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Should ‘Timidity’ charge ruffle Supreme Court?

The Supreme Court’s decision in the case of Mornah vs. the Attorney General has generated interesting commentary in the media and from lawyers. The most outstanding comment that has commanded the displeasure of the highest court of our land has been the statement attributed to Gabby Otchere-Darko of the Danquah Institute.
Gabby Otchere-Darko is of the view that the Supreme Court justices sitting on the Mornah case were timid in deciding that Court hearings in Ghana cannot be held on public holidays.

I disagree with Gabby Otchere-Darko but before I address the correctness or otherwise of Gabby’s comments it is important to properly state one of the issues that confronted the Justices of the Supreme Court in the Mornah case.

It is important to clarify the issue because several commentators have sought to espouse the convenience or progressiveness of C.I. 74 in providing for court hearings to be held on public holidays.

Subsidiary Legislation vs. Act of Parliament

The issue that confronted the Supreme Court was (whatever well-meaning the provisions of C.I. 74 are) being a subsidiary legislation can its provisions override the provisions of an Act of Parliament established pursuant to the 1992 Constitution, that is the Public Holidays Act.

The 1992 Constitution provides an unambiguous answer to this question in Article 11 where the hierarchy of the laws in our legal system has been stated. In Article 11, the constitution is the foremost legal instrument followed in order of importance by enactments made by or under the authority of the Parliament established by the 1992 Constitution and other rules and regulations made by any person or authority under a power conferred by the 1992 Constitution.

C.I. 74 can be classified as an order, rules or regulation made by an authority (in this case the Rules of Court Committee) under a power conferred by the 1992 Constitution. It is clear therefore that in the context of Article 11 a rule or regulation made by the Rules of Court Committee under powers conferred on it by the Constitution is inferior to the Public Holidays Act that has been passed by Parliament.

An appreciation of the issue as posited above and an abandonment of the expediency of court hearings on public holidays would dispel comments such as Gabby’s that the Supreme Court Justices are timid.

But should the Supreme Court be ruffled or unsettled by descriptions of timidity? I hold the view that the Supreme Court, being the Court of last resort should have developed a heart larger enough to allow it to overlook criticisms of its decisions. In this connection their comments in response to Gabby’s comments are unfortunate.

In the first instance Gabby is a conscientious citizen of Ghana with the right under the 1992 Constitution to free speech or freedom of expression.

Secondly the word “timid” is not of such derogatory consequence to warrant the sort of reaction the Supreme Court unleashed on us on Monday, May 6, 2013. To be timid simply means to be nervous, shy, fearful, coy, hesitant or apprehensive of something.

Gabby’s comments or views and that of other commentators expressing similar sentiments only express a wish, desire or longing for the Supreme Court to be novel or inventive within allowable limits of judicial law-making in determining cases before it. Gabby’s criticism stems from the fact that he believes that the C.I. 74 only seeks to ensure that important cases such as presidential election petitions are disposed of expeditiously and some finality brought to decisions arising from such petitions.

Timidity

As argued in earlier paragraphs these arguments are laudable but fall flat when the real legal issue that confronted the Supreme Court in the Mornah case is isolated. The word timid has been part of judicial language and that of the Bar ever since Lord Denning’s dicta in the case of Candler versus Crane, Christmas & Co where the revered law Lord scolded and described his colleagues as timorous souls for being fearful of expanding the frontiers of the law. To enrich the debate I seek to generate, I quote Lord Denning’s dicta in the case cited above.

Per Lord Denning, “If you read the great cases of Asby vs. White, Pasley vs. Freeman and Donoghue vs. Stevenson you will find that in each of them the judges were divided in opinion. On the one side there were the timorous souls who were fearful of allowing a new cause of action. On the other side there were bold spirits who were ready to allow it if justice so required. It is fortunate for the common law that the progressive view prevailed”.

In the context of Lord Denning’s statement it is painless to understand Gabby’s comments especially if you are a lawyer or a Judge. I do not agree with Gabby’s views, however, I believe that the Supreme Court being what it is was too sensitive in its reaction to Gabby’s comments. The Supreme Court remains the Highest Court of the land and has not suffered a diminution or lessening of its integrity in the eyes of the public as a result of Gabby’s comments. In the same vein Gabby’s comments do not pose the slightest risk of lowering the respect members of the public have of the Highest Court of the land.

The Supreme Court, as an alternative to baring its teeth should have seized the opportunity to demonstrate to Ghanaians that it has the limitless heart of a mother capable of tolerating its harshest critics.


Written by Elikplim Agbemava
Email: [email protected]


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