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Opinion | Feb 20, 2018

Are Supreme Court Justices Making Party Political Decisions?

By Kofi Ata, Cambridge, UK
In a response to Prof Raymond Atuguba’s research findings on the analysis of decisions of Supreme Court Justices (SCJs) under the Fourth Republic vis-à- vis the government under which they were elevated onto the highest court of the land, some SCJs have not taken kindly to Prof Atuguba’s work. The Chief Justice, Her Ladyship Sophia Akuffo has described the findings as alien to Ghana and an American thing. SCJ Dotse went further to condemn the work as an “insult of the highest order”. This article is an analysis of the tug of war between the SCJs and the Legon Law professor. I should point out that I have not had the benefit of reading the research report and therefore will limit myself to theoretical aspect of the research.

According to Prof Atuguba, his analysis of political cases showed that where the law is not clearly defined, fourteen (64%) out of twenty-two SCJs appointed by NDC government voted in favour of NDC and thirteen (81%) out of sixteen SCJs appointed by NPP government voted in favour of NPP. Does this necessarily show judicial or party-political bias?

My first reaction to reading the responses from both the Chief Justice and SCJ Doste was, are they also living on planet earth? Do they really believe that Ghanaians do not impugn party political affiliations into the judicial decisions they make at the apex court? Where were they during the 2012 presidential petition hearing in 2013 because every decision was interpreted by the public along party political lines (rightly or wrongly)? The fact of the matter is that Prof Atuguba’s research has unearthed nothing new except provide some empirical facts to buttress existing public perception. In my candid opinion, even with the empirical data, the findings are not conclusive that the SCJs are party politically biased with their judicial decisions for reasons that I will explore later.

I also observed with interest, the explanation by the Chief Justice that, “under the constitution, a judge will be appointed during somebody’s time…and that somebody will belong to one party or the other. The decisions taken after such appointments by the judges, were subject to any political interpretation by anyone but so long as it is in line with the law and it is sound and follows the facts.” I share this view of the Chief Justice.

Why do I say that Prof Atuguba’s research findings are not definitive evidence of judicial party-political bias by the SCJs? In most democracies, judges of the superior courts are grouped into two main judicial philosophies, conservatives and liberals. There is a second school of thought that has a third, as moderates (those who move in between the two). According to Dan Saylor of University of Virginia Scholars’ Lab, judicial philosophy is the way judges understand and interpret the law. In principle, laws are universal but they must be applied to particular cases with unique circumstances. To do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it. Judicial philosophy is based on the fact that judges’ understanding and interpretation of the laws are influenced by their own belief systems (values, morals, ideology, faith, etc).

Conservative judges’ judicial philosophy is rooted in the idea that laws are made by the executive and legislative branches of government and not by the judiciary or judges of the superior courts. This philosophy adheres to the belief that constitutions and statutes are fixed documents, are meant to be taken literally and that the rules of law-making and governance are clearly defined within its context. They therefore tend to follow traditional or conservative lines of thinking and conventional value systems. In other words, conservative judges follow the letter of the law when it comes to the understanding and interpretation of the law.

The liberal judicial philosophy on the other hand, takes the opposite viewpoint from the conservatives. Liberal judges believe that a constitution should be dynamic in nature and not static but also constantly open to interpretation. This judicial philosophy supports laws that work towards a progressive spectrum of ideas, including civil rights, personal choice, the separation of church and state, etc. In other words, liberal judges follow the spirit of the law approach when it comes to their understanding and interpretation and intent of the law. What is in common to both conservative and liberal judicial philosophies is that they are both prone to the accusations of making judicial decisions based on their own personal beliefs, values, faith and morality.

The other contrasting differences between the conservative and liberal judicial philosophies include judicial restraint versus judicial activism, strict constructionism versus loose constructionism and original intent versus living document respectively. Judicial activism is when judges develop a philosophy of using the bench to enact social and political change, especially but not exclusively liberal judges, whilst judicial restraint is judges practising a philosophy of restraint, believing that judges must interpret the law strictly rather than seek to make new laws. Again, all judges, regardless of their judicial philosophies, develop their own methods of understanding and interpreting laws. Most strict constructionists are also advocates of judicial restraint, but not all. Similarly, many advocates of judicial restraint also follow the doctrine of original intent. These views, however, do not always overlap. As a result, judicial philosophies are not the same as political ideologies, though some judicial philosophies tend to coincide with certain political views.

The above is also not to suggest thinfluence at judges fit neatly into two groups of conservatives and liberals. There are some overlaps and therefore there are very few judges who by their judicial philosophies always and at all times make judicial decision that are only conservative or liberal throughout their career. Judiciary philosophies are not the only factors that determine the judicial decisions of judges whether conservative or liberal. In some cases, even public opinion could the judicial decisions of both conservative and liberal judges but within the purview of the law.

