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Opinions of Sunday, 11 August 2013

Columnist: Korang, Daniel

The supreme court: a mirror of justice


The supreme court: a mirror of justice

Daniel Korang (aka Prof)

“This abstraction called the law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been! When I think on this majestic theme, my eyes dazzle." Justice Oliver Wendell Holmes, Jr. (1902-1932)

The Supreme Court of Ghana seems a mysterious, distant institution. Its justices conduct their business in an imposing marble building; they don formal black robes to hear arguments and issue decisions; and they announce those decisions through the technical language of the law. On closer examination, however, this seemingly inscrutable institution of legal oracles turns out to be a uniquely human enterprise shaped by the personalities of its justices and by the disputes that constantly roil the Ghanaian society.

Each case that comes before the Court is a unique slice of Ghanaian life, not just an abstract legal matter, and the outcomes of these cases tell the story of our nation and its development. They also chronicle the institution’s successful struggle to secure its power to review the actions of the other branches of government, to establish its independence, and to settle conclusively what the Constitution means. The Supreme Court invariably explains its actions and reach decisions through written opinions which are recorded in fat volumes, known to us today as the Supreme Court of Ghana Law Reports (SCGLR). The justices reach those decisions through a process that involves open arguments in court and (of late) intense media coverage. In almost every case, one justice speaks for the Court publicly, and his or her colleagues may concur or dissent with the decision, also publicly. It reaches its decisions through highly confidential meetings, called conferences, in which the justices discuss the cases before them out of public earshot. The framers of the Constitution intended just such a mix of secrecy and accessibility. They meant the justices to be judges, not politicians subject to direct public pressure.
The justices are insulated from politics in many ways. They do not have to stand for public elections. But they vote. Their salaries cannot be diminished while they are in office and after retirement. They are, in the strongest sense of the term, agents of the law, whose ultimate responsibility is to uphold the Constitution without regard to political pressures or the standing of the people whose cases they decide. The words carved in the Ghana Coat of Arm which hangs above the justices in the court building sum up its noblest ambition(s): “Freedom and Justice.” Indeed, a first time visitor may be astonished by Ghana’s utmost reliance on the Supreme Court and the unique nature of the Court’s power to review acts of the other branches and, if necessary, overturn them (vide article 2).

The framers of the 1992 Constitution wanted an independent judiciary capable of upholding standards of national law and restraining what they believe are the excesses of government and other state institutions and to administer justice. Thus Article 125 of the 1992 Constitution states inter alia that justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to the Constitution. This provision and countless others supply the anchorage of our national hope that the Supreme Court is not a mere plaything in the hands of power brokers. The framers chose the words carefully.

The framers of the constitution enacted that the Constitution is “the Supreme law of Ghana” (vide Article 1(2)). So it follows that the Supreme Court, the nation’s highest legal body, is to be its most sole interpreter, one authorized to overturn an act of a state organ and perhaps to set aside an act by another branch of government (vide Article 130). It must be remembered, however, that in exercising this all-important power, the Supreme Court must be guided by the fact that the ultimate touchstone of constitutionality of any impugned act(s) is the Constitution itself and not what we or others have said about it.

Throughout its history the Supreme Court has been important in resolving disputes, but it has become even more important in addressing major political issues, such as electoral disputes. The Court’s constitutional decisions, then, must reflect the society it serves. Justice Oliver Wendell Holmes Jr. summed up matters nicely when he described the law as a “magic mirror” that reflects the assumptions, attitudes, and priorities of each generation. In that light, the Supreme Court can be thought of as the mandated hand holding and turning that mirror. Yes, the Court is the mirror itself.

In modern democracies, the court serves as an indispensable hub radiating justice from which comes the inspiration and hopes of the people. A court that plays well its part in the craft of nation building is essential without which a country is bound to sink deeper into the mire of conflict.

The ongoing 2012 Election Petition presents a unique opportunity for us to look into the “mirror of the Supreme Court” to identify the controversies present in our incipient democracy, the lapses of state institutions and reflect on the impact of the Supreme Court in shaping Ghana. The final verdict of the Supreme Court shall teach us lessons about roles, responsibilities, and relationships in a constitutional democracy.
It must be remembered by all that court cases, like the present election case, mirror our hopes as a nation; supply impetus to the wheels of justice; shape the contours of our national goals and place our future in a better perspective. The temptation to ride roughshod over the legitimate expectations of Ghanaians by the court must be eschewed; for it is only by judicial integrity that the legitimate expectations of the people are upheld, truth vindicated and liberty preserved. Practical and purposive meaning ought to be given to the law. It would be a narrow conception, and indeed and error, of jurisprudence to confine the notion of law to what is found written on the statute books, and to disregard the gloss which life has written upon it. The court should not forget our peculiarities as a people and the inherent frailties of our embryonic democracy. Of compelling consideration is the fact that words acquire scope and function from the history of events which they summarize. Litigation, as I have always regarded it, is the pursuit of practical ends, not a game of chess. The court therefore has the singular duty to look through the mirror of the law and reveal the truth of the matter in controversy. The court’s verdict must follow some direction of policy, whether rooted in logic or experience. The decision should not be taken simply for the sake of it.

