THE JUDICIARY ISN’T SADDLED WITH RESPONSIBILITY TO MAKE LAWS, HOWEVER WHAT ARE THE RAMIFICATIONS OF INTERPRETATING SOME STATUTES VIS A VIS THE LAW MAKING POWERS OF THE LEGISLATURE

BY: SALAUDEEN ABDULLAHI AYOBAMI & AYINLA FRIDAOUS OPEYEMI

INTRODUCTION—The notion that the judiciary makes laws or the judiciary is interfering with the powers of the legislature is somewhat close to being a misguided notion.

It is a veritable fact that the advent of the principle of separation of powers has explicitly distinguished and attributed powers to each arm of the government.

In Nigeria, separation of power is a constitutional principle dividing governmental authority and powers among the 3 arms of government i.e the legislature, executive and judiciary.

The legislative arm is saddled with the responsibility of creating laws focused on the progress and well being of the nation.The executive is empowered to implement and enforce the laws passed by the legislature while the Judiciary is responsible for the interpretation of the laws of the land and to adjudicate cases.

Implementation of separation of powers is a general safeguard against tyranny, dictatorship, oppression and other social political evil.

LAW MAKING POWERS OF THE LEGISLATURE

It is quite clear pursuant to the provisions of section 4 of the constitution the legislative arm of the government is solely responsible for making laws for the peace, order and good government of the federation or any part thereof.

The legislative powers of a legislative body includes the power to make, alter, amend and repeal the laws. The legislature has the power to make laws and such power is reposed exclusively in such body. It may delegate rule making and regulatory powers to departments in the executive branch but it cannot delegate its law making powers.

The legislative power of government is vested upon the National Assembly, made up of the Senate and House of Representatives at the centre, and the Houses of Assembly in the states. This has been provided for in Section 4(1) of the 1999 Constitution which provides that

“The legislative powers of the Federal Republic of Nigeria, shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”.

There is no doubt that the legislature can by this provision, not only exercise powers specifically conferred on it by the Constitution, it impliedly includes all means of exercising the power to the best advantage, and all matters incidental and supplementary to those enumerated in the legislative lists.

 In addition, whilst the legislature cannot generally delegate any of its essential powers to anybody or persons as was noted by the Supreme Court in Attorney General of Bendel State v. Attorney General of the Federation(SC. 17/1981) [1981] NGSC 5, it can however delegate regulatory powers to the executive, or confer powers to make subsidiary legislation on a body or person. These are implied in the original powers delegated to the legislature because of the exigencies of modern government.

ROLE OF JUDICIARY IN INTERPRETING STATUTES

The term judiciary has been defined in the Black’s Law Dictionary as that branch of government invested with the judicial power; the system or courts in a country; the body of judges; the bench; the branch which is intended to interpret, construe and apply the law. The judicial arm of government is put in place to ensure fair dispute resolution, uphold rights, and bring culprits to justice.

Section 6 of the Constitution of the Federal Republic of Nigeria vested the judicial powers of the Federation and states in the courts. It equally provided for the inherent jurisdictions of courts to interpret laws and determine questions on the rights and duties or settle disputes between citizens, organizations or bodies. It also guaranteed the discretionary powers of courts in the judicial and judicious exercise of its powers. The Constitution also guaranteed the powers of courts to make rules for regulating their practices and procedures. To that end, it performs its function of administering justice in an independent, impartial, transparent, dependable, efficient, and timely manner.

By using a process known as “statutory interpretation,” judges can determine the true meaning of a piece of legislation by dissecting its language. The judiciary practices the art of interpretation to give the words of the legislators meaning, while the legislature enacts laws. However the legislator’s intention and the judiciaries frequently diverge, which can cause dispute and cast doubt on the judiciary’s ability to fully use its power of interpretation.

Statutory interpretation by judges plays a vital role in applying the law, as it clarifies ambiguity, gives effect to legislative intent, and provides consistency.

Where there is no interpretation section and a general interpretation Act does not apply then a number of rules may be applied. These includes:

1. THE LITERAL RULE: Under this rule the judge considers what the legislation actually says, rather than what it might mean. In order to achieve this, the judge will give the words in the Act a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome. The literal rule says that the intention of the legislature is best found in the ordinary and natural meaning of the words used. It was held in the case of MARTINS v. C.O.P.(2005) 7 NWLR (Pt. 925) 614 that on rules governing interpretation of statute, where the words used in the statute are direct and straight forward and unambiguous, the plain words as used in the statute must be construed on the ordinary plain meaning of the words. If the language used by the lawmakers in the statute are quite clear and explicit, the court must give effect to the words, because in such a situation, the words of the statute also speak of the intention of the lawmakers.
2. THE GOLDEN RULE: Where the application of the original meaning of the words used in the statute would create absurdity, inconsistency or ambiguity, the courts may choose to apply the secondary meaning of the words used. The assumption is that lawmakers do not intend anything that is absurd. The supreme court held in ADEWUMI v. THE ATTORNEY GENERAL OF EKITI STATE [2002] 2 NWLR pt.751 that the golden rule is a canon of interpretation that the court will lean against a construction that will produce an absurdity or an avoidable invalidity.
3. THE MISCHIEF RULE: The mischief rule is a principle of statutory interpretation that directs judges to consider the “mischief” or problem that a statute was intended to address when interpreting its meaning. Essentially, it asks what problem the law was trying to fix, and then interprets the law in a way that best achieves that remedy.

