lenthy , but very educative and informative.


Debate on the connection between law, justice and public opinion is quietly going on in our country. This debate stems from what many articulators view or perceive as this government's flagrant disobedience of courts orders and the abuse of the judicial process.
The Nigeria Bar Association (NBA) and senior members of the inner bar have come out smoking, falling short of accusing this government of tyranny.
Nobel laureate Soyinka weighed in late last week and called on the government to respect the adjudicatory and arbitration powers of the courts by respecting court orders.

A new but dangerous position has since emerged. That position which insists that judges must seek ways of balancing law and justice with public opinion. In effect what the articulators of this view seek is the exaltation of sentiments and emotion above the law, while the court finds legal justification for this exaltation. This exaltation is radically not different from the exaltation of the plebeians of Shakespeare's Julius Caesar. Recall how they mistook Cinna the Poet for Cinna the Conspirator. "Tear him for his bad verses. Tear him for his bad verses", the plebeians cried as they "plucked but his name out of his heart and turned him going". Imagine if the plebeians had taken Cinna the Poet before a Roman judge and how the judge would have pronounced the death penalty on the innocent poet on account of the opinion of the plebeians. The finer principles of the law wouldn't have mattered. All that would have mattered to the judge was the blood-baying cravings of the plebeian mob.
Fortunately the law doesn't operate this way. The law extols the imperatives of justice by turning complaints to what Wole Soyinka rightly describes as the arbitration avenue.

Those who insist that judges must seek ways of balancing law and justice with public opinion appear to pander to the growing suspicion of a section of the Nigerian public, which considers the judge and the law as abettors of injustice, as conspirators who help those accused of stealing state resources to walk free from the clutches of state prosecutors, miss the point. The public opinion imperative they seek merely problematizes what is clearly the failings of the administration of criminal justice system, and in a manner in which the public opinion imperative appears as irresolvable questions of whose public? Whose opinion? How can the courts discern altruistic interests in an ethnically and politically divided public opinion space? How can the courts gauge public opinion mobilized and driven by conservative ideological media or social media ownership when judicial precedent demands radical interpretation of the law, or vice versa, for instance?

The idea that judges should balance law and justice with public opinion isn't new. In his highly regarded work, "The Will of The People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution", the American scholar, Professor Barry Friedman pushes this idea that "the court fight of 1937 served as the threshold of the modern era and signaled Americans acceptance of judicial review as the proper way to alter the meaning of the constitution, but only so long as the justices' decisions remain within the mainstream of popular understanding". Friedman challenges the oft-held notion that the court doesn't represent the public in its judgments thus making it undemocratic, and argues that the courts in their interpretation of the law is subject to a higher democratic authority: we the people! Judges "bend to the will of the people because the court requires public support to remain the efficacious branch of government", he proclaims.
Benjamin Cardozo it was who provided greater clarity to the idea of public opinion influencing the courts: "great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by".
Judges live among us, so they understand the musings and the angers of our streets. Can they then be influenced by public opinion, without someone necessarily goading them? It is very possible they are, looking at judicial decisions like Governor of Lagos State v Ojukwu, Rotimi Amaechi v INEC & Ors, etcetera.

What I see here more or less is what I call, "the challenges of identification". How do we discern public opinion or public interest choices in the decisions of judges? How do we know that the desires of the streets have been applied by judges to matters before them? How do we discern great tides and currents that do not pass judges by?

Can we apply the American experience to our circumstances?
Considering how well developed polling data is in the US, how sophisticated the process of gauging public opinion is, and how ideologically sharp the American public space is, it isn't difficult to see how easy it is for the ideological justices of the Supreme Court to consider the US public opinion imperative. So, it is easier for scholars like Friedman to come to such conclusion. In our ethically and politically divided country, it is very easy for purveyors of ethnic and political interests to monetized the mass and social media to mortgage public opinion. To rely on mass and social media outcomes is to tie the hands of judges, is to introduce uncertainty to the law and to the arbitration avenue. The jury is out on our data polling culture, if the culture truly exists.

The articulators of the public opinion imperative demand that judges consider the wider interests of society in their interpretation and application of the law. Oh, well, it's all good for them. For me, the greater imperative for judges is to keep the rights of individuals from the reach of the tyrannical majority. The supremacy of the majoritarian tyrants only extends to their evaluative analysis of what the law is and not what the law ought to have or what judges ought to prescribe. When judges deliver their judgments, it is the responsibility of the majoritarians to respect the judgments. No more.
Again, I ask: can our judges discern public opinion and apply it to their judgments? My view is this: every judicial decision is influenced by judicial precedent, common law principles, experiences, beliefs and judicial philosophy, if, in our case, we consider the Kayodes Esos, Akinola Agudas, Niki Tobis, Nnaemeka Agus, Obasekis and Karibi-Whytes as judicial philosophers whose experiences, beliefs and philosophical views helped to expand the frontiers of our jurisprudence.

"Judges' clientele is the law and only the law". The only instance judges can give judgments according to public opinion or to reflect public opinion is when such opinion reflects the state of the law. This is the view the Supreme Court expressed in the case of Atiku Abubakar & Ors v Umaru Yar'Adua & Ors (2008) 12 SC (part 11) 1. Public opinion is in most cases built on sentiments and emotion, the Supreme Court added. I couldn't agree with it more.
Finally, while it is important to engage the public opinion imperative, care must be taken not to render the court to the control of the majoritarian mob- all to strike the balance between justice and our plebeian public.



Abdul Mahmud, Esq @AbdulMahmud1
President,
Public Interest Lawyers League (PILL)



http://getjusticeonline..de/2016/01/judges-clientele-is-law-and-only-law-by.html?spref=tw&m=1

Plshii o jare, this is a SOCIAL MEDIA site, not a law school class iooo! sneh...

***yawns...then falls asleep technically***

AngryNigerian:
Plshii o jare, this is a SOCIAL MEDIA site, not a law school class iooo! sneh...

***yawns...then falls asleep technically***

Picture of what?
Of president Buhari not releasing the detainees?
Lol

Nice piece

Great stuff here .The zombies will learn one or two things from this piece

Geniro:
Great stuff here .The zombies will learn one or two things from this piece

But will they have the chance to read and learn?
Anyway, u already said they are zombies.