THE CJN  AND THE TWO EXTREMES

1.00 INTORODUCTION

In all countries of the world the judiciary represent an important institution in protecting  the right of every individual and upholding the law which goes a long way at keeping the  moral probity of a state and every individual in check. Ideally, it should be an infallible institution where people of high moral standard should be found at all time. The  citizenry should be able to repose their trust in such institution and such institution should serve as  succour and last hope of the citizen, nothing more.  But when an institution as important as the judiciary is filled with people of questionable character and moral decadence, it will erode the sacrosanct  duty of the institution and the importance of such institution will be spent and will become low in the estimation of the citizen. If an institution is established to protect the right of the citizen and the citizen have no faith in such institution to start with then it is important to rid the institution of the rotten eggs assaulting the institution with their odious act.

It is indeed a shameful thing for our judiciary at this moment where two legal juggernauts the NBA president and the CJN are facing corruption cases.  I understand that they are innocent until proven otherwise by a competent court of law but the fact that they are entangled in such mess to start with is very unfortunate for the integrity of our noble profession. The tick dust raised by the petition written against the CJN has resulted into heated legal argument between learned minds and series of opinion are flying unguarded around. The  incident has however inadvertently created two distinct school of thought; The Moralist and The legalist.

1.1.0 MORALITY AND LAW
To start with, law and morality are not the same. Law is essentially a set of rules and principles created and enforced by the state whereas morals are a set of beliefs, values and principles and behaviour standards which are enforced and created by society. However, some laws mirror the majority of society’s moral view. In most Country, it is often the societal moral compass that directs and dictates what the law is, what the law should permit or refuse. Morality cannot be given a free reign in the interest of the society, hence the law, so, the law also cannot be made without taken moral values of the people into cognisance. Where a law is made without taking cognisance of the moral stream of the people the law will become ineffective, such law will at best create  a lot of willing criminals. Law and morality, though not the same but are interwoven and interdependent.

1.2.0 THE MORALIST VIEW.
Position and status in every society has its own responsibility and the society requires some level of moral standard to be attained by such person occupying a particular position. It is a necessary burden on such person to maintain some modicum of moral standard especially when the person is regarded as the highest moral force in the country. To the Moralist the CJN is the highest moral force in the country and his actions and inaction should reflect that.

PUBLIC OFFICER
The Moralist contend that a public holds offices in any clime  in trust for the public and his actions  should mirror  that public trust everytime. As a public officer, his action should at all times conform with some high moral standard. His loyalty should first be to the society and not  to the government that pays his salary because his emoluments is always drawn from the tax deducted  from the citizen's earnings. The Judiciary ought to be the hope of a common man but how can a common man have such hope in the judiciary when the person occupying one of the highest position in the institution is corrupt.Since he has admitted the wrong, without any shenanigans he ought to excuse himself from the position. Since the trust reposed in the person who is suppose to be the highest moral force has been betrayed then the ideal thing for me is to excuse himself from the position to protect the integrity of the institution. Guilty or not, he should cast his trust in same institution to absolve him of all wrong. Once the judiciary of any nation has lost its respect in the sight of a common man, such judiciary has lost its potency and such nation has lost her respect locally and beyond the shores of her territory.

HARM TO OTHERS
In 1959 JOHN STUART MILL came up with a moral theory called "HARM TO OTHRS";
"He postulated  that the only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to prevent harm to others. The Wolfenden Report said that the purpose of the law is to preserve decency.

