SC ‘whittling’ away true spirit of constitution by ‘piecemeal judicial nibbling’ and ‘perverse’ verdicts -Lawyer

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ANOTHER ERRONEOUS DECISION OF THE SUPREME COURT

(15th March, 2022)

OSMAN N. ALHASSAN

I have always strongly maintained that the Supreme Court is fast falling below its expected standard and threshold of reasoning. This may not necessarily be due to incompetence. I form this impression from the Court’s judgments in Mayor Abgleze v. Attorney-General; National Democratic Congress v. Electoral Commission; and Dynamic Youth Movement v. Ken Ofori-Atta, to mention but a few.

It is my opinion that if there is any threat to the sanctity of our Constitution as an embodiment of the will of Ghanaians, it’s the current Supreme Court. I think the Current Supreme Court is gradually mutilating and whittling away the true spirit of the constitution by ‘piecemeal judicial nibbling’,to use the words of justice Francois of blessed memory. Oftentimes, legitimate efforts to draw the Supreme Court’s attention to some errors are met with the remark that “you may not like it but that is our decision”. It ends there. As if the job is about power and not reason and justice.

Let me first underscore that the power conferred on the Supreme Court by article 130 of the constitution to interpret the constitution is not a power for the Supreme Court to supplant the will of the framers with its own, under the guise of modern purposive interpretation (MOPA). That would mean nothing less than judicial tyranny.

MOPA, if well understood, is a search for the intention of the framers of the Constitution which is most often conveyed by the words used in the constitution. Words in a constitution are normally used by framers of the constitution to affirm, protect, preserve, or project certain societal values and norms. In any attempt to discover the intention of constitutional framers therefore, I think attention must be paid to the societal value or norm that the framers seek to project over the others in any particular context.

The intention must first be discovered from the ordinary words of the constitution within its internal context unless the meaning of the ordinary words within the internal context leads to an absurdity, which absurdity must be clearly demonstrated.

If the framers’ intention is discovered at that stage, the Court must give effect to it even if it dislikes it or prefers a different intention. The only legitimate way of changing the farmers’ intention is by amendment of the constitution.

Having said that, I think the recent case of JUSTICE ABDULAI V. ATTORNEY-GENERAL is yet another manifestation of the current wave of Judicial blunder in the Supreme Court. I think a lot of factual and legal errors have been committed in this Judgment and they appear too palpable to be inadvertent. It appears more like an outcome of strenuous effort made by the Court to support a conclusion it believes ought to have been the framers’ intention. They reached the conclusion nevertheless, but the effort does not seem to have sufficiently yielded that support.

It is important to note that, however one comprehends the conclusion in the judgment, it really does not resolve the conundrum we have at hand. What is the conundrum?

BACK GROUND

Parliament was presented with the government budget and economic policy by the Finance Minister. Before parliamentary proceedings in respect of the budget could commence, the Finance Minister requested for time to engage leadership of Parliament on the budget. The Speaker put to the house, for a voice vote, the question whether the Minister’s request should be granted . The voice vote was duly taken, and he announced thereafter that the “nays” had it. Which meant the majority of the members rejected the Minister’s request.

One of the members from the side of the ruling party challenged the decision of the speaker and called for a head count (technically called a division). In carrying out the call for division, the speaker asked, as a matter of procedure (clearing the lobby) that the Finance Minister leaved the House. Dissatisfied with the Speaker’s decision to send out the Minister, all members of Parliament of the ruling party’s side of the house walked out of parliament.

As a result, out of the 275 members of the full House, 137 members were left. The Speaker proceeded and put the issue on the budget to a voice vote and subsequently announced that the “nays” have it. Which meant the budget was rejected.

In the absence of the speaker, the ruling party’s side of Parliament also comprising 137 members, excluding the first Deputy Speaker, reconvened in Parliament. It must be noted that an allegation of impersonation of one of the members was alleged and is probably still under investigation. The Deputy Speaker presided over that sitting and counted himself as part of the quorum and accordingly obtained a membership of 138 in the House for that sitting.

He purportedly set aside the previous decision of the house rejecting the budget. This, probably, was on grounds of the allegation that the 137 members of the previous sitting did not constitute a quorum for the business. The Deputy Speaker therefore went ahead to put the same question on the budget and announced that the “yeas” have it.

THE CONUNDRUM

The questions occasioned by the forgoing scenario that must be resolved are:

1. Was the earlier decision of the House rejecting the budget valid?

2. Assuming without admitting that it was not, did the Deputy Speaker have the authority to set it aside?

3. Was the second decision of the House purportedly approving the budget valid (this was answered by the Supreme).

4. If the earlier decision was also valid, is the budget approved or rejected?

It is clear that answering only question 3 without dealing with questions 1 and 2 cannot yield a legitimate answer for the ultimate question 4.

