Montie remission and Constitutional Law
The trial, sentencing and remission of part of the four-month prison term imposed on the Montie trio are now topical issues and as somebody who has studied Political Science and Constitutional & Administrative Law, I wish to comment on the case of granting the trio remission.
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The call for a presidential pardon has won its day but as a remission. Before the remission came, party pressure and Executive powers tangoed. Who gives orders and who takes them... sort of relationship reared their ugly heads. Yet, two elephants fought, a winner emerged. Therefore so soon, we have all come to the end of the Montie journey.
To start with, I boldly can say that democracy is no longer on trial in Ghana. It has come to stay, willy-nilly. The call to be faithful to the rules of politics is to be strengthened every day towards achieving the overarching goals of constitutional governance. That being so, it suggest a case of treading cautiously.
Constitutionalism
It is to say that in constitutional law, a democratic system of government in a given country is measured by the degree of constitutionalism prevailing in that system. This refers to, first, the exercise of power (how, why, when, etc), and secondly, how ruling is conducted in that country.
For better appreciation of the term, I here define constitutionalism. Simply put, it is an ideal we seek and must be sought as the desired outcome for practising constitutional system of government.
Constitutionalism, therefore, is a general belief and principle which maintains that the exercise of political power shall be governed by the rules and established procedures that determine the validity of executive action measured against the provisions of the constitution. Validity in constitutionalism goes beyond the mere dictates of legal and constitutional procedures to an emphasis on conscience, reasonability and appropriateness of action, expression of maturity and leadership firmness.
An example of such a situation can refer to any time a President exercises some of his Executive powers in any extraordinary way, such as granting remission to the Montie trio. It may be a constitutional right, but the exercise of that power would be measured more by the validity in constitutionalism and less by its constitutional yardstick.
The issue is that there are basically two techniques of control under a constitutional government. First, if the controls operate within the organisation of the individual power holder, they constitute intra-organ controls. Second, if they operate between several power holders, they are called inter-organ controls.
The Montie case is directly linked to the latter. The inter-organ control being deployed is exercised between different power holders – the legislature, executive and the judiciary. I do not intend to make any particular navigation and references to Montesquieu’s Separation of Powers with its corollary Check and Balances. No!
Respect of judgement
To this end, we analyse a few features and characteristics of constitutionalism regarding the Montie remission. One key determinant of whether or not constitutionalism is adhered to by a given government is whether the government respects the judgement of the court. Respect and acceptability of the outcome of court proceedings implies permitting judgement to stand and to take its full effect on the offender.
Respect of judgement argues that given the government’s monopoly over the coercive power of the state, (that is, the armed forces and the police) the courts rely on the government to enforce judgements, including those against the government itself. Governmental acquiescence in court rulings against itself is, thus, very fundamental to constitutionalism. And as the blowing wave of democracy demands, imbibing constitutionalism in theory and in practice, the how, why, and when questions come up and its validity is confronted.
Also important is that the spirit of constitutionalism tries to interrogate to ascertain how faithful the state is to its constitution and how fully the leaders of the state adhere to the rules of the game of politics as contained in the constitution. It implies that the validity of the actions of leaders of state are measured and gauged along the spirit of the constitution.
The importance of the enquiries interrogates Ghana’s democratic journey in whether or not letting the courts’ ruling stand any how they come. It also questions our readiness to perfect the rough edges of governance between the executive and the judiciary. Also worthy of mentioning is the president’s state of issues regarding protecting the judiciary when that institution comes under any form of threat.
The quest for constitutionalism is in the practice of constitutional government. It all means the beauty of constitutional form of government is whether constitutionalism is adhered to in a given country at any given period. Constitutionalism lies at the heart of constitutional law. It is seen as a process rather than a fixed outcome or condition. It is an evolving condition at any particular historical moment with its governance implications. It is making sure it works well. It constitutes what is expected of us practising constitutional governance. It means perfecting the governance systems of our democracy all time unending. The Montie remission is therefore a case we should continue to study.
The writer is a Public Affairs person with speciality in Political Science and Constitutional & Administrative Law