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Ramadan and the legal meaning of ‘void’: theory versus functionality (Part 2)
Remember, the primary objective of this article is to point out the weaknesses in the two claims upon which the auto view is mounted. In Part 1 of the article, I pointed out the weakness in the first claim. I said that the proponents of the auto view conflated, pretty carelessly, law which is subsequently declared unconstitutional and acts (and consequences of acts) done under such law prior to it being declared unconstitutional. Accordingly, I distinguished law, on one hand, from the acts and consequences of the acts that are done under such law, on the other hand.
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I, then, concluded that “acts that are done under an unconstitutional law and their consequences are not always automatically and necessarily void as the unconstitutional law itself.”
In this part, I turn to the second claim upon which the auto view is mounted, namely, that the concept of “voidability” is alien to public law. To be clear from the outset, it is extremely important to emphasize the point that the discussion in this part of the article is solely to show that ‘voidable’ is not alien to public law (having already dealt with the consequences of a void law in Part 1). To put the discussion into proper perspective, I will, first, trace down the flow of all the claims made by the proponents of the auto view:
Mr. Akoto Ampaw and Prof. Kwasi Prempeh began their expedition by questioning the legal integrity of Justice Gbadegbe’s decision that the NHIS registrations “were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.” Their motivation for that query was that once the relevant Section of CI 72 was declared void, the NHIS names on the register, too, became automatically void and of no effect dating back to the day the names were entered on to the register. The only reason why the NHIS names could not affect previous elections conducted with the embattled register, the proponents argue, is because of time limitation on the challenge of elections. According to the two gentlemen, therefore, allowing acts done under a void law or their consequence (the NHIS names) to not be automatically void is the same as saying that “a law found and declared by the Supreme Court to be unconstitutional is nonetheless not void” and that to retain the act’s “continuing validity for any reason whatsoever is to negate the notion of the Constitution being the supreme law of Ghana.” To them, therefore, such acts or consequences are either void or valid; no middle ground of ‘voidable’. Sensing the obvious weakness in this claim; and in order to keep such an ailing claim breathing, the proponents needed, badly, to find a way out. So they invent a second claim, namely, that the concept of “voidability” is alien to public law. But, is this claim true?
B.PUBLIC LAW AND “VOIDABLE”
To answer this question, it will be extremely useful for us to, first of all, understand what it means to say a thing or act is ‘voidable’.
1.Meaning
At law, ‘voidable’ means that the act or thing in question or the consequences thereof may be avoided, or declared void. It means that the act is not absolutely void, or void in itself (see Black’s Law Dictionary). It means that the act or its consequences are, notwithstanding a defect, valid until further steps are taken to make them invalid.
Even from this fundamental understanding, one would, probably, already find it curious to be told, even shyly, that the concept of ‘voidable’ is exclusive to some specific tiny branch of law – the law of commercial contracts. Nonetheless, that claim has been made.
Disproving this claim is pretty much simple. All one needs to do is to show at least one instance where the concept of ‘voidable’ was applied outside the field of contract law in particular and, if one feels more generous, outside private law in general. That notwithstanding, I have chosen the hard way. I will go the extra mile and, first, ground my argument in jurisprudence before giving the practical instances where ‘voidable’ was applied outside the realm of private law.
2.Jurisprudence
The beginning point of my argument is the public law maxim “omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium.” This maxim literally translates as “all official acts are presumed to have been done regularly and with due formality until the contrary is proven.” The maxim is, perhaps, a constant reminder to all lawyers that an unlawful act by a public official is often effective until set aside by a court or other competent administrative authority. Therefore, there is no doubt that when a person takes an action under public law, which action is even patently unlawful from scratch, that action is only voidable (not void) until the prescribed administrative processes are followed in setting the unlawful act aside; and, as the authorities have shown, those acts are sometimes never set aside.
So, Lord Radcliffe would say in Smith v East Elloe Rural District Council (1956) that:
“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective or its ostensible purpose as the most impeccable of orders.” (emphasis mine)
Obviously, East Elloe is not a contract law case, neither is it a private law case. It is a public law case where a private person (like Abu Ramadan) challenges the act of a public body (like the EC); and I doubt if someone would suggest that Lord Radcliffe was not referring to the concept of ‘voidable.’