HARM TO SOCIETY
Also Lord Devlin in the 1950 came up with another Moral theory known as , "HARM TO SOCIETY"
"His view is that a recognised morality is essential to the very essence and being of society. He enthused further that individual liberty and freedom should be curtailed in order to protect the fabric of society. Devlin arqued that society may use the law to preserve morality in the same way that it uses the law to safeguard anything that is essential to its existence"

APPLICATION
Obviously,it is clear that  the CJN's action is against the Moral fabric of the society. The allegation against the CJN which he has admitted is against the moral decency of the society, one capable of bringing our Judiciary institution into disrepute. of Course, his action has lowered  his co-workers colleagues from the highest cadre to the lowest in the estimation of the people. The harm refered to by John Start Mill and Lord Devlin must not necessarily be a physical harm, it could also be a psychological one, so, any action that denigrates our  judicial institution by those saddled with the responsibility  protecting and quarding its name is an assault to our institution and the law must act decisively to curtail the liberty  of such person and also act to preserve the public decency and morality.

In his book " The road to Justice,Lord Denim has this to say;
 "I would suggest that a judge in his own character should be beyond reproach, or at any rate should have so disciplined himself that he is not himself a breaker of the. Time and time again he has to pronounce judgment on those who have offended against the law. He has to rebuke the evil and support the good. He cannot well do this-he cannot without hypocrisy do it-if he himself has been found quilty of an offence against the law. I refer not to administrative offences like exceeding the speed limit but to grave offences which carry reproach in the eyes of the people, like being drunk in charge of a car. If a judge should be found guilty of such an offence, whilst holding office, most people would say he should resign but a very difficult question may arise if a man should have been found guilty some years ago and then afterwards be considered for appointment as a judge should the previous offence be a bar to his appointment? If he is appointed, will he not himself take a lenient view of those guilty of the like offence? Or else take a harsh view, so as to show that he is not affected by his past guilt? This raises a serious moral issue. It may be said that, if the offence is not known to the public generally, then the man can properly be made a judge. But is this a proper attitude to take? Even if it is not known to many, it is known to the few and it can at any time be made known to all the country through the medium of the newspapers. It can hardly be a contempt of court to make a true statement about it. The moral question seems to be the same whether the offence is publicly known or not. And upon the moral issue I would go back to Plato for he discussed this very matter over two thousand years ago in the third book of The Republic. He recognises that it is a good thing for a physician to have some personal experience of illness so that he can know better the feelings of his patients. Likewise it is good for an army officer to know what it is to carry a pack so that he can know what the men have to go through. But Plato says that it is not right for a judge to have personal experience of evil-doing. If you are appointing men to a police force you will not act on the motto “set a thief to catch a thief.” So also if you are appointing a judge you will not say appoint a man who has committed the whole catalogue of crimes on the theory that he knows best what crime is. You will appoint a good man whose knowledge should be his guide, not his personal experience. The reason he give is because vice cannot know virtue but a virtuous nature, educated by time,will acquire a knowledge of both virtue and vice. The answer would seem to be therefore that a man should not be appointed a judge if he has been found guilty of a grave offence against the law even though it is not generally known. And when it is publicly known it is worse because the people will then point a finger of scorn as they did long ago saying:
“Who made the ruler and a judge over us.” Such scornful remarks destroy the confidence which people should have in the judges. No one would doubt these principles: but the difficulty is to apply them to particular cases. Who is to say whether an offence is a grave offence which carries reproach in the eyes of the people? That is the responsibility of those who make the appointments. Much depends on their good discharge of it. To end this discourse may I remind you of the importance of these principles by quoting the words of Sidney Smith over a hundred years ago: “Nations fall when judges are unjust, because there is nothing which the multitude think worth defending; but nations do not fall which are treated as we are treated……… Any why? Because this country is a country of the law; because a judge  is a judge for peasant as well as for the palace; because every man’s happiness is safeguarded by fixed rules from tyranny or caprice"....

