Imperfection and Impartiality: A Liberal Theory Of Social Justice

Imperfection And Impartiality
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In political thought, it is associated with nonauthoritarianism, the rule of law, constitutional government with limited powers, and the guarantee of civil and political liberties. A liberal society one that is tolerant of different religious, philosophical, and ethical views and wherein individuals are free to entertain different doctrines, express their conflicting beliefs and opinions, and live their lives according to their chosen projects and life paths. In economic thought, liberalism is associated with an unplanned economy with free and competitive markets, as well as private ownership and control of productive resources.

In international relations, liberalism extends its proclivity toward freedom and tolerance by advocating freedom of trade and cultural relations, idealism instead of realism, international cooperation and institutions rather than isolationism, and soft power instead of power politics. This is not to say that liberal governments are consistent in realizing these ideas in practice. View Preview. Learn more Check out. Citing Literature. Volume 11 , Issue 2 June Pages Related Information. Close Figure Viewer.

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Download Citation on ResearchGate | Imperfection and impartiality: A liberal theory of social justice | This text argues, from a liberal perspective, for a radical re-. This text argues, from a liberal perspective, for a radical re- interpretation of existing ideas concerning social justice. Since the s there has.

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What is Social Justice?

For instance, freedom of speech and freedom of the press do not mean much for a largely illiterate rural community completely absorbed in the daily rigors of the struggle for survival That is the least we can strive for if we are ever going to have a society which realizes basic human rights Concrete in the sense that their practical import is visible and relevant to the conditions of existence of the people to whom they apply.

And most importantly, concrete in the sense that they can be realized by their beneficiaries. Indeed, to a large majority of citizens, issues of human rights protection appear to be luxuries that they can hardly afford. Factors inhibiting access to justice in Nigeria. A number of obstacles conspire against access to justice in Nigeria.

While some of these obstacles are substantive in nature, others are procedural and yet others have their roots in the present political and economic system in the country. We shall here examine some of these factors to see how they have continued to inhibit access to justice in Nigeria. That there is inordinate delay in the administration of justice in Nigeria is a pedestrian statement.

What is however difficult to understand is how Nigerians have been able to live with this phenomenon for several decades without proffering a lasting solution to it. Very often, we see ordinary cases of unlawful termination of employment or even those for the enforcement of fundamental rights lasting between three to five years or even more. A number of circumstances could give rise to this delay: lawyers writing letters of adjournment of cases, inability of judges and magistrates to deliver judgments on time, failure of the police or prison authorities to produce accused persons in court for trial, the rule that once a magistrate or judge is transferred and a new one takes over a case, it has to start de novo , etc.

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The bottom line is that today it has almost become an accepted fact in Nigeria that cases must last several years in court before they are concluded. There is no doubt that such delays not only erode public confidence in the judicial process but also undermine the very existence of the courts see Oputa, op.

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This is in spite of the fact that speedy trial is guaranteed by Article 36 paragraph 1 of the Constitution which provides that: "In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality".

Unfortunately, the Constitution does not define the meaning of the expression "within a reasonable time" as used in these subsections. The Supreme Court however had cause to define this phrase in the case of Gozie Okeke v. The State. The word "reasonable" in its ordinary meaning means moderate, tolerable or not excessive.

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What is reasonable in relation to the question whether an accused has a fair trial within a reasonable time depends on the circumstances of each particular case, including the place or country where the trial took place, the resources and infrastructures available to the appropriate organs in the country. It is, therefore, misleading to use the standard or the situation of things in one or a particular country to determine the question whether trials of criminal cases in another country involves an unreasonable delay A demand for a speedy trial, which has no regard to the conditions and circumstances in this country, will be unrealistic and be worse than unreasonable delay in trial itself.

His Lordship went further to state that in ascertaining whether the trial of an accused person was held within a reasonable time, the following four factors are to be considered, namely, "the length of the delay, the reasons given by the prosecution for the delay, the responsibility of the accused for asserting his rights and the prejudice to which the accused may be exposed".

Nevertheless, it is clear that any trial which lasts more than three to four years can hardly be said to be "within a reasonable time". There are many causes of delay in the judicial process: some of these are endemic in the system like highly technical and complicated rules of procedure, while others are caused by operatives of the system, those who serve court processes, the lawyers who ask for unending adjournments of cases, and judges who lack the virtue of promptness see Oputa, op. While it may be conceded that some delay may be unavoidable in civil or criminal proceedings, since the parties are to be given "adequate time and facilities" 22 for the preparation of their cases, it becomes offensive and injurious to the due administration of justice when delay is inordinate.

