The Bar in throes of self-abnegation(1)
OF the four pillars of freedom (law, liberty, representative government and an impartial administration of justice) law is primus inter pares being the first to be established and it being the underlining framework within which the others can thrive or have their being or existence established. Law is the system of rules to be applied to the settlement of disputes between individuals and government or between individuals and individuals. The primacy of place of law in the pantheon of liberal values is indisputable.
It is the business of the courts to see that the rules of law are properly applied to existing disputes when they arise. This involves an independent judiciary, a fair procedure and a reasonable access to the courts on matters which are truly justiciable. Today, the independence of the judiciary is probably more necessary than ever before even as the surface area of political intrusion and control is constantly being enlarged. Each extension conduces to an increased risk of abuse of power by those who wield it. Direct attacks on the judiciary including snide remarks, unsavoury innuendoes, rude invectives, etc. (some of them unearned) are now constantly being made not only by the opposition but are widely or rabidly promoted on radio and television. Popular manifestations of hysteria are provoked whenever judicial decisions prove unpopular or are thought to be too lenient or too harsh. The relationship of law and politics is made manifest or obvious in the area of the enforcement of the law. Self-evidently, the enforcement of law rests, inflexibly, upon those possessing political power. But this possession cannot always be said to be based on moral right. The incongruous situation has given rise to legal positivism in its varied forms – the most appropriate of which is Austin’s theorising: law is nothing else but the command of the ruler. In a sense, all lawyers are positivists. They are not in a position to advise their clients if they do not take political authority as a given fact nor can they argue their cases before the established courts without questioning the basis upon which they were established. Pushed to its logical limits, positivism will interpret or translate to mean that law is the result which will come down from the judges if a disputed question is referred to the courts. So our popular conceptions of justice and right are the fabric of which law is fashioned, with which a judge interprets its provisions and the public adjudges its correctness or its otherwise indifferently asinine promulgation or interpretation.
Lawyers by their training and operational aide memoir are unfettered. They are truly independent. The only limitation upon a right-thinking lawyer’s independence is the duty which he owes his clients. Once selected, he serves them without the slightest thought of the effects such a service may have upon his personal popularity, security or political fortunes. Any lawyer who surrenders this independence or shirks this duty by moulding or re-casting his professional course to fit the guts or expectation of popular opinion, in my judgment, not only dishonours himself but disparages or degrades the great profession of which he should be proud to belong.
A pall of gloom or a thick dark cloud of an uncertain future has fallen upon the once-elegant profession of the Bar. A deep bane of our justice delivery process is popularly expressed in unflattering terms – humungous corruption, awful or indescribable indiscipline, benumbing or unspeakable incompetence, mind-boggling or insatiable urge for filthy lucre, etc., not excepting their many forms manifesting in dirty, inordinate or vaulting ambition. The rank and file of the profession’s leadership is inexcusably damned or implicated. This moral turpitude charge paints a lurid picture and tends to make legal practitioners lose honour, integrity and even their life-line. The proverbial professional brotherhood and the keen sense of chivalry among lawyers have worrisomely waned. Dogs now eat dogs. Cheap charges are bandied about fellow practitioners even as scant respect or diligence is shown in the handling of cases involving professional rivals. Interestingly, our old law reports bespeak strong or eloquent wit, great tact, unstinting hard work, unyielding rigour, deep knowledge, penetrating mind, etc. on the part of the judges and practitioners of yore. Today’s judges are no longer the austere and severe personages rarely noticed in the public sphere. They are embarrassingly found in social circuits or in questionable company. These foibles and more tend to derogate or take away from the court its pristine innocence or avowed sanctity.
Expectedly, judges are not equally endowed with wisdom, learning, nimbleness of mind or sound judgment. It is however uncharitable, odd or, in fact, a misnomer to speak or talk of unlearned judges or un-discerning legal practitioners. Some judges make remarks which, although may be reasonable enough in the context of a particular case, are, when reported out of context, manifestly unsustainable or jejune. The widely-reported faux pas of Justice George Sowemimo in the celebrated treasonable felony trial in which Chief Obafemi Awolowo and 27 others were accused persons, is a case in point. Sowemimo had unreflectingly declared obiter or off the cuff, “My hands are tied…” He paid an undying penance for his morbid indiscretion even as the general public sentenced him to eternal perdition. Judicial courage, required all the time of a judge, is more particularly required when he is inadequately protected by the government, assailed by the opposition and criticised by name or by reference in the press or in the media. Any wonder that in these circumstances, buoyed by reputedly respectable instances, unsuccessful litigants are showing alarmingly decreasing respect for orders or decrees of court. Many now smugly ignore the hallowed pronouncements of courts when they do not show open or brazen discourtesy or contemptuous disregard therefore.
• To be continued tomorrow.
Rotimi-John, a lawyer and commentator on public affairs, contributed this piece from Abuja via firstname.lastname@example.org
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