In accordance with article 2 of the Constitution however, declarations and interpretations of articles 102 and 104(1) of the Constitution was sought from the Supreme Court, which raised the following issues:

a) whether or not the Deputy Speaker, whilst presiding, can be counted for the purpose of determining a quorum of the House.

b) whether or not the Deputy Speaker, whilst presiding, can vote.

Art. 102, which is on quorum of Parliament, provides that, a quorum of Parliament apart from the person presiding, should be one third of all the members of Parliament.

Art. 104(1) also provides that except as otherwise provided in this constitution, matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present.

Article 104(2) of the constitution provides that, the Speaker shall have neither original nor casting vote.

Finally, articles 295(2) provides that unless the context otherwise requires, a reference to an office holder by the designation of his office, includes a reference to any person acting in, or performing ithe function of that office. Meaning, a reference to “Speaker” anywhere in the constitution is a reference also to the Deputy Speakers and other person when they acting as the Speaker.

SUMMARY OF DECISION OF THE SUPREME COURT

The Supreme Court decided that the Deputy Speaker, whilst presiding, could vote and be counted for the purpose of determining a quorum. It went further to strike down Order 109(3) of the Parliamentary Standing Orders which provided that the Speaker or a person presiding in Parliament should not have an original or casting vote.

SUMMARY OF REASONS FOR THE DECISIONS

In deciding that the Deputy Speaker could be counted in determining a quorum, the Supreme Court reasoned to the effect that the quorum in article 102 is different from that in article 104(1). That whilst article 102 provided an express limitation on the person presiding from being part of the quorum, article 104(1) which deals with voting does not place that limitation. Once the Deputy Speaker was presiding over a business of the house that required voting, he could be counted in determining a quorum for that business because he is entitled to vote.

For its decision that the Deputy Speaker of Parliament could vote whilst presiding, the Supreme Court reasoned to the effect that:

a) On the “standard democratic principle of equal representation, or ‘one man one vote’ the Deputy Speaker who is also a member of Parliament and is entitled to vote, would be unfairly disenfranchised together with his constituents if he were to be prevented from voting merely because he presides over the House in the absence of the speaker.

b) That by the provisions of articles, 95,96, and 97 of the constitution, the “Speaker” and “Deputy Speakers” are separate and distinct. That whilst the Speaker by article 95 is to be elected both from among members of Parliament and persons qualified to be members of Parliament, the Deputy Speakers by article 96 are to be elected only from among members of Parliament. That whilst the Speaker is required to vacate his membership of Parliament upon his election as such, the Deputy Speakers are not required to relinquish their membership of Parliament. Therefore, article 104(2) which deprives the Speaker of original and casting votes is specific to the Speaker and does not apply to the Deputy Speakers.

c) That it is the general practice in most common Law jurisdictions that where the person presiding in Parliament is also a member of Parliament, he is entitled to vote. In this regard, the Supreme Court stated categorically that this principle pertains in the United Kingdom, the United States of America, Australia, Canada, Kenya, and South Africa. It however referred to Botswana in acknowledgement that the principle is not universal.

Finally, With regards to striking down Order 109(3) of the Constitution, the Supreme Court simply says it is inconsistent with the Constitution.

ERRORS IN THE DECISIONS AND REASONING

In all humility and celestial respect to the Court, I think it is palpably erroneous for the Supreme Court to hold that there is no express limitation in article 104(2) on the person presiding from being counted in determining a quorum of Parliament.

I think the words “except as otherwise provided in this constitution” that precede the rest of article 104(1) eluded the Supreme Court. Such words are referred to as saving clauses in the law of interpretation. In this context, they clearly mean, the quorum for voting in article 104(1) is subject to the limitation in article 102.

A saving clause is a basic concept in the law of interpretation and an essential tool for keeping the internal harmony of a legal text. Its purpose is to limit the effect of the provision it precedes, so as to preserve some legal rule, right, privilege or obligation that already exists or is already created in an earlier provision or law. The provision in which it appears is therefore subservient to any other provision(s) in the law containing the preexisting right, obligation or privilege.

In the case at hand, an earlier rule has been created in article 102 of the constitution that a person presiding should not be counted in determining a quorum. In article 104(1), the framers of the constitution demanded a higher number of members than the usual quorum in article 102 for the purpose of voting to determine a matter.

