General News of Tuesday, 25 December 2012
A former Attorney-General and Minister of Justice, Mr Ayikoi Otoo, has called on Parliament to reject the idea of putting a ceiling on the number of Justices of the Supreme Court as recommended in the Constitutional Review Commission (CRC) Report and accepted by the government’s White Paper on the report.
He said it was better to maintain the current constitutional arrangement, pointing out that putting a ceiling on the number of Justices of the Supreme Court would tie the hands of the nation.
“The convention has arisen throughout the 20 years that the constitution has been in operation with the number hovering between 14 and 15. A convention is not a law and can change. Once we put on it in the constitution, it should be obeyed and our hands would be tied, ” he submitted.
Leading a discussion at a two-day workshop on the “Review of the final report of the Constitution Review Commission and the government’s White Paper” held at Elmina in the Central Region at the weekend, Mr Otoo said apart from the financial implications of putting a ceiling on the number of Justices of the Supreme Court, there was also the issue of efficiency to deal with.
The workshop was organised by the Institute of Economic Affairs (IEA), and attended by members of the Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs and the Committee on Subsidiary Legislation.
Article 128 (1) of the 1992 Constitution states: “The Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court”.
But over the years, there had been strong advocacy to put a cap on the number of Justices of the Supreme Court based on suspicion that the ‘open-top’ constitution of the Supreme Court could be abused by a President who may pack the court in order to secure a favourable judgment or get the bidding of the government done.
In tune with such a view, which was forcefully articulated during the constitution review process, the CRC Report recommended that the number of Justices of the Supreme Court should be capped at 15, and the government accepted same in it’s White Paper on the report.
Mr Otoo, however, argued that the fact that a particular President appointed a particular Supreme Court Judge did not mean the judge should do the President’s bidding.
“We are assuming that when a President appoints judges, they immediately forget their Judicial Oath to do justice without fear or favour, affection or ill-will”, he noted, adding: “We should trust the integrity of our judges”.
“Would placing a ceiling on the composition of the Supreme Court be enough to secure the independence of the court?” he wondered.
Mr Otoo said if Justices of the Supreme Court retired at age 70, putting a ceiling on their number would mean very competent judges in the Judiciary and lawyers who aspired to that high level could not hope to be appointed as Justices of the Supreme Court.
“The Judiciary needs to reward competence and integrity,” he remarked.
Mr Otoo also disagreed with the CRC recommendation and the acceptance of same by the government’s White Paper for the amendment of the review panel of the Supreme Court to ensure that the original panel that decided a case at first the instance should, as far as practicable, be the same panel to constitute the review panel.
Article 128 (2) of the constitution provides: “The Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution”.
Article 133(2) stipulates: “The Supreme Court, when reviewing its decisions under this article, shall be constituted by not less than seven Justices of the Supreme Court”.
That means that where five Justices of the Supreme Court hear a case, the number of the panel on review, should be increased to seven, but the recommendation by the CRC, which the government accepted is to maintain the panel that sits on the case in the first instance in the review.
However, Mr Otoo, citing Article 129 (1), (2) and (3) of the constitution, argued that if the Supreme Court was the final court of appeal, then a review decision of the court would also be its final decision because after a review of the decision, there was no other legal remedy open to a party in the case.
“I support the number being increased because it brings in fresh judicial minds so as to give finality to the matter,” he submitted.
On behalf of the participants, the Member of Parliament for Zebilla, Mr Cletus Avoka, said the workshop was “very expedient and useful” because it gave them the opportunity to look at the report soberly.
He urged his colleagues in the House to approach the amendment of the constitution with circumspection and without being sentimental.
Mr Avoka said there was no need to circumscribe everything in the constitution to make it bulky, and so it was important to use it to capture basic things, while depending on norms and practices as guidance.
A Senior Fellow at the IEA, Brigadier General Francis Agyemfra (retd), said the workshop was to make the participants well-informed on the CRC Report and the government’s White Paper in order to enhance their debate on the review of the constitution.
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