#self recognition through the other (derogative) | Explore Tumblr posts and blogs

thisdaynews · 6 years ago

Text

Breaking News: Rule of law - The president got it wrong

New Post has been published on https://www.thisdaynews.net/2018/08/29/breaking-news-rule-of-law-the-president-got-it-wrong/

Breaking News: Rule of law - The president got it wrong

It is unfortunate that the most important statement made so far at the on-going Annual Conference of the Nigeria Bar Association, an outright derogation of the supremacy of the rule of law, has not yet generated any coherent response from either the Bar or the Bench. President Muhammadu Buhari was guest of honour on Sunday at the NBA Conference and he had the additional responsibility of declaring the conference open. In his address, he told the gathering of eminent lawyers and judges that his administration will prioritise national security over and above the rule of law.

The “rule of law” often sounds like a catchy phrase among lawyers, and there have been so many confusing interpretations of it, especially by politicians, compelling Martin Kettle to advise in The Guardian UK, of November 25, 2006, that “we need leaders who better understand the rule of law.” Kettle is right because here is what President Buhari reportedly said: “….Rule of law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society…”

Politicians often get away with their own convenient interpretations of the rule of law because of the kind of acquiescent, self-denigrating reception that President Buhari received at the NBA event. The President had just invoked before an audience of officers in the temple of justice, the spirit of the notorious Decree 2 of 1984, and can you imagine? : They all clapped! The Chief Justice of the Federation, Walter Onnoghen, would later mention the independence of the judiciary, but nobody thought it necessary to give some talk about the Supremacy of the Rule of Law. The President even dabbled into case law, by referring to some subsisting decisions or judicial recognition of the Supreme Court. Politicians are closet lawyers, of course: the ones who have attended one election tribunal or the other often forget themselves and try to play around with legalism. But it is scandalous for lawyers and the judex to applaud a statement, which clearly erodes the doctrine of the separation of powers, the independence of the judiciary and the general principles of constitutionalism.

Before I go any further, let me state that I am fully aware that because of the popularity of the phrase, “the rule of law”, it has also been grossly misapplied, prompting Professor Akin Oyebode to argue in an essay titled “ From the rule of law to the rule of just law” (1994), that perhaps we should be more concerned about the “abuse of the rule of law” and argue for just law, because the rule of law can only make sense when it is rooted in “substantive and distributive justice”, more so as the “rule of law” has become “a harlot at the disposal of everyone.” President Buhari rather than turn national security into a fetish, must be more concerned about justice. It is only when justice is done that the “greater good of society” can be realised.

The doctrine of rule of law can be traced back to the Greek philosopher, Aristotle, but it is often associated with Professor A.V. Dicey who in 1885 provided three basic outlines for understanding it: (1) no man can be punished except under the law and before ordinary courts of the land. That is: You can only be punished according to an established law, not the whims and caprices of government or an individual (2) no man is above the law, and every man is equal before the law, be he king or plebeian and (3) the general principles of the constitution as interpreted by the courts shall prevail. In summary, therefore, the rule of law is about fairness, justice, equality, due process, accountability, impartial application of the law and proper administration of justice. Whatever other interpretations or conventions may have governed Dicey’s original clarification in other jurisdictions, there seems to be a universal meeting of minds to the effect that the rule of law is paramount. Where there are no laws, what you’d find is the rule of men. Thomas Hobbes identifies this as “a state of nature” where cruelty, nastiness and brutishness could be the order of the day. Indeed, any attempt to define the rule of law outside the province of justice, is a journey towards a state of anarchy as defined by Hobbes, or at best, what Lord Hailsham calls “elective dictatorship”.

Thus, when President Buhari stood before Nigerian judges and lawyers, and told them that the rule of law is not as important as national security, he was not talking about “justice”, he was talking about “power and might”. He was saying that regardless of what the courts may say, the government reserves the right to take decisions bordering on personal freedoms and rights in the interest of national security. In 1984 as a military Head of State, General Muhammadu Buhari as he then was, pushed this same conviction through a notorious Decree 2. The judex of the time, the Supreme Court of Fatayi-Williams, Oputa, Eso, Obaseki, Irikefe, Bello, Karibi-Whyte, Nnaemeka-Agu, Uwaifo, Ayoola – and lawyers like Gani Fawehinmi, Abraham Adesanya, Kanmi Osobu resisted the violation of the rule of law by the military dictatorship that emerged. In 2018, every reasonable person must insist that the rule of law is superior to national security, and where there must be a restriction of fundamental rights, only a court of law can so pronounce, not the President, not any of his agents, no matter how highly placed.

In other jurisdictions, the statement made by President Buhari would ordinarily have earned him an objection from the office of the Attorney General. The disagreement between President Trump and the former head of the Federal Bureau of Investigation (FBI) James Comey is all about the rule of law, the latter’s attempt to defend and protect it in the people’s interest, and the former’s attempt to bend the law to his own will. It is the same with the current Attorney General of the United States, Jeff Sessions who has been most critical and dismissive of President Donald Trump. Sessions insists, like Comey, that his loyalty is to the rule of law and the people of the United States and not to the whims and caprices of a certain Trump. The President insists that he gave Sessions the job because he expects him to be loyal. You may not like Mr. Sessions’ abrasiveness but you cannot fault him on the grounds of principle.

In our case, Abubakar Malami, SAN, owes us, the Nigerian people, a higher loyalty by ensuring that the government of the day does not turn national security into a scarecrow for violating human rights. It is this same bogey that is used to intimidate the media and all voices of opposition in society. But it is sad that at some point, Nigeria’s present Attorney General also had cause to express the same sentiments that President Buhari put on the table before the NBA. He was probably speaking from the mouth of the Attorney General and if this is true, then it is a tragedy.

Tom Bingham, Lord Chief Justice of England and Wales (as he then was) defines the rule of law by identifying certain abuses of it. He writes; “The hallmarks of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless.” Characteristically, every dictator’s excuse for these violations of human rights is national security or national interest. Jones Abiri, a journalist, was arrested and detained for two years, without trial, under this administration – going by the new logic, for national security reasons. When the man was released after much public outcry, he looked as if he had been taken through an experiment.

Colonel Sambo Dasuki (rtd.), the country’s former National Security Adviser (NSA) has been granted bail by the courts six times; the West African Court has also upheld his right to fair hearing and asked that he should be granted bail, but the Nigerian government has refused to obey the courts. The leader of the Shi’ites Movement, Ibrahim el-Zakzaky, and his wife, have been in detention for more than a year. The leader of the Indigenous Peoples of Biafra movement (IPOB) was smoked out of his residence one fateful day, like a rabbit. His whereabouts remain unknown to date. Radio stations have been demolished, media owners have been told to be careful, The President talks tough. His foot-soldiers leave no one in doubt that they are in charge and they are ready and willing to use power.

The Constitution of Nigeria is an expression of the sovereignty of the people of Nigeria and the basis for the rule of law. There can be no higher law above it, only the courts can interpret it and determine cases accordingly, including matters related to national security. When the executive arm of government takes it upon itself to determine what constitutes national security or national interest, it commits the error of acting as the judge in its own cause. This is contrary to all norms of a good society, including the body of laws on war, not even in a war situation is an individual’s rights allowed to be brazenly violated. And say what you will, Nigeria is not at war. The Supreme Court was referred to by President Buhari, and I urge their Lordships to remember the words of Justice Samson Uwaifo, who has been described by Professor Ben Nwabueze as “a great judge and one of the ablest judges that ever sat in the Supreme Court”. On the occasion of his retirement on 24 January 2005, Uwaifo JSC spoke about “judicial uprightness” and “the manipulative dimension prevalent in our socio-political environment” and he concluded: “The Supreme Court must always demonstrate, even more than ever in such atmosphere, that it can neither bend nor break”. I rest my case.

