Lawyer’s Law and the Law

By

Mamman Lawan Yusufari

yusufaari@hotmail.com

 

 

 

It may sound strange to talk of a law distinct from lawyer’s law. But this law is a reality. The lawyer is made to think and act law. He cannot know every law but he is trained to know where every law is. Yet there is a law outside his law. It is not merely a law. It is the law. And it supercedes his law. Lawyer’s knowledge of its potency would greatly help in knowing how far his law could go, if at all, in given situations. In fact ‘success’ at the Bar is now aided by one’s ability to be master of both laws. Litigious clients are not in the dark about this distinction. Their religious patronage of certain lawyers is not without reason. They are after result so they go after ‘result-oriented’ lawyers. For them and their lawyers, the end justifies the means.

 

The law is one in the sense of being the other. But it is of different forms. Each form is applied according to individual situations. The lawyer might have heard of it in the course of his training. It might have ‘passed by him’ during his practical attachment. But faced with the Bar examination which deals with his law only, he was bound to ignore it. But he will later face the law head-on. He will shockingly find out that the way his law is applied is determined largely by the law. It is only then that he would recollect the mention of its force - that about 70% of the chances of winning a court case is dependent on factors extraneous to his law. The nature of the judge and his psychology at the material time carry so much weight. The caliber of the lawyers involved in the case could tilt the court’s judgement towards undeserving side. And of course the status of the parties involved or interested influences how the matter goes and ends.

 

Thus as a new wig, the lawyer might be assigned to move a bail application on behalf of clients arraigned for a minor offence. On his way to the court, he rehearses that by his law, bail in such a case is ordinarily considered by the court suo motu (on its own). Before the magistrate, he effortlessly makes the application within the confines of his law. Instant ruling: “case adjourned for two weeks; meanwhile accused persons to be remanded in custody”! As he walks out along the corridors disappointed by such a misapplication of (his) law, he is accosted by a court clerk who is equally disappointed by his (lawyer’s) ignorance of, or refusal to follow the law! “Notwithstanding the ruling, your clients could still be bailed out if you do the right thing”, the clerk advises. The idealistic lawyer resists budging leaving behind his clients only for them to catch him up later. This is the end of a beginning. But when next he sees his law being superceded he does not need to be lectured. He may only need to classify the superceding law. In this first encounter, it is clear that the law of this court falls within the cash and carry class.

 

The lawyer will therefore not be perplexed by the detention of Hamza Al-Mustapha and Ishaya Bamaiyi on one hand and the ‘election’ of Omisore on the other hand. For sure, he knows that his law at least guarantees for the men a right to a speedy and fair trial no matter the charges against them; and that a person accused of murder would hardly secure a bail let alone clinching a Senatorial seat. So when ‘equals’ were treated unequally – one remanded, the other rewarded - he had no difficulty in concluding that it was the dexterity of the law and not his law. And that its form is sovereign power. When it decreed “you dare not let out these Abacha boys” the sonority of lawyer’s law vanished into thin air and its content became no worth its container. It is the same law which can explain a jail term of 6 months for a former IGP who, out of sheer greed, robbed the nation of over #17 billion but a much longer term for an unemployed graduate who, out of dire need, stole #7,000. It was good that the IGP was even tried. Other pen-robbing VIPs bag national honours as ‘innocent criminals’ bag jail terms.

 

So aware of the law, the lawyer chuckles at ‘laymen’ who bemoan sovereign power’s disdain for lawyer’s law. While they rant and squawk on the sovereign’s rape of universal legal precepts, he finds it quite normal. The ‘laymen’ contend, quite rightly ordinarily, that the sovereign himself came to power through lawyer’s law; he remains there courtesy of it; and it is meant for his guidance as he exercises his power. In short, he is constituted by lawyer’s law and ought to abide thereby. A persistent abuse of this law could amount to gross misconduct which could in turn strip him of his powers through an impeachment process.

 

The lawyer however knows that the sovereign after being constituted by law, also constitutes same law. Although he came through law in a way, he can now determine its shape. He can direct when, how and on whom it shall apply. He is both within and outside the lawyer’s law. He is within it when it is convenient for him to remain there. Otherwise, he is outside it. At times, it is lawyer’s law which excludes the law from its ambit. The constitutional provision clothing the President/his vice and Governors/their deputies with immunity against criminal and/or civil proceedings is an instance. It is made to do so by the law. The breach of public trust exposed by the current Obasanjo/Atiku duel and the shame in Bayelsa, Anambra, Plateau and Ekiti States, though just tip of the iceberg, explain why and how immunity clauses find their ways into constitutions – our ‘leaders’ cannot simply stand the test of law.

