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Judicial Activism or Passivity in Interpreting the Nigerian Constitution

JUDICIAL activism and judicial passivity are competing theories of judicial attitude to the interpretation of the constitution. Based on the declaratory theory of the judicial function, the latter assigns a passive role to the courts, namely to declare what the law is {legem dicere) but not to make it (legem facere), in strict accord with the doctrine of the separation of powers. Judicial passivists interpret the law literally, i.e. they seek to ascertain the purport of the law (sentcnda legis) through the sole medium of the words used {litera legis). They assume that the legislature has said what it meant and meant what it said. Their maxim is "ita scriptum est" (it is so written). Judicial activism is constitutive in theory, liberal in conception and teleological in essence. It assumes that every legislation has a purpose; that a constitution is a social charter of a dynamic society based on certain ideological or philosophical presuppositions. In interpreting the constitution, it seeks to ascertain these underlying principles and give effect to them. Giving effect to the ultimate goal of the constitution is the essence of its interpretative effort. Nigeria has inherited the common law tradition which disclaims judicial activism or creativity. The most radical rejection of judicial activism in the common law system is the speech of Lord Jowitt (Lord Chancellor from 1945-1951) at the Seventh Legal Convention of the Law Council of Australia (1951) where he pleaded, inter alia: