EXAMINE THE ROLE OF JUDICIARY ON ANY DEMOCRATIC SOCIETY

EXAMINE THE ROLE OF JUDICIARY ON ANY DEMOCRATIC SOCIETY

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INTRODUCTION

The judiciary is the foundation upon which democracy grows and develops. This is so because the judiciary is the only organ that deals with the administration and dispensation of justice in any democratic nation. Because of its importance in human society, it behooves on those who are entrusted with the dispensation of justice to be guided by the principle of truth and morality. It is a major feature of a democratic system of government it interprets laws that are made by the legislative branch or those that are made on the authority of the legislature. The existence of a judiciary in a democratic government is justified by the Principle of Separation of Powers which states that personnel who make laws should be separated from those who implement those laws; those who implement the law should be separated from those who interpret laws. This principle of good governance is expected to prevent dictatorship and arbitrary rule (Abdulhameed 2013). This is to enable Checks and Balances which states that the mere separation of powers is not enough. A system of checks and balances was introduced to check power with power and ambition with ambition. This is the process of supporting principles with institutional arrangement, which is necessary because of the natural tendency of human beings to abuse power. The Judiciary exists in a non-democratic government like the military regime or an autocratic civilian rule. What distinguishes judiciary in a democratic rule from that of nondemocratic one is its independence to interpret the provisions of the law which are made by legislative houses (Abdulhameed 2013).

The judiciary in Nigeria evolved in the colonial period though a gradual constitutional development. At the time of independence in 1960, the judiciary was consolidated in its present form with a mixture of English Common Law, Sharia Law and Customary Law. A constitution based on a parliamentary model was introduced in 1960 when Nigeria formally became an independent state. It was amended in 1963 when Nigeria attained the Republican status. Democratic rule was aborted with the military intervention in 1966 which marked the beginning of an end to judicial independence. The military suspended the constitution but allowed the judiciary and existing laws to continue to exist. New laws were made with decrees at the federal levels and edicts at the state levels. The independence of the judiciary was not protected as litigations were decided according to the language of the military junta called degrees and edicts. The celebrated midnight decision on the 1993 Presidential Election is a good example. The judiciary had to struggle to restore its image when democratic rule was restored in 1999.This was not easy as other negative tendencies emerged (Abdulhameed 2013). 

It is a plain truth that Nigerian courts of justice have varying operational difficulties, ranging from inadequate infrastructure, insufficient of judicial and non judicial personnel, debilitating delay in hearing and determination of civil, criminal and electoral cases and appeals, inadequate emolument, and lack of a reliable research resource to decide cases. The Judiciary is also beset by serious ethical problems, including an increasingly nepotistic mode of appointment of judges and elevation to the higher judicial benches, and cases of corruption and perversion of justice (Ogunye 2011). More disturbing is determination of election petitions and general litigations relating to  the investigation, arrest, detention or trial of prominent members of the political class, for corrupt practices, have offered the worst instances of judicial corruption, in the World. Openly, eminent jurists and senior citizens are decrying the situation whereby corruption is eating deep into the heart of the Judiciary (Ogunye 2011). 

Undoubtedly, the prevailing mood among members of the less privilege is that something needs to be done to placate the situation. In the absence of an institution that carries some moral authority and modicum of credibility, like the military in the past, the Nigerian judiciary in contemporary society has not help matters in rescuing the masses from corrupt politicians.  It is not therefore surprising that the judiciary, through the elections tribunals, have here and there intervened to assist some Governorship and Parliamentary elections, including that of the third person in the hierarchy Nigerian, Senate President, David Mark was alleged to have lost election since the beginning of this democratic dispersions’. The Judiciary in Nigeria has manifested inability to contribute to the development of democracy in contemporary society through perpetrating electoral malpractices of corruption, making a lot of people to belong without to genuinely following the due process of going to tribunal to pursue their electoral victory, with false declaration leading to violence which often kills democracy. It is in the light of the forgoing that this paper periscopes on judiciary and democracy in Contemporary Nigerian Society.   Conceptual Clarifications

Judiciary

Wikipedia, the free encyclopedia (2013) denotes the judiciary (also known as the judicial system) as the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the “Supreme court” or “Constitutional court”), together with lower courts.

Regarding this paper the word “Judiciary” is defined as the court of a country. It is the branch of Government vested with judicial powers. It is generally regarded as the third arm of government. The function of the judiciary is the interpretation of the laws enacted by the legislature. 

