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Supreme Court's majority in the CRC case examined

Opinion Opinion

The Supreme Court's majority decision in the CRC case makes several fundamental and inadvertent errors. The top 11 egregious errors of law are:

1. The power to initiate ordinary legislative bills is not portable and cannot be used to initiate bills to amend the Constitution.

A bill to amend the constitution is sui generis and is different from an ordinary legislative bill.

To allow the use of “bill” in both chapters 10 and 25 to cloud this fundamental distinction is an elementary and embarrassing error that our Supreme Court Justices must avoid, especially where the Court quotes Tuffuor v Attorney General [1980] GLR 637 where Justice Sowah highlights that “a written constitution such as ours is not an ordinary Act of Parliament.”

2. Parliament’s power to amend the Constitution is not part of its general power to legislate under Chapter 10.
Rather, it is a specific grant of power that must be exercised in only the manner prescribed by Chapter 25.

3. Article 289 is not silent on who can initiate amendments to the Constitution.
If Parliament has the power to amend the Constitution, it follows that it has the power to do everything that is necessary and incidental to the exercise of that power, including initiating amendments.

4. The President’s Article 278 power is not an all-purpose commissioning power.
The balance of Chapter 23 defines and narrows the contours of this power. So too do the principles underlying the Constitution, such as separation of powers, limit the power.

5. Without prejudice to (4) above, the President has no power to set up a Commission to operate under its own rules.
It is only the Rules of Court Committee that can make rules to govern the operations of Commissions.

6. To the extent that the CRC operated under its own rules, in clear violation of Article 281(2), the President’s use of a Commission is not just improper, inappropriate and unsuitable, it is also clearly unconstitutional.

7. The phrase “subject to the Constitution” is not a signal to comb the Constitution to find extra powers for the President.
Article 289(1) is not subject to Article 106(14) nor is it in any way connected to Article 278.

8. The President has no “right” to initiate amendments to the Constitution. He is only given a duty (not power) to assent to amendment bills. Citizens have rights. Government has power!

9. The essence of separation of powers is that the other branches of government are precluded from exercising powers assigned to another branch.

The grant of power to a particular branch need not come with specific prohibitions of the other branches.
If the power has not been granted to a branch then that branch is prohibited from exercising that power.

Unlike citizens who have the right to do everything that is not prohibited by law, government has no power to do anything unless it is specifically empowered by the people.

10. The political doctrine question is irrelevant in matters bordering on amending the Constitution and certainly does not clothe the President with unfettered powers to investigate any and all issues of public interest.

11. The President’s Article 58 (2) power to execute and maintain the Constitution is purely executive in nature and has nothing to do with amending the Constitution.

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