 

The situation does not change when the lawyer goes beyond his municipality. In fact it gets worse. Overriding lawyer’s law at municipal level is a home-affair. And it seldom goes beyond deprivation of personal liberty, proprietary right or undermining revered ethos. And the law is in most cases covered up with lawyer’s law; it is rarely brought to the fore for its inherent impropriety. At the international level, wielding the law at the expense of lawyer’s law is a symbol of clout and hegemony. Equal sovereignty of nation states and states’ sovereignty over their natural resources are sacrosanct principles under lawyer’s law. In the eyes of the law they are balderdash – America and her sisters are the sovereign center and the others are the savage periphery.

 

The general rule for the center in relation to the periphery is to be and remain outside lawyer’s law. Being within it is the exception. The center calls itself a ‘well-ordered society’ labeling the periphery which does not share its values an ‘outlaw society’; ‘the axis of evil’, and therefore liable to be crushed. Nations which are not part of, but are nevertheless with, the center are regarded as friends (‘the burdened societies’) qualified to be assisted in their move towards well-orderliness. The centre does, with impunity, concoct lies to invade and destroy a periphery. In the process, it takes over its resources. It would hide behind lawyer’s law if possible. It would do without it if not. It makes and breaks governments. It blows hot and cold at the same time and disowns its own making.

 

America has defied the lawyer’s Geneva Convention and other similar instruments by interminably detaining and torturing peripheral people (those she calls ‘enemy combatants’) at Guantanamo Bay and other unknown cells on mere suspicions. She can decide to try them in military tribunals where otherwise inadmissible evidence could be used to condemn them. She is bent on defying the Supreme Court’s verdict that such acts are unconstitutional. She is blinded by her might and she felt it right to crush lawyer’s law and commit crimes against humanity. It is no wonder then that she does not want the International Criminal Court.

 

And this overall sovereign power has made the world a one-way traffic. It arrogated to itself monopoly of wealth, of knowledge, and of wisdom. And it made the peripheral others to believe that these virtues belong to it exclusively. The result is: it gives, others take; it talks, others listen; it directs, others follow; it sneezes, others catch cold. And it has ‘colonized reality’ such that what it gives is perceived as the only givable thing; what it says, the only sayable thing; and what it directs, the only doable thing. The treasures of knowledge in Africa for instance, her enormous resources and her time-honoured values have been obscured by constructed images of savage, poverty and squalor.

 

The center has also hardened hearts such that its atrocities pass-by as normal worldly happenings if not hailed as laudable achievements. To the average mind, the spate of killings in the name of ‘war on terror’ or self-defence is ‘one of those things’. The ‘regrettable’ but ‘unavoidable’ killings of villagers, passers-by, women and children are tragedies yet transmitted and received with equanimity. ‘News’ with no item on missile attack at Gaza or suicide bombing at Tel Aviv or Baghdad sounds incomplete and unnatural! Concern for the victims of these atrocities and for the starving and diseased fellows of the unprivileged parts of the world has been left to the ‘humanitarian’ NGOs. The center, after feeding fat on peripheral resources, salves its conscience in shrouded aid which but entombs the emasculated target recipients.

 

The political center, in collusion with its business counterpart, has made profit the sole objective of the millionaires’ life without regard to the well-being of the millions. In its pursuit, the millionaires could subject the poor millions to untold hardships. The Union Carbide tragedy which killed over 200,000 masses in Bhopal, India; and the Pfizer drug test which disabled scores of children in Kano, Nigeria are one of the few corporate ‘genocides’ that hit the airwaves. Do not talk about the unfair competition which insidiously enslaves labour to capital. The only choice it left for the impoverished peasants is to work for peanuts under dehumanizing conditions. The ‘surplus value’ created by them has made corporations richer than nations. Small businesses cannot compete and must therefore crumble to succumb to the oppression. Unfortunately, this is a wrong which has defied the lawyer’s Lex semper dabit remedium (the law will always give a remedy) because his law is yet to find a remedy for it. And it cannot find one because the wrong has fallen within his Damnum sine injuria esse potest (there may be damage inflicted without act which the law deems an injury).

 

The law has rendered the world lawless and therefore diabolic, despotic and chaotic. The great advance in education and wealth is paradoxically met with a deep sink in ignorance and poverty. Love, peace and tranquility have given way to enmity, grief and fear. The world must not continue along these lines! We need another world. A world where lawyer’s law reigns; where the sanctity of life is upheld; where the human person qua human is respected; where humanity co-operates to fight common problems; where the strong leads according to lawyer’s law with humility, and treats the weak with compassion; and where peace and justice prevail over terror and tyranny. The lawless world is an aberration so the ideal world is possible. There are more reasons to have an ideal world now. With the unprecedented opulence, technological advance and ‘globalisation’, it only takes the laws at both international and municipal levels to ditch their arrogance and accept the authority of lawyer’s law. It is only then that humanity will get rid of its self-imposed quagmire and live a fulfilled life.

 

 

Mamman Lawan wrote in from the University of Warwick Law School, England.