Fearing that, 104(1) might be misconstrued to neutralize the limitation placed on the presiding person in article 102, the framers commenced article 104(1) with the words “except as otherwise provided in this constitution” and continued that in determining matters in Parliament, at least half of all the members of Parliament must be present, and votes of their majority must determine the matter.

Of course, without the saving clause, one might be tempted to think (as the Supreme Court did) that once article 104(1) provides a different quorum for voting to determine a matter, the earlier limitation on the person presiding does not apply. The saving clause therefore provides an exception to the rule in article 104(1) in the form of assurance that the limitation in article 102 remains in force. With due consideration of the saving clause, article 104(1) could read as follows:

“except as provided in article 102 of this constitution, matters in Parliament shall be determined by majority of the members of Parliament present and voting, with at least half of all the members of Parliament present.”

With the above reading, one would still find the words “apart from the person presiding” inconspicuously present in article 104(1). They are imported there by the saving clause in article 104(1) of the constitution. It would consequently mean that the one half quorum provided in article 104(1) and the majority thereof whose votes determine a matter, are still without the person presiding.

Accordingly, it is not correct to say that the words “apart from the person presiding” as present in article 102, are absent in article 104(1) of the constitution. This renders the expressio unius principle inapplicable in the interpretation of articles 102 and 104(1) of the constitution.

The failure of the Supreme Court to recognize and consider this saving clause in article 104 (1) deprived them of the framers’ intention and rendered their conclusion erroneous.

Accordingly, the decision of the Supreme Court that the Deputy Speaker, whilst presiding, counts for the purpose of a quorum is a grave error of law.

The decision that the Deputy Speaker retains his original vote whilst presiding is also erroneous.

First of all, article 104(2) expressly provides that the Speaker shall have neither an original nor casting vote.

Article 295(2) provides to the effect that, “unless the context otherwise requires” any reference to the Speaker, is also a reference to a person who is lawfully acting in, or performing the functions of the Speaker.

With this understanding, Parliament provided in Order 7 of its standing Orders, that unless the context otherwise requires, “Speaker” or “Mr. Speaker” includes a member presiding at a sitting. Order 109(3) also provides that the Speaker or any member presiding shall not retain his original vote.

This time, unlike with article 102, the Supreme Court, in construing article 104(1) of the constitution easily and readily identified the exception or saving clause in article 295(2) which reads:

“unless the context otherwise requires”

The Supreme Court accordingly held that the context of chapter 10 of the constitution in general, and articles 95 and 96 in particular, require that a Deputy Speaker should not be taken to be “the Speaker” even if he is acting as, or performing the function of the Speaker.

That also means that, due to chapter 10 of the Constitution, the limitation of the Speaker in article 104(2) in terms of original and casting votes does not apply to a Deputy Speaker even if he is performing the functions of the Speaker. The Supreme Court buttressed this reasoning with the need to prevent the unfair disenfranchisement of the Deputy Speakers and their constituents.

With due respect, I think this reasoning is flawed.

First, this reasoning inextricably links a member of Parliament’s “right” to vote to his membership of Parliament. It seeks to suggest that voting in Parliament is automatic to membership of Parliament or that the “right” to vote is created by membership of Parliament and as long as the membership remains, that “right” to vote subsists and should be immutable. This is not correct. The context of Chapter 10 actually reveals the contrary.

Both the membership of Parliament and the right to vote in Parliament, just like any other right, are creations of the Constitution for a purpose, and are taken away or allowed to be taken away by the constitution for a higher purpose.

The higher purpose to the framers of the constitution which they placed above the right to vote and even above the right to be a member of Parliament and to represent a constituency whilst presiding, is “impartiality and fairness” . This is rather the intention that is evident in the context of articles 95,96 and 97 of the constitution.

A whole membership of Parliament and even the right to cast any vote in Parliament is taken away from a member of Parliament under article 95 because he is elected as Speaker and will always be presiding as long as he is present in Parliament. To further demonstrate the importance and vigor they attached to impartiality and fairness, they went further to provide that any time the Speaker becomes a minister or Deputy minister of state, he must resign from the office of a Speaker. This reveals an understanding of the framers that the principle of impartiality and fairness which they cherish very much, is adversely affected not only by membership of Parliament, but also by membership of the executive.

Thus far, the relevant context of chapter 10 of the Constitution rather demonstrates an acknowledgement by the framers that, not only does presiding over business in Parliament requires impartiality and fairness, but also that when a person presides over proceedings in Parliament, impartiality and fairness to the 275 or 274 members of Parliament and constituencies, as the case may be, is a nobler value than the “right” of the presiding person to vote in Parliament.

