By PROF. MIKE OZEKHOME, SAN, CON, OFR,
FCIArb, LL.M, Ph.D, LL.D, D. Litt.
The Nigerian Judiciary has in recent times, been in the eye of the storm, as it faces a barrage of criticisms over some judgments by the courts, especially Supreme Court, which came under very close scrutiny. This has generated much ruckus, donnybrook, and rhubarb.
Some of these judgements have drawn the ire of all manners of critics, some genuine; some analytical; some pseudo; and some political. Some critics directed needless crude and caustic umbrage at the very persons of the revered learned Justices of the apex Court, over what they perceived as unfair, or overtly political verdicts. Regrettably, some of those attacks were caustic, bizarre, uncouth, derogatory and went too far. Many crossed the fine dividing line of decency between constructive and scholarly criticism (which is permissible after delivery of judgments); and direct personal attacks on the judexes who delivered the judgments(which is not permissible under any circumstance). The questions are: where, how or when do we draw this thin line between fair critiquing of judgements and going for the jugular of the the Judge? Does such a line even exist at all, either legally or otherwise? What remedies are available to judicial officers exposed to severe public censure, and even odium and ridicule on account of their judicial acts of deciding cases? Are they simply helpless and powerless? Do such sanctions include committing authors of such vile criticisms to prison for contempt, albeit ex facie curie (outside the court)? Are such authors liable to face disciplinary measures through the NBA Disciplinary Committee (where they are lawyers)? These are the issues this thesis attempts to provide answers to.
MY PERSONAL STAND
Let me state right from the onset and within the confines of this abstract, my own humble position in this rather lengthy dissertation. I believe judicial opinions and judgments can be scrutinised, criticised, and critiqued after delivery thereof. This is scholarship which opens up new jurisprudential vistas. Critiquing helps deepen and widen the democratic space because court decisions affect the entire society. I do not however subscribe to piercing the veil of the judgments themselves to attack the Judex who delivered the said judgments by questioning their motives, integrity, intellect, assumed political or other filial leanings, or backgrounds, for such judicial decisions. That goes beyond the bounds of decency and crosses lines of intellectual interrogation of such judgements. That also amounts to leaving the message for the messenger; deliberately hitting a player’s leg rather than the ball, in a football match. Such attitude- whether from lawyers or members of the larger society- must be deprecated, denounced and condemned in the strongest words possible. I so do, most respectfully.
REASONS FOR CRITIQUING AND INTERROGATING JUDGEMENTS
The greatest contribution of the judicial mind is usually deciphered, not from the final result of a case, but from the judicial opinion itself. It is the duty of every lawyer, academic, and even members of the society, to analyse, interrogate and critique judicial opinions embedded in judgements after they have been delivered. Learned journals, columns in newspapers, Ph.D thesis and dissertations; the print and electronic media; and lately, the social media, are employed in this. This is the very core of scholarship and legal education. Such literary criticisms are aimed at pointing out the “defects” and the “beauties” of such judgments.
Mr. Swift in his “A Tale of a Tub” tells us that a “true critique is a discoverer and collector of a writer’s fault”. He did not say “fault of the writer which has to do with his person and persona (and is thus not permitted); but the fault of his works” (which is permitted). Indeed such criticisms and interrogations help Judges to perform better. I will, anon, show numerous cases in which Judges have been attacked in their persons across the world, and even in Nigeria; but which I, as a person, lawyer, SAN, and social critic, do not agree with. There are many more reasons for allowing decent, genuine, and well-researched criticisms and interrogations of judgments after delivery.
The Judiciary, like the Legislature and Executive (as created in sections 6,4 and 5, respectively, of the 1999 Constitution, as amended), is subject to the tripartite doctrine of Separation of Powers- a doctrine most eloquently popularised in 1748 by Baron de Montesquieu, a great French philosopher. Their judgments are therefore subject to the same public criticisms as are legislative and executive acts. They must pass through the same crucible, rigour, and accountability as the other two arms. The Judiciary cannot be dressed in the cloak of infallibility. See Motors Ltd v Adesanya (1989) 3 NWLR (pt. 109) 250. The due administration of justice is a serious matter of public interest which involves members of the entire public as ultimate beneficiaries and consumers of the effects of such judgment. Law as the recurring decimal in our individual and collective lives is too serious a matter to be left alone in the hands of only Judges and lawyers (the Bench and the Bar). Oliver Wendell Holmes Jr (“Part of the Law”), in a powerful speech delivered in Boston, Massachusetts, in 1897, put it most poignantly when he said, “the prophecies of what the court will do and nothing more pretentious, are what I mean by the law”. He did not stop there. He further argued that “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it in spite of popular jest, tends to make good citizens and good men”. Holmes (also called “The Great Dissenter”; are Associate Justice of the US Supreme Court, Legal historian, and Philospher of The School of Legal Realism), thus advocated judicial restraint. He, it was, who stated that the concept of “clear and present danger” is the only basis for limiting the right of freedom of speech. So, when members of the public critique court judgements fairly and decently, they are merely exercising their right to freedom of expression (section 39 of the 1999 constitution), to hold opinions, and to receive and impart ideas and information without interference. See….. That surely cannot be criminalised.
However, such critiquing must be fair, reasonable, responsible and must pass through the acid test of bona fides, rigorous and intellectual interrogation. It must not be anchored on sheer vulgar, abusive, and offensive vituperations; rude expletives; or disrespectful name-calling. It must shun revilement and chastisement. There is, perhaps, a more serious reason why courts should be kept on their judicial toes to deliver justice-driven, rather than technicality-dependent judgments. Court decisions impact business, economy, and foreign direct investment. No responsible foreign investor will put his hard-earned money in a climate of unfair judgments or prolonged disputes. This was perhaps why Lord Atkins once told us that “Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of the ordinary men” (Ambard vs AG of Trinidad and Tobago (1936) AC 322)
SITUATIONS IN WHICH NIGERIAN COURTS HAD CRITICISED THEMSELVES
There is a sense in which courts are, in the words of George Alger, “peculiarly the subject of criticism of experts.” These “experts” are no more than lawyers and fellow Judges. In the former case, according to him, “lawyers who appeal from a lower court to a higher court are engaged in criticizing a Judge who was responsible for an unsatisfactory decision. The appeal Judges are paid by the state to act as critics of their brethren in the courts below”.
