Wednesday, 18 November 2020

Inaptness Of “Constitutional Amendment” And Redundancy of “As Amended”: A Reflective Proposition for Improvements on the Status in Quo


Inaptness Of “Constitutional Amendment” And Redundancy of
“As Amended”: A Reflective Proposition for Improvements on the Status in Quo

 

(by udems)[i]

 

There`s this news item[ii] on 17 November 2020, that began with the statement:


“House of Reps Committee on Constitution Amendment Calls for Memoranda, Proposals for Further Alteration of the 1999 Constitution. The call is contained in a statement …signed by the House Deputy Speaker and Chairman, Special Committee on the Review of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Rt. Hon Ahmed Idris Wase.”


The statement is published also on several other news platforms, and followed by comments on the social media. What got me thinking and culminating in the present reflection, is the consistent use of the expression “constitutional amendment” by some journalists, writers, lawyers, jurists, and most social media commentators, among others. I have also noticed that the predominant manner of citing or referring to the Constitution has been to say or write, “The Constitution of the Federal Republic of Nigeria, 1999, as Amended.” Undeniably, the present writer has not been free of these common practices. The present reflection revolves around determining which, as between the following pairs, is the more appropriate term to use or adopt:

(1)   “Constitutional Amendment” or “Constitution Amendment”?

 

(2)   “The Constitution of the Federal Republic of Nigeria, 1999, as Amended” or “The Constitution of the Federal Republic of Nigeria, 1999”?

 

Number One


Many dictionaries[iii] and textbooks, journal article, etc., recognize the process of amending the constitution of a country as “Constitutional Amendment". However, my question is, is this the appropriate term? Do we have to continue to close our eye and not question this if we think it is not the appropriate term to use? Has anyone ever thought about whether some difference does or does not exist between the word "constitutional" (an adjective) and "constitution" (a noun)? 


Meaning of Constitution:


(1) The organic and fundamental law of a nation or state. (2) the written instrument embodying the fundamental or organic law of a nation/state, together with any formal amendments.[iv] In AG Federation v. Abubakar,[v] the Supreme Court (per Onnoghen, J.S.C[vi] set out the meaning and nature of a Constitution


"The Constitution of any country is what is usually called the organic law or grund norm of the people. It is the formulation of all the laws from which the institutions of state derive their creation, legitimacy and very being. It is the unifying force in the nation apportioning rights and imposing obligations on the people who are subject to its operation.”[vii]

 

Meaning of “Constitutional”


(1). That which is consistent with or dependent upon the fundamental law that defines and establishes government in society and basic principles to which society is to conform. A law is said to be constitutional when the law does not violate any provision of the Constitution. (2) That which is consonant to, and agrees with the constitution. (3). Relating to a constitution. E.g., Constitutional rights.[viii]

 

Suggested Options


Three schools of thought appear to have emerged towards determining which option would be  considered better or more appropriate:


1)  Some have argued that both options ("i.e., Constitution Amendment" and "Constitutional Amendment") are right and could be used interchangeably, especially, they say, as "Constitutional Amendment" means amendment relating to a Constitution and “Constitution Amendment” means amendment of a Constitution. One may however fault this view by arguing that “relating to the constitution” is not exactly synonymous with “of the constitution.”


2)   Some others have suggested that only “Constitutional Amendment” is right, reason being that it is already the universally accepted term, although no one has expressly disapproved of “constitution amendment”. Why not we stay stuck with what we are already used to, in the manner of 'Don't let the things you don't have spoil the things you do have'?


3)  There are still some who appear more inclined to the view that "Constitution Amendment" is the better option, for the following reasons:


(a)  Since "Constitution" is defined as the organic/fundamental law of a country, "Constitution Amendment” is the more appropriate term to use to refer to “amendment of the organic or fundamental law of a Nation/State/country”.


(b)   It is believed that an amendment itself is of the "constitution," (a noun) and not of the "Constitutional" (an adjective).


(c)   The term "constitutional amendment" should be confined to its proper place:  an amendment that is in line with the constitution; that is, an amendment (of the constitution) that complies with the procedure prescribed by the constitution. One may, for instance, talk about a particular amendment not being constitutional or not being properly done where the amendment fails to observe the constitutionally-prescribed procedure for carrying it out, the opposite of “constitutional amendment” being “unconstitutional amendment”, one that fails to comply with the constitution. Accordingly, one may go to court to challenge any “Constitution Amendment” that is not constitutional.  One may even go a step further towards illustrating this point further, to suggest, although it may sound hilarious that Every Constitution amendment that is not a constitutional amendment is unconstitutional. This is another way of saying that an amendment of the constitution (i.e., a constitution amendment) which fails to comply with the procedure set out by the constitution (i.e., which is not a constitutional amendment) may be struck down for being unconstitutional (i.e., for failing to comply with the constitution).


