JUDICIAL REVIEW AND JUDICIAL SUPREMACY: A PARADIGM OF CONSTITUTIONALISM IN NIGERIA.
By
A.T.Shehu, PhD(
ABSTRACT
This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. This is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to
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They are thus not preclusive or exclusive to any particular race, tribe or nation. The question then arises as to where actually lay the supremacy8 among the organs of government that are created by the positive constitution. Is it also in the constitution that ascribes supremacy to itself or that the people themselves have vested with superiority?9 Superiority must be understood in its normative nature and therefore be categorized into two; that is political and legal. It is political if it does not have finality of authority and legal if it has finality of authority. This may for proper understanding be further characterized into general in the sense that it has the final authority and specific because its authority can be called to question by the overriding authority. This paper addresses these questions and others and argues that supremacy, especially legal and general, is a complex matter and can not be located in the Constitution alone or in any organ other than the judiciary that has the final authority as far as interpretation of the laws and the constitution is concerned. The Constitution is nothing, like any statute, but whatever the court makes of it by its (court) interpretation; whatever the court says the Constitution is; it is and nothing more. Although the judiciary is a creation of the constitution and positively granted powers, which in the end transcend the constitution itself,10 it through its power of review or the interpretative
Judicial Branch is established under Article III of the Constitution. It was created to be the weakest of all three branches of government. Each branch has its own characteristics, but what distinguishes this branch from other two is that Judiciary is passive. It cannot act until someone brings case in front of them. Even if some law or act is unconstitutional, courts are powerless to do anything on their own. Contrary to Judiciary, other two branches are active, and have power to attack other subjects.
Nevertheless, some critics argue that the judidicary, some critics argue that the judiciary are the final arbiters of what is meant by the principle of separation of powers, which therefore provides the judiciary with subordinate levels of power. Moreover Chief Justice Hughes concluding that the ‘Constitution is what the judges say it is’ due to ability to interpret the constitution. In America, although Congress may new laws affecting courts, ultimately judges decide.
The establishment of one of the most influential powers of the Supreme Court--the power of judicial review-- and the development of the judicial branch can be attributed to Marshall’s insightful interpretation of the Constitution ("The Marshall Court”).
Every Supreme Case that has taken place within the United States Judicial System has revolved around one crucial theme: the interpretation of Constitutional text; the very reason why the Judicial Branch exists is to interpret the Constitution that was written centuries ago. More specifically, Schechter v. United States, Yakus v.United States, and Mistretta v. United States focused mainly on the constitutional doctrine of the non-delegation of legislative
The authority of judicial review recognized by Marbury has allowed the court to result revolutionary alteration in our sympathetic of constitutional supplies. This power hasn’t unpredictably, haggard both censure and praise over the court’s antiquity, but it has never been a supremacy totally beyond the jurisdiction of the other divisions of government. Since the President’s authority to appoint and the Senate’s authority to approve Supreme Court Justices to the infrequent great efforts of constitutional alteration, the court remains resolutely entrenched in our Constitution’s system of checks and balances. Meanwhile judicial review has certified that the Supreme Court’s justices, once established, have adequate power to apply their individuality from the political divisions and apply constitutional bounds on their powers. The Court’s power in constitutional clarification rests in part on general
There have been many complaints and theories of how the Supreme Court has a tendency to act as a "supra-legislature" (Woll 153). It is proposed that the Supreme Court takes the
I believe the check of “JUDICIARY is check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.” Has been most proving being hat almost every day the Supreme Court decides wether or not things are Constitutional or not.
The U.S. Constitution’s framers had experienced the consequences of too much and too little government, so they deliberately designed a governing structure which allowed for an effective, but not overpowering, democracy. Though they most clearly delineated their vision for the executive and legislative branches, they smartly designed the judicial branch as a more fluid entity, which, according to Dr. Forrest McDonald, was principally designed to limit Congress’s power. The judicial branch’s authority to declare laws unconstitutional, as demonstrated in the 2003 Supreme Court case United
This 18th chapter, “Of Tyranny”, is a summary of the differences between legitimate and illegitimate power. Civil society exists to protect the property and liberty of its members--if something breaks down anywhere in its government and it no longer fulfills this function, something has gone crooked and the people have a right to free themselves of that government. A ruler who exercises legitimate power observes the laws of the government and understands that the people gave him the power they possess. This ruler seeks to preserve the public good, honor the trust between himself and his people, and protect people’s property. A ruler who exercises illegitimate power is called a tyrant; he breaks the bonds of trust and acts outside the law.
Judges trying to perfect the Constitution and tackling the social issues we face head on. However, judicial restraint is not one of its qualities. Rather, “perhaps more than any other cosmic constitutional theory, living constitutionalism, both in theory and in practice, has elevated judicial hubris over humility, boldness over modesty, and intervention over restraint.” Moreover, the Constitution belongs to the people and all three branch’s of the government equally. Therefore, when a unelected judges take it upon themselves to makes sweeping changes to the Constitution it violates the limitation of the judicial branch and its anti-democratic.
There is a dispute between people who are against the codified constitution and those who are arguing for it during the last two centuries. People who believe that a codified constitution is more suitable for democratic countries have strong points. For example, Heywood (2013) notifies that a codified constitution entrenches major constitutional principles and protects individual liberty. On the other hand, a codified constitution can be considered more rigid and can make it much difficult for the government and society to deem and balance new reality if the circumstances change. This essay is not going to discuss the strength and drawbacks of a codified constitution, but it is going to analyze how both codified and uncodified constitution deal with developed conflicts and unexpected circumstances. Moreover, this essay will examine examples from history and constitutions of such countries as China, France, the Soviet Union, the United Kingdom, the United States of America and Israel. My conclusion will be that it does not matter if the state has a codified or uncodified constitution, because the most important fact is that any constitution should be flexible enough to reflect political realities and respond on changed political circumstances.
Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .
The exercise of authority and power are facts as old as time, throughout the ages men have tried to explain and understand how and why political authority is organised. Sovereignty is a concept used to explain political power, to
A state is sovereign when its magistrate owes allegiance to no superior power, and he or she is supreme within the legal order of the state. It may be assumed that in every human society where there is a system of law there is also to be found, latent beneath the variety of political forms, in a democracy as much as in a absolute monarchy, a simple relationship between subjects rendering habitual obedience, and a sovereign who renders obedience to none. This vertical structure, of sovereign and subjects, according to this theory, is analogous to the backbone of a man. The structure constitutes an essential part of any human society which possesses a system of law, as the backbone
The just exercise of political power is conceived of as resting upon constitutional principles. Constitutional principles are a position from which we operate justly. However, what constitutes as just? Throughout history political power derived from many historical foundations that were deemed just based on the society that upheld those principles. This notion is evident throughout the development of constitutional doctrines in Greek democracy, Aristotle’s political theory, Roman Republicanism, and English Constitutionalism.