WHEN NIGERIAN COURTS CRITICISE THEMSELVES
A graphic illustration of courts criticising themselves, using the internal mechanism of appeals, is the Supreme Court case of MENAKAYA vs. MENAKAYA (2001) 16 NWLR (pt 738) 203. In the lead judgment of the apex court (delivered by Mohammed, JSC, as he then was), it minced no words, when it held that: “it is a misdirection for a trial Judge to give judgment on an issue on which there is no evidence adduced whatsoever . . . It is plain, therefore, that judgment of Ononiba J, having been written without any evidence supporting the decision is void. Equally the majority judgment of the Court of Appeal which affirmed a void decision is also a nullity.” The contributory judgment of Ogundare, JSC, was even more breathtaking. He moaned:“I find myself having painfully to observe that there are other portions and passages of the judgment which are clearly inappropriate in a judgment intended as a sober and sublime reflection. Admittedly, allowance must be made for the peculiar sense of narrative of individual Judges. Some make theirs rhapsodically on purpose, as was obviously demonstrated in the case in question. But even so, I think it will be of much profit if journeys in light-hearted digressions are not made a prominent feature in any judgment, particularly of a superior court, even to the extent that the real issues are missed or misunderstood. That was the position in the present case.”
SELF-CRITICISM BY THE SUPREME COURT ITSELF IN HOPE UZODINMA V EMEKA IHEDIOHA (2020) PELR 86967 (SC)
In March 2020, the Supreme Court refused the request of Chief Emeka Ihedioha, former Governor of Imo State, to set aside its earlier judgment which had declared Chief Hope Uzodinma of the APC Governor of Imo state. Ihedioha’s team of lawyers had argued that Uzodinma deceived the Supreme Court with his self-tabulated result from 388 polling units, which made the number of voters in Imo state outnumber the accredited voters for the election (which was 368).
The apex court led by the then CJN, Tanko Mohammed, held that it lacked powers to sit on appeal over its own judgment delivered on merit and in accordance with the dictates of the law.
However, in his dissenting opinion, Justice Centus Nweze, JSC also had been added to the seven-member panel to replace retired Amiru Sanusi, JSC; the CJN, Tanko Mohammed; Olukayode Ariwoola (now CJN); late Sylvester Ngwuta; Kudirat Kekere-Ekun; Amina Augie; and Uwani Abba-Aji, JJSC; refused to set aside the earlier judgment of the Supreme Court which had upheld the declaration of Uzodinma as Governor of Imo State. He criticised his own apex Court by declaring, in poetic words, “the decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come”.
Justice Nweze added that without evidence of meeting other constitutional provisions, the court misled itself into declaring Mr. Uzodinma as Governor.
The Jurist argued that Mr. Uzodinma and his party misled the court to accept the alleged excluded result in 388 polling units without indicating the votes polled by other political parties.
He also faulted the results from the said polling units without indicating the number of accredited voters in the polling units. Mr. Nweze recalled how Mr Uzodinma, during the election tribunal, admitted that he hijacked the result sheets from the electoral umpire officials and completed the results sheets by himself. He said such results could not be valid without indicating the number of accredited voters.
“This court has a duty of redeeming its image, it is against its background that the finality of the court cannot extinguish the right of any person.”
“I am of the view that this application should succeed. I hereby make an order reapproving the decision of the court made by January 14th and that the certificate of return issued on the appellant returned to INEC.”
“I also make an order restoring the respondent as the winner of the March 9, 2019 governorship election.” Mr Nweze in his minority ruling which was, however, overruled by the majority decision.
Mr George Alger (criticising the Courts), therefore opines that “in view of this machinery through which the courts are subjected to the animadversion of professional critics, it would be a hardy and very foolish man who would assert that criticism of the court should not be indulged in by laymen. But while the general right to criticize is not disputed, there has been evident in recent years, and generally in political campaigns, a somewhat vague attempt to draw an imaginary or real line between the types of criticism which are permissible and those which are not and which constitute what are called ‘Attacks upon the Courts’”.
It is, with respect, these “attacks” precisely that we shall presently undertake, regardless of how they are perceived – gratuitous or not – especially within our local context or milieu.
LEGAL AND CONTEXTUAL FRAMEWORKS
HOW JUDGES ARE GAGGED BY THE CODE OF CONDUCT FOR JUDICIAL OFFICERS
Judges are traditionally sworn to silence – except in court while performing their functions. By convention, they are to be seen; not heard. Indeed, this stricture has been embedded in a Code of Conduct, (although this is not widely known to many) The Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, 2016, provides in Rules 5 and 6 respectively, as follows:
5. “RIGHT TO FREEDOM OF EXPRESSION:A Judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly; but in exercising such rights, a Judge shall always conduct himself in such manner as to preserve the dignity of the judicial office and the impartiality and independence of the Judiciary.Accordingly, a Judge shall act with such restraint as is necessary to:
a. Maintain public confidence in the impartiality and independence of the Judiciary;
b. Avoid involvement in public discussion or discourse if his or her involvement could reasonably undermine confidence in his or her impartiality;
c. Avoid such occasions and circumstances where such involvement may unnecessarily expose the Judge to political attacks or be inconsistent with the dignity of a judicial officer; and/orAdhere strictly to political silence
6. “DUTY TO ABSTAIN FROM INVOLVEMENT IN PUBLIC CONTROVERSIES:The duties of judges are not consistent with any involvement in public controversies;
a. A Judge should not involve himself or herself inappropriately in public controversies;
b. A Judge shall not enter into the political arena or participate in public debates- either by expressing opinion on controversial subjects, entering into disputes with public figures in the community or publicly criticizing the government.
c. The convention of political silence requires the Judge concerned not to ordinarily reply to public statements. Although the right to criticize a Judge is subject to the rules relating to contempt, these are not to be invoked today, to suppress or punish criticism of the judiciary or of a particular judge. The better and wiser course is to ignore any scandalous attack or criticism outside the court room, rather than to exacerbate the publicity by initiating proceedings.
d. Contempt ex facie curiae is an attack on the integrity and authority of the court of law and the administration of Justice. Though Rule 6(c) requires the power to punish for contempt to be exercised with great caution, the power to punish for contempt committed ex facie curiae must be used to protect the court from open attack aimed at discrediting the administration of Justice.
e. A Judge may speak out on matter that affects the judiciary which directly affects the operation of the courts, the independence of the judiciary, fundamental aspects of the administration of Justice. On these matters, a Judge should act with great restraint. While a Judge may through his Head of Court properly make public representations to the government on these matters, he/she must not be seen as “lobbying” government or as indicating how he or she would rule if particular situations were to come before the court.
f. A Judge may participate in discussion of the law for educational purposes or to point out weakness in the law. Judicial commentary should be limited to practical implications or drafting deficiencies and should be made as part of a collective institutionalized effort by the Judiciary, not of an individual Judge” (emphasis mine).Judges, by these limitation of right to reply to public criticisms are literally stripped bare and left helpless to their fate.