(d) The National Assembly of the Federal Republic of Nigeria recently set up a Special Committee to review the Constitution. Hence, one may say, the Committee has been set up to undertake the job of a “Constitution Amendment”; an amendment of the grund norm. The Order Paper report[ix] of the incident, aptly captures the suggestion being proposed by the present writer.

 

The present writer respectfully prefers, and therefore proposes, that we adopt Option 3 for the reasons given thereunder. Happily, there appears to be some gravitation towards the proposed improvement, which is                       a departure from the flawed status in quo. The Punch Newspapers Nigeria report of November 17, 2020 came under this headline, “Reps Begin Constitution Amendment Process, Call for Memoranda”.[x] TheNigeriaLawyer followed a similar path in its headline: “Constitution Review: Reps Commence Process, Calls for Memoranda”.[xi]  Now, what do you think? Please, let`s have a discussion on this. The present writer would appreciate if you can avail him[xii] a copy of your reaction to this and/or to the (second) proposal appearing hereunder.

 

Number Two


Which is the appropriate term: “The Constitution of the Federal Republic of Nigeria, 1999, as Amended” “The Constitution of the Federal Republic of Nigeria, 1999, as Altered” or “The Constitution of the Federal Republic of Nigeria, 1999”? It is herein suggested that the latter is preferable. The following reasons are advanced in support.


(a)  Legal Inaptness of Inserting “As Amended”


Inserting the expression “as amended” is legally inappropriate. According to Black`s Law Dictionary, the “constitution” of a country/state comprises “the written instrument embodying the fundamental or organic law of a nation/state, together with any formal amendments.” This definition suggests that any reference to the constitution already includes all amendments to the constitution; it is therefore unnecessary to add “as amended” or “as altered” after mentioning the Constitution and the year of its making or the chapter in the relevant compilation of the Laws of the Federation. Going by this view, it is suggested that it would be incorrect, grammatically and legally, to cite the constitution of one`s country in the following manner: “The Constitution of the Federal Republic of Nigeria, 1999, as Amended/as altered”.  One of the ardent proponents of this view is Chief Festus Okpoto Agbo.[xiii]

 

(b)  The Redundancy Angle


The addition of “as amended” or "as altered" to the constitution, is a form of redundancy?  In English language, the term “redundancy” is used to describe a state of being not needed or no longer useful.[xiv] A word or expression in a sentence/clause is said to be redundant if the word or expression plays no role in the sentence. In other words, the sentence or clause does not require the presence of the said word or expression in order to be complete; the meaning intended to be conveyed by the clause or sentence is fully conveyed without the said word, term or expression. On its part, the Chambers English Dictionary explains that a word or expression is said to be “redundant” in a sentence if the word or expression is “superfluous, expressing an idea or sense already expressed or conveyed by another word or phrase and therefore able to be removed without affecting the overall meaning of the sentence”[xv] Based on the definition given to the legal word “constitution” by the Law Dictionary, addition of the expression “as amended” or "as altered" to the title or citation of the Constitution is an exercise in redundancy, superfluity.

 

 

(c)   Application of the Doctrine of Relation Back


The doctrine of Relation Back is a legal principle under which something done today will be treated as if it were done earlier. This doctrine is applied under certain circumstances.[xvi] For example, a document held in escrow and then delivered later will be treated as if delivered when it was put into escrow. Delivery of deed to the grantee relates back to the date it was originally deposited with the escrow agent. Further, under civil litigation procedure, an amended pleading may relate back, for purposes of the statute of limitations, to the time when the original pleading was filed. Similarly, it is submitted that, every constitution amendment relates back to the date of the making of the constitution, subject to the presumption against retrospectivity. This accords with the legal principle that once a legal document is amended, the amendment relates back to the original date of the legal document.  In Israel v. Oruruo,[xvii] the court explained that “the amendment, whenever made, shall relate back to the date the amended document was originally filed… shall relate back to the date the amended document was originally filed.” ….. What is the legal effect of this amendment? It is now well settled and trite law that any amendment of the pleadings in a case, made or ordered at any stage of the proceedings before judgment or even made in an appeal, dates back to the date when the pleadings were originally filed….See Enigbokan vs. A.I.I. Co. (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15-16; Warner vs. Sampson (1959) 1 Q.B. 297 at 321 cited by the learned Counsel for the appellant in his brief….”[xviii] Note however that this is subject to the concept of non-retrospectivity.[xix] In Utih v. Onoyivwe,[xx] the Supreme Court (per Karibi-Whyte, J.S.C (p. 121, paras. D-E) declared:


“It is a fundamental principle of interpretation of statutes that unless there is express provision therein, or a clear intention that the provision shall operate retrospectively, there is a presumption against retrospectivity. There is a presumption against retrospectivity – See University of lbadan v. Adamolekun (1967) 1 All NLR 213; Ige v. Obiwale (1967) 1 All NLR 276.”

