Speaker's declaration on 4 MPs: Supreme Court ruling binding on Parliament - Legal experts tell NDC Caucus

Legal experts have emphasised the need to obey the rulings of the Supreme Court and all courts, even if parties are of the opinion that they are wrong, unlawful or unconstitutional.

Such a position, they said, was the foundation of the legal system, which was meant to prevent the country from descending into chaos and anarchy.

They have, therefore, called on the National Democratic Congress (NDC) Caucus in Parliament to change its stance and rather take steps to set aside the ruling by the Supreme Court that put on hold the Speaker of Parliament’s decision to inform Parliament of vacant seats upon request.

The lawyers, who spoke in separate interviews with the Daily Graphic, are the Managing Partner at A-Partners at Law, Samson Lardy Anyenini, and two constitutional Law lecturers of the University of Professional Studies, Accra (UPSA), Justice Adbulai and Albert Quashigah.

While some criticised the decision of the Supreme Court, and others describing it as “bad in law,” the lawyers said it was a general principle of law that orders of a court, irrespective of their defects, were binding until they were set aside.

The lawyers further called on the NDC and the governing New Patriotic Party (NPP) to engage in constructive dialogue to find a solution to the current impasse, taking into consideration the general election in December, and the boiling tension in the country.

NDC Caucus

Last Sunday, the NDC Caucus in Parliament said they were resolute and would guard what they described as their new status as “Majority in Parliament”, irrespective of the decision by the Supreme Court to stay the execution of the Speaker’s ruling on the four seats.

According to the NDC Caucus, proceedings of Parliament “shall not” be "impeached or questioned in any court or place out of Parliament".

The House, however, resumes today and while the Majority is happy that its status had been restored by the Supreme Court, the Minority has argued that the decision arrived at by the court, which heard an ex parte application, was not binding on the Speaker of the House nor on his decision.

Constitutional supremacy

However, the Senior Partner at Bentsi-Enchill, Letsa and Ankomah, Ace Anan Ankomah, said Ghana practised a constitutional democracy and, therefore, any act by an institution established by the Constitution, including Parliament, was subject to the Constitution.

Parliament, he explained, had complete freedom to conduct its activities, and the court would ordinarily not interfere in the work of Parliament, unless it was not in accordance with the Constitution.

Relying on cases such as NPP vs A-G (31st December case), J. H. Mensah vs A-G, Amidu vs Kufuor & Others, and most recently Justice Abdulai vs A-G, Mr Ankomah said any act of Parliament must meet the constitutional litmus test.

“While the courts would generally shy away from interfering with Parliament, Parliament is not a law unto itself,” he said.

Mr Ankomah, therefore, called on people to critically examine the ruling by the Speaker last Thursday and make a conclusion as to whether it was a mere parliamentary procedure or the determination of a constitutional issue.

“If it was the former, then the Supreme Court should hold its hand, but if it was the latter, then the orders of the Court are binding on Parliament and Parliament must comply,” he said.

Binding ruling

Mr Anyenini was of the view that a decision by a court, and in this situation, the highest court of the land, should not be treated with contempt, despite one’s reservation.

“Our jurisprudence is that a ruling or an order of a court of competent jurisdiction, however, manifestly wrong, unlawful or unconstitutional, must be complied with until same is set aside,” he said.

He added that any attempt to disobey the orders of the Supreme Court would not augur well for the democracy and well-being of the country.

He said many options were open to the NDC Caucus of Parliament to overturn the ruling by the Supreme Court, and restore the decision by the Speaker of Parliament.

“The ex parte process that led to the grant of this stay of execution is liable to be set aside by another ex parte application. The aggrieved party could even file additional application for stay of execution of the Supreme Court’s ruling,” he added.

Criticism

For Mr Quashigah, the Supreme Court’s decision was procedurally and substantively wrong, