truth and as noted by Lord Denning; “law is not an end in itself but a means to achieving a fair and harmonious society.” It is also not some technical game to be manipulated for personal advantages by experts but a “force to be applied with wisdom and compassion” by the sitting judge to serve society.   

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  I also heard Dr. Abati saying public opinion does not matter in law. Really? The thing about law is that it is 110 per cent intellectual intimidation and posturing. Whoever holds the high end in sheer sophistry and pedantry also stands on a high ground in real advocacy. Whereas the law may have just an intention, what makes it an interesting practice is the nearly infinite capacity of its practitioners to create intentions and intrigues to detract from the real intention.  From where does common law, including written and codified law, derive if law is so insulated from its human setting?

The truth is that such legal maxims can only stand firm if other things remain equal. If, in any context, the ratio decidendi, that is, the reason for the judgment, repudiates facts and common sense and instead celebrates methodology or even mediocrity, public opinion will rise irrepressibly like the morning sun whether you like it or not. The position is that public opinion matters and there have been reviews of case laws on the strength of public opinion alone. For instance, the M’Naghten Rule, which set the test for the defence of insanity in criminal responsibility, especially in a murder charge, was forced by public opinion.

  The views of Dr Abati were to receive huge validation by Chief Robert Clarke (SAN), who was on the Arise TV Morning Show programme last Friday to specifically discuss the Supreme Court’s decision of the previous day. Abati must have felt within himself like the first and only winner of the Nobel Prize in Jurisprudence as Papa Clarke loaded him with encomiums for a job well done. The only additional point made by the old lawyer was the call for the reordering of the statutory framework so that elections can be decided by the electorate in the polling booths and not in courtrooms by judges. Excellent point, I must say.

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  As God would have it, while Abati and the old lawyer were in the television studio engaged in a rigorous post-ruling advocacy to dress up the Supreme Court, an old Judge, Justice Musa Dattijo Muhammad, who retired after 36 years on the bench, 11 of which were spent in the Supreme Court, was reading his valedictory speech to dress down the Supreme Court. Details of the speech are too heavy to fit into this purpose. It is, however, important to note that Justice Dattijo is more than just an eyewitness. He was an active participant. He was the second longest-serving Justice of the Apex Court and next to the Chief Justice of Nigeria (CJN) Olukayode Ariwoola. The balance of probabilities tilt heavily in his favour.

  It was like the Supreme Court was put on trial in the court of public opinion, and while Abati and the old lawyer appeared for the Supreme Court (I will resist using ‘defendant’), the old judge appeared for aggrieved Nigerians. The thesis and antithesis are in search of a synthesis. The verdict lies both in history and posterity.

Abraham Ogbodo is the former editor of The Guardian newspaper in Nigeria.

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