However, notwithstanding this apparent gagging, Judges are armed with the weapon of committal for contempt when necessary.
LAWS PROHIBITING ATTACK ON JUDGES
Section 133 of the Criminal Code (applicable in the 17 southern states and the Federal High Court of Nigeria) provides that “any person, who while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of or against any party to such proceeding or calculated to lower the authority of any person before whom such proceeding is being heard or taken or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken; or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken , is guilty or a simple offence and liable to imprisonment for three months”. A similar provision is contained in the Penal Code applicable in the 19 Northern states as well as Abuja the FCT.Additionally, Rule 33 of the Rules of Professional Conduct for Legal Practitioners, 2007, provides that “a lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter, or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable to prejudicing or interfering with the fair trial of the matter, of the judgment or sentence thereon”
APPRAISING THE ABOVE LAWS AND CODE OF CONDUCT
A calm reading of the above laws shows that neither section 133 of the Criminal Code, nor Rule 33 of the Legal Practitioners Rules of Professional Conduct apply to critiquing of court judgments by lawyers, whether or not they were actually involved in the cases under question. Non-lawyers are also not prevented by these laws from doing so upon the conclusion of those court proceedings after judgement has been delivered. The statutes above also do not prohibit critiquing judgments through academic research, intellectual discourse or the media by lawyers and other members of the public after such have been fully delivered. However, this must be within decent intellectual bounds of objectivity and analysis, towards a better justice-delivery system. Section 133 of the Criminal Code and Rule 33 od the Rules of Professional Conduct for Legal Practitioners merely prohibit lawyers or law firms from participating in certain acts “while a judicial proceeding is pending”; or showing “intentional disrespect to any judicial proceedings or to any person before whom such proceedings is being heard or taken”; or “while litigation is anticipated or pending in the matter”. Such prohibited acts include making “use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of against any party in such proceedings”; or is “calculated to lower the authority of any person (Judex) before which such proceedings is being heard or taken”; or “commits any other act of intentional disrespect” to the above; or “making any extra-judicial statement that is calculated to prejudice of interfere with, or is reasonably capable of prejudicing or interfering with the fair trial of the matter, of the judgment or sentence therein”. The above provisions are clear to the extent that one may only critique judgements through extra Judicial statements after delivery thereof. But such critiquing must be done in a fair and scholarly manner. It must not be calculated to lower the authority, integrity and dignity of the Judex, let alone the trial court or Judge himself. Such is punishable. I personally abhor it.
FOREIGN POSITIONS ON CRITQUING JUDGES
POSITION IN THE UNITED STATES.
Going further afield, in the United States, (one of the oldest and largest democracies in the world), the situation is not much different from the above. Judgments and even judges do come under constant attack. I do not however subscribe to this. George W. Alger, writing over a century ago (in 1911) opined that “There exists today, no doubt a wholesome public opinion which protects our courts generally from the vilification and coarse libeling to which our legislative and executive officers are constantly exposed. To a certain extent, partisan platforms which protest against attacks upon the courts are healthy expressions of this public opinion. It is an encouraging feature of our democracy that at least in our attitude toward the courts, we have by general consent, decided to be civil. It is an attitude which today protects our courts from that criticism, unlimited either as to form or substance, which relentlessly pursues prominent members of co-ordinate branches of our government. It is a comparatively modern development of democracy”.
“This traditional American attitude to Judges and judgments appear to have shifted,to the extent, that over a century later, precisely in 2018, the Brennan Center for Justice, reacting to former President Trump’s criticism of Federal Judges, posited that: “Judicial rulings are criticized all the time and by all manner of people… indeed, past presidents have regularly complained about the court. This is as it should be. Judges aren’t immune from printed criticism. Like it or not, they are part of our political system. Their decisions can impact everything from how we fight terrorism to whom has the right to marry. Federal Judges in particular, have tremendous power – which they get to keep for life. That remarkable level of authority does not come with the right to never have one’s sensibilities offended by disparaging remarks”.The Centre then posted the question and answer: “ But, where, exactly, should we draw the line on criticism of the courts? Historical practice and some reflection about the role of courts in our constitutional system suggest several considerations. First, while it is quite common for officials to complain about an adverse ruling in the modern ara, it has never been considered appropriate to defy the ruling- or otherwise seek to undermine the court’s authority… Second, there is a difference between criticizing a ruling and personally attacking the Judge… of course. “Judges do sometimes behave illegally or unethically, in which case, personal criticism is fair, provided it has some actual basis. Other Judges have an off-bench habit of wading into political or other public debates… under these circumstances,(such Judges) open (themselves) up to return fire… Regardless, it is one thing to respond to a Judges political criticism and quite another to repeatedly question the personal integrity of Judges based solely on disagreement with their rulings. “There is also a difference between expressing disagreement after the fact and trying to pressure a judge to influence future decisions… more serious bullying- such a threatening impeachment for unpopular rulings – is clearing over the line. Third, it also matters who the Judge is U.S. Supreme Court Justices are at the top of the Federal judiciary, set binding precedents for the nation and are some of the most powerful people in the country. In contrast, trial Judges are closer to private citizens and lack the power, prominence and security details of members of the High Court. “They are less likely to experience an errant tweet as far more threatening than would a member of the Supreme Court. Finally, not all critics are the same. The President has a unique platform and with that comes unique responsibility. Personal attacks by the President can pose real safety risks, while even careless statements that suggest a court’s ruling should not be respected can do great harm to our system of government.” The message of the Brennan Center is clear: Go after the message; not the messenger. To drive this point home, Rule 30 and 31(1&2) provide that “a lawyer is an officer of the court; accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice”; “a lawyer shall always treat the court with respect, dignity and honour”; and also that “where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities.”
