All tyranny be tyranny!

Sun, 31 Jul 2016 Source: Asare, Kwaku S.

Supposing that the President, feeling appropriately angered and distressed by a radio station host who persistently insults, humiliates and even threatens him, orders his Attorney General to set up a special Fast Track Presidential Contempt Court to summarily try, convict and incarcerate the radio station host, his employers and managers. Will the radio station host and the other victims have a recourse at law?

Most people will have no difficulty answering this question correctly. Specifically, they will say that the President has acted unconstitutionally and the victims can go to the Courts to seek relief from the presidential overreach. Will it be consequential if the President truthfully states that the Courts are too slow to act and in any event the Judges are corruptible? The answer, of course, is an obvious no!

What if the radio station host’s wrath was directed at 5 parliamentarians whose only offense was to vote against a bill? Could they invoke Parliament's contempt power to summarily try, convict and incarcerate the radio station host, his employers and managers? Again, most people will answer this question as before and correctly so.

In other words, there is clarity among most reasonable people that it is the provenance of the Judiciary to say when the legislature or the executive has acted unconstitutionally. Thus, in both cases, the liberty of the annoying Radio Station host will be restored pending any prosecutions using the process sanctioned by the Constitution to protect defendants’ rights and to ensure fair trials.

Let us continue with the radio station host hypothetical except now let us direct his wrath to some of the members of the Supreme Court of Ghana. Can the Supreme Court investigate this matter, summon the Radio Show Host and summarily try, convict and incarcerate the radio station host, his employers and managers, as before? What if the Supreme Court did? Does the Constitution provide any recourse or is our Radio Show Host out of luck?

The three scenarios above are equally dangerous and unconstitutional. Montesquieu warns us that, “there would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that f trying crimes or individuals causes.”

Yet, while most people will readily recognize the tyranny in the first two scenarios, they will have difficulties and some of them will even justify the judicial tyranny. Therein, lies what I will call the paradox of judicial tyranny. When judges assume executive power, it allows them to behave with violence and oppression. Yet, as dangerous as judicial tyranny is, most people do not see it for what it is.

Tyranny does not become constitutional just because it is judicial. The victims of judicial tyranny do not lose their constitutional protections at the judicial shrine. Tyranny does not lose its charavter just because it is clothed as Contempt of Court.

Fortunately, the possibility of the third scenario provides one of the reasons

behind the creation of the Pardon Power.

All Tyranny be Tyranny!

Da Yie!

Columnist: Asare, Kwaku S.