Reactions to Supreme Court's unconstitutionality ruling
There have been mixed reactions to the Supreme Court’s decision declaring the Fast Track High Court unconstitutional.
While some of the country’s legal brains welcomed the verdict, others described the decision as a blow to the government with serious ramifications for the judicial system.
Mr Ebow Quarshie, immediate past President of the Ghana Bar Association, expressed surprise at the decision of the court.
He said the fast track court cannot be described as unconstitutional because it is a high court and the judges who presided were mostly Appeal Court judges who sat as additional high court judges.
According to Mr Quarshie, the court is so called fast track court because the proceedings are automated. Describing the decision as a terrible day in the legal process in the country, Mr Quarshie said the Supreme Court should have a policy of sustenance of the rule of law.
He said the decision has grave consequences for the legal system because orders and rulings of the fast track court will be declared null and void if the affected people initiate action to quash those judgments.
Mr Quarshie said the decision of the Supreme Court does not guarantee automatic release of those who were convicted by the fast track court, saying that “ the convicts were committed to prison by warrant and they must initiate action to order to quash the decision of the fast track court.
A respectable retired justice who spoke on condition of anonymity said “I am shocked at the verdict even though I have not read the judgment.” After all the fast track court is a division of the High Court, which the Chief Justice has constituted.
He wondered if the Chief Justice empanels a High Court to deal with commercial or land issues, it would be unconstitutional because it is not stated in the Constitution as Commercial or Land High Court.
On his part, Dr Obed Asamoah, immediate past Attorney General and Minister of Justice in the NDC administration, described the Supreme Court ruling as “ a bold and courageous decision based on the merits of the case and one which represents a victory for the country’s democratic dispensation”.
He pointed out that in holding out that operations of the Fast Track Court is unconstitutional and thereby implying that all cases tried by it are null and void, the Supreme Court has demonstrated its independence and freedom as enshrined in the 1992 constitution.
According to Dr Asamoah, although the Chief Justice is empowered by the Constitution to constitute courts, he has to do so within the confines of the law, including article 13 (a) of the 1992 Constitution.
He stated that the creation of divisions of the High Court has to be followed with other clear-cut measures, including which areas of the law it would deal with, the appointment of specific and regular judges and its order to give legal effect to such an action.
“In the case of the Fast Truck Court these were not followed and this is why the Supreme Court in exercising its powers has rightly-declared as unconstitutional.” He said, the ruling had vindicated the positions of many people who had hitherto held that the Fast Truck Court was an illegal body, which ought to be scrapped.
A private legal practitioner, Kwabena Akrasi Agyaben-Gyam, said the ruling would have far-reaching consequences for the country’s legal system. According to him, the ruling has nullified everything that the Fast Track courts have done.
Mr Agyaben-Gyam explained that those convicted by the court can file an application for certiorari to have their convictions quashed. On the fact that reasons have not yet been assigned for the ruling, Mr Agyaben-Gyam noted that it has no effect on the ruling.
He noted that the reasons would serve as a source of reference for people who would want to quote authorities in future. He said the decision is immediately binding on all the lower courts.
Mr Kwasi Prempeh, Director of Legal Policy and Governance of the Centre for Development (CIDD), has explained that comments on the ruling now will be largely speculative while the effects could be mixed. He said the ruling may be good for development of constitutionalism, due process and judicial independence.
Alternatively, the verdict may destroy the very values that augur well for democratic practice. Mr Prempeh was not happy that the Supreme Court could not release its written judgments at the same time with the oral ruling.
He prayed that the court itself could have fast tracked its written judgment to help the public to have a more robust debate and informed opinion about the decision.
“The calling of a fast track High Court, only shows that the court is using installed case management system and technology that is designed to expedite the delivery of justice,” he argued.
Any notion that “Fast Track Court is fundamentally unconstitutional is preposterous” and expressed the hope that it is not what the majority of the judges meant. Otherwise, there will be “a problem with the quality of constitutional literacy and competence of the court.”
Mr Prempeh noted that reports from newspapers indicate that Mr Tsikata predicated his claim on two distinctive administrative or processing errors. These are the setting up of the fast track and charge preferred by prosecution. Mr Tsikata is claiming that the particular High Court trying him was set up to try non-criminal cases and so it did not have the jurisdiction to try him.
“On the face of it, there appears to be some logic to that argument, but since a high court is constitutionally a court of general (criminal and civil cases) jurisdiction, he wondered whether a special division of High Court can only exercise limited function or not. He agreed with Mr Tsikata that if the charge sheet read the President versus Tsikata then there was an error.
However, he wondered whether the errors are fatal from a constitutional standpoint. He argued that, “it is an established principle that if a Supreme Court can decide a matter on other legal grounds without invoking the Constitution, it ought not to invoke the Constitution. Therefore, the judges could have decided on legal grounds without reaching a Constitutional argument.”
Unfortunately, “the court did reach the Constitutional argument, but has left us wondering what this all means” he asked. He contended that if on March 20, it turns out to be that administrative errors were the basis for the majority decision, it would send a message that public officers have to be meticulous in their work. They would have to learn that administrative negligence can be costly and can have constitutional implications and that is what Mr Tsikata sought to show.
He stated: “This may be a momentary psychological victory for Mr Tsikata because at the end of the day, the errors that might have caused the majority of the judges to rule in his favour are reversible errors.” Mr Prempeh noted that this has been a positive step because unlike the previous time, the entire Supreme Court was empanelled to hear and decide the case.