 

(d) History and Precedent


Nigeria is reported to have borrowed the present system of republican constitutional democracy from the United States of America. The Constitution of the Federal Republic of Nigeria, 1999, has suffered only four amendments. Conversely, since the US Constitution came into force in 1789, it has been amended 27 times, including one amendment that repealed a previous one, in order to meet the needs of a nation that has profoundly changed since the eighteenth century.[xxi] This notwithstanding, the reference to the US Constitution has been as “The Constitution of the United States”, “The US Constitution”, or “The American Constitution”, or simply  “The Constitution”. There is nothing like saying or writing “The Constitution of the United States, as amended”. One then wonders where Nigeria and Nigerians[xxii] copied the addition of “as amended” from.  Indeed, the White House[xxiii] introduces the American Constitution thus:


“The Constitution of the United States of America is the supreme law of the United States. Empowered with the sovereign authority of the people by the framers and the consent of the legislatures of the states, it is the source of all government powers, and also provides important limitations on the government that protect the fundamental rights of United States citizens[xxiv].

 

Based on the above, is one not on good grounds to concluded, and therefore propose, that the rampant practice of citing the Constitution as The Constitution of the Federal Republic of Nigeria, 1999, as amended" is grammatically, constitutionally and legally incorrect. The correct version should be The Constitution of the Federal Republic of Nigeria, 1999" because this envisages that all amendments thereto are already included. Shouldn`t this reasoning apply likewise to all other statutes in Nigeria; the Legal Practitioners Act, Cap L11, LFN, 2004, etc. What is the need for the “as amended” in “Legal Practitioners Act, as amended, Cap L11, LFN, 2004” when all amendments to the Act are already deemed merged and united with the original Act, since they all related back, as explained above?  There are similar commonly-held notions, which the present writer thinks may be wrong, and which he believes also deserve some objective interrogation. But we stop here now, to continue, later.

Respectfully,

Sylvester Udemezue

 



[i] used to refer to Sylvester Udemezue, Legal Practitioner & Law Teacher, In Nigeria; can be reached on 08109024556. [email protected].

[ii] (LawAndJustice, ' RESTRUCTURING: House of Reps Committee On Constitution Amendment Calls For Memoranda, Proposals For Further Alteration Of The 1999 Constitution' (LawAndJustice 17 November 2020) < https://www.lawandjustice.ng/2020/11/restructuring-allied-matters-house-of.html> accessed 17 November 2020)

[iii] (including law and English)

[iv] Garner, B.A., In: Black's Law Dictionary, (9th ed., Thomas Reuters, 2009) 353

[v] (2007) LPELR-3(SC)

[vi] pp. 103-104, paras. E-A)

[vii] See Dapianlong v. Dariye (2007) LPELR-928(SC).

[viii] See Garner, Op Cit. p. 354

[ix] See: Order Paper Nigeria, 'Lawan Unveils Constitution Amendment Committee Members | ORDER PAPER' (Order Paper Nigeria 2020) <https://www.orderpaper.ng/lawan-unveils-constitution-amendment-committee-members/ > accessed 18 November 2020].

[xii] send to [email protected] (by email) or to 08109024556 (via WhatsApp)

[xiii] a Senior Law Lecturer at Nigerian Law School

[xiv] [See Oxford English Dictionary]

[xv] See: Robinson, Mairi, In: Chambers 2st Century Dictionary (Updated Ed., Chamber Harrap Publishers, 1999) 1169.

[xvi] See USLegal, ‘Doctrine of Relation Back Law and Legal Definition’(UsLegal, 2020) https://definitions.uslegal.com/d/doctrine-of-relation-back/#:~:text=Doctrine%20of%20Relation%20Back%20is,it%20was%20put%20into%20escrow. Accessed 18 November 2020

[xvii] (2017) LPELR-42484(CA), the Court Per Tur, J.C.A (pp. 32-39, paras. E-A)

[xviii] See also Nagogo v. CPC (2012) LPELR-15521(SC); Jatau v. Ahmed (2003) LPELR-1597(SC).

[xix] See Adesanoye v. Adewole (2000) LPELR-142(SC)

[xx] (1991) LPELR-3436(SC)

[xxi] Wikipedia, ' Constitution of the United States' (Wikipedia 18 November 2020) < https://en.wikipedia.org/wiki/Constitution_of_the_United_States> accessed 18 November 2020

[xxii] including the present writer who has been no less guilty of the same common error)

[xxiii]The White House is the United States of America`s seat of power.  Every president since John Adams has occupied the White House, and the history of this building extends far beyond the construction of its walls. The White House is both the home of the President of the United States and his family, and a museum of American history. See: https://www.whitehouse.gov/

[xxiv] The White House, 'Our Government: The Constitution' (The White House, 2020) < https://www.whitehouse.gov/about-the-white-house/the-constitution/> accessed 18 November 2020

 

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