Court lacks power to stay action on pending bill – Prof. Nwabueze

Elder statesman and Chairman of The Patriots, Prof. Ben Nwabueze
(SAN), has disclosed that a court which jurisdiction was limited to
an application of law in dispute before it, lacked the power to
stay action on a Bill yet to become law.

In a statement titled, “The decision by the Federal High
Court, Abuja, restraining the National Assembly by injunction from
taking further steps on the Bill still pending before it”,
the Senior Advocate said such court’s pronouncement was akin to
rendering an advisory opinion not permissible in law. “Nigeria is a
country where strange things happen where a court of law, which
jurisdiction is limited to the application of law in dispute before
it, can act on the basis of a Bill that has not yet become law.

In other words, rendering an advisory opinion, which a court of
law under our system has no authority to give, that the eventual
enactment of the Bill into law will be unconstitutional, null, and
void.

This indeed is an amazing decision to come from a Federal High
Court in this country,” he said. Nwabueze was of the view that the
translation of power into action preceded by a preliminary process
of thinking out and formulating a policy would not be regulated by
law. Nwabueze said: “The Court of Appeal of Zambia has accordingly
held that the mere announcement by the government of an intention
to introduce legislation cannot be a violation of the Constitution,
castigating as ‘absurd’ any suggestion that ‘the legislature
intended the courts to be vested with the power to pronounce in
advance that if the government pursued an expressed intention,
legislation on the lines of that expressed intention would be ultra
vires the Constitution.

The consequences of such a construction would be truly chaotic.
“Even when the intention has been formulated into a Bill, no
question of law arises at that stage, for a Bill is not law; as
such, it cannot be an unlawful exercise of the power of lawmaking
inasmuch as it may be abandoned or amended before the processes of
its translation into law are completed.

“The High Court of Australia thus rightly dismissed an
application to prevent a bill passed by the federal legislature
from being presented for the Governor-General’s assent, on the
ground that the bill was beyond the powers of that legislature.
“The Bendel State High Court was thus clearly in error in declaring
as ‘totally illegal’ a bill under consideration by the State House
of Assembly for the purpose of establishing local government
councils, and in restraining the House and all its servants, agents
or functionaries from taking further steps in the process of
enacting the bill,” he further noted.

Elder statesman and Chairman of The Patriots, Prof. Ben Nwabueze
(SAN), has disclosed that a court which jurisdiction was limited to
an application of law in dispute before it, lacked the power to
stay action on a Bill yet to become law.

In a statement titled, “The decision by the Federal High
Court, Abuja, restraining the National Assembly by injunction from
taking further steps on the Bill still pending before it”,
the Senior Advocate said such court’s pronouncement was akin to
rendering an advisory opinion not permissible in law. “Nigeria is a
country where strange things happen where a court of law, which
jurisdiction is limited to the application of law in dispute before
it, can act on the basis of a Bill that has not yet become law.

In other words, rendering an advisory opinion, which a court of
law under our system has no authority to give, that the eventual
enactment of the Bill into law will be unconstitutional, null, and
void.

This indeed is an amazing decision to come from a Federal High
Court in this country,” he said. Nwabueze was of the view that the
translation of power into action preceded by a preliminary process
of thinking out and formulating a policy would not be regulated by
law. Nwabueze said: “The Court of Appeal of Zambia has accordingly
held that the mere announcement by the government of an intention
to introduce legislation cannot be a violation of the Constitution,
castigating as ‘absurd’ any suggestion that ‘the legislature
intended the courts to be vested with the power to pronounce in
advance that if the government pursued an expressed intention,
legislation on the lines of that expressed intention would be ultra
vires the Constitution.

The consequences of such a construction would be truly chaotic.
“Even when the intention has been formulated into a Bill, no
question of law arises at that stage, for a Bill is not law; as
such, it cannot be an unlawful exercise of the power of lawmaking
inasmuch as it may be abandoned or amended before the processes of
its translation into law are completed.

“The High Court of Australia thus rightly dismissed an
application to prevent a bill passed by the federal legislature
from being presented for the Governor-General’s assent, on the
ground that the bill was beyond the powers of that legislature.
“The Bendel State High Court was thus clearly in error in declaring
as ‘totally illegal’ a bill under consideration by the State House
of Assembly for the purpose of establishing local government
councils, and in restraining the House and all its servants, agents
or functionaries from taking further steps in the process of
enacting the bill,” he further noted.