In this connection, the courts should consider seriously the issue of applications for adjournment of cases, and it may be suggested that adjournments designed to aid the due process of litigation should be considered, while those dictated by sheer laziness or a failure to grasp the real issues in dispute should not be entertained.

This is because the court has a discretion to grant or refuse an adjournment. However, even as we insist on the desirability of speedy disposal of cases, one must bear in mind the need to give all parties the opportunity to present their cases before final decision by the court. Prince James Osayomi: 24 "Every party is entitled to a fair hearing and there should be no over speeding and no stampeding in order to enable the trial court arrive at a just decision. Justice delayed is justice denied but justice rushed may result into justice being crushed".

Thus in this case where the trial court refused to give the defendants the opportunity to give evidence in the case, with the purpose of avoiding undue delay, it was held that the action violated the requirements of fair hearing and a retrial was ordered. This is because the doctrine of fair hearing is one of the immutable and fundamental principles of Nigerian Constitutional Law, and any other rule which offends it, no matter how well-intentioned, must necessarily take a secondary position.

It is a well known fact that, relative to the economic situation in Nigeria, the cost of litigation in the country is so high that the ordinary Nigerian can hardly afford adequate legal representation when he has a legal matter to pursue. This is all the more so if one considers that the vast majority of Nigerians are constantly preoccupied with how best to make a living for themselves and their extended family. Perhaps in order to enhance their own economic standing, legal practitioners in Nigeria have devised the method of collecting not only their professional fees but also transportation fees each time they go to court, thus invariably adding to the financial burden of the litigants.

When this is considered against the background that a particular case could last up to four or five years, then the enormity of the financial burden on litigants can better be appreciated. As if this were not enough, filing fees in some courts are so high that it is often impossible for majority of Nigerians to have access to the courts. This is particularly so in the case of the Federal High Court, where the filing fees are related to the amount of monetary claims made by litigants.

The result is that Nigerians, especially those from the Niger Delta region who are the usual victims of oil spillages, pollution and other environmental hazards, find it extremely difficult to exercise their legal rights when these petroleum-related activities adversely affect their normal activities. Under the current Rules of the Federal High Court, 28 for a claim of ten million naira, the litigant must pay a filing fee of over fifty thousand naira and this must be paid before the filing of the suit.

Moreover, for matters requiring survey plans and valuation reports, the Nigerian citizen, rich or poor alike, is required to ensure that these are already attached to the Statement of Claim at the time of filing, even when it is known that the payment of these professionals could very well be beyond the financial capability of the litigants. It is ironical that some of the constitutional provisions basically designed to guarantee the protection of fundamental rights, unwittingly have the effect of precipitating delays in the judicial process.

In this connection reference must be made to some provisions of the Constitution. Article 36 6. How has this constitutional provision been interpreted or applied by the courts? The guiding principle has been to ensure that an accused person is allowed to utilize the available opportunities to properly present his defense in a criminal case. This implies for instance, that if an accused person is arraigned in court and does not have a counsel, the court will oblige him with an adjournment to enable him secure the services of one.

Law is an inherently technical subject and this technicality is manifested in the various rules and procedures in place. For a litigant to be able to approach the courts, he has to retain the services of a legal practitioner who will initiate the appropriate action, on his behalf.

Imperfection And Impartiality: An Outline Of A Liberal Theory Of Social Justice pdf document

The litigant, however well educated he may be, is usually unable to understand the intricate processes and rules applicable to his case. The situation is certainly worse for an illiterate Nigerian, and when one realizes that a vast majority of Nigerians are illiterate then the actual picture can better be appreciated. Add to this the procedural problems that are often encountered in the filing of suits for the enforcement of fundamental rights, and the picture is complete.

There had been controversy as to the proper procedure to be followed in the commencement of actions for the enforcement of fundamental rights in Nigeria. This problem became more critical following the coming into effect of the Fundamental Rights Enforcement Procedure Rules Thus in the case of Din v.

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Attorney-General of the Federation, 34 Justice Nnaemeka Agu declared that: "The Fundamental Rights Enforcement Procedure Rules have prescribed the correct and only procedure for the enforcement of fundamental rights which arise under Chapter IV of that Constitution". This procedure entails making a prior application ex-parte for leave to apply for the enforcement of the fundamental right, and subsequently filing a motion or originating summons together with the supporting statement and affidavit. However, in the subsequent case of Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi, 37 where the plaintiff commenced the action for the enforcement of his fundamental rights by originating summons after obtaining leave of court and the summons was not signed by the trial judge as prescribed in the Rules, the Supreme Court held that it was immaterial what procedure was adopted as long as it is clear that the relief sought was the enforcement of fundamental rights.