DEMOCRACY 

There seems to be a great confusion what the word democracy means. In spite of the fact that at least in some parts of the world, one can hear it from the media every day. According to Wikipedia, the Free Encyclopedia (2013) democracy is a form of government in which all eligible citizens participate equally either directly or through elected representatives in the proposal, development, and creation of laws. It encompasses social, economic and cultural conditions that enable the free and equal practice of political self-determination. The term originates from the Greek (dēmokratía) “rule of the people”, which was coined from δῆμος (dêmos) “people” and (kratos) “power” or “rule” in the 5th century BCE to denote the political systems then existing in Greek city-states, notably Athens; the term is an antonym to (aristocratie) “rule of an elite”. Kolar, (2005) on the other hand defined democracy as the government by people. That means that all the people should be able to have their say in one way or another in everything that affects their lives. Dictionaries usually say that this right can either be exercised directly (by every member of a community having the possibility to enter personally, without mediators, his position on a particular issue into the decision making process,  modern technology is able to provide this possibility for increasingly larger and larger communities), or through representatives (members of legislative bodies). Democracy is the form of government of the people, by the people and for the people, as popularized by Abraham Lincohn, a onetime American president. 

Hughes and Kroehler, (2008) define democracy as a political system in which the powers of government derive from the consent of the governed and in which regular constitutional avenues exist for changing government officials. It is an arrangement that permits the population a significant voice in decision making through the people’s right to choose among contenders for political office, allows for a broad, relatively equal citizenship the populace, and affords the citizenry protection from arbitrary state action. Most democratic nations are characterized by representative democracy officials are held accountable to public through periodic elections that confirm them in power or replace them with new officials.  However democracy in Nigeria is not distinguished from military regimes by the absence of powerful officials, and for the most part democracy is not characterized by the rule of the people themselves. In Nigeria for instance there is no face to face participation and decision making by citizens even when citizen are denied of their rights and they seek redress to justice they are not often giving a fair judgment over their will.

Society

The term “society” came from the Latin word societas, which in turn is derived from the noun socius (“comrade, friend, and ally”; adjectival form socialis) used to describe a bond or interaction between parties that are friendly, or at least civil. The term society is refers to the entirety of humanity although those who are unfriendly or uncivil to the remainder of society in this sense may be deemed to be “antisocial”. Adam Smith wrote that a society “may subsist among different men, as among different merchants, from a sense of its utility without any mutual love or affection, if only they refrain from doing injury to each other (Asa 2000).

A society is a group of people involved with each other through persistent relations, or a large social grouping sharing the same geographical or social territory, subject to the same political authority and dominant cultural expectations. Human societies are characterized by patterns of relationships (social relations) between individuals who share a distinctive culture and institutions; a given society may be described as the sum total of such relationships among its constituent members. In the social sciences, a larger society often evinces stratification and/or dominance patterns in subgroups. The simplest definition of society is a group of people who share a defined territory and a culture. In sociology, the definition of society is the social structure and interactions of group of people. Social structure is the relatively enduring patterns of behaviour and relationships within a society (Merton1938). Thus, a society is not only the group of people and their culture, but the relationships between the people and the institutions within that group exist.

THE ROLE OF JUDICIARY ON ANY DEMOCRATIC SOCIETY

The judiciary organ of government plays important role in serving as the, last hope of a common man in the society. In this article, I am going to explain as many of its functions that I could.

1. Judiciary Gives Justice To The People

Among the functions of the judiciary is to give Justice to the people, once the people seeks its intervention. Most importantly, judiciary will always awards punishment to those who rightly deserve   after they might have  tried and found guilty to have violated the laws of the state or infringed on the rights of the members of the public. As a last resort to a common man, members of the public who are aggrieved  can always go to the courts and seek redress and possibly compensation.

This happen however, when there is fear of someone trying to harm them or infringe on their rights or in the other situation, when they have considered themselves of suffering any loss caused by someone or an institution. Judiciary functions in giving justice to the members of the public who deserve it, it goes as long as awarding punishment with respect to type of crime committed. Judiciary determined the quantity and quality of punishment for those who violate the law, as well as decides cases that has to do with granting of compensations to the members of the public.

2. Judiciary Interprets and Applies Laws

Another functions of the judiciary is the interpretation and the application of laws to all cases. We are in the know that, judiciary disputes and as well, decides on cases brought before it. In the course of doing this, the judges can be said to  have  interpret and apply laws.

The major function of the judiciary is to interpret law, therefore, all laws at its disposal deserve to be propely interpreted and as well, applied accordingly to all cases. This aspect of judiciary function is done by the judges, and what the Judges called law or what Judges interpreted is what that stands as law.

3. Judiciary Makes Law

The judiciary also play a part in the making of law or law-making. This happen as a result the decisions given by the court of law. Decisions taken by the court to some extent do influence the meaning or determine the scope and the nature of laws the Legislature passed. The act of interpreting laws by the judiciary is what really account to what I mean by law-making by the judiciary, because it is its interpretations that eventually defines what laws are.

Moreover, why do I say that, judiciary makes laws. The reason is obvious. When the higher court, which is also known and called the court of record, when it deliver judgements, its judgements are binding upon the lower courts. The lower court can decide the cases brought to it based on those decisions already made by the higher courts. That is why, it is the Judicial decisions that really constitute a source of law made by the legislature.