Other rules of interpretation are Ejusdem Generis rule, expressio Unius Est Exclusio Alterius, Noscitur a socii rule, casus omissus rule e.t.c.

THE INTRICACIES INVOLVED IN THE JUDICIARY’S AUTHORITY WHILE ATTEMPTING TO ACHIEVE EFFECTIVE ADMINISTRATION OF JUSTICE.

The separation of powers doctrine ensures that each arm of government (legislative, executive, and judiciary) has distinct roles. When the judiciary makes law in an attempt to interpret the laws made by the legislatures, it may be seen as overstepping its role and encroaching on the legislative powers.

Generally, SECTION 4 of the constitution entrusted the law-making powers of the state or federation to the legislature. Similarly, SECTION 4(2) & (7) guaranteed the powers of the National Assembly and Houses of Assembly to make laws for the peace, order and good

government of the federation or the state in the manners prescribed.

SECTION 6 of the Constitution provided the foundation for the interpretive and adjudicatory powers of courts and these can be done using different approaches. Whichever approach the court might rely on or resort to in interpreting statute, they share the same goal of faithfully interpreting statute as enacted by the legislature. This goal is founded in the belief that the Constitution expressly makes the legislature the supreme law maker.

One of the most important underlying factors that will determine whether or not the principle of separation of powers will be effective and functional is that the arms must not interfere in the business or businesses of another.

The power of the judiciary is to interpret laws made by the legislature. Where the complications and ambiguities come in, is trying to decide the extent at which the powers of judiciary threads particularly while doing their constitutional duties.

Particularly what the ramifications are while interpreting the statutes vis a vis the law making powers of the legislature.

The boundary between judicial activism and judicial legislation is often blurred by the judiciary’s willingness to stretch its constitutional mandate in administering justice, which raises questions about its role vis-à-vis the legislative branch.

Courts of law are entrusted with the responsibility of interpreting and applying validly enacted laws to resolve disputes. In doing so, they are expected to adhere strictly to the provisions of the law, without regard to extraneous considerations and give effect to the legislative intent behind the law. This duty to interpret the law, rather than make it, is a cornerstone of the judicial function and essential to the rule of law.

Equating or placing judicial activism/ judicial legislation on the same scale as the law making powers of the legislature will endanger the concept of separation of power, most importantly it will raise a problem.

Judicial legislation is only a technique adopted by the judiciary to enhance the administration of justice while carrying out their functions.

In the case of SAVANNAH BANK (NIG) LTD v AJILO(1989) 1 NWLR (Pt. 97) 305, per Obaseki JSC (as he then was) succinctly express the opinion thus: “The discovery of the intention of the law maker as conveyed by the words of the statute is what the search is all about when the court embarks on statutory interpretation.”

Bairamian, J.S.C., in Okumagba v. Egbe (1965) 1 All NLR 62 stated that “the office of the judge is jus dicere, not jus dare i.e. to state the law and not to give it. The predominant view of a judge’s proper role in statutory interpretation is one of ‘legislative supremacy’. This theory holds that when a court interprets a federal statute, it seeks to give effect to the intent of Congress. Under this view, judges attempt to act as ‘faithful agents’ of Congress. They are not free to simply substitute their policy view for those of the legislature that enacted the statute. This belief is rooted in the constitutional separation of powers; in the realm of legislation, the Constitution gives Congress, not courts, the power to make the law”.

WHAT IS JUDICIAL LEGISLATION VIS A VIS THE LAW MAKING POWERS OF THE LEGISLATURE?

Judicial legislation can be said to be an additional area of judicial activism that entails establishing new laws where none exist or when the laws that do exist are manifestly unfair and insufficient to further justice throughout the adjudication process.

This process rests entirely on the existing enactments where judges give or provide a more adequate meaning or stretches the scope of the said enactments from a blank state to suit or promote the interest of justice.

The judiciary in such situations are merely interpreting laws which are within their powers never should it be heard that the judiciary went outside the scope of a law validly made just to procure another meaning.

“No court has the jurisdiction to twist the meaning of the words used in a statute in order to fit into its own wishes or that of the parties. Even where the law appears strict, it is not for the court to embark on a judicial endeavor by stretching the meanings of the words used and giving them an entirely different colouration from what was intended by the legislature”. See ALAGBASO V I.N.E.C (2023) 8 NWLR.

CONCLUSION

The separation of powers doctrine ensures that each organ of government (legislative, executive, and judiciary) has distinct roles. When the judiciary interprets laws, it may be seen as overstepping its role and encroaching on the legislative branch’s authority.

The interplay between the judiciary and legislature serves as a reminder of the importance of checks and balances in our system of government, ensuring that power is distributed evenly and accountability is maintained.

However, the judiciary’s interpretive role must be exercised in a manner that respects the legislature’s authority while ensuring the law remains a dynamic and effective tool for promoting justice and societal well-being.

While the judiciary isn’t responsible for making laws, the judiciary making laws in an attempt to interpret statutes can have significant ramifications for the law-making powers of the legislature.

In the course of interpreting the law, judges frequently find themselves molding and shaping constitutional or statutory language to fit novel situations that were not contemplated by the law’s drafters, effectively giving new meaning to the law.

This is ultimately in contrast with the powers of the legislature as the judiciary does not make law, it is also in contrast with the notion that judicial legislation equals the law making powers of the legislature.

Judiciary does not and will not at any point in time (while carrying out their constitutional duty) make law or interfere with the powers of the legislature.

However it is within the scope of their duties to employ methods that will help in carrying out their duties effectively.