Kwaku Azar writes: Nothing comes from Nothing

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S. Kwaku Asare, GIMPA Nothing comes from Nothing

The Supreme Court, on June 22, declared that the General Legal Council’s (Council) imposition of an entrance examination and interview requirements for the Professional Law Course violates Articles 11(7), 297(d), 23, 296(a), and 296(b) of the 1992 Constitution. The Court also affirmed that LLB degree holders from Council approved universities automatically qualify for admission to pursue Professional Law Course at the Ghana School of Law or other alternative places of instruction specified by the Council. Lastly, the Court declared that the Council’s disqualification of persons who have so qualified, starting from 2012 to 2016, violates the constitutional provisions hereinbefore listed.

Article 1(2) of the Constitution provides that, “the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” Notwithstanding the constitutional command that any other law, therefore actions, found to be inconsistent with any provision of the Constitution shall be void, the

Court issued what has become a rather controversial consequential order as follows:

•    By virtue of and in accordance with article 2 (2) of the Constitution, it is hereby ordered that the Council puts in place a mechanism that would enable it to make changes to LI 1296 in terms of what it thinks appropriate in order to properly exercise its mandate under Act 32 having regard in particular to sections 1, 13 and 14 by putting in place a system of legal education in terms of articles 11(7) and 297 of the constitution.

•    As preparations towards admissions in October 2017 have already been initiated and bearing in mind that persons who would avail themselves of such opportunities are qualified within the scope of regulations 2 and 3 as pronounced in this judgment, we do not think it is in the public interest to interfere with such arrangements.

•    It is hereby further ordered that the new system should be in place within 6 months from today such that admissions into the professional law course in October 2018 shall not be conducted

under the system which has informed the declaration to which the consequential orders herein  relate.

In an attempt to justify the consequential order, the Court wrote:

•    Ordinarily declarations of inconsistency result in avoiding acts and or omissions founded thereon. What this means is that once a declaration of invalidity has been made in relation to the examination and

interview, then all things done based on the conduct of such acts from

2015 must be struck down.

•    Such a direction would have a retrospective effect and have exceptional prejudicial effects on persons who relied on the directions which have been declared unconstitutional in these proceedings.

•    It would be unprecedentedly detrimental to the students concerned if we should make an order that would invalidate admissions offered into the School as those likely to be affected by such an order satisfied the additional requirements which are exterior to LI 1296.

•    Indeed, some of these students have since October 2015 been on the program and are now in the final phase of the program preparatory towards being enrolled at the Ghana Bar in October 2017 while others are about to finish the first of the two years and have finished writing the examinations of the first semester.

•    To make an order annulling admissions founded upon the examination and interview that such students were compelled to take at the direction of the Council would result in occasioning uncommon inconvenience

and hardship to them and result in a miscarriage of justice.

The Court further grounds its consequential orders in Article 2(2):

•    “The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration made.”

The Court has got it wrong and must suo moto correct itself. First, I note that Article 2(2) does not confer any power to the Court to undermine the Constitution. Even a casual reading of Article 2(2) makes it clear that the power given to the Court here is to allow it to make orders that effectuate the declaration of the unconstitutionality not undermine the declaration or otherwise perpetuate the unconstitutionality.

Article 2(2) is, therefore, a direction to the Court to declare acts that violate the Constitution as unconstitutional; a declaration, which pursuant to Article

1(1), automatically renders those actions void; and to make such orders as are necessary considering that the actions have been declared void.

The Court’s consequential analysis is incurably flawed, one-sided and fails to appreciate, thereby undermining, the implications of its declaratory reliefs. To see why, consider that the Court’s analysis talks only about students who were admitted from 2012-2016 but not those who were not admitted. While the Court seems agitated by an imaginary injustice that could be done to those who were admitted, it loses complete sight of those who by the Court’s own declaration had

qualified but had been impermissibly denied admissions. The perceived harm to the admitted students is imaginary because they were properly admitted under LI 1296 and none of the Court’s declarations affect their admission status. To better understand the Court’s declarations, it is useful to distinguish among the 3 groups

of affected students (see Table):

