Public Policy & Public Interest: the Meeting Point between an Unruly Horse and the Law – Olutayo Awoyele

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Introduction

While Public policy is one of the several concepts loosely referenced or utilised by administrators, policy makers, professionals and other stakeholders in governance, it however remains elusive, vague and does not admit of any precise definition. The fluidity of this concept is compounded by the numerous factors such as beliefs, values, norms, morality, ideology and environment that shape its emergence. Public policy is so nebulous a concept, that it shares its distinctive quality of vagueness with other legal concepts such as fraud and so on. Accordingly, it is no surprise that Burrough, J., in Richardson v. Mellish (1824), 2 Bing. 252; described public policy as:

“A very unruly horse, and when once you get astride it you never know where it will carry you.”

What is Public Policy?

Although public policy is incapable of an all-encompassing definition, a brave attempt shall be made to describe it. Hence, public policy is described as the totality of means through which the government strives to achieve the legitimate demands, cravings and aspirations of its citizenry. These demands could be in the area of law making, enforcement of the law, interpretation of the law, distribution and regulations of public resources, fighting against corruption, insurgency and other considerable factors; all of which are geared towards the benefit of the people in other to have a peaceful co-existence. These policies need not emanate from the government, as it can also be initiated by the citizens. The initiatives must however be acted upon by the government before it could be termed public policy. It is considered strong when it solves problems efficiently and effectively, serves justice, supports governmental institutions and policies, and encourages active citizenship. It is usually contained in the constitution, statutes and judicial decisions. Public policies are generally formulated in response to public problems which could be of economic, social or political nature. It is in place to address the needs of the people in the different sectors of the individual society. For example, we have health policy, legal policy, financial policy, economic policy and so on. To this end, public policy can be equated with public good to the extent that it seeks to achieve public interest. There however cannot be a meaningful discussion of public policy without reference to the law. This explains why a policy however excellently crafted and conceptualised it might be, will only be capable of implementation after it receives the necessary statutory backing. A good example is the present issue of political restructuring raised by several individuals, which is yet to be acted upon by the government. Hence it will become public policy as soon as it is accepted and acted upon by the government and given the necessary rubber stamp approval.

Having proffered a workable definition and attempted to describe the meaning of public policy, it becomes apposite to briefly examine the relationship between public policy and some other related concepts chiefly amongst which is morality. 

Public policy, morality, sentiments and public interest

Morality is a set of evolving rules of behaviour in a society at any point in time. It inspires unity and the concept of collective well-being in people. It also encourages individuals towards being good and fair for the collective benefit of the society. Morality forms the bedrock of public policy. It enhances the ground for the evolution and the legal enforcement of public policy. In other words, it births public policy. Public policy in a broader sense addresses the moral, cultural and economic values that maintain the unity of the society. Most societies will only allow principles and practices that have passed the test of its norms of morality grow into public policy.[i] This explains why issues like prostitution, homosexuality, abortion and euthanasia may not be easily legalised in Nigeria as most Nigerians consider it to be immoral. In heterogeneous religious societies, morality premised on individual religions usually does not form consistent public policy. The relationship between public policy and morality can also be seen in the way both are connected to the law. Both public policy and morality are normative in nature as they commonly deal with the regulation of human conducts for the governance of the society. Public policy gradually evolves to encapsulate the changes in morality. It is also however important at this point not to confuse public policy and sentiments together. As one might be tempted to liken sentiments with public policy and thereby use both terms interchangeably. Sentiment is the general feelings of members of the public on a specific issue and just like public policy it is not static. Generally, sentiments do not form public policy, and therefore have no place in law. Sentiments premised on morality shape the formulation of public policy which eventually becomes the law.

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According to the Random House Dictionary, public interest is defined as the welfare or well-being of the general public. In a broad sense, it means anything done for the benefit of the public. It is the yardstick by which the effect of governmental actions, decisions and laws are measured. Accordingly, public policies are usually formulated for the general benefit of the public.

Public Policy and the Interpretation of Laws

Generally, public policy has been widely perceived by the judiciary as a protective mechanism. Hence, Tindal, C.J. in Horner v. Graves (1831), 7 Bing. 743 remarked that:

“Whatever is injurious to the interests of the public is void, on the grounds of public policy.” 

In Egerton v. Brownlow[1][1853] 10 Eng. Rep. 359. 4. H.L. Cas.1 Lord Chief Baron Parke opined that public policy is used as a protective device to insulate the society from the negative impact of individual transactions and activities. Baron Parke used the term synonymously with public safety. According to him, contracts and covenants may sometimes not be enforced solely on the broad ground of public policy.[ii] For example, contracts on illegality and immorality are usually not enforced due to public policy considerations. As a protective device, public policy becomes open-ended unless confined by certain factors. For example, how will judges determine what is good for the society. Could judges not invoke it every time they disapprove of particular transactions or favour particular social phenomenon?

