Nana Dr S. K. B. Asante, Vice President of the Ghana Academy of Arts and Science, on Monday, stated that the Supreme Courts decision declaring the Fast Track Court unconstitutional may have far reaching implications for the administration of justice and public confidence in the judicial process.
However, the High Court decision dismissing charges against Mr Tsikata on the grounds of unconstitutionality seems proper and does not raise any constitutional questions, he said.
He made these remarks in the first of three lectures at the J. B. Danquah Memorial Lectures in Accra under the Theme, "Reflections on the constitution, Law and Development," organised by the Academy.
Nana Dr Asante stated that, although he was unable to comment on the substantive grounds for the Supreme Court decision, since they were yet to be given, "nevertheless one cannot in all candour avoid confronting some nagging and troubling pertinent questions about the judicial process".
He said the Supreme Court's sensitivity and role in ensuring the Rule of Law imposed a serious duty on the institution, adding that, the honourable members of the Bench had to be above reproach since no organ of state was immune from scrutiny in a democratic system.
The Supreme Court's decision in the Tsikata case has the effect of invalidating not only the criminal proceedings instituted in the Fast Track Court against him, but also all previous decisions and proceedings whether criminal or civil, with detrimental implications for all vested interests.
He said a legitimate question must be raised as to whether the decision had performed the judicial function of assuring certainty and order in the administration of justice or whether the judiciary had itself unleashed uncertainty and unsettled vested rights.
Nana Dr Asante stressed that the judicial process and the legal system should clarify, protect and sustain rights and other interests and not to unsettle or disturb them, emphasising that "the ordinary person looks up to the law as reliable and predictable system of protecting and not upsetting rights and other interest".
He urged Supreme Court Judges to heed the admonition of former Chief Justice Sowah that, "Our interpretation should match the hopes and aspirations of our society and our predominant consideration to make the administration of justice work". Nana Dr Asante raised questions as to what prevented any member of the Judiciary from expressing reservations about the constitutionality of the Fast Track Court.
He asserted that, "if the judiciary was prevented by law and tradition from reviewing or advising on the constitutionality of a machinery introduced by the Head of that institution, then perhaps we should reappraise the entire system of constitutional litigation".
Nana Dr Asante suggested a system, which "would enable us to test the constitutionality of a proposed measure before it becomes an accomplished fact, that apart from the traditional system of reviewing the constitutionality of an act within the meaning of Article 2, a mechanism be instituted for the express purpose of raising or testing the constitutionality of a proposed measure of the executive, or a bill to be passed by parliament".
This would have pre-empted any prospect of invalidating a whole system after it has been installed with all its disruptive implications. There was no reason why any question whether constitutional or legal about the installation of a machinery welcomed by all parties such as the computerisation of court proceedings could not be resolved in a non-contentious manner without recourse to the confrontational litigation inherent in the adversarial system, he said.
Nana Dr Asante expressed concern about the Court's failure to give reasons together with its decision, saying "again unsettling as expeditious disposition of the case with full reasons would have calmed the atmosphere".
He said with the failure, one assumes that no judgement had been written before the announcement of the decision "if so then the learned judges may have denied each other an opportunity to reflect on their colleagues opinions and to exchange ideas in a collegial atmosphere, which was an important technique for building consensus".
Judicial review, remarkable - Asante
Nana Dr S. K. B. Asante, Vice President of the Ghana Academy of Arts and Science, on Monday, said one of the most remarkable constitutional powers ever conferred on an organ of state was judicial review of the acts of the President, Executive and Parliament and to declare them null and void if they were unconstitutional."When we consider that our constitution further enshrines a justiciable bill of rights and specifically confers jurisdiction on the High Court to enforce the fundamental human rights and freedoms guaranteed by the constitution, then we cannot fail to appreciate the pivotal role of the judiciary in our constitutional system," he emphasised.
Nana Dr Asante was delivering the first of a series of three lectures of the 35th J. B. Danquah Memorial Lectures in Accra, on Monday, under the theme "Reflections on the constitution, Law and Development," organised by the Academy.
The lectures commemorate the outstanding contributions of Dr J. B. Danquah to the political, social and economic development and independence of the country. The theme for the series, "Constitutionalism and effective government," would survey arrangements and extent Parliament and the Judiciary act as effective constraint on the Executive.
The second lecture, "The Constitution: Some social and economic development Aspects," would consider fundamental rights and freedoms, social and economic goals of the Directive Principles of State Policy and some specific issues such as land administration and reform of traditional practices to comply with the constitution.
The third; "Law and Development," would emphasis the impact of the law on private sector development and the relationship between international business negotiations and transactions and development.
Nana Dr Asante who chaired the Committee of Experts that drafted the 1992 constitution explained that the document explicitly conferred on the Supreme Court the power of judicial review on the following terms under Article two;
"A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment; any act or omission of any person is inconsistent with or in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect."
He stressed that, the Supreme Court would for the purpose of declaration make such orders or give directions as it may consider appropriate for giving effect, or enabling effect to be given to the declaration.
Nana Dr Asante emphasised that the judicial powers are reinforced by potent sanctions under Article 2 (3, 4, and 5), which states that any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court should duly obey and carry out the terms of the order or direction.
He said failure constituted a high crime liable to imprisonment not exceeding ten years without the option of a fine, adding that, the one would not be eligible for election or for appointment to any public office for ten years beginning with the date of the expiration of the term of imprisonment, while in the case of the President or Vice President, it constituted a ground for removal from office.
The Legal Expert stated that successive constitutions since 1966 had proclaimed the twin concepts of judicial review and justiciable bill of rights in the light of the authoritarian and illiberal excesses in the political and constitutional experience of the country.
Nana Dr Asante said a study of Supreme Court decisions since the promulgation of the constitution indicates that after nearly a decade of constitutional adjudication, there was evidence of an evolving philosophy of interpretation.
Nana Dr Asante admitted that although it was too early to detect a full-fledged approach, Judges of the Supreme Court appreciated the fundamental distinction between interpreting the constitution and construing an enactment.
However, the frequent and enthusiastic citation of the approach had not always been reflected in the process of interpreting the constitution, he said, stressing that mechanical and technical rules of statutory interpretation have been applied in a number of cases.
He noted that many Supreme Court Judges based their interpretation of the constitution on the intent of the framers and relied substantially on relevant documents such as the reports of the Committee of Experts and the various committees of the Consultative Assembly.
Although it was gratifying to rely on the report of the experts in elucidating the meaning or rational of various provisions, Nana Dr Asante stated that a liberal approach demanded more than a determination of the original intent of the framers.
Nana Dr Asante noted that a substantial number of judges had invoked the "spirit of the Constitution" in interpreting constitutional provisions, which was crucial in the outcome of the majority decision in the 31st December case.
He said other legal experts had been sceptical about the import of the spirit of the constitution raising questions as to whether it was a "metaphysical phenomenon". Other factors on judicial interpretation included English decisions, language and the constitution and legislative history and other legal arguments, he said.
In spite of these difficulties, Nana Dr Asante stated that the Supreme Court except in few cases performed creditably and had made significant contribution to the protection of the core values of the constitution and deepening and consolidating democracy and constitutionalism.