Effect of Court’s Declaration of Students from 2012-2017

2017 and beyond cohorts

2012 to 2016 cohort who were admitted to the School

2012 to 2016 cohort who were not admitted to the School

Examination status

They have not and are barred from taking the unlawful examination

They did take the unlawful examination

They did take the unlawful examination

Legal Instrument governing admission

LI 1296

LI 1296

LI 1296

Qualification

Status

They automatically qualify for admission

They automatically qualify for admission

They automatically qualify for admission

Admission Status

Admission is pending

Admitted

Not Admitted

Substantive Constitutional Injury

No, just mental anxiety

No, just the inconvenience of taking an unlawful exam

Yes

Potential Damage

No

Yes, but nominal

Yes, substantial as in WAEC v Awuni

Court Analysis

Wrong and dangerous in that preparing to violate the Constitution does not create any vested right to finish the act.

Misleading, in stating that the unconstitutionality of the exam, if

retrospectively given effect, will lead to their admission

being cancelled.

Ignored by the

Court.

Next Step

Apply and go to

School of Law

None

School of Law must contact them and offer them admission

The Table shows that only qualified students who were not admitted have suffered a constitutional injury. Sadly, it is also this group that received no attention from

the Court. Of course, qualified students who were admitted were properly admitted and the Court’s discussions about nullifying their admissions is misplaced, frankly embarrassingly flawed. These students met the criteria for being admitted by LI 1296 and there is no basis in Law or common sense to say the voiding of the exam voids their admission.

With respect to the 2017 cohort, it goes without saying that the fact that preparations are in place to perpetuate an unconstitutional act is not a permissible reason to allow the act to be completed. It is hard to believe that this obvious fact can escape the Court.

Consequential Orders, as envisaged by Article 2(2), allows the Court to uphold the Constitution while doing substantial justice to those who have suffered constitutional injuries. There cannot be any doubt and the Court declarations affirm that LI 1296 and only LI 1296 governs the 2017 admissions.

The Court has impermissibly ordered the Council and the students to engage in unconstitutional acts for the 2017 admissions in clear violation of Article 1(1). This is not prospective overruling, as indicated by the Court. It is retroactive and prospective affirmation of an illegality.

The Court should clean the record by suo moto nullifying its consequential orders. In the interim, the Council, as the regulator of the legal profession, and the students, as lawyer trainees, should decline the invitation to engage in the unconstitutional exercise.

Under the Supremacy Provision (Article 1(2)), it is the Constitution, not the Supreme Court, that is supreme. To the extent that a law, including Supreme Court orders, violates the Constitution, it is incurably void!

Prospective Overruling

The Court seems enamored with the Prospective Overruling Doctrine, which refers to the overruling of a statute or precedent but limiting its effect to future transactions or situations. In effect, this means that all actions prior to the declaration do not stand invalidated. The Doctrine is rooted in the very ancient idea that there is something wrong with punishing people for conduct which they performed before it became unlawful. It is also reflected in the twin maxims, “no penalty without a crime” and “no crime without a law.”

The general purpose of the doctrine is (i) to avoid reopening of settled issues and to prevent multiplicity of proceedings. However, the doctrine is not of general application and Courts must be wary that it is not misapplied.

While the doctrine has been used in some jurisdictions to protect rights acquired in reliance on a common-law decision or a statute, it is not meant to be used to legitimize the unconstitutional actions of administrative bodies. Nor is the doctrine applicable to cases where there are ongoing disputes about the rights of people. Nothing has been settled that the Court must protect with prospective overruling. For instance, in the instant case, even if it is assumed that the Court is right to apply prospective overruling, the morning after the assumption we still have 3,000 or so LLB graduates who are qualified for admission under LI 1296. Lastly, the doctrine is of limited applicability in instances involving violations of the Constitution because of Article 1(2).

The bottomline is:

•    The Supreme Court is without power to misappropriate the Prospective Overruling Doctrine to retroactively (2012-2016) and prospectively (2017 forthcoming exams) legitimize an unconstitutional act.

•    The examinations and interviews were never lawful and the prospective overruling doctrine does not apply to them.

•    The examination and interviews have not conferred any rights that can be disturbed but they have violated rights that must be restored.

•    The examinations and interviews at all times were void and remain void.

•    Nothing comes from nothing.