Election and Defection: Who Owns the Votes? (Part 5)

Judicial Activism vs Judicial Rascality (Continues)

Introduction 

Defection of a political nature, seems to have become a recurring decimal in Nigerian politics. It is a practice that predates our independence as a country. While it is true that politicians have the fundamental right to freedom of association, it is still pertinent to note that, certain rights come with some limitations. Scholars have continuously agitated for the enactment of proper laws that will curtail the rate of political defections, but this has not been addressed as defections are still on the rise. It is on this premise that we shall continue our examination on this vexed issue, having started with judicial activism vs judicial rascality.

One major significant pronouncement in the case of SENATOR SONI OGBUOJI & 2 ORS v ENGR. DAVID NWEZE UMAHI & 2 ORS (supra) decided by the Court of Appeal, Enugu Judicial Division is that even in the case legislator’s defection, as held in ABEGUNDE v ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR -24588 (SC), the consequential order a court shall make to ensure defectors suffer the consequences of their act of defection, is the loss of their seats. In the case of a “non-fractured party, it is for by-election to be conducted. It is not for their vacated seats to be allocated to either the political party, or the runners up at the election”. This point is recondite, as it has not been brought before now, even though it is expressly provided for in the Constitution. Indeed, analysts had not even carefully studied Section 68(2) and 109(2), which have to be first activated before a legislator loses his seat. Both sections emphasise the point that the President of the Senate, Speaker of the House of Representatives, or Speaker of a House of Assembly, or even a member “shall first present evidence satisfactory to the house that any of the provisions of that sub section has become applicable in respect of that member”.  Thus, the relevant House must be fully involved, concur and activate the removal; it is not a court of law that carries out the removal.

What is Judicial Activism?

I am a Judicial Activist. I believe in creative thinking of Judges, but within the confines of the rule of law. I love Lord Denning (MR) to no end. He was the greatest exponent of judicial activism. He is considered to be the father of judicial activism. He is my idol.

The meaning of judicial activism can be distilled from the famous statement of Lord Denning (MR) himself in PARKER v PARKER (1954) All E.R. 22, where the unforgettable Jurist made the following immortal statement:

“What is the argument on the other side? Only this, that no case has been found in which it has ever been done before. The argument does not appeal to me, in the least. If we never do anything that has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on; and that would be bad for both”.

Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law, to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that Judges make rulings based on their own views, rather than on precedent. The definition of judicial activism and the specific decisions that are activist, are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers. 

Arthur Schlesinger Jr. was said to have introduced the term “judicial activism” in a January 1947 Fortune Magazine article titled “The Supreme Court: 1947”. 

Even before this phrase was first used by Schlesinger, the general concept already existed. For example, Thomas Jefferson in one of his Federalist papers, had referred to the “despotic behaviour” of Federalist federal Judges, in particular, Chief Justice John Marshall. 

Dictionary defines judicial activism as a “philosophy of judicial decision-making, whereby Judges allow their personal views about public policy, among other factors, to guide their decisions.” 

The online Glossary of Political Economy Terms states that judicial activism means Judges “should creatively (re)interpret the texts… to serve the Judges’ own considered estimates of the vital needs of contemporary society” and “should not hesitate to go beyond their traditional role as interpreters” of the law. Therefore the Judges, instead of only the elected representatives, can serve as society’s “independent policy makers”.

The 5th edition of Black’s Law Dictionary sees it as it amounts to a Judge “departing” from strict adherence to judicial precedent, in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges.

Recent definitions tend to ascribe a more negative connotation to the term “judicial activism”. The seventh edition of Black’s Law Dictionary (1999) defines it as when Judges use “their personal views about public policy” in their decisions and, in so doing, actually “ignore” precedent (as opposed to “depart from” it, the more benign phrase which was the earlier choice of the fifth edition).

Alexander Hamilton, one of the Constitution’s framers, discussed the role of the Judiciary in “The Federalist Papers No. 78.” Using terms like “judicial discretion” when describing the Judiciary’s duties, he explained “interpretation of the laws is the proper and peculiar province of the courts… It therefore, belongs to them to ascertain (the law’s) meaning”. If it is the ultimate duty of the court to have final say in matters of legal interpretation, then how can one fault the court for having the final say by interpreting as it sees fit”?

Hamilton thus, laid out the principle of judicial review as defined by Encyclopaedia Britannica, as the “power of the courts of a country to examine the actions of the legislative, executive and administrative arms of the government.”

This indeed, closely mirrors the notion of “judicial activism”, which refers, in essence, to rulings “handed down by the courts that invalidate, rather than merely interpret, congressional legislation”. 