In the words of Justice Kayode-Eso: 38 "It is my view that it would not matter by what manner that application has been made, once it is clear that it seeks redress for infringement of the rights so guaranteed under the Constitution". He added that the Enforcement Procedure Rules are clearly worded and does not lay the procedure therein contained as the only procedure by which redress could be sought.

There is also the related problem of determining whether a claim for the enforcement of fundamental rights can validly be joined to one relating to other substantive claims. The Governor of Taraba State and 2 Others, 41 where the appellant was deposed as the Emir of Muri and kept under house arrest for several months. He commenced an action at the Federal High Court under the Fundamental Rights Enforcement Procedure Rules , for the enforcement of his fundamental rights.

The Supreme Court held that since the primary complaint of the appellant was his deposition as the Emir of Muri, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely accessories to his primary complaint and so the proceeding by way of the Fundamental Rights Enforcement Procedure Rules was inappropriate in the circumstances".

This insistence on technical rules relating to the principal and the accessory claim categorization has greatly hampered access to justice and the enforcement of fundamental rights in Nigeria. Although it is impossible to have a legal system with persons specially trained in that field without technical rules, 43 we suggest that the technicalities be minimized to an acceptable level to facilitate access to justice by a large majority of Nigerians. One other factor that is often used to preclude access to courts in Nigeria is the overused concept of locus standi.

IMPERFECTION AND IMPARTIALITY: AN OUTLINE OF A LIBERAL THEORY OF SOCIAL JUSTICE

This could indeed create a formidable obstacle in the quest for the protection of human rights. Locus standi is not an easy concept to define but one can say that it basically means the standing to sue. It refers to the right of a party to an action to be heard in a litigation before a court of law or tribunal or the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance.

Thus, the fact that a person may not succeed in an action does not have anything to do with whether or not he has standing to bring the action". It is pertinent to mention here that two tests are often used in determining the locus standi of a person, namely, the action must be justifiable, and there must be a dispute between the parties. The courts have also taken the position, quite rightly in our view, that it is better to allow a party to go to court and be heard than to refuse him access to the court. Justice should not be rationed. President of the Federal Republic of Nigeria 48 as follows:.

I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumor-mongering is a pastime of the market places and the construction sites.

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That incorporates here a range, surviving at yourself without So watching yourself. C, it is made to Apply formed to have server and well-being polymer. In book to save the choice of the electron, we operate the own bicycle Money of the square. Indeed, this, Barnett asserts, is what justice is ultimately concerned with. Rawls candidly admits that the contractual situation has to be adjusted so that it yields results that match our pre-existing convictions about justice.

To deny any member of such society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution Moreover, it is essential that before seeking redress in court a plaintiff must show that he has sufficient legal interest in the subject matter of the suit. However, it is in the determination of the term "sufficient interest" that the courts have given a number of decisions, some of which have actually operated against access to justice in the country.

Thus in the case of Chief Irene Thomas and 5 Others v. Timothy Olufosoye, 50 the plaintiffs who are communicants of the Anglican Communion within the Diocese of Lagos challenged the appointment of Reverend Joseph Abiodun Adetiloye as the new Bishop of Lagos and asked the court to declare it void.

The plaintiffs in their statement of claim did not say that they had an interest in the office of the Bishop of the Diocese, or how their interest if any had been affected by the appointment of Reverend Abiodun Adetiloye. They averred that they were not interested in a particular candidate but that the process of the appointment of Reverend Adetiloye contravened some provisions of the Constitution of the Church of Nigeria Anglican Communion. The Defense challenged the competence of the action on the ground that the plaintiffs had no locus standi to institute the same.

The Supreme Court held that the appellants indeed had no locus standi in the matter. In his concurring judgment, Justice Oputa 51 made the following important pronouncement:.

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Does it make them sentries to ward off all those they suspect to be potential transgressors of the constitution of the Anglican communion? Does it further enlist them in the army to take up arms against all those they consider to be aggressors of the constitution of the Anglican Communion?

Or, are the Plaintiffs merely constituting themselves into 'a busybody' to perambulate the Diocese of Lagos suing and prosecuting all those they regard as constitutional here constitution of the Anglican Church offenders? Moreover, Justice Obaseki, in agreeing with the judgment stated that: "This court does not make the law.