1.3.0  LEGALIST VIEW.
There are divided opinion by lawyers on the legality of the action of Government. As expected, when incidentthat demand legal expositions  arises it is usually an opportunity for lawyers to flex their knowledge of law for or against an incident that birthed the legal issue. Chief of the authorities relied on  are section 292 of the  Constitution, 3rd Schedule and the Fifth Schedule of the Constitution. The proponents of those who oppose the action of the Federal government heavily relied on section 292 of the Constitution  to prove that the action of the Federal government is illegal, null and void. I will like to pitch my tent beside the faction that maintain that the action of the federal government is regular.
May I state that the reliance of those who oppose the Federal government action on the CJN on section 292 of the Constitution is apt and correct. In fact, the sub paragraph B of section 292 gives the NJC the disciplinary power to punish an errant NJC by making recommendations to the president on the steps to take after their investigation but does not state what should be done if the NJC refuses to act to a monumental breach of the law by the CJN neither does the section state the power to punish such errant CJN with respect to the offence he was charged is exclusive to the NJC. To my mind, section 292 (ii)(b) should be looked at from two different angles;
Offence  in official capacity as a Jugde
Offence outside the official capacity
It is an irrefutable fact that the CJN(Onoghen) is a member of a professional body, the judiciary and also a public offier.In the first above, section 292 give th NJC exclusive jurisdiction to discipline an errant CJN while in th second offense, section 292 does not give the NJC the exclusive jurisdiction to punish such CJN. This is so because the Constitution that gave the NJC power to discipline the CJN in falsification of asset declaration also gave another body, (CCT) the power to try the CJN(ONOGHEN) as  a public officer. This does not amount to  usurpation of functions or conflict, as the NJC will punish the CJN as a member of the judiciary or professional body in an administrative capacity while the code of conduct Tribunal will punish CJN(ONOGHEN) as a public officer.Also this would not amount to an abuse of Court process neither  will it result to a double jeopardy since one is a Court while  the other is just an administrative desciplinary body. To say  the NJC is the first point of call to discipline the CJN(Onoghen) when the two bodies empowered by the Constitution  to discipline the CJN will do such in different capacity is not true but as a result of misunderstanding and misinterpretation of section 292 and the Fifth Schedule of the Constitution. The power of the NJC to punish the CJN(ONOGHEN)  lies in the fact that the CJN belong to a  professional body, the Judiciary while that of the CCT, because he  is a public officer. We often forget that the CCT is Sui Generis  specifically created by the Constitution to handle the infraction of the law committed by the CJN.
 Even if   both bodies empowered by the law  to look into the allegation of the CJN and lash out the appropriate punishment are suppose to carry out their duty in just one capacity, i.e as a public officer; is the power of an administrative body superior to that of a Court? The answer is obvious,since the law has given exclusivity to the CCT to try such offense the National judicial council cannot monopolize the power. To even say the NJC have the power to descipline the CJN is even exaggerating the power of the NJC,section 292 only give them power to recommend the desciplinary measure to be taken against an errant CJN. While the NJC can only suggest the  kind of punishment to be meted out to the CJN the CCT can in accordance to section 18(2) of the Fifth Schedule order a CJN to vacate his office if found guilty of the offence.Frankly, it is inconceivable to argue that an administrative  panel has equal power to a court or even more powerful than a court.

NEMO JUDEX IN CAUSA SUA
The petition written against the CJN was in the pubic domain for over a month , one should wonder why the NJC did not deem it fit to issue a statement before now with regard the allegation against the CJN. It will not be tenable to say the matter was in court and as a result they are not permitted to say anything because the matter against the Federal government was not as to the substance of the petition by as to procedure embraced  by the federal government which goes to jurisdiction. But how can the NJC issue a statement or look into the allegation against the CJN(ONOGHEN) when the ruler is the Jugde, when the CJN(Onoghen) as the chairman of the NJC hand pick 20 out of the 23 members of the NJC. It is the law that a judge should disqualify himself from hearing a matter he has the slightest interest in. How can the CJN( Onoghen) not understand this.

1.4.0 CONCLUSION
From both the Moralist and the legalist views the best decision would have been for the CJN to resign in this situation. His resignation would have gone  a long way to draw sympathy from the people, save face, protect what is left of his name, protect the state from further embarrassment and the institution he sworn to protect t from further falling into disrepute
S PHILLABLE
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