Indeed, judicial review is regarded by some as one of the United States’ legal system’s “distinctive features”, as a Findlaw article analysing the establishment of United States’ judicial review says, and there is essentially unanimous agreement among legal scholars particularly given its formalisation in the 1803 landmark case Marbury v Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), that the Judiciary has the ability to exercise its strong hand in all grey areas of government.

Additionally, some contend that every Judge is an activist Judge in his or her own way. Some even argue that Supreme Court Associate Justice Scalia, one of the country’s most ardent opponents of judicial activism, is a judicial activist. Even U.S. Supreme Court Justice, Stephen Breyer, had championed a freer judicial activity. He advocated in his book “Active Liberty: Interpreting Our Democratic Constitution” for personal interpretation of the Constitution, as opposed to passive acceptance of the status quo. He argued that the court is obligated to advance “political rights of minorities and look beyond the Constitution’s text when necessary”. This is judicial activism.

A major argument against judicial activism is that an umpire does not create new rules when there is a new play, but, rather, only applies the existing rules of the game when making calls. So, according to this view, should Judges avoid any semblance of creativity and disregard their personal views and idiosyncrasies when applying the law.

Since judicial activism often entails the overturning of precedent, it often violates the principle of “stare decisis” which bounds the courts to follow precedents. It could therefore, be abused. Where there exists too much judicial activism, court rulings might eventually become unenforceable, or at least much less respected; and that would hurt the rule of law.

Many people have therefore, called for “judicial restraint”, usually regarded as the opposite of judicial activism. There are many reasons for this; representative democracy of the people, requires that the Court, an oligarchical body, should proceed slowly in imposing its own social, economic, or political views upon the whole people under vague doctrine of judicial activism.

The values of a federal system provides for decentralised decision- making through Federal, State and Local governments. This must therefore, require the Court, a national body, to proceed slowly and consciously in using in using vague constitutional phrases to set aside Federal, State or local laws in favour of whimsical and capricious assumptions. 

Proponents of judicial self-restraint also argue that, an accumulated body of wisdom expressed in age-long precedents and other sources of law which had been built up step by step by Judges and constitutional customs over the years, are a preferable and better guide to the wise resolution of constitutional questions, than the individual and whimsical views of one Judge or even a majority of Judges. Perhaps, the most important of these arguments is the need to ensure effectiveness of the rulings of the judicial institution (which is unelected), and is charged with enforcing constitutional limitations against the popularly elected executive and legislative branches. The Judiciary lacks the power of the purse or the sword (Alexander Hamilton Federalist Paper No 78). It must therefore, only rely upon the power of legitimacy, the capacity to evoke uncoerced assent and strong public support.

One of the greatest criticisms of judicial activism, charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy. However, pro-judicial activists argue that, in many cases, it is a legitimate form of judicial review and that the interpretation of the law must change with changing times. 

The United States Examples of Judicial Activism

Judicial activism has been very active in the United States, as can be gleaned from the following cases 

1.BROWN v BOARD OF EDUCATION, 347 U.S. 483 (1954): This is the 1954 Supreme Court ruling, which ordered the desegregation of public schools. 

2. RO E v WADE, 410 U.S. 113 (1973): This is the 1973 Supreme Court ruling, which created the constitutional right to abortion.

3. BUSH v GORE 531, U.S. 98 (2000): This was the United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The Justices voted 5–4, to halt the recount of ballots in Florida. This resulted in George Bush being chosen as President. 

4. KITZMILLER v DOVER AREA SCHOOL DISTRICT, 400 F. Supp. 2d 707 (M.D. Pa. 2005): This 2005 Supreme Court decision, declared that intelligent design is not science.

5. CITIZENS UNITED v FEDERAL ELECTION COMMISSION, 558 U.S. 310 (2010): This is a US 2010 Supreme Court decision declaring congressionally enacted limitations on corporate political spending and transparency, as unconstitutional restrictions on free speech. 

6. OBERGEFELL v HODGES, 135 S. Ct. 2584 (2015): In 2015, the Supreme Court in this case declared same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment. 

7. JANUS v AFSCME, No. 19 – 1553 (7th Cir. 2019): This is a 2018 Supreme Court decision, which addressed whether unions can demand dues from all workers who benefit from collective bargaining agreements. This decision overturned the 41-year-old precedent of Abood v Detroit Board of Education.

8. DEPARTMENT OF HOMELAND SECURITY v REGENTS OF THE UNIVERSITY OF CALIFORNIA, 140 S. Ct. 1891, 1896 (2020): This is a 2020 Supreme Court decision addressing whether the Department of Homeland Security under President Donald Trump, had the authority to dismantle the Deferred Action for Childhood Arrivals program initiated by Executive Order under former President Barack Obama. (To be continued).

THOUGHT FOR THE WEEK

“Winning or losing of the election is less important than strengthening the country”. (Indira Ghandi)