The most elementary role of the court in all true democracies is one of problem-solving. The success of the court in this spectacular role embodies the very thrust of our democracy and shapes the hopes of the future. In order not to make any undesirable somersault from their core mandate, our judges ought to radiate acceptable traits of character, adhere to democratic principles and values, understand and exercise personal and civic responsibilities with utmost fidelity while refraining from any tendencies that animate civic and judicial irresponsiveness. The judges must maintain an impervious fixity of valour, unbending confidence and poise. The history of liberty has largely been the history of the strict judicial observance of procedural and constitutional safeguards. Judges must take due diligence to search the law, for the indispensible judicial requisite is intellectual humility and sharp acumen. The court must speak the law!

Judicial independence is a cornerstone of democracy, guaranteed by the Constitution and enshrined in our system of government. Experience must teach us that the most dangerous threat to judicial independence is none of the other organs of government, but the very ‘self’ of judges. The worst from of interference that causes violence to judicial independence begins when judges are not able to rise above the clouds of partisan inclinations and when they fail to resist the pretentious summons of extra-judicial aspects of their being. In the first place, judges should remember they are human beings, and again that a human being who is incapable of taking decisions independent of his personal doubts, distresses, disappointments and frustrations is unfit to be a judge. Judges also have their weaknesses. It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation. Judges, like all of us, have other beliefs, mindsets, thoughts, senses and draw inspiration from other sources apart from their oath of office and what their legal training has given taught them: each of them belongs to a religious set, ethnic group, a political party, a moral class and particular orientation. These extra-judicial aspects of judges often rear their ugly heads as tumours on judicial decisions which affect the quality of judicial reasoning. From this our dear judges must refrain! They must rise above the partisan part of their experiences and set it aside in their duty as final arbiters of justice.
What becomes decisive to a Justice's function in the Court in the large area within which his individuality moves is his general attitude towards law, the habits of the mind that he has formed or is capable of unforming, his capacity for detachment, his temperament or training for putting his passion behind his judgment instead of in front of it. One is entitled to say without qualification that, as members of the highest court of the land, no judge is justified in writing private notions of policy into the Constitution no matter how deeply he may cherish them or how mischievously he may deem their disregard.
The court should not be moved by the gargantuan spillage of strange political and personal idiosyncratic thoughts that fill our adventurous air-waves. It is worthy of note that a court which yields to the popular will which is not in keeping with law licenses itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will. The sharp political opposition of the parties is no guide to good court decision. It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. That is axiomatic!
Time and experience have forcefully taught that, in countries across the globe, during political crisis, peace calls have failed to avert fratricidal wars; but faithful judicial decisions cemented by judicial neutrality have averted what could have aroused a possible Third World War. This is the sort of decision Ghana looks to.
As was stated in West Virginia State Board of Education v. Barnett, 319 U.S. 624 (1943), “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution... But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.” The judges should note that they are note lawyers for any party, a fact rooted in the common knowledge that, advocates are like managers of pugilistic and election contestants, in that they have a propensity for claiming everything. The judges are independent and neutral. They have nothing to claim.
The judges ought to be guided by their oath of office. Similarly, the judges must endeavour to rise to the occasion and give practical meaning to the immortal words inscribed in the nation’s Coat of Arm – “Freedom and Justice”. Indeed, freedom and justice compel unbiased and unpartisan judicial reasoning and decision-making. The judges are expected to make independent evaluation of the evidence before them and draw conclusions that are in keeping with their commitment to uphold the rule of law. The judges should not defend the indefensible, and thereby misdirect the course of justice and channel it along disreputable and unsavory paths. Unnecessary technicalities should give way to the quest for justice. History bears testimony that by unnecessary reliance on technicalities are freedom and justice extinguished, heedlessly at first, then stealthily, and brazenly in the end.
The current election petition and the final verdict must bring to bear the level of judicial independence and the role of the Supreme Court in consolidating our democracy not only to the fate of the Court but to our entire constitutional experiment.
To this end, our honourable justices of the Supreme Court ought to bear it in mind that the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which they are the mandated guardians. As Justice Holmes might have noted, the Supreme Court must esteem its accolade as a mirror of justice in Ghana.

With Daniel Korang (aka Prof) LL.B

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