This is the way to go- a lawyer should make his “complaint to the appropriate authorities”. These authorities, it is respectfully submitted, refer to appealing such judgements to higher courts; asking for revision of such judgements as permitted by law; or channelling such complaints to an appropriatebody such as the NJC. They do not include- and I emphasise this- personal media attacks on the very Judges that delivered the judgements. Such a step is ignoble, contemptible and dishonourable, especially considering the fact that such Judges are not in a position to reply, or defend themselves. Such must be avoided.
George Algier (“Criticising the Courts”), opines that in the U.S: “There exists today, a wholesome public opinion which protects our courts generally from vilification and coarse libelling to which our legislative and executive officers are constantly exposed. To a certain extend; party platforms which protest against attacks upon the courts are health expressions of this public opinion. It is an encouraging feature of our democracy that at least in our attitude towards the courts, we have, by general consent, decided to be civil. It is an attitude which today protects our courts from that criticism, unlimited either as to form a substance, which relentlessly pursues prominent members of coordinate branches of our government. It is a comparatively modern development of democracy. “The distinction made between the courts and other executive and legislative officers as to the form of criticism applicable to them did not exist at the time our government was founded, nor in the so-called ‘Golden Age’ of the Supreme Court. It was recognised neither by the public, nor by the great statesmen of the past” (Underline supplied for emphasis).
HOW JUDGES HAVE BEEN SUBJECTED TO VIRULENT CRITICISMS
It has been common place for Judges to be subjected to virulent and intemperate criticisms for doing their work. Teddy Roosevelt once said of Justice Oliver Wendell Holmes, “I couldn’t carve out of a banana a Judge with more backbone than that”. Apparently, trying to pressure the Supreme Courts to influence a future decision, President Barrack Obama once raised Sime eyebrows when he weighed in concerning the Affordable Care Act litigation while it was still pending before the Supreme Court.Chief Justice of the US, John Roberts, in an appearance at a judicial conference in Colorado, could not understand why the public has turned against the US apex court. Hear him:“So obviously people can say what they want, and they are certainly free to criticise the Supreme Court and if they want to say that it’s legitimacy is in question, they are free to do so…. but I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.” It appears that unknown to Justice Roberts, the people are not questioning the court’s legitimacy simply because they disagree with opinions of the the Supreme Court, but because they are worried that the Justices have broken from their usual adherence to precedent, offered dubious rationales and voted in what appears to be partisan lockstep. Polls had thus shown increased political polarisation in responses to the Supreme Court.
The most consequential rulings by the Republican-appointed majority favour longstanding GOP priorities. For example, on 24th June, 2020, the US Supreme Court overturned the 50 year old decision in Roe v Wade 410 U.S. 113 (1973). This created earth-quaking societal changes throughout America. The landmark decision dismantled 50 years of legal protection for abortion as a federal right and paved way for individual states to curtail or ban outright abortion rights. This judgement was made possible only because of the addition, in 2020, of Justice Amy Coney Barrett, the third appointee of former GOP President, Donald Trump. Trump had vowed to name only Supreme Justices who would reverse the 1973 precedent anchored on the Fourteenth Amendment, to the effect that a person may choose to have an abortion until a foetus becomes viable. This was based on the individuals right to privacy.Roberta had dissented from the opinion overturning Roe; although he voted with the conservative majority to uphold the disputed Mississippi ban on abortions just after only 15 weeks. Roberts critiqued that the June decision amounted to “a serious jolt to the legal system”.
The Justices who dissented from Roe v Wade have since appeared at some events and criticised the decision in Dobbs v Jackson Women’s Health Organisation (No 19; decided on 24th June, 2022) 597 US (2022). At a 9th US Circuit Judicial conference in Big Sky, Montana, (broadcast on C-SPAN), liberal Justice Elena Kagan implicitly criticised the Dobbs decision. She observed that the court loses public trust when it discards precedent. She maintained that the court cannot presume that people will hold it in high regard; but rather, that a court must earn and retain its legitimacy “by acting like a court; by doing the kinds of things that do not seek to people as political or partisan.” She then warned, “if over time the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”Justice Kagan also; at a live-streamed appearance, from the Temple Emanu-El Streicker Center in New York, struck a similar note, when she said: I think Judges create legitimacy problems for themselves- undermine their legitimacy- when they don’t act so much like courts and when they don’t do things that recognisably law…… and when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences”.
Chief Justice Roberts, a 2005 appointee of Republican President George W. Bush, has since been busy trenchantly sending off public disaffection and defending the court’a legitimacy and the entire Judiciary’s integrity. That was why in November 2018, in response to Trump’s denigration of a Judge as an “Obama Judge”, Justice Roberts fired back, “We do not have Obama Judges or Trump Judges, Bush Judges or Clinton Judges.”
CASES IN WHICH LAWYERS ESCAPED SANCTION
Frankfurt Kurnit Klein & Selz PC, a boutique law firm knowledgeable in Media, Entertainment, Advertising and Intellectual Property law, has, in a brilliant piece titled, “Professional Responsibility Law- Lawyers Beware: Criticising Judges Can be Hazardous to your Professional Health” (Professional responsibility.ffks.com), given several instances when lawyers escaped the noose of Judges after criticising them, while others were caught in the web. They warned that:“For lawyers, the message is inescapable. Publicly opining on the character, integrity, competence or motivation of a Judge is perilous, and all the more so when a lawyer accuses a Judge of bias, corruption or playing politics. Although most states hinge discipline on a finding that a lawyer’s comments about a Judge are knowingly false or made with reckless disregard for the truth, many recent decisions seem to focus more on lack of decorum than knowing falsity, and many appear to place the burden on lawyers to prove the truth of their statements. Regrettably, because the line is blurred between when a lawyer can safely criticize a Judge and when that criticism exposes the speaker to professional discipline, lawyers may choose to remain silent even in the face of actual judicial malfeasance or conflict of interest.”They gave instances in some scenarios as follows:
A California lawyer, Benjamin Pavone, filed an appeal in a client’s case in which he described a judicial hearing officer as “disgraceful”. He referenced her ruling as a “succubustic adoption of the defense position”; and claimed the Judge was determined to evade appellate review. In 2019, the California Bar charged Pavone with “impugning the honesty, motivation, integrity, or competence” of the judge by accusing her of intentionally refusing to follow the law. He was also accused of “gender bias” because the dictionary defines “succubus” to mean “a demon assuming female form to have sexual intercourse with men in their sleep” and a “strumpet.” These allegations allegedly violated California Bus & Prof Code § 6068(b), which states that it is an Attorney’s duty to “maintain the respect due to the courts of justice and judicial officers.”