May I add, respectfully, that the law reports across the Anglo-American legal world are replete with such cases. For example, in Kleinwort Benson Ltd v Lincoln City Council (1998) the court describes the auto view line of argument as “a fairy tale in which no one any longer believes.” While Professor Campbell, discussing the retroactivity of government acts and after reviewing the long line of authorities, noted that “governmental acts which are adjudged void ab initio are contrasted with those which are voidable.” (underlining is mine).
3.Practical Instances
Perhaps, some practical example may drive the point home better. While doing this, it is extremely important to re-emphasize the point that the discussion here is solely to show, contrary to what we are told, that ‘voidable’ is not alien to public law.
By the Constitution, the High Court does not have jurisdiction over chieftaincy matters. An example would be a situation where a High Court judge assumes jurisdiction over a chieftaincy matter. Every order made by such a rogue judge, though patently void, would have to be carried out until set aside by a lawful authority. The status of such a theoretically void judgment remaining valid until actually set aside as void is what is known as ‘voidable.’ This kind of judgment is actually known in public law circles as ‘voidable judgment’ (See Ex parte Ahinakwa II, 2014)
Quite apart from these examples, ‘voidable’ as a legal construct is found well-sprinkled in almost all areas of law. For example, we have ‘voidable treaties’ under public international law. It is therefore extremely amazing to read somewhere that the concept of “voidability” is exclusive to contract law or private law.
4.Summary
Law has theoretical as well as practical aspects. Be that as it may, law is not law unless it performs some function. Accordingly, a court will not make an order or a parliament make a law which, beforehand, is incapable of functioning. Therefore, when all is said and done, one must always bear in mind that functionality of law will always trump impotent legal theories. Based on this, I make a claim that ‘voidable’ is a functional twin of void. In fact, it actually an integral part of void; so that anything that is capable of being void is also capable of being voidable; and, contrary to what we have been told, it does not really matter the branch of law in question.
C.MATTERS ARISING
A lot has happened since Part 1 of this article. In all this, however, what seems most worrying is the persistent belief by some (and what appears to be a subsequent but, perhaps, inadvertent validation by the Supreme Court of such a belief) that everything, including administrative acts, must be done by a court and, for that matter, the Supreme Court. Indeed, it is in all cases (as here) “emphatically the province and duty of the judicial department to say what the law is.” However, in most case (as here) the actual detailed implementation of the consequences of the declared law is left to other statutorily established and duly empowered administrative institutions of state to carry out. Generally, it is when those statutory bodies fail the Article 23 test that the courts may be called upon again.
In this particular voter register situation, there is an established and duly empowered body whose duty it is to delete names that have been unlawfully entered on to the voter register. That institution is not even the Electoral Commission itself. The institution is called the District Registration Review Committee (DRRC) upon whose directive the EC would act in deleting names from the register. Therefore, what the Supreme Court needed to do in this present case was to declare what the law is. The Court did exactly that when it declared, in 2014, that the relevant Section of CI 72 was unconstitutional and void. Further, in 2016, the Court stated (rightly so) that:
“In carrying out its functions under the law, the Electoral Commission cannot employ non-statutory remedies, as the law does not give it that mandate. It is observed that it is unreasonable to demand from a public officer whose authority is derived from law, performance that is not authorised by law.”
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Consequently, the Court ordered the EC to resort to established statutory mechanisms and take steps to delete the names pursuant to the Court’s declaration.
However, yesterday, it was reported that the Court eventually chose to sidestep the statutory procedure (the DRRC procedure) that it earlier prescribed and to carry out the actual deletion by way of an order, even before that procedure could be triggered. While that order, if indeed made, remains a court order which must be obeyed (until properly set aside), its legal integrity vis cardinal principle of law and policy remains a strong candidate for future discussion in legal academia. This discussion is quite independent of the practicability of the order itself within the structural and resource framework of the Electoral Commission.
Finally, we often cite the hallowed case of Marbury v Madison to support enlargement or assertion of judicial authority. What we often tend to forget, however, is that that case is also a buoyant proponent of judicial restraint. You would remember that Chief Justice Marshall, after declaring the position of the law (that the Applicant indeed had a right to the office in question), did restrain himself from issuing the order of mandamus, even though the order was very ripe. Rather, the eminent judge respected the principle of ‘division of labour’ even within the judiciary and relinquished jurisdiction.
The writer is a Lecturer at GIMPA Faculty of Law