4. The Role of Equity Legislation

Sometimes, the law do seems to be inconsistent with some of the laws. In other words, laws could be ambitious, that is to say that the laws are silent, and in such cases, it is incumbent on the Judge to bring in his wisdom.

This is where the Judge’s sense of honesty, fairness, justice and impartially is necessary to decides on the case. Sometimes, in the cause of deciding on such cases, the Judge will indirectly involved himself in the process of law making. That is why it is called equity legislation.

5. Judiciary Protects People’s Rights

The judiciary is vested with the power of safeguarding the rights of the Nigerian citizenry. That is its supreme responsibility as the third organ of government. In the case, where the citizen’s rights is threatened, or maybe, violated by whoever, the individual has the constitution right as a Nigerian citizen to seek his protection from the Nigerian judiciary, because one major function of the judiciary is the protection of the rights of the Nigerian citizens, even foreigners, since it has to do with human rights.

6. Judiciary Is The Guardian Of The Constitution

We are told that, the judiciary’s responsibility is to interpret laws. Since it interprets laws, it is also incumbent on the judiciary to protect the laws it interpret hence, the judiciary, being an arm of government, has a responsibility of guarding the Nigerian constitution. It acts as a guardian to these laws.

That is why it is also incumbent on the judiciary to embark on judicial review over some of the Nigerian laws with a view to ascertain whether or not such laws are in accordance with the spirit of the Nigerian constitution. Having reviewed such laws and found out that they are unconstitutional, the judiciary can rejected these laws and the laws will remain invalid, even in the future. This is one of the power vested in the judiciary, and the court referred to this power as the ‘power of judicial review’.

7. Judiciary Get Its Decisions And Judgements Enforced

Apart from interpreting laws, disputes cases and deliver judgements, judiciary is empowered to ensure that its decisions and judgements are enforced. It has the constitution rights to ask the Executive arm of government to respect its decisions and as well, direct it to carry out same.

Besides before the judiciary deliver judgements, it has the rights to summon whoever, should it needs to know the truth from whoever concerned.

Be that as it may, in any case where an individual is guilty as a result of not following the decision laid down by the court, or taking actions considered to be against the direction given by the court, or attempting to mislead the court, or discarding the court summon by refusing to appear before the court as the case may be,  the court, with its power can punish the fellow for what the court described as the ‘contempt of court’.

8. Judiciary Special Role in a Federation

The judiciary has more vital role to play, where a federal system of government is practice, such as the Nigerian situation. This role include, guarding the constitution and as well as arbitering disputes involving say, the federal and the state governments.

As an organ of government, the judiciary in this case is considered as an umpire, where it acts impartially and independently between the federal government and the state governments as the case may be. Every dispute involving the federal government and the state government is settled by the judiciary arm of government.

9. Judiciary Runs The Judicial Administration

The judiciary is known as the third arm of government hence, is not a government’s department. It is separated from the other two organs of government, the Executive arm and the Legislature thus, it is independent of its actions, organization and officials.

Judiciary is vested with the power to frame its rules and to enforce same, as well as decide on the nature of judicial organisation within the states of the federation.

The judiciary is in charge of its recruitment and this involves every personal working in the court, including  the magistrates, even as it formulates its rules,  enforces them in order to ensure effective, efficient and orderly administration in the judiciary.

10. Advisory Functions of the Judiciary

In most cases, the court is authorized to make opinion or give advisory views to leaders, be it a President of the country, a Governor of a state, even some politicians that is bothering on legal matters. The court is vested with this responsibility particularly when it is of public importance.

11. Judiciary Conducts Judicial Inquiries

More often, issues of state important do come up that normally begs for inquiries. In such a situation, court Judges are normally called upon to serve such purposes. Once Enquiry Commissions are constituted, Judges are always the people to head such commissions.

Some of the issues that warrant such inquiries could be those issues that have to do with alleged errors or sometimes, omissions on the part of government, sometimes too, on the part of some public servants. The role of Judges who head such Commissions of enquiry is to investigate on some important and complicated incidents and other problems.

Conclusions

The judiciary as the arm of government is vested with the power of interpretion and application of law. As a system of court, it provides measures used for the resolution of disputes, and as well gives Justice.

Indeed democracy is an economic imperative as it is believed to be a foundation stone of how people install the doctrines of responsible government. Democracy is an indispensable element in contemporary society, it is the only way a government can chose its representatives by election. In as much as judiciary is a vital organ and an instrument that promote democracy in the society, there is a need for great care to be free and fair in its implementing of political cases.

 Various punishments and sanctions should be awarded to erring judges who indulged corrupt practices such punishment like death sentence, dismissal from service, public humiliation by sending them to prisons to serve jail terms. It will be so humiliating for a judge to serve a jail term with the people who he might preside over his case while serving as a judge in court. On the side of politicians who bribe judges to see their way through at the tribunals, they should equally be tried and convicted for bribing public officers. Also they should be disqualified from whatever political position they are contesting for, this will help in reducing the corruption in the judicial system and Nigerian democracy can grow. 

 

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