Challenging the complaint, Pavone claimed he “used a colourful (or caustic, depending on one’s viewpoint) metaphor to criticize a court ruling.” He asserted his First Amendment rights of advocacy and freedom of thought and speech. He described the “succubus charge” as “textbook hyperbole” and “lusty and imaginative criticism” protected by the First Amendment that could not conceivably have been viewed as a statement of fact. Pavone also argued that Section 6068(b) is unconstitutional as applied to rhetorical criticism of Judges. On 19th of November, 2021, the California court declined to use the Bar proceeding to discipline Pavone. See Pavone v. Cardona, 3:2021 cv 01743 (S.D. Cal. Nov. 19, 2021).
FRESHUB V. AMAZON
On December 17, 2021, a federal Judge in Texas sanctioned three lawyers from the Kramer Levin law firm who represented an Israeli company, Freshub, in an action against Amazon. After losing at trial, the lawyers filed a motion for judgment n.o.v., asserting that Amazon “played on the stereotype of greedy Jewish executives of an Israeli company allegedly taking advantage of U.S. companies, to trigger religious biases and deepen the ‘us vs. them’ nationalistic divide in the minds of the Jurors.” They further claimed that Amazon used a “Jewish stereotype dog whistle” to win the case.
Although the attacks were directed against Amazon, the Judge took them as implicit criticism that he had willfully ignored prejudicial statements. “The court did not turn a blind eye to any racist or anti-Semitic conduct because indeed there was none,” the Judge wrote. The Judge added that, in the absence of concrete evidence that Amazon intentionally played up its adversary’s Israeli ties or any witness’ race, heritage or religion, “Freshub’s inflammatory allegations are nothing but baseless attacks on the integrity of this Court and the reputation of Defendants’ counsel.” The Judge ordered the lawyers to complete 30 hours of ethics-related continuing legal education. Freshub, Inc. v. Amazon, Inc. No. 6:21-CV-00511-ADA (W.D. Texas, December 17, 2021).
The high-water mark for tolerating lawyer’s criticism of Judges arose probably from the Standing Committee v. Yagman, 55 F.3d 1439 (9th Cir. 1995). Dissatisfied with his appearance before a Federal Judge, Washington Attorney Stephen Yagman, assailed the Judge as “ignorant,” “a buffoon,” and a “right-wing fanatic.” He added that the Judge “has a penchant for sanctioning Jewish lawyers … I find this to be evidence of anti-semitism.” Yagman was brought up on disciplinary charges for conduct that “degrades or impugns the integrity of the Court” and interferes with the administration of justice. Applying the “actual malice” standard from Sullivan, the lower court found that Yagman had made statements with either knowledge of their falsity or reckless disregard for their truth.
The Ninth Circuit reversed the lower court. It stressed that statements impugning the integrity of a Judge “may not be punished unless they are capable of being proved true or false.” It added that statements of “rhetorical hyperbole” are not sanctionable, nor are statements that use language in a “loose, figurative sense.” The references to ignorance, right-wing fanaticism and similar accusations “all speak to competence and temperament rather than corruption” (or criminal acts such as bribery). Together, they conveyed “nothing more substantive than Yagman’s contempt” for the Judge. As to the allegation of anti-Semitism, the court found the remark protected opinion under the First Amendment given that Yagman disclosed the factual basis for his views.
The court also rejected the claim that Yagman’s allegations obstructed or prejudiced the administration of justice. It found that Yagman’s statement did not pose a “clear and present danger” or a “substantial likelihood” of disruption. While Yagman’s criticism of the Judge was “harsh and intemperate” and apparently intended to precipitate the Judge’s recusal, the court noted that “a party cannot force a Judge to recuse himself by engaging in personal attacks” – especially given that federal recusal statutes generally require a showing that the Judge “is (or appears to be) biased or prejudiced against a party, not counsel.” The mere possibility that Judges would remove themselves based on harsh criticism from Attorneys did not rise to the high level required for obstruction of justice.
Yagman applied the Sullivan test based not on the lawyer’s subjective knowledge and belief, but based instead on the viewpoint of a reasonable, objective lawyer. Kurnit Klein & Selz recalls that there are, in the US, many published cases from around the country where courts have not sanctioned lawyers who disparaged Judges. Most of those cases, they note, date back many years. They gave some examples thus:
In re Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 441, 301 N.E.2d 426, 427 (1973), an Attorney who criticized trial Judges in a magazine article for not following the law; and appellate Judges for being “the whores who became madams”), had his sanction reversed.
In State Bar v. Semaan, 508 S.W.2d 429, 431-32 (Tex. Civ. App. 1974), it was held that a remark that a Judge was “a midget among giants” was not sanctionable because it could not be proved true or false);
In Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Sup. Ct. Oklahoma 1988)(an Attorney’s statement that a Judge “showed all the signs of being a racist” and never gave him “an impartial trial”, were held not sanctionable based on the Attorney’s subjective belief; while remarks were disrespectful and “extremely bad form,” they were protected).
In re Kuby, (D. Conn. Aug. 18, 1993) it was held that remarks that judicial decision reflected “overt racism” and that defendants had no more chance of a fair hearing before the Judge as before the Ku Klux Klan, though “intemperate, incivil and immature,” did not constitute a basis for disciplining the Attorney.