 In response to these concerns, justice Baron Parke argued that the reliance on public policy as a protective device might be controlled if courts relied on the policy of the law.

Similarly, the Nigerian Courts have utilised public policy as a protective mechanism, albeit in a rather restrictive approach. Therefore, the courts have cautiously applied public policy in light of extant laws that governs each case. Below are a few cases where the Nigerian Court examined the issue of public policy.

In Okusami v Attorney General of Lagos State &Anor (2015) 4 NWLR (Pt. 1449) 220, 253 the appellant who was a Director of veterinary services in the ministry of agriculture of Lagos state, was summarily dismissed at age of 52 after 25 years of service in contravention of the Lagos State Civil Service Rules. The excuse given for his wrongful dismissal was the need for compliance with the government policy of re-organisation. His claims were dismissed at the High Court while the respondent’s counter claim for possession of the appellant’s official residence was granted. On appeal, the Court of Appeal upheld his appeal and granted his claims. The appellate court in upholding his appeal made the following pronouncement of public policy:

An agreement which tends to be injurious to the public, or against the public good is invalidated on the grounds of public policy – See Halsbury’s Laws of England 4th Edition Reissue Paragraph 9 (1). Gerton v. Earl Brownlow (1853) 2 HL. CAS 1 at 196 per Truro; Janson v. Drefontean Consolidated Mines Ltd. 1902, A.C. 484 at 491.

The question whether or not a particular agreement is contrary to public policy is a question of law.

Where even Government policy is carried out inequitably, this court shall upset the decision that travests equity.”

In Sonnar (MG.) LTD. &Anor v. M.S NORDWIND & 2 ors (1987) 4 NWLR (Part 66) 520, 536 the appellants instituted an action to recover damages arising from breach of a simple contract of carriage of per-boiled rice by sea from Thailand. Clause 3 of the Bill of Lading provides that:

“Any dispute arising under this bill of lading shall be decided in the country where the ‘carrier’ has his principal place of business and the law of such country shall apply except as provided elsewhere herein.”

The first respondent (owners of the vessel) is a German company with its principal place of business being in Germany. Therefore Germany became the relevant place of adjudication. In response to the appellants’ action at the Federal High Court, the respondents filed an application for the court to stay the action on the grounds that the court has no jurisdiction as only the German court can entertain the action pursuant to clause 3 above. The trial court granted the application. On appeal, the Court of Appeal dismissed the appeal. On further appeal, the Supreme Court unanimously allowed the appeal.  The Appellants’ counsel however raised an interesting argument in his brief. The learned counsel contended that upholding foreign jurisdiction clauses is contrary to public policy, as it aids the motives of foreigners to draw more cases to their courts due to the confidence they have in their home courts more than ours.  The Supreme Court however sounded a caveat on general application of public policy in judicial decisions by stating as follows:

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“With respect, attractive and tempting as the submission in regard to public policy is, it is dangerous for a court to base its decision mainly on public policy, which indeed would be another means of avoiding rules, law and procedure which govern a matter. Public policy is usually equated with public good. To ask a court to decide only as a result of public policy or public good, goes beyond the measure of liberalism in the application of the law or viewing a matter from the socio-economic context of law. Who is to determine what constitutes public policy? To rely on public policy or public good simpliciter, is to give room to uncertainty in law. It is a way “to beg the question”. While it is for the law to find some point of reference, which is more universal than its internal question, one would still ask the question which Lord Rackliffe once asked in a paper titled, “The lawyer and His Times” and the question is –

“Can an enlightened conception of public policy provide what we want, a scale of measurement?”

He answered the question and he said –

“We cannot run the risk of finding the archetypal image of the judge confused in men’s minds with the very different image of the legislator.”

For while a judge is expected to remain objective, impartial, experienced and full of erudition, these attributes cannot be found in one who seeks total sanctuary for his decision, in public policy.

I am not saying that the question of public policy should be wholly excluded. No it should not. For even then, it is against public policy to produce uncertainty in the law: What I am saying is that public policy is not to be relied upon wholly to fathom a decision.” Per Eso J.S.C

In Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165, the appellants claimed that they are entitled to a parcel of land which was affirmed by the judgment of a Native Court in matter instituted by their ancestors. The then further claimed that the land in dispute upon which they claim compensation from the second categories of respondent who acquired it for oil exploration formed part of the parcel of land yielded to them the Native Court’s judgment. The trial court granted their claims. On appeal, the Court of Appeal overturned the trial court’s decision. The appellants further appealed to the Supreme Court which was also overturned. The Supreme Court noted that the land in dispute was not pronounced upon in the Native Court’s judgment. The Apex court further noted that estoppel res judicata will only apply in respect of the land adjudicated upon in the judgment of the native court held and thereby stated as follows:

“ It is an application of the rule of public policy that as against the same parties, no man shall be vexed twice for one and the same cause on the same issues (nemo debet bis vexari pro una et eademcausa)” per Nnaemeka-Agu J.S.C

In Okusami V Attorney General of Lagos state (supra), the court utilised public policy as a protective mechanism against an unjust government policy. In Sonnar v Nordwind discussed above, the apex in allowing the Appellant’s appeal sounded a note of warning on the danger of deciding cases solely on the grounds of public policy. The court further emphasised the need for caution and restriction in applying public policy as a protective concept.