A distress call from Ghana

I got a frantic call from Ghana the other day. It was from Lillian. The Ghanaian authorities were shutting down shops belonging to Nigerian traders at the Kwame Nkrumah Circle in Accra. The Inter-Governmental Task Force set up by the Government of Ghana to regulate retail trade had arrested about 50 Nigerians. Many of them were detained. “The situation is not good at all, someone needs to come to their rescue; “ she said.

This is not a new matter. Across Africa, the Nigerian trader is often resented by the local population, on the grounds that Nigerians are either taking over their businesses or their women. But the reported attack on Nigerians in Ghana is most disturbing. Both countries share many affinities: historical, cultural, political and social. Nigerians love to go to Ghana. It is less than an hour away by air and it is a stable, organised society.

Since the reversal of fortunes between both countries, with the Ghanaians who used to flock to Nigeria in the 70s and 80s, now enjoying better prosperity, Nigerians are now the ones going to Ghana in droves in search of economic opportunities or a place to enjoy some sanity, away from the maddening crowd at home. Given our people’s enterprising spirit, it is not unexpected that Nigerians will dominate the retail market in any country where they are allowed to settle in large numbers.

In 1994, Ghana introduced a law called Ghana Investment Promotion Centre Act (GIPCA), Section 19(3) of which says “in the case of trading enterprise involving only the purchasing and selling of goods, which is either wholly or partly owned by a non-Ghanaian, there shall be an investment of foreign capital or its equivalence in goods worth at least $300, 000 by way of equity capital and the enterprise shall employ at least 10 Ghanaians.” Non-Ghanaians are also required to have a residence permit and a business permit. In the past six years, the Ghana Union of Traders Association (GUTA) has been urging the GIPC to take action against foreigners involved in retail business in Ghana who they accuse of pushing them out of business. There are over 1, 000 retail shops owned by non-Ghanaians across Ghana, most of them by Nigerians. Aggrieved Ghanaian traders want those shops shut down.

In June, the GIPC issued a notice asking the foreigners to obey the provisions of the GIPC Act or close down their shops by July 27. Most of the Nigerian retailers cannot afford $300, 000 – in Naira, that is about N108 million! The businesses they run do not need up to ten staff. These are people selling phones, textiles, electronics, or recharge cards or engaged in some other small-scale enterprise in the markets. Whereas the Ghanaian government has said the law is not targeted at Nigerians, the truth is that Ghana does not want foreigners in the retail business. Foreigners are not allowed to drive taxis in Ghana or run kiosks.

Ghana’s trade protectionism raises a question: how far can an ECOWAS member-state go in protecting the sovereign interests of its nationals in the context of binding ECOWAS protocols? The governments of Ghana and Nigeria should take the on-going development seriously and prevent a breakdown of people-to-people diplomacy. In Kumasi, members of the Ghanaian Traders Association reportedly attacked Nigerian traders and the latter are also threatening to retaliate. It shouldn’t get to that.

#got it wrong #Rule of law #The president

0 notes

postolo · 7 years ago

Text

Sedition and the Right to Freedom of Speech and Expression

Introduction

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows the conveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]

Conclusion

Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

* 2nd year BA LLB, Jindal Global Law School, Sonipat.

[1] Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<http://ift.tt/2nQRg4p>.

[3] Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://ift.tt/21qsLIt>.

[4] Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://ift.tt/21qsLIt>.

[5] 124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government established by law in [India], [***] shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8] Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <http://ift.tt/2sW0pcp>.

[9] (2015) 5 SCC 1.

[10] 1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11] Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <http://ift.tt/2nQw0Mb>.

[12] 1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13] (2015) 12 SCC 702.

[14] Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <http://ift.tt/1QxL4RB>.

[15] Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in. <http://ift.tt/2cKWKsf>.

The post Sedition and the Right to Freedom of Speech and Expression appeared first on SCC Blog.

Sedition and the Right to Freedom of Speech and Expression published first on http://ift.tt/2y5EnHa

0 notes