In re Green, 11 P.3d 1078, 1084 n.4 (Colo. 2000) (en banc) a statement that the trial Judge was a “racist and bigot” with a “bent of mind”, were held to be mere opinions not subject to disciplinary action under the First Amendment.
CASES IN WHICH LAWYERS HAVE BEEN SANCTIONED
However, in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980); 449 U.S. 1101 (1981) an Attorney was reprimanded for calling a Judge “highly unethical and grossly unfair” at a press conference.Similarly, in Matter of Kuntsler, 194 A.D.3d 233 (N.Y. 1st Dep’t 1993), an Attorney in the highly-charged Central Park Jogger case was publicly censured after being held in contempt for calling, a Judge partisan and a “disgrace to the Bench;”. The contempt was upheld because his words disrupted the courtroom and undermined the “dignity and authority of the court”.
In Matter of Atanga, 636 N.E.2d 1253, 1258 (Ind.1994) an Attorney who referred to a Judge as “ignorant, insecure, and a racist,” was held to have violated Rule 8.2(a), because “there was no basis upon which to conclude that those comments were anything else but reckless”.
In Matter of Reed, 716 N.E.2d 426, 427 (Ind. 1999), an Attorney was publicly reprimanded for stating in interview in local press that a trial Judge’s “arrogance is exceeded only by her ignorance”.
Indeed, in Matter of Wisehart, 281 A.D.2d 23 (N.Y. 1st Dep‘t 2001),an Attorney was suspended for seeking Judge’s recusal based on her “draconian and bizarre decision and demeanor”; and alleged political cronyism. The court found that Attorneys who make “false, scandalous or other improper attacks” against Judges are subject to disciplinary measures.
Debra Cassens Weiss, “Lawyer Makes Amends for ‘French Fries’ Remark,” ABA Journal (June 21, 2007), is a case in which a lawyer was ordered to take on-line ethics classes after stating to a Judge, “I suggest with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place”.
Debra Cassens Weiss “Lawyer Agrees to Reprimand for Blog Tirade About Judge,” (ABA Journal (June 11, 2008), is a case in which a Florida Attorney, Sean Conway was reprimanded for describing a Judge’s “ugly, condescending attitude,” saying further that she was “clearly unfit for her position”; and was an “evil, unfair witch.” The court described the comments as “arrogant, discourteous and impatient speech”.
In re Bank, 20-90010-am (2nd Cir., May 3, 2021), the court publicly reprimanded an Attorney whose conduct included responding to an appellate Judge’s questions during oral argument, by stating, “Are you serious, Judge?” He had also sarcastically commented, “I see that you read the briefs thoroughly”. The court rejected as unsupported and irrelevant, the lawyer’s defence that his contumacious comments were triggered by the Judges’ poor treatment of him.More serious and more likely to end in discipline are situations where lawyers directly accuse Judges of corruption, or politically motivated behavior. See, e.g., Matter of Dinhofer, 257 A.D.2d 326, 328 (N.Y. 1st Dept 1999) (three-month suspension was slammed on a lawyer for calling a Federal Judge “corrupt” during a telephone conference).
POSITION IN INDIA
Moving on to India, Vanya Verma writes that “while the Constitution of india recognizes the right to freedom of speech and expression in Article 19(1)(a), Article 19(2) states that laws can put reasonable restrictions on this right for a variety of reasons, including “in relation to contempt of court”. He then references another scholar (Sathe, 2001), as outlining “the historical inter-relationship between contempt of court and free expression” as follows:”since the early 1970s when the Supreme court found Keralas’ then Chief Minister, E.M.S. Namboodiripad, guilty of contempt of court for his critical comments on the judiciary as an institution, acrimony has existed between the Judiciary’s power to punish for contempt of court and citizen’s fundamental rights, freedom of speech and expression, the court has subjugated the most crucial of the fundamental rights- freedom of speech- to the Judiciary’s power to penalize for contempt of court. The freedom of speech had been trivialized by a broad contour of contempt of court. As a result, he advised, “ Freedom of expression is the most fundamental of the fundamental rights, and constraints on it must be kept to a minimum”. Only the restrictions necessary to maintain the legitimacy of judicial institutions can be imposed under the legislation of contempt of court. The Judges are not required to be protected by the law. Only the Judiciary must be protected. A contempt notice issued without due diligence could put those in positions of public trust in jeopardy. The rule must be freedom, and the exception must be a constraint”
Under Article 19(1)(a) of the Indian Constitution, every person (including municipal councillors) has the right to free speech and expression, which includes reasonable criticism of the law or any executive action. In India, freedom of speech and expression is guaranteed both in the legislature and in local bodies. This is why a lawmaker or a municipal councillor can legitimately voice out his opinions on what he considers to be in the public good. A reasonable exercise of one’s right to free speech and expression, which includes fair criticism, is not to be suppressed for any reason.
Indeed, Section 5 of the Contempt of Courts Act, 1971, provides that a person is not punishable for contempt of court if he or she publishes a reasonable comment on the merits of a matter that has been heard and determined; or if a person publishes a fair comment on the merits of a matter that has already been heard and determined.
WHAT IS CONTEMPT OF COURT
Contempt is the power of the Court to safeguard its majesty and respect, as stated by Smita Chakraburtty (2017). This power is inherent, and it is recognised in the High Court’s and Supreme Court’s Constitutions. The Contempt of Courts Act of 1971 regulates but does not limit this power.Both civil and criminal contempt is defined under the 1971 Contempt of Courts Act. Civil contempt refers to willful disobedience to any court judgement, whereas criminal contempt can be invoked if an act tends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice.The effect on the judicial process and the authority of the courts are used to determine whether conduct is contemptuous. According to S P Sathe (1970), the intent of the accused in a contempt action is irrelevant. What matters is the impact of his act or the likelihood of it having an impact on the administration of justice. Any conduct that undermines the administration of justice, or otherwise interferes with or tends to corrupt it, must be avoided.
