(Continued from last Monday)SUSPENSION OF JUSTICE SALAMI IS NOT A VIOLATION OF SECTION 292 OF THE CONSITTUTIONA Civil Society Group by the name The National Frontiers (TNF) was reported to have argued, among others, that the removal of Justice Salami by the NJC and President Jonathan is a violation of Section 292 of the Constitution. I submit that ab initio the Group got it wrong. They proceeded from a wrong premise and arrived at a wrong verdict. Point of correction, Justice Salami was not removed. His Lordship was suspended. Section 292 is about removal of principal or titled judicial officers from office before their retirement age. As the issue here is suspension and not removal, Section 292 of the Constitution does not and shall not apply. The requirement of an address being supported by two thirds majority of the Senate before the President can remove such titled judicial officer from office as provided under Section 292 of the Constitution need not be complied with in the case of suspension.I submit that the interpretation of the provisions of a Constitution should be restricted to the actual word or words used in the Constitution. Even the Court does not have jurisdiction to import into a Statute the word which is not in the Statute or which the Legislature has not used therein: See Dapianlong v. Dariye (2007) 8 MJSC 140 at 190; Ugwu v. Ararume (2007) 7 MJSC 1 at 26; AG Kano State v. AGF (2007) 6 MJSC 161 at 176; AG Anambra State v. AGF (2007) 8 MJSC 28 at 54.I submit that the words removal and suspension are not synonyms. The ordinary or literal meaning of the word removal which is a morphological derivative from the word remove as it relates to somebody from something is to dismiss somebody from a post: See Oxford Advanced Learner's Dictionary of Current English by A. S. Homby 5th edition page 990; while the word suspension derived from the word suspend in the same context means to prevent somebody officially from holding his usual position, carrying out his usual duties. etc.. for a time: See Oxford Advanced Learner's Dictionary, supra, page 1204 thereof. Justice Salami is not dismissed. His Lordship is only suspended. Removal evokes and connotes finality or permanence. Suspension evokes or connotes temporariness; See Sections 238[4] and (5); and Section 292 of the Constitution.I submit that Section 238(4) and (5) of the Constitution confirms the definition of the word suspension given above and the submission that it is merely an exercise of power of disciplinary control by the NJC over the PCA, which NJC has constitutional power to exercise over the PCA. After all, no one is above the law, discipline or control. Furthermore, that the appointment of an Acting PCA by the President is only for a period of three months at the first instance under Section 238(5) of the Constitution confirms that suspension is not synonymous with removal and does not require compliance with Section 292 of the Constitution.NJC HAS DISCIPLINARY POWERS OVER JUDICIAL OFFICERS AND MEMBERSI submit that the National Judicial Council has power to exercise disciplinary control over judicial officers including the President of Court of Appeal. I submit that the PCA is not above the NJC. NJC is above PCA. The extent of the powers of NJC arc expressly spelt out under Paragraph 21 of Part 1 of the Third Schedule to the Constitution. For the avoidance of doubt, and for the silencing of doubting Thomases, I have taken the trouble to reproduce in full the powers of NJC vested in it by the Constitution of the Federal Republic of Nigeria 1999 as amended.Paragraph 21 provides:The National Judicial Council shall have power to-[a] recommend to the President from among the list of persons submitted to it by -[i] the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and[ii] the Judicial Service Commission of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja,[b] recommend to the President the removal from office the judicial officers specified in sub-paragraph [a] of this paragraph, and to exercise disciplinary control over such officers;[c] recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission, persons for appointmcnts to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;[d] recommend to the Governors the removal from office of the judicial officers specified in sub-paragraph [c] of this paragraph, and to exercise disciplinary control over such officers;[e] collect, control and disburse all moneys, capital and recurrent, for the judiciary;[f] advise the President and Governors on any matter pertaining to the Judiciary as may be referred to the Council by the President or Governors;[g] appoint, dismiss and exercise disciplinary control over members and staff of the Council;[h] control and disburse all monies, capital and recurrent, for the services of the Council; and[i] deal with all other matters relating to broad issues of policy and administration.I submit that by the combined effects of Section 158[1] of the 1999 Constitution, and Paragraphs 21 [b] and [g] of the Third Schedule to the Constitution, the NJC is constitutionally empowered to exercise disciplinary control over judicial officers and members of NJC.I submit that the suspension of Justice Salami by the NJC was a disciplinary measure of control by the NJC over the PCA which the NJC has the constitutional power to do:See Section 11 [I][b] of the Interpretation Act 2004; Okomu v. Iserhienrhien [2001] 21 WRN 161 at 193.NJC DID NOT NEED TO RECOMMEND OR OBTAIN THE APPROVAL OF MR. PRESIDENT TO SUSPEND JUSTICE SALAMII submit that not being an issue of removal, the NJC needed not to have recommended Justice Salami to Mr. President for suspension and did not need the approval of Mr. President to be able to suspend Justice Salami being a measure of disciplinary control by the NJC over Justice Salami who is a judicial officer and a member of NJC over whom NJC has such power. NJC could have suspended the PCA suo motu without recourse to Mr. President after finding him guilty of misconduct. NJC would then communicate its decision of suspension of the PCA to Mr. President asking His Excellency to appoint an Acting PCA under Section 238[4] and [5] of the Constitution as a result of the temporary vacancy occasioned by the suspension.I submit that in matters of discipline, NJC like other Executive Bodies established by Section 153 of the Constitution, enjoys constitutional autonomy and independence and is not subject to the control or direction of any other authority or person or institution in Nigeria including the President, the Courts or the National Assembly: See Sections 1 [1], 158[1] of the Constitution, Paragraphs 21 [b] and [g] of the Third Schedule to the Constitution. Recommending Justice Salami to the President for suspension was mere nicety and surplusage and probably out of abundance of caution being a constitutional matter.Furthermore, the power of NJC to exercise disciplinary control over its members became a substantive paragraph of its own under paragraph 21 (g) of the Third Schedule without the requirement of recommendation. On the authority of Section 158 [I] of the Constitution, the second limb of paragraph 211b] and paragraph 21 [g] or Third Schedule to the Constitution, I maintain that the NJC did not have to recommend or obtain Presidential Approval to suspend the PCA as an exercise of disciplinary control over him.As it relates to appointment of judicial officers under paragraph 21 [a] of the Third Schedule to the Constitution in the context of Section 158 [1] or the Constitution. What it means is that, the President cannot refuse to appoint to a judicial office a person that the NJC has recommended to the President for appointment to that office. Appointment by the President of such person recommended by the NJC to a judicial office becomes a mere constitutional ceremony.I submit that the power to appoint or recommend for appointment judicial officers vested in NJC by Section 158[1] of the Constitution and Paragraph 21[a] and [g] of the Third Schedule to the Constitution includes the power to remove or suspend such judicial officers: See Section 11 (I) (b) of the Interpretation Act, which provides:When an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes[a] ........................................................[b] power to remove or suspend him;[c] .........................................................See Okomu v. Iserhienrhien [200] 21 WRN 161 at 193NJC MEETING IN WHICH THE PCA WAS SUSPENDED WAS VALID IN LAWAdvocates for the PCA made an issue of the validity of the Meeting in which the decision to suspend the PCA was taken. They have contended that of the 24 members of the NJC only 8 of them attended the Meeting and only 5 took the decision to suspend the PCA with 3 against. They also argued that the CJN as Chairman of NJC and his deputy were absent in that Meeting.I submit with due respect that these contentions are born out of total ignorance of the actual legal position of these issues. By my own count of the statutory members of NJC, they are 23. Even if they are 24, by Sections 153[1] and 159[1] of the Constitution, the Quorum for a Meeting of the NJC is at least one-third of its total] members. One-third of 24 members is 8. A quorum was therefore formed for the Meeting. The Meeting cannot therefore be voided for want of quorum.On the absence of the CJN and his Deputy in the Meeting, I submit that by Section 159[4] of the Constitution, vacancy or absence of members, in so far as a quorum is formed, does not invalidate any decision taken in NJC Meeting. The absence of the CJN and his Deputy in the said Meeting is therefore a non-issue.Austin Osarenkhoe, a legal practitioner wrote in from Benin. 08035302022 and 08053311022(To be continued)
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