The Blue Pencil Rule in Law and Its Application in A.G. Ondo State v. A.G. Federation (2002)

By P. L Osakwe

● Introduction

Law is the instrument by which society organizes itself, defines rights and duties, and creates mechanisms for enforcing justice. Yet, even the law is not infallible. Legislatures sometimes overreach, drafters may go beyond constitutional limits, and agreements may contain clauses that offend public policy. The judiciary, as the guardian of the Constitution and the arbiter of legality, is often tasked with determining how to deal with such defects.

One of the most elegant solutions that the law has developed for this problem is the blue pencil rule. The doctrine allows courts to strike down or “sever” the offending portions of a statute or contract while retaining the valid parts, provided that the remainder is capable of standing independently and still reflects the intention of the lawmakers or contracting parties.

In Nigeria, the Supreme Court’s decision in Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 9 NWLR (Pt. 772) 222 remains a landmark application of this principle. By applying the blue pencil rule, the Court struck down unconstitutional provisions of the Corrupt Practices and Other Related Offences Act 2000 (ICPC Act) while preserving its valid portions. The judgment not only safeguarded the fight against corruption but also reaffirmed constitutional federalism and judicial restraint.

This article undertakes a comprehensive exploration of the blue pencil rule, its origin, rationale, scope of application, and its far-reaching implications in Nigerian law. By analyzing A.G. Ondo State v. A.G. Federation in detail, it also highlights how the judiciary can balance competing constitutional values, such as national interest and state autonomy, while ensuring that legislative intention is not unnecessarily sacrificed.

1. The Blue Pencil Rule: Origins and Evolution

1.1. Historical Background

The term “blue pencil rule” originates from English common law, where judges, quite literally, would use a blue pencil to strike through the offending parts of a contract or statutory provision. The principle first gained prominence in contract law, particularly in cases involving restrictive covenants, such as non-compete agreements. Courts recognized that although a particular clause may be too wide, the contract as a whole should not be rendered void if the invalid part could be severed.

Over time, the rule found application in statutory interpretation. Legislatures often enact complex statutes, some provisions of which may be unconstitutional or beyond the powers of the legislative body. Instead of declaring the entire law invalid, courts, guided by the doctrine of severability, preserve the valid parts, ensuring legislative intent is not wasted.

1.2. Theoretical Justification

The blue pencil rule rests on several theoretical foundations:

1. Judicial Economy: Courts should not destroy an entire statute or contract if only parts are defective
2. Respect for Legislative Intention: Legislatures generally intend that laws operate to the fullest extent possible.
3. Fairness in Contracts: Parties who enter into agreements should not lose the benefit of valid promises merely because of a problematic clause.
4. Constitutional Balance: By severing unconstitutional parts, courts preserve democratic processes while ensuring fidelity to constitutional limits.

1.3. Requirements for Application

The blue pencil rule can only be applied where:

1. The invalid portion is distinct and severable.
2. The remainder can operate independently without altering the essence of the statute or agreement.
3. Severance does not create an unintended or new law/contract, but merely preserves what was validly enacted or agreed upon.

2. The Blue Pencil Rule in Comparative Perspective

2.1. England

English courts have long applied the blue pencil rule, especially in employment law and contracts involving restraint of trade. For example, if a non-compete clause restricts a worker from working “in the United Kingdom and the European Union for ten years,” the court may strike out “and the European Union for ten years” while upholding the narrower, reasonable restriction.

2.2. United States

In the U.S., the doctrine is recognized but applied cautiously, especially in constitutional cases. The Supreme Court applies severability analysis to determine whether unconstitutional parts of a statute can be struck out without affecting the remainder. The landmark case of Alaska Airlines v. Brock (480 U.S. 678, 1987) illustrates this.

2.3. India

India has one of the richest severability doctrines. The Indian Supreme Court consistently applies the blue pencil rule, provided the valid part is workable and reflects legislative intent. In R.M.D.C. v. Union of India (1957), the Court upheld parts of a law regulating gambling, striking down only the unconstitutional portions.

2.4. Nigeria

Nigeria inherited the doctrine from English law. Nigerian courts apply it not only in contract disputes but, more importantly, in constitutional adjudication. The most prominent example is A.G. Ondo State v. A.G. Federation (2002), where the Supreme Court used the blue pencil rule to uphold the ICPC Act in part while removing unconstitutional provisions.

3. The Case of A.G. Ondo State v. A.G. Federation (2002)

3.1. Background

In 2000, Nigeria’s National Assembly enacted the Corrupt Practices and Other Related Offences Act, establishing the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The Act aimed to combat corruption, a pervasive issue undermining Nigeria’s development.