P Chandrasekhar (2002) went on to say that actual scandalization or lowering of the court’s authority is not required. It suffices if it has the potential to cause controversy or undermine the court’s authority.The Supreme Court of India has insisted that reasonable criticism of decisions is always permitted and that defaming a Judge is distinct from contempt of court. That was so held held in the case of Brahma Prakash Sharma v State of Uttar Pradesh LAWS(SC)-1953-5-18Under to Section 5 of the Act, “fair criticism” or “fair comment” on the merits of a final decision does not constitute contempt. The judgement of what is “fair” is, however, left to the Judges’ decision.Before 2006, even the truth could not be used as a defence in a contempt case. According to Rahul Donde (2007), “truth has been included as a defence with the enactment of the Amendment Act of 2006, but with the restriction that it can be used as a defence only if it is in the “public interest.” The Judge has complete discretion over what constitutes public interest. The truth cannot be used as a defence unless the supposedly contemptuous behaviour was both genuine and in the public interest.
CRITICISM OF A COURT: WHEN IT DOES NOT AMOUNT TO CONTEMPT
Vanya Verna opines that it is the duty and obligation of lawyers to criticise the courts. He sees this as one of their most essential societal responsibilities. He insists that informed criticism of the courts and their rulings, is not only a right, but also an ethical obligation put on every member of the Bar.He lists two methods to criticise the Supreme Court in general. They are as follows:
Firstly, critic can present some fundamental principles and argue that the pattern of decisions or a particular decision is inconsistent with these principles. For example, he might argue that constitutional decisions should be based entirely on the document’s terms and the framers’ intent; that the Court should make decisions based on prevalent opinions about core values, or that antitrust rules should be read to promote allocative efficiency. Decisions that are contradictory to these initial principles may be labelled as incorrect or misguided by the critic. The critics who use this strategy base their arguments on documents, proceedings, and norms that are not related to the court.
Secondly, a critic can critique the court’s performance as an institution. This is the subject of the second type of criticism.He argues that the critic can argue that the court is too frequently divided; that it fails to sufficiently explain its rulings; or that it makes decisions that contradict one another. In other words, he could claim that the court is divided or that precedent is ignored. The duty on the part of lawyers is to identify and discuss incorrect actions by the courts, subject only to the condition that the criticism is motivated by a good-faith desire to improve the law and the legal system. Malicious or false statements about a Judge, or disruptive or contemptuous conduct in the courtroom, of course, cannot be tolerated.
FAIR CRITICISM AS A SHIELD TO CRITICIZE THE JUDICIARY
Fair criticism of the position stated in a judicial pronouncement, or even other types of judicial activity, is consistent with the public interest and public welfare that Judges are sworn to serve and uphold in such circumstances. As a result, awareness among Judges that they can or have erred in their judgements would provide much-needed fuel to the judicial system. Verna believes that another perspective, a new dimension, or insight must always be welcomed; and that a realization that would enhance the majesty of the rule of law will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.
This is why in the case of Lalit Kalita and others v. Unknown, decided on 4th march 2008, it was held that the Judiciary is not overly sensitive to criticism. Indeed genuine criticism may be welcomed because it allows for self-reflection. After all, Judges are not infallible because they are people, and they frequently make mistakes unintentionally and as a result of their preconceptions. Thus, to Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court, (1973) “if judges decay, the contempt authority would not save them”.
In the case of Rama Dayal Markarha v. State of Madhya Pradesh, (1978), the court held that fair and reasonable criticism of a judgement that is a public document or a public act of a judge involved in the administration of justice is not considered contempt. It held that such reasonable and honest criticism should be encouraged because no one, including Judges, can claim infallibility. It held further that such criticism could reasonably claim that the judgement was erroneous; or that an error was made, both in terms of law and known facts.
However, alleging that the Judge had a predisposition to convict, or purposefully took a turn in the discussion of evidence, because he had already made up his mind to convict the accused; or has a wayward bent of mind; attributing motives; a lack of dispassionate and objective approach and analysis; and pre-judging of the issues. All these would bring the administration of justice into disrepute. A criticism must be measured by the criterion of whether it ridicules the administration of justice; or hinders it. For example, allegations of bias, predisposition, subtle prejudice, and prejudging the issues and that an investigation into the conduct of the judge will be conducted who delivered the judgment as he is to retire within a month; and a wild allegation that Judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, all could bring the administration of justice into ridicule and disrepute.
Vanya Verna therefore opines that judgements can be questioned and that no amount of vehement criticism of a decision can be considered contempt of court if it is kept within the bounds of reasonable civility and good faith. For example, a speech that a decision is “rubbish and should be tossed into the trash” can not be considered fair criticism of courts verdict. Such remarks go beyond the bounds of legitimate criticism and demonstrate propensity to undermine the Judiciary’s dignity, authority and prestige. Such vitriol also tends to raise public suspicions about Judge’s integrity, ability, or fairness, and also discourages actual and potential litigants from placing complete trust in the court’s administration of justice. Such may also likely cause embarrassment to the Judge himself in the performance of his judicial duties.
POSITION IN THE U.K.
Going back to our ‘mother’ country – England (or the UK), the home of the common law which is the common denominator in some of the countries reviewed- we can do no better than re-echo the off-quoted words of, possibly, the most famous Judge of the past century, World War 1 veteran, Lord Denning. In R. v Commissioner of Police (1968) 2 QB. 150c, Denning said: “Let me say at once, that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into the public controversy. We must rely on our conduct itself to be its own vindication”, This statement was made after the revered Jurist had been criticised as an “ass”, after he delivered one judgment. But, he never took offence or replied.
Lord Russel put it more poignantly in Reg v Gray (1990) 2 QB 40, when he illuminated:“Judges and courts alike are open to criticism and if reasonable argument or expostulating is offered against any judicial act as contrary to law or ph kid good, no court could or would treat that as contempt of court”Lord Denning in his later years became known for making comment that didn’t really cohere. The Independent newspaper was so concerned about his decline, that it ran a piece just two days after his death (“If only Lord Denning had died at seventy”)- (http://www.independent.co.uk./voices/if-only-Lord-denning-had-died-at-seventy-1079046.html)
Lord Denning’s comment about black people serving on Juries, made in 1982, is perhaps his most controversial. He disagreed in his book, “What Next in the Law” that “The underlying assumption is that all citizens are sufficiently qualified to serve on a Jury.” Denning argued: “I do not agree. The English are no longer a homogenous race. They are white and black, coloured and brown. They no longer share the same standards of conduct. Some of them come from countries where bribery and graft are accepted as an undergrad part of life and where stealing is a virtue so long as you are not found out… they will never accept the word of a policeman against one of their own.”The comments caused such backlash that Denning publicity apologised and resigned soon after. (See (https://hub.legalcheek.com/sign-up))
The same Lord Denning was to later pronounce with great erudition that, “Justice has no place in darkness and in secrecy . When a judge sits on a case, he himself is on trial…..if there is any misconduct on his part, any bias or prejudice, there is a reporter to keep an eye on him”.-Lord Denning (Address before High court journalists Association, Dec 3, 1964).