This is because, preserving the right of just a member of Parliament to vote and represent his constituency in Parliament whilst presiding might be fairness, if at all, to only one constituency, but preserving and promoting impartiality and fairness of a member of Parliament presiding in Parliament is fairness to 274 or 275 constituencies in our context.

Accordingly, the Supreme Court erred by holding that the context of articles 95 and 96 in particular, and Chapter 10 disallows article 295(2) from extending the voting disqualification in article 104(2) to Deputy Speakers and other persons presiding in Parliament.

It consequently erred in holding that disqualification of the Speaker as contained in article 104(2) is specific to the Speaker and does not apply to the Deputy Speakers.

Finally, it erred in holding that a Deputy Speaker or any member of Parliament presiding in Parliament is entitled to vote, whilst presiding.

I think the Supreme Court erred in holding that the position of Ghana’s Constitution (undoubtedly referring to the position they held in the case in question) on the right of a member of Parliament to vote in Parliament whilst presiding, is in consonance with the law or Practice in Commonwealth and Anglo-American jurisdictions.

Surprisingly the Supreme Court chose to compare Ghana’s position on the issue with countries, most of which are practicing bicameral legislature. Thus countries which have two legislative Chambers, and mostly have federal governments. Ghana has only one legislative chamber (unicameral legislature) and can hardly have comparable dynamics with federal governments and bicameral legislatures.

Be that as it may, the conclusions drawn by the Supreme Court from its comparative analysis do not support the position it has taken in the case. The position taken by the Court is on original vote, not a casting vote. A casting vote is only exercised when the votes are equal on the issue. It is exercised to break a tire, not on the main issue.

Original vote on the other hand is exercised from the beginning to decide the main question before Parliament. In Ghana however, there cannot be a casting vote. The Constitution expressly states that where votes of our Parliament on an issue are equal, the issue would be deemed to be lost.

The position of our Supreme Court is that if the person presiding over the business of Parliament is also a member of Parliament, then he is entitled to an original vote on the matter. However, in all the jurisdiction and instances referred to, the Speakers are also members of Parliament, yet their constitutions expressly deprive them of original votes. A complete opposite of their position.

For instance, in Canada, article 44 of their constitution requires the Speaker to be elected from among members of the House of commons. Article 49 of the same constitution however expressly states that questions of the House shall be determined by majority vote other than that of the Speaker. It went further to state that when the voices are equal, but not otherwise, the Speaker shall then have a vote. This clearly shows that in Canada, though the Speaker of the House of commons is also a member of the House, he has no original vote.

In Australia, to which our Supreme Court also referred, article 35 of their constitution requires the Speaker to be elected from among members of the House of Representatives. In fact, it went further to state that the Speaker ceases to be a Speaker if he ceases to be a member of the House of Representatives. Nevertheless, article 40 of the same constitution states that questions arising in the House of Representatives shall be determined by majority of the votes other than that of a Speaker. It went further to expressly state that the Speaker shall not vote unless the votes are equal,which means the Speaker of the House of Representatives in Australia has no original vote.

Back to Africa. In Botswana, the Person presiding in Parliament, even if he is a member of Parliament, has neither original vote nor casting vote, and our Supreme Court referred to, and acknowledged that.

When it comes to Kenya, our Supreme Court actually purported to interpret that constitution of Kenya. What the Supreme Court stated about Kenya is not a matter of fact. That can only be borne out of constitutional interpretation and our Supreme Court can actually not state what it states without reference to any decided case of the High Court of Kenya to that effect.

The Court stated that in Kenya where the Deputy Speaker is also a member of Parliament, he is entitled to vote. This is inaccurate. Just as in Ghana, there is no express provision in the Kenyan constitution conferring on the Deputy Speaker of Parliament the right to vote in Parliament.

What is rather express in the Kenyan constitution is that, by article 106(1)(a) the Speaker is required to be elected from among persons who are qualified to be members of Parliament. This means the Speaker shall not be a member of Parliament. Article 122(2)(a) says the Speaker has no vote.

Article 106(1)(b) requires the Deputy Speaker to be elected from among members of Parliament, but no express provision stating that he is entitled to vote.

What is rather instructive is that, article 259(3)(b) of the Kenyan constitution has a similar provision as our article 295(2). It says a reference to any office or office holder in the constitution shall also be a reference to any person acting in, or performing the functions of that office. Meaning, in the case of the Speaker, any of his right, privilege, obligation, or limitation in the Kenyan constitution also applies to any person acting in or performing the functions of the Speaker.