The Attorney-General of Ondo State challenged the Act, filing a suit directly at the Supreme Court under its original jurisdiction. His argument was that the Act trespassed into areas of lawmaking reserved for the States under the 1999 Constitution, thereby violating Nigeria’s federal structure.

3.2. Issues Before the Court

1. Did the National Assembly have the constitutional competence to enact the ICPC Act?
2. Were certain provisions of the Act unconstitutional for encroaching on state powers?
3. If parts of the Act were unconstitutional, should the entire Act be struck down, or could the valid portions be preserved?

3.3. Arguments

Plaintiff (Ondo State): The Act usurped state legislative powers, especially concerning matters that fell under the residual list (e.g., offences committed solely within a State).

Defendant (Federal Government): Corruption was a national menace with cross-border and international implications; therefore, the National Assembly had power to legislate under its broad powers to make laws for the “peace, order, and good government of the Federation.”

3.4. The Supreme Court’s Judgment

The Court adopted a nuanced approach:

1. It held that the National Assembly had competence to legislate on corruption, given its impact on the federation’s welfare, international reputation, and economic stability.
2. However, it recognized that some provisions of the Act went too far, encroaching upon matters that constitutionally belonged to the States.
3. Applying the blue pencil rule, the Court severed those unconstitutional portions, while preserving the rest of the Act.

3.5. Ratio Decidendi

The judgment confirmed two key principles:

1. The National Assembly may legislate on corruption as a matter of national interest.

2. Where parts of a statute are unconstitutional, the Court can apply the blue pencil rule to save the valid portions rather than striking down the entire statute.

3.6. Significance

This case is a turning point in Nigerian constitutional jurisprudence because it:

1. Strengthened the legal foundation for anti-corruption efforts.
2. Clarified the scope of federal and state legislative powers.
3. Reaffirmed the judiciary’s role as the guardian of constitutional balance.
4. Demonstrated judicial restraint and respect for legislative intent.

4. Broader Implications of the Blue Pencil Rule in Nigeria

4.1. For Constitutional Law

The rule preserves constitutional order by ensuring that unconstitutional provisions are excised while protecting legislative intent. This prevents waste and avoids the destabilizing effect of nullifying entire laws.

4.2. For Federalism

In a federation like Nigeria, the doctrine helps balance federal and state powers. It ensures that when the National Assembly overreaches, only the excesses are struck down, thus respecting state autonomy without crippling national governance.

4.3. For Judicial Power

The blue pencil rule enhances judicial legitimacy. Courts are not perceived as reckless destroyers of legislation, but as careful arbiters who salvage what is valid. This builds public trust in the judiciary.

4.4. For Legislative Drafting

Lawmakers are encouraged to draft with precision, knowing that courts may cut off overreach. This fosters better legislative technique.

4.5. For Contract Law

In private law, the doctrine promotes fairness by preventing the collapse of entire agreements due to one offending clause. For instance, employment contracts with unreasonable restraints can still stand if severed.

5. Criticisms of the Blue Pencil Rule.

While useful, the doctrine is not without criticism:

1. Judicial Legislation: Critics argue that by severing provisions, courts risk rewriting laws.
2. Uncertainty: It is not always clear when a provision is severable.
3. Legislative Intention: Sometimes, the legislature might not have passed the law without the excised parts.
4. Selective Application: Courts may apply the rule inconsistently.

6. Policy Recommendations

1. Clear Severability Clauses: Legislatures should expressly include severability clauses in statutes.
2. Judicial Guidelines: The Supreme Court should develop clearer tests for when severance is appropriate.
3. Capacity Building: Drafters should be trained to anticipate severability issues.
4. Harmonization with Federalism: Courts should be cautious in applying the rule where federal–state balance is delicate.

■ Conclusion

The blue pencil rule is one of the most pragmatic doctrines in modern law. It enables courts to preserve what is valid, strike down what is unconstitutional, and maintain the delicate balance between legislative intent, constitutional supremacy, and fairness.

In Nigeria, the Supreme Court’s decision in A.G. Ondo State v. A.G. Federation (2002) is a powerful demonstration of the rule in action. By severing unconstitutional provisions of the ICPC Act while preserving its valid core, the Court upheld the fight against corruption while respecting federal principles.

Ultimately, the blue pencil rule illustrates the wisdom of judicial moderation: that the law must be a scalpel, not a hammer, cutting away the diseased portions while preserving the life of the whole.