FURTHER DARTS AT THE JUDICIARY
Former Italian Prime Minister, Silvio Berlusconi, once described the Judiciary as the “cancer of democracy.” This presumably had much to do with his personal situation of being accused several times of crimes, including bribing a Judge. Belgian Underminister Theo Francken announced in public that he would disregard a judgment of a Belgian court obliging him to deliver a visa to a Syrian family. Former French President Nicolas Sarkozy qualified Judges as “petits pois sans saveur” (peas without flavor). This sentiment was, in a way, echoed by French President François Hollande, who in October 2016 was quoted as saying: “Cette institution, qui est une institution de lâcheté . . . Parce que c’est quand même ça, tous ces procureurs, tous ces hauts magistrats, on se planque, on joue les vertueux . . . On n’aime pas le politique.” (This institution — the Judiciary — is a cowardly institution, all those prosecutors and those high Judges, they hide themselves, they act self-righteously, they don’t like politics).
In the Netherlands, Geert Wilders, the leader of the Party for Freedom, who was prosecuted and convicted of racial discrimination, attacked the Judges in his case as politically biased, saying, “No one trusts you anymore.” He proclaimed that if he were to be convicted, millions of Dutchmen should be convicted. Some years ago, when he was previously prosecuted for discrimination against Muslims, Wilders said that if he were to be convicted millions of people no longer would trust the Judiciary.
See generally: Geert Corstens: “Criticism of the Judiciary: The Virtue of Moderation” (https://judicature.duke.eda)
It is, as once pointed out by Justice Frankfurter of the U.S. Supreme Court, in Bridges v. California, 314 U.S. 252 (1941), that “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with interests of justice they may forget their common human frailties and fallibilities. They’re have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have been used the paraphernalia of power in support of what they called their dignity.
Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”The Holy Bible (James 5:9) reminds us as follows: “Do not grumble against one another, brothers, so that you may not be judged; behold, the Judge is standing at the door”. Admonishing Judges for being inconsistent in acts of the Apostles 23:3 (ESV), St Paul angrily intoned: “God is going to strike you, you whitewashed wall! Are you sitting to judge me according to the law, and yet contrary to the law you order me to be struck?”
WHY RESTRAINT IN CRITICISM OF JUDGES
Outlandish, personalised? And direct criticisms of, and attack on Judges erode confidence in and undermine stability in the Judiciary. Judges are not in a position to defend themselves, or respond to criticism, no matter how virulent, false and It is thus unfair to hit at a person who is not in a position to defend himself. Justice is rooted in confidence. Any attempt to erode that confidence in the Judex is counter-productive. See the case of….
Criticising Judges brings the administration of Justice to deep disrepute and ridicule. Faith in the administration of Justice is one of the pillars through which democratic institutions function or sustain. Criticism of Judges in their personal capacities (rather than their judgments) must be avoided like a plague. Such impairs and hampers the administration of justice. This is why Judges themselves must do what is right. In the words of Abraham Lincoln in his famous speech in 1965, “with malice towards none, with clarity for all, we must strive to do the right in the light given to us to determine that right.”
If Judges themselves decay, the contempt power they wield will itself also decay. “The other side of the coin is that Judges, like Caesars wife must be above suspicion (per Krishna Iyer, J, in Shrr Baradakanta Mishra v. The Registrar of Orissa High Court of Anor (1974 ISC. 374)
Nigerian Judges are notoriously over-worked and under-paid. They may not be saints- no one is, after all. But, they hardly deserve the scurrilous, uncharitable and, sometimes, unfair and destructive criticism which has been their lot, especially since the return to democracy about 24 years ago. The heating up and politicization of the polity appears to be complete, as even the Judiciary is not spared of the dirt. It is now seen as fair game on the chessboard of politicians. Judges have in effect, become mere sitting lame ducks- to be viciously lampooned, attacked, castigated and condemned at will- by the political class, their hirelings and some members of the public at large. Some of these critics lack the rudiments of what it takes to resolve disputes according to law.
We concede that like their counterparts across the world, court judgements are not immune to criticism- so long as it is constructive and made in good faith. What is unacceptable and must be condemned by all men and women of goodwill, is to target an individual Judge or Judges for personal attacks for doing their job, such as was recently done by some people in reaction to the Supreme Court’s decision which recognized the Senate President, Ahmed Lawan, as the Senatorial Candidate of the ruling APC, ahead of Bashir Sheriff Machina, who clearly won the election – in which Ahmed Lawan never even participated.
As glaring as that injustice might seem, it did not warrant the intemperate language which some critics deployed in literally insulting the persons of the esteemed members of that noble court – the highest court of the land. This is unfortunate, to say the least; especially because Judges are precluded by their Code of Conduct, from speaking out (at least, individually), in their own defence. Suffice it to say, that whilst it is lawful to criticize the pronouncement of a court (or the Judiciary as an institution), it is grossly unacceptable to attack the persons or integrity of individual Judges, simply because their verdicts- sitting as a court, – are unpopular. Judicial decisions are not popularity contests.
Consequently, when Judges fall short of popular expectations, we must resist the temptation of attacking the messenger. We should, instead, focus on the message – and do so constructively, with moderation, decorum and utmost civility. We have options – appeal such judgements; or where the pronouncement was by the Supreme Court, humbly ask for a review. The Supreme Court has since accepted its power to review unfair decisions. Thus, in the causa celebre of ADEGOKE MOTORS V. ADESANYA, (1989) 3 NWLR (PT 109), 250, at 261, the apex court itself, per, Oputa JSC, dilated:
“We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”
God bless the Nigerian Judiciary – the very last hope of the common man and woman.