A classical example of conservative and liberal judicial philosophies is the US Second Amendment (the right of individuals to bear arms). This constitutional right was the direct result of history (the British colonial and imperial power over the US and the war of independence). The objective was for all citizens be in a state of readiness in defence the country and to prevent the former colonial power from attempting to restore its powers over the country by use of force (war). Centuries down memory lane and despite advancement in technological warfare as well as (mis/ab)use of guns to massacre innocent people by those with mental health problems and others with an axe to grind, conservative judges have stuck to the strict interpretation of the Second Amendment’s original intent. Liberal judges also recognise the right of individuals to bear arms under the Second Amendment. However, when it comes to intent they go further than stop at the original intent by asking the question, should the framers of the constitution be presented with today’s arms bearing right problems, dangers and abuse, what would be their intention and answer the question through their judicial decision taking into consideration the contemporary situation. That is, interpreting the constitution as a living document.

How is the above relevant to the Ghanaian situation and specifically to Prof Atuguba’s research findings? In democracies such as Ghana, the executive assisted by the legislature appoints judges of the superior courts, especially, SCJs. The appointing authority (the president or prime minister) most often, if not all, selects judges that s/he is comfortable with their judicial philosophies by way of their past judicial decisions. Consequently, presidents or prime ministers from right wing parties tend to appoint judges with conservative judicial philosophies onto appellate courts and as SCJs. The same applies to presidents or prime ministers from left wing parties who also tend to appoint judges with liberal judicial philosophies into appellate courts and as SCJs. Consequently, their judicial decisions which are influenced by their respective judicial philosophies tend to coincide with the policies of the political parties that appointed them. This does not necessarily mean that they are biased in favour of the party which appointed them because judicial philosophies are not the same as political ideologies, even if they coincide with political views.

The above is also true even in democracies where politicians have less influence on the appointment of judges of the superior courts such as in the United Kingdom. In the UK since 2006, all senior judges up to Appeal Court are selected by the Judicial Appointment Commission, which recommends candidates to the Prime Minister after an open and transparent recruitment process. The Prime Minister then recommends the preferred candidates to the Queen. SCJs are appointed through a selection commission set up by the Lord Chief Justice, head of the Judiciary in consultation with the President of the Supreme Court (please note that the head of the judiciary is not a member of the Supreme Court). The selection commission recommends successful candidates to the Prime Minister who also recommends same to the Queen. In all cases, the Prime Minister and the Queen hardly reject the recommended candidates. Irrespective of the conveyor belt roles played by prime minister in the appointment of judges of the superior courts in the UK, they are also divided into conservatives and liberals according to their judicial philosophies and through the judicial decisions and that is no indication that they favour or are bias against a particular party-political ideology or party.

Another fact is that, judges of the superior courts by their very training and profession are elitists and therefore their values, beliefs and morality are more likely to be conventional than the average person. For reasons of their profession (avoidance conflict of interest), many also live isolated or secluded life and socialise within people from limited circles, unlike many of us who have the freedom to socialise with a wide range of people from different socio-economic and political backgrounds. Their beliefs, values and morality that influence their judicial philosophies are therefore often not in common with the person on the street but the powerful, rich and influential.

As pointed out earlier, there are very few judges of the superior courts who stick religiously to their judiciary philosophies in all their judicial decisions in all cases that come before them. They are not robots or programmed by judicial philosophies. Above all, whether conservative or liberal judges, they take into consideration each case on its own merit, apply the relevant law and make objective and the right judicial decision. This is particularly true because not all cases have political interest and even in political interest cases, sometimes, conservative judges could and do come across as liberals and vice versa. A good example was the Obamacare case that the Chief Justice ruled in favour of Obamacare against expectations. Again, I once assumed that the former Chief Justice, Her Ladyship, Georgina Wood was a conservative Justice. However, when I read her written judgement on the right of the president not to follow advice from the Council of State and the Judicial Council in making judicial appointments, I was surprised how liberal her judicial philosophy and decision were on that case.

In conclusion, whether a conservative or liberal judge and whether they are appointed by right wing or left wing political parties respectively, their judicial decisions are determined by their respective judicial philosophies. These judicial philosophies are also influenced by their beliefs, values, morality, faith, etc which are most likely to be in tandem with the individuals who appointed them but not necessarily the party-political ideology of the appointing authority. Therefore, to suggest that they make judicial decisions on political cases simply in favour of political ideology of the appointing authority is inaccurate because judicial decision making is more complex than on its face value. Above all, it involves the understanding, interpretation and intent of the law, the merit of each case and external factors such as public opinion at the time. These factors are more important than the party-political ideology or affiliation of the appointing authorities.

Kofi Ata, Cambridge, UK

Kofi Ata
Kofi Ata, © 2018

This author has authored 183 publications on Modern Ghana.
Author column: KofiAta

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