The Place of Public Policy in Law Making

The relationship between law and public policy can be described as a ‘hand in glove’ one.[iii] Law is the mechanism that controls governmental power given to administrative branches and thereby gives legitimacy and authority to state actions. Law can be termed the operating manual for the government. It also lays down the rules by which citizens must live in order to maintain an orderly society. The legislature takes certain factors into consideration when enacting laws such as public policy. If laws must serve public interest, it must incorporate public policy. This is even necessary in view of John Locke’s social contract theory which explains governance as a contract between “the rule” and “the ruled”, whereby the latter votes the former into power in expectation of good governance in return. The foundation of public policy is embedded in laws and regulations. Further substrates include both judicial interpretations and regulations which are generally authorized by legislation. More so, some laws such as the constitution contain public policy. The 1999 constitution as amended which is the grund norm also serves as a public policy document. Interestingly, the Constitution Drafting Committee of the 1979 Constitution (upon which the 1999 Constitution was modelled on) noted as follows:

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“A constitution should not be simply a code of legally enforceable rules and regulations; it is a charter of government, and government involves relations and concepts that are not amenable to the test of justiciability or capable of enforcement only in the courts of law…unless the goals and the fundamental attitudes and values that should inform the behaviour of its members and institutions are clearly stated and accepted, a new nation is likely to find itself rudderless, with no sense of purpose or direction. By defining the goals of society and prescribing the institutional forms and procedures for pursuing them, a statement of fundamental objectives and directive principles in our constitution seeks to direct and concert the efforts and actions of the people towards the achievement of those goals… The need for such provision in Nigerian Constitution is all the greater because of the heterogeneity of the society, the increasing gap between the rich and the poor, the growing cleavage between the social groupings, all of which combine to confuse the nation and bedevil the concerted march to orderly progress.”[iv]

Chapter two of the constitution contains fundamental objectives and directive principles which are expected to guide the nation towards the realisation of a sane and just society. A cursory look at the chapter will reveal that it spans across political, economic, social, educational, foreign policy, environmental, cultural, mass media and ethical objectives[v].  Although the provisions of Chapter two are not enforceable by virtue of Section 6(6) (a) of the 1999 constitution, they however represent principles that will guide the enactment of laws on the areas addressed by the said chapter. For example, the principle of prohibition of corruption embedded in Section 15 of the constitution informed the enactment of the Independent Corrupt Practices and other Related Offences Commission Act. This is glaringly the case from the decision of the Supreme Court in Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR (Pt.772) 222 wherein the apex court premised the validity of the ICPC Act on the combined provisions of section 15 and Item 60A of the Exclusive Legislative list

Conclusion

The place of public policy in law making and judicial interpretation of laws is undeniable. As Laws enacted by the parliament which do not reflect the aspirations of the people will eventually become dead letter laws. The ever-evolving nature of public policy will make it difficult to serve as a principal guide in the interpretation of the law by the courts. As to anchor every judicial decision on public policy, will herald a barrage of inconsistencies which will not be helpful in adhering to the principle of stare decisis. It is therefore best to apply public policy restrictively in the interpretation of laws in order to breed certainty of law. Conclusively public policy cannot survive without the law as it is the law that ultimately determines its validity and not the interest of the public.

By Olutayo A. Awoyele  Esq. (with contributions from Ifeoluwa Akinola Esq.) 

Legal Practitioner

07053965551

olutayoanthony@gmail.com

Footnotes

[i] [i]https://kufit.wordpress.com/2012/05/22/nexus-between-law-morality-and-public-policy/ lasted visited on 2/10/2017

[ii] Restraining The Unruly Horse: The Use of Public Policy in Arbitration, Interstate, and International Conflicts of Law in Carlifonia. Kojo Yelpaala @ pg 390

[iii] Kiyoung Kim. The Relationship between the Law and Public Policy: Is it a Chi-Square or Normative Shape for the Policy Makers. Social Sciences.Vol. 3, No. 4, 2014, pp. 137-143. doi: 10.11648/j.ss.20140304.15

[iv] Kehinde M.W., Constitutional Law in Nigeria,  (Malthouse press limited 2008)

[v] See sections 15 – 24 of the 1999 constitution

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