Democracy and the Supreme Court

 In Thinking Aloud

by Tosin Osasona


The controversies that dogged recent judgments of the Supreme Court overruling the decisions of electoral tribunals and the Court of Appeal on governorship elections in Rivers, Cross Rivers and Taraba States raises fundamental questions about what ought to be the role of the Supreme Court in a democratic order. Should the Supreme Court confine itself to only determining guilt and innocence or should it intervene in policy processes? Did the Supreme Court merely interpret the abstract and often vague language of electoral laws, relying solely on legal reasoning, or was the court influenced by non-legal considerations? In the context of a constitutional democracy, should supremacy on the validity of an action belong to a council of 15 unelected lawyers or public opinion? Why should the Supreme Court that is funded from the collective patrimony of the Nigerian people and legitimized by the people’s constitution be immune from criticism unlike other arms of government?  The importance of judicial independence is clear and uncontested, but what exactly does it mean and, perhaps more importantly, what does it require in the context of a democracy?

The Supreme Court is the highest court in the hierarchy of courts and it goes by different names in different countries. In Nigeria as in most States, the Supreme Court is tasked with two basic functions: the interpretation of legislations to determine their constitutional validity and acting as the final court of appeal in all civil and criminal matters. Effectively, the Supreme Court has the mandate to check, if necessary, the actions of the executive and legislative branches of government, but how the court does this has remained a deeply polarizing issue and is even more contentious in the democratic systems where legitimacy is rooted in public opinion.

The Vienna Convention’s delineation of democracy as “the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives” presupposes that institutions, agencies and organs of government must always countenance public opinion in their decision making processes. Concurrence of the majority is the ultimate test of legitimacy of a policy decision in a democratic regime- rulers are obliged to justify their actions to the ruled, there is no way around it. Therefore no organ of government, inclusive of the judiciary as represented by the Supreme Court should be above public opinion, public scrutiny and institutional accountability.

The best of well-crafted and evolved constitutions are open textured, even vague and uncertain; these create opportunities for courts and judges to utilize these documents as basis of jurisdiction without definite boundaries. This constitutional malleability is one of the fundamental reasons why popular opinion and the public mood should influence the Supreme Court’s molding or interpretation of laws – in a democracy, that is.  While the Supreme Court must be institutionally independent, this independence should not transcend popular culture. For an organ that is not subject to popular vote for validation, then it should be subject to public opinion or else the justice wrought in its chambers would be perceived as tyrannical and, in the words of Alexander Bickel, would be deemed to be “exercising control, not on behalf of the prevailing majority, but against it.”

For effective and independent functionality, democratic systems have fashioned out processes and procedures for shielding the judiciary from political intimidation and interference but none of these immunizes its courts and judges from fair criticism and public scrutiny. The idea of an ‘exclusive institution’ or ‘unquestionable lords’ is aberrant in a republican democracy where dissent, continuous engagement and clash of ideas are the fundamental requirements. It is however essential to differentiate libel, slander and brazen insinuations calculated to intimidate from fair public criticism and inquiry.

Examples abound of public criticism of the Supreme Court. President Roosevelt in 1935 denounced the American Supreme Court for unanimously striking down the New Deal’s National Industrial Recovery Act for exceeding Congress’ lawful authority “to regulate commerce…among the several states.”  President Barrack Obama in 2010 during his annual State of the Union address called out the American Supreme Court on its ruling in – Citizens United v. Federal Election Commission.  Prime Minister Stephen Harper in 2015 openly criticized Chief Justice Beverley McLachlin of the Supreme Court of Canada. The Indian Supreme Court in Advocate General v. Abraham George highlighted this point when it stated that-‘Judgments are open to criticism that must be done without casting aspersions on the judges and the courts and without adverse comments amounting to scandalizing the courts’.

The concept of accountability is critical to a democracy that is founded on the rule of law and it is the expectation of citizens that all public institutions are accountable to the electorate. Judicial accountability will mean that judges who sit in judgment over others need to account for their judicious and injudicious actions. Unfortunately there is no specific provision in the Nigerian constitution on judicial accountability.  Unlike the executive and the legislature, judges are appointed through a system over which the public has no direct control and judges even in cases of proven misconduct can only be removed from office after a laborious procedure which is not easily invoked and yet judges as typified by Supreme Court Justices wield tremendous powers. So who judges our judges?

Conventionally, the established practice has been judges are accountable to the law, but considering the complications and complexities woven around the law  today, judges are actually supposed to tell us what the law is, and so they become accountable only to themselves and how healthy is that in a democracy?

During successive military regimes, the court often stood as a bulwark against the abuse of the rule of law and judicial processes, by striking down decrees that restricted individual liberties and accountability in governance. In this democratic era, the Supreme Court must define itself ideologically and perceptibly as a democratic and accountable institution that represents the views and aspiration of the electorate and not as a deviant institution that “sides with the wealthy, the privileged, and the powerful”. The Supreme Court must enhance democracy and judges must be accountable.

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