Unlike article 295(2) of Ghana’s constitution, this provision is without the words “unless the context otherwise requires”. It therefore does not lend itself to the miscontruction done to article 295(2) of our Constitution.

Moreover, just like Order 7 of our Parliament’s Standing Orders, Order 2(1)(c) of the Standing Orders of Kenyan’s Parliament, states that, reference to the Speaker includes reference to the Deputy Speakers and any member presiding.

In the light of the above provisions of the Kenyan Constitution and the standing Orders of its Parliament, it is clear that article 122(2)(a) of the Kenyan constitution which disqualifies the Speaker from voting, also applies without any modification to the Deputy Speaker of Kenya, as well as any person presiding over the Kenyan Parliament. To state otherwise, requires an authority from the Kenyan High Court.

Our Supreme Court however stated that the Deputy Speaker of Kenyan Parliament is entitled to vote without any case law from the Kenyan High Court supporting same. (I always say Kenyan High Court because unlike Ghana, the Kenyan High Court is conferred with the jurisdiction to interpret the constitution of Kenya.)

From the foregoing, it is not correct that the position of Ghana’s constitution on the right of a presiding officer to vote is in consonance with the Commonwealth and Anglo-American jurisdictions cited.

I think The Supreme Court erred in striking down Order 109(3) of Parliament’s Standing Orders.

I totally agree with the Supreme Court that the Constitution is the Supreme Law of the land, and any law found to be inconsistent with any provision of the constitution is void to the extent of the inconsistency. The clarity of article 1(2) in this regard even renders any case Law superfluous.

I also agree that by article 130(1)(b) of the constitution the Supreme Court has the jurisdiction to strike down any enactment for being inconsistent with a provision of the constitution.

I however disagree that Order 109(3) is inconsistent with any provision of the constitution. As I have already pointed out above, Order 109(3) of the constitution is rather very consistent with articles 102 and 104(2) of the constitution. The decision of the Supreme Court striking down Order 109(3) of Parliament’s Standing Orders is therefore a serious, but unwarranted intrusion into the jurisdiction of Parliament in flagrant disregard of article 110 of the constitution, and their own previous decisions.

Moreover, before the Supreme Court can find an enactment inconsistent with a provision of the constitution, its Jurisdiction must first be properly invoked specifically in respect of that enactment. In other words, a person must specifically allege under article 2(b) That such an enactment is inconsistent with a particular provision of the constitution, which provision must be specifically stated.

The Supreme Court has in many cases refused interpretation of constitutional provisions which come up in their exercise of other jurisdictions. A good example is the recent application of Vormawor for a Habeas corpus and, I think, certiorari. The application was an invocation of the Supreme Court’s supervisory jurisdiction. The Supreme Court refused interpretation of article 14(3) because their original jurisdiction was not invoked by a writ specifically seeking interpretation of article 14(3) of the constitution.

Also in Dynamic Youth Movement v. Ken Ofori Atta, the Supreme Court was actually exercising an original jurisdiction. A preliminary issue was raised whether the Attorney-General could represent the Finance Minister in his personal capacity. That called for interpretation of article 88 of the constitution which was not one of the provisions in respect of which the writ was isued. The Supreme Court declined jurisdiction to interpret article 88 and expected a fresh writ invoking its original jurisdiction specifically in respect of article 88.

I personally don’t agree with this position, because if other courts are admonished by article 130(2) to stay their proceedings and refer interpretation of any constitutional provision that comes up in those proceedings, to the Supreme Court for interpretation, why should the Supreme Court not stay its own proceedings under any of its jurisdictions and interpret a constitutional provision that comes up? The Supreme Court however decided to take the earlier position, and so must be consistent.

In the case in question, it was the interpretive jurisdiction of the Supreme Court under article 130(1)(a) that was invoked in respect or articles 102 and 104 of the constitution. The Court’s power to strike down enactments is a separate item of jurisdiction under article 130(1) (b) of the constitution. That was not invoked. No allegation was made by the Plaintiff that Orderb109(3) of Parliament’s Standing Orders was inconsistent with any provision of the constitution. Parliament, as the affected institution, was not heard on it. The provision of the constitution to which Order 109(3) was inconsitent was also not stated. The Court suo motu (on its own initiative) struck down the Order because it was inconsitent with its own interpretation of the impugned provisions. I think that was needless. Just like Order 7 of the standing Orders, Their interpretation had already rended Order 109(3) otiose, and needed not be struck down.

In conclusion I think the decision is perverse and must be reviewed. However, whether reviewed or otherwise, the question remains: is the Government of Ghana budget and economic policy for 2022 approved or rejected?

Source : africaneditors.com