On 22 June 2017, the Supreme Court unanimously declared that the imposition of an entrance examination and interview requirements by the General Legal Council for the Professional Law Course violates Articles 11(7), 23, 296 (a), 296 (b) and 297(d) of the 1992 Constitution.
This decision by the Court has been described variously as ‘a historic verdict’, ‘a landmark decision’ and a groundbreaking victory for constitutional jurisprudence.
Pundits, social commentators, lawyers and the so-called legal luminaries have showered praises on the Plaintiff, Professor Stephen Kwaku Asare and the Supreme Court panel led by His Lordship Justice Dotse.
According to some of these persons, the judges exhibited the character of the ‘bold spirits’ Lord Denning had in contemplation in his famous dissent in the case of Candler v Crane, Christmas & Co [1951] 2 KB 164. Admittedly, to declare the acts of a body whose membership includes the Chief Justice, the three most senior Justices of the Supreme Court, the Attorney-General, the leadership of the Ghana Bar Association and the Dean of the Faculty of Law, University of Ghana, is no child’s play.
But is the fanfare and jubilation that greeted the Court’s decision really worth it? In the writer’s view, many have become so excited by the Court’s decision that they have in their euphoria forgotten to analyse what the real import of the Court’s decision is. Without intending to burst the bubble of those jubilating, I wish to pose two pertinent questions which have been lingering on my mind.
Did the Supreme Court purport to lay down a novel principle in constitutional jurisprudence when after declaring the entrance examination and interview requirements unconstitutional, it went ahead to make a consequential order pursuant to Article 2(2) that the entrance examination and interview for admissions in October 2017 be conducted? Concisely put, does Article 2(2) give the Supreme Court the power to issue whatever orders it likes, including orders that may contradict, rather than give effect to a declaration of unconstitutionality?
Does the decision of the Supreme Court mean that the floodgate has been opened for an unrestricted admission of students to the Ghana School of Law?
In this piece, I try to provide an answer to the second question. The first question will be addressed in another article. Essentially, this note seeks to assert strongly that apart from instigating a discourse in constitutional jurisprudence, any celebration of the ‘historic verdict’ will be meaningless unless the mechanism that will be put in place within the next 6 months is one that allows an unrestricted admission of students to the Ghana School of Law.
Anyone who has read the full judgment of the Court or had the opportunity of listening to His Lordship Justice Gbadegbe read the unanimous decision of the Court on Thursday will realise that there is this silent, yet strong voice that suggested that the Supreme Court is not against the imposition of restrictions on the admission of students to pursue the Professional Law Course.
Rather, the Court was against the fact that the current impugned arrangement was not grounded in law.
The Court stated that a proper discharge of the powers of the General Legal Council under Regulation 2 (1) (b) of the Professional Law Course Regulations 1984(LI 1296) would call for the allocation of quotas to the University of Ghana and other approved universities by the Council. The Court ‘strongly recommended’ that the Council considered a quota system in the new mechanism that the Council has been ordered to put in place within 6 months. Indeed, the consistent reference to the phrase ‘legitimate controls’ and ‘available facilities’ should leave no one in doubt that the Court considers the acts of the General Legal Council as capricious and arbitrary only to the extent that it was made without due regard to the provisions of the Legal Profession Act 1960 (Act 32) and LI 1296. One private legal practitioner suggests that ‘In essence what the Supreme Court has done is to give temporary reprieve to the General Legal Council to conduct the entrance exams with proper legal backing.’
The point being made here is that had the General Legal Council prior to the introduction of the entrance examination and interview requirements caused regulations to be made or amended the existing regulations pursuant to Articles 11(7) and 297(d) of the Constitution, the Supreme Court would have given its blessing to such an act.
The corollary of the above is that should the Council in accordance with Article 11(7) lay before Parliament regulations that in any form or substance imposes entrance examination and interview requirements or introduces a quota system, then the relief which the decision by the Court presumably brought to prospective students of the Ghana School of Law will amount to zilch. It is for this reason that I strongly suggest that the practical implications of the Court’s decision and consequential orders are not very palatable. We should not be deceived by the superficial hope that the decision gives. We would be behaving like the proverbial ostrich if we feign ignorance and pretend to be oblivious of the fact that the Court’s decision has at best brought a glimmer of hope which may not last.
Let me intimate that I am not unmindful of the fact that Parliament can before the expiration of 21 days annul any regulation laid before it by the Council pursuant to Article 11(7). To trigger this power, the votes of not less than two-thirds of all members of Parliament are needed. In our current Parliament, this translates into 183 out of the 275 Parliamentarians voting to annul the regulations. It is interesting to note that the Constitution does not allow Parliament to amend or attempt to make any alterations to such regulations laid before it. The power of Parliament is limited to either annulling the regulation or allowing it to mature into law after 21 days.
Indeed, it may be bizarre for anyone with a deep appreciation of constitutional jurisprudence to suggest that Parliament has to assign reasons for annulling an order or regulation made pursuant to Article 11(7) or that the power of Parliament to annul such regulations is reviewable. However, with knowledge of the crop of Parliamentarians we have in this country, it is quite a dangerous position for any prospective student of the Ghana School of Law to be in a state of ecstasy grounded only in the hope that our Parliament will annul any order made by the General Legal Council that seeks to impose restrictions on admissions into the school in the form of entrance examination and interview requirements or a quota system.
While my position on this issue may seem quite pessimistic, it should be borne in mind that it is informed by my careful observation of the attitude of our Parliament over time. It is for this and other reasons that I quizzed moments after the Court delivered its judgment whether the decision was not ‘a case of Pyrrhic victory’.
So whereas it is natural for a litigant, his well-wishers and all who stand to benefit from a case to be jubilant after a court has delivered judgment in their favour, a call for us to be wary of what is likely to happen within the next 6 months is in order.
For prospective students of the Ghana School of Law, praying that whatever mechanism that the powers that be put in place within the next 6 months will be one that allows an unrestricted admission of students to the Ghana School of Laws should be their preoccupation. This would ensure that the joy that engulfed their hearts that historic Thursday afternoon will be anything but transient. Their daily supplication, prayer and petition should be ‘May our joys last!’
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