Professor Kwaku Asare Writes To MPs On The Eve Of Deciding The Fate Of Legal Profession
Open Letter to all on the Eve of Deciding the Fate of Legal Profession (Professional and Post-Call Law Course) Regulations, 2018
Dear Honourable MPs:
Tomorrow, Friday, March 2, 2018, you will be invited to deliberate on the Legal Profession (Professional and Post-Call Law Course) Regulations, 2018. The question you will be deciding is whether to allow it to ripen into law or annul it. Your vote will be a red-letter one in that it will potentially determine the future of legal education and the nation’s commitment to justice and the rule of law.
On behalf of the students who will be directly affected by your vote and on behalf of all concerned citizens, I respectfully make this final plea to you to annul it on the following grounds.
1. The proposed LI is at variance with the Legal Profession Act (the Parent Act) in that it seeks to shut the doors of the School of Law to LLB graduates while the Parent Act commands the GLC to provide opportunities for all LLB graduates to become Lawyers. 2. It seeks to administer examinations to LLB graduates who are not enrolled at the School of Law while the Parent Act permits it to administer preliminary, intermediate and final exams to only students enrolled at the School of Law or alternative place of instructions.
3. The Parent Act conceptualizes legal education as a joint process that involves an entry point at the Universities and an exit point at the School of Law or alternative places of instructions. The Parent Act never conceptualized the LLB as a terminal degree.
4. That an LLB degree without an opportunity to become a lawyer is a vain exercise that no country, certainly not a developing country like Ghana, can afford.
5. That the proposed LI seeks to kill and will kill President Kwame Nkrumah’s vision to make professional legal education accessible to all qualified law graduates.
6. That the only reason for the proposed LI is because the General Legal Council (GLC) has failed to name alternative places of instruction for LLB degree holders as specified by the Parent Act. The ensuing lack of space, created by the GLC’s strategic inertia and failure to follow the Parent Act, is not a legitimate reason to allow an LI to pass that undermines the Parent Act.
7. That the entrance examination that the GLC seeks to impose is completely non-diagnostic. In 2017, only 20% of the candidates who passed this examination and the interview passed the exams administered at the School of Law.
8. That since 2012, the GLC has been engaged in a series of unlawful and unconstitutional practices that have deprived 3,000 qualified graduates of their intellectual property right to professional education.
9. That the proposed LI does not address the grave constitutional injury inflicted upon the 3,000 graduates.
10. That the Supreme Court has ruled that the law to govern the admission to the School of Law or alternative places of instruction in 2018 must be in place by December 22, 2017.
11. That LI 1296 is the law in place on December 22, 2017 and that it is the LI that shall govern 2018 admissions to the School of Law or alternative places of instruction.
12. That the proposed LI does not follow the due process mandated under Article 296 in that it was not preceded by notice, public hearings, consultations with stakeholders, and consideration of alternatives. Even many legal academics at the various universities have not seen copies of the LI and are therefore unaware of its contents.
13. That the proposed LI is constitutionally defective in that it fails to provide an explanatory memorandum stating the principles and policies of the LI, the problem that it seeks to cure, how the problem is solved, alternatives evaluated and an impact assessment. For the avoidance of doubt, the Article 106 requirement that all bills be accompanied by an explanatory memorandum clearly applies to subsidiary legislation under their Parent Acts.
14. That the GLC seeks the power to impose quota on the universities. Not only does the LI fail to explain how such a quota system will be administered, and is thus void-for vagueness, but it also is at variance with the Parent Act and certainly the Constitution.
15. That the Subsidiary Committee should not have based its recommendation on a bill that may or may never pass and that was shown to some of its members but is unavailable to all MPs and the public.
16. That granting that there is a such a bill to amend or revise the Parent Act, the proper course of action is to maintain the status quo and continue to enforce LI 1296 not to recommend a new LI.
17. That the Law Faculties and private legal entrepreneurs are alternative places of instruction that can accommodate the 3,000 students and growth in the number of students qualified to pursue the professional component of the legal education.
18. That the GLC has failed to indicate the number of its members who voted for and against the new LI. That it is not known even if the GLC was properly constituted to take such a crucial decision.
19. That it will be a terrible precedent for Parliament to allow itself to be used as a vessel for legitimizing the ultra vires actions of the GLC.
20. That Parliament must not be seen as partaking in any scheme that perpetuates injustice and robs citizens of their substantive legitimate expectations.
Professor S. Kwaku Asare.
March 1, 2018.
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