A one time justice of Japan once said “fundamental rights were not created by the State but are external and universal institutions common to all mankind and antedating the State and founded upon natural law. This position has been given by justice Chandrachund who described Fundamental Rights as transcendental; inalienable; primordial and that they constitute the ark of the constitution. You can find this in the case of MINERVA MILLS LTD. VS. UNION OF INDIA AIR (1980) SC 1789 at 186.
About a century earlier in the USA, Thomas Jefferson in one of his letters to James Madison, dated Dec. 20, 1787 had said.
“let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular or what no just government should refuse or no inference”.
The entrenchment of Fundamental Rights in many modern constitutions today is therefore by and large no surprise. All the 4 constitutions of Nigeria (1960, 1963 1997 and 1999) contain this ark of the constitution. The present constitution harbours them in chapter 4.
The suggestion herein made is that the enjoyment of these rights is more for the benefit of the wealthy and the powerful of this society (the bourgeois) and the rights are more or less used to the millions of our people who are poverty ridden-the down trodden. The Hon. Justice Bhagwati in a most powerful dissenting Judgment In MINERVA MILLS LTD. VS. UNION OF INDIA (supra) made this memorable remarks.
“The large majority of the people who are living in almost sub-human existence in the conditions of abject poverty and for whom life is one long broken story of want and destitution, notions of individual freedom and liberty through representing some of the most cherished values of a free society only in the drawing rooms of the rich and well-to-do and the only solution for making these rights meaningful to them was to remark the material conditions and usher in a new social order where socio-economic justice will inform all institutions of public life so that the preconditions of fundamental liberties for all may be secured. ” Akinola Aguda asked: in his lecture, “The crisis for Justice.”
“What then does a right to life mean to a man when indeed he feels he will be happier if that very life was taken away from him? It seems that the right to life would be an empty right to the poverty-stricken citizen who do not know where and how they and members of their families would get their next meal. I am not suggesting that right to life be struck out of our constitution. But that that right will make meaning when every citizen feels that it is worthwhile to live.”
The constitution stipulates that “no person shall be subjected to torture or to inhuman or degrading treatment for an able-bodies person willing and able to work to find himself a victim of unabated and frustratingly prolonged unemployment? This gently leads to an equally unabated acceptance of failure in life. Too bad; This is a State of extreme psychological torture.
All other rights, freedom of expression and the press, fair hearing, to hold opinions and to receive and impact ideas and information has no meaning to a person who can hardly hope to keep body and soul together in a society where many live in opulence or extravagant luxury.
Mr. Justice Krishna Iyer of the Indian Supreme Court eloquently puts the position thus:
“Necessitous men are not free men.
Freedom is not free merely because speech is free in theory if your mind is fettered by fear of the morrow, your body handcuffed in harrowing hunger and your facilities be-numbed by boned labour…”
Professor Claude Ake, a professor of History and Phiilsophy puts it thus:
“… freedom of speech and freedom of the press do not mean much for a largely illiterate rural community completely absorbed in the daily rigours of the struggle for survival… Granted, I have freedom of speech. But where is this freedom, this right? I cannot read, I cannot write. I am too busy trying to survive, I have no life to reflect. I am so poor, I am at the mercy of others.”
The basic inference here is that the vast majority of our people are not enjoying these rights which are their birth rights. Hence there is no benefit of law and justice to them. Stalin pointed out in this manner:
“What can be the personal freedom of an unemployed person who goes hungry and finds no use for his toil? Only where exploitation is annihilated…no unemployment, no beggary and no trembling fear that man may on the morrow loss his work, the habitation and his bread only there is true freedom found.”
One assured basic principle of judicial administration in this country as in most other civilized democratic countries is that all persons rich or poor are equal before the law- that they have equal access to justice. This is a mere assumption and in actual fact dos not tally with the reality of our country. In the “jurisprudence of unequal justice” by Akinola Aguda, the author said:
“To say that there is equality before the law is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the poor so that they, the political rulers and lawyers can have peace of mind. We are simply not equal before the law unless we give a restricted meaning to ‘equal’. All persons do not have the same access to the courts-that opportunity in practical terms to ventilate grievances within the temple of Justice. Without equality of access to the courts for the ventilation of grievances, real or imaginary before the courts, the so called equality before the law is nothing but a myth.”
A novelist, Jack Higgins, in his book “A Season in Hell” Panbook (1989) page 72 wrote:
“Justice … (is) a rare commodity in this wicked world. Look, the law is a joke. You go to court, it goes on and on. The rich and powerful can buy anything they require because most men are corruptible”. Justice is also on the list of what the rich can buy.”
In conclusion, if the much cherished Fundamental Rights are the paraded Rule of Law and Justice which place premium on access to the temple of Justice then the majority must be put in place and made effective in practical terms. Let us all say no to the survival of the fittest and elimination of the unfit” may God help us and help our country if we are in the right place called a Nation.###
Barr. Gideon Kpoobari Girigiri
08036784327
