The judiciary, today, is not only in the eye of the public, it is also in the court of the public and in the eye of the storm. It is passing through difficult times due to what many call internal contradictions. Chief among these contradictions is the manner it treated one of its own, the removal of the President of the Court of Appeal, Justice Ayo Salami. The state of affairs in the judiciary has continued to be a source of worry to some stakeholders, especially members of the Bar and the citizenry as a whole who are united in their view that the sector requires urgent reforms. Nevertheless, Justice Emmanuel Olayinka Ayoola, a member of the National Judicial Council (NJC), the sector's most powerful decision-making organ in this interview with ABIODUN FANORO, says there is no cause for alarm and that the judiciary needs no reform. Excerpts:WHAT are your views on the strident calls for reforms in the judiciary'I appreciate the concern of Nigerians about the judiciary. I also share your view that the judiciary is currently in the eye of the public. But I must quickly point out that it is not only the judiciary that is in the eye of the public as there are other institutions of democracy that are in the eye of the public. The main reason why these institutions and particularly, the judiciary, is now in the eye of the public is that there is an increased public awareness of how the country is being governed. There is increased public enlightenment, public consciousness and increased public education. All these have put the people in an informed position to ask questions. The mysticism that surrounded many institutions in the past is no more. But there is something missing. We have public awareness, we have an enlightened society, but the way we think about problems, is a little faulty. It is a fact that one of the factors that has put the judiciary in focus is the activities of the judiciary in regards to political issues, especially in resolving election disputes. This is usually an emotional and sentimental issue. I have been a member of the National Judiciary Council (NJC) in the past six years. At the council, we received petitions alleging judicial corruption, the National Judicial Council (NJC) investigated and evaluated these petitions, and less than 10 per cent of these petitions were found to have merit.Most of these petitions alleged that the judge was wrong, which was not a matter of misconduct. What we have found out is that whenever any contestant is not satisfied with any judicial decision, he or she would allege wrong-doing. What I am saying is that I am not in the business of defending issues, but in the business of explaining such issues. When allegations are made and you ask the petitioner to substantiate his allegation, strangely, what usually follows is that the person withdraws. While this is going on, institutions are being vilified.You are yet to address the issue of reforming the judiciary. What is your stance'Of course, it is a good idea to strengthen the judiciary through reforms. However, there are other ways of strengthening the judiciary in a way that would not involve structural reform of the judiciary. The structure of the judiciary that we have today, can hardly be improved on.Why did you say that'I said that because the judiciary as presently constituted, the machinery or the structure that is there, hardly needs tinkering with. What is important is the operation, that is efficiency of the machine. If you have a machine that is not functioning well, because it is poorly -operated, it is not the machine that you will re-design, it is the operator that must be made to be more efficient.But your view runs contrary to the view recently expressed by President Goodluck Jonathan, calling for reform in the sector. Your view is also diametrically opposed to the new Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher's pledge to reform the sector, when he was taking the oath as the acting CJNThe president, as a Nigerian, has the right to say what he said. He is not just a Nigerian, he is actually the person who should speak the minds of all Nigerians. But it does not mean that the mind of Nigerians is correct, because Nigerians may just have looked at the problem superficially. There are two things that put the judiciary in bad light, in the eyes of the public. One is the delay in the dispensation of justice and the other is what we have been talking about: Corruption. These are the two major issues that create the impression that all is not well with the judiciary. That has nothing to do with the expected efficiency and productiveness of the judiciary. If you reform it a hundred times but the people who operate the system are not reformed, you will still get it wrong. How do use bad people to operate a good system'It is true the NJC has been very conservative. It is not giving to talking. But in the past, the NJC, even at present, the CJN and the Executive Secretary of the NJC, have been concerned about ways of improving, not reforming, the working and efficiency of the judiciary.It is also the view of the public that NJC itself needs reform and overhauling'I agree. That is the view of the public. But, it is an erroneous view. I have also heard the view being expressed that the CJN is too powerful. This is also erroneous. My own concern is that the Chief Justice of Nigeria does not have sufficient powers. The CJN has much dignity, has much respect, but has little power. My suggestion is that the CJN should be given more power. The CJN is the head of the Supreme Court, he manages cases in the Supreme Court. He cannot manage cases, for example, in the Osun State Judiciary or in any state judiciary.Is that not the beauty of federalism'Yes, it is. That is why I am telling you that it is erroneous for people to jump into conclusion simply, this is a high office, to say, the occupier is very powerful. The CJN, as it is now, enjoys the power and privileges as conceded to him by his colleagues in the Supreme Court. The power does not emerge by right, but by a consensus by members of the Supreme Court and others in the country's various judicial hierarchy.When you compare the power of the Chief Justice of England with that of the CJN, there is a great disparity. The Chief Justice of England in consultation with the Lord Chancellor, has the power to suspend a judge. Same for the Chief Justice of India. That he is the chairman of the NJC, does not mean he controls the members or wields extra power. You see people wrongly think that those in the NJC are minions who have no opinion of their own.But he wields influence over them. Does he not'If he has not wielded influence over justices in the Supreme Court, then it is a smack of ignorance to think he could wield influence over NJC members. Isn't it stupid for anybody to think that for instance, I in all modesty, have put in over 50 years in the system, that someone, because he is the CJN, would dictate to me. In the NJC, there are former justices of the Supreme Court, if they were not dictated to as Supreme Court justices, then what has changed that would make them robots that should be pushed around' There is no doubt that recent happenings have drawn attention to the NJC, but people jump into hasty conclusions to say: 'It is the NJC that has to be reformed without first of all looking deeply into the facts as much as we have. What has happened (which brought the NJC into focus) might have been as a result of personal failures here and there. It is just like say a virus has entered the body, you should remove all organs of the body, when it is only just one organ that is affected, which you can cure. I don't want to go deeply into that for now, because after all adjudications, we must still come back to analyse what has happened (in the Justice Ayo Salami and Justice Alloysious Katsina-Alu's saga).Sir, it is very strange to see your view on this matter of reform being different from what not only the President and the CJN had expressed, but by over 160 million Nigerians.I think the vast majority of 160 million may be wrong, I am not defending any decision of the NJC. As an individual, when you are part of a body, you are part of that body, including all its decisions, because every member is always carried along. When you say 160 million Nigerians say it is wrong, do we have a Supreme Court consisting of 160 million Nigerians. When an institution in Nigeria, however powerful, including the National Assembly, Presidency, if any of them takes a decision that anyone says is wrong, the beauty of our constitution is that it doesn't go to 160 million Nigerian, to review.It goes to a single judge. Why does it not go to 160 million Nigerians, but it goes to a single judge who has been vested with that power and that power is not based on the sentiment and emotion of 160 million Nigerians' It is based on what the over 160 million Nigerians have put down as the law. If as at today the decision is challenged and a judge or the Supreme Court says the NJC decision is wrong, everybody will take it as part of the development of our law. 160 million Nigerians have the right to express their opinion, and one single judge has the right to decide according to the law. So if opportunity for redress or reversal has been legally provided for, so what is the need for reform'One of those areas, the new CJN has identified for a review is recruitment into the Bench. What is your take on this'All over the world, the judiciary has been trying to improve on the process of recruitment of judges. I think in that regard, we are a little bit backward in Nigeria. We are backward because, we have remained with the old practice. In the old practice, nobody applies to become a judge. It is by a silent recognition based on performance, it is also by invitation. The candidates are watched, silently, assess their integrity, their ability and capacity to deliver.Then the candidates would be invited to become judges. Then it was an efficient system. It was efficient then because there were a few courts. In the whole of the then Western Nigeria, that was from Lagos to Benin, the judges were a handful. Then judges were not being recruited yearly, as it is the case at present, because litigations were not as massive as it is today. Today, people have become more enlightened and more conscious of their rights and the implication of this is that courts are today flooded with litigations. Appointing of more judges, has therefore, become imperative. If there is the need to appoint more judges, then the system of recruitment has to be modified and improved on.What kind of modifications are being considered'I am speaking personally, not as a member of the NJC now. Personally, I think there should be more scrutiny. I can disclose that the Performance Evaluation Committee (which I chair) is thinking that direction. Also, the Executive Secretary of the NJC is also passionate about this. I am also of the view that the new CJN is thinking along this line. I think the time has come to stop appointing people who would not pass through the process of interview. We must be able to test the capacity of people to be appointed as judges, honour and integrity are no longer enough. The present system, in my view, is inadequate, a judge is appointed by assessing some of the previous cases he had participated in, if he is coming in as a lawyer, if he is coming in as a judge and is to be appointed into a superior court. What is done is that some of his previous judgments are assessed. If before you could become a justice of the Supreme Court, you have to be grilled by the Senate. I think it is a good idea that if you are going to be appointed into a high court judge, you have to pass through rigorous screening by appearing before a body that would assess so many things about the candidate.Such a candidate should be ready to be taken on by the body on some of the cases he or she has decided. As it is now, I think we appoint people we hardly know. For instance, in places like England, appointments of judges are now advertised in newspapers. If you are interested, you apply and go through all the qualifying processes.Do you suggest same to Nigeria'Why not' The recruitment should be thrown open, interesting candidates should be allowed to apply. The old practice of shrouding it in mystery is gone. The judiciary has been demystified. We must be part of this demystification.There is also a call for the appointment of lawyers directly into the appellate courts. What is your opinion on this'Well, I personally cannot find anything wrong in that. It happens in other countries, I do not see why it should not happen here. I think it should be taken away from the realm of clamour. It is something that should begin to happen from now. If you appoint a seasoned professor of law into the Supreme Court of Nigeria or a very well grounded Senior Advocate of Nigeria (SAN), certainly the texture of judgment would change. They would be able to develop the law more profoundly from their peculiar background. I will also go further, to suggest that appointing these category of lawyers should not be limited to the appellate courts, it would help to develop and enrich the law if these categories of people could submit themselves for appointment into the high courts.The CJN has cried out, saying the Supreme Court is over-burdened by to many cases, what is your position'This is why I admire the new CJN for his courage and perception. I share that concern with him. I think the time has come for many cases to stop at the Court of Appeal level. When the Supreme Court is burdened by all sorts of cases, the depth of its judgment is grossly affected. The time you should spend thinking about one case and writing something that would stand up as the law to be respected, cannot be spent when you have 20 cases to deal with.Do you also canvass that petitions from governorship elections should end at the Court of Appeal'I don't see why judgment in gubernatorial election petition should go beyond the Court of Appeal. It is ridiculous that it is being taken to the Supreme Court, especially for a country with 36 states. What they are doing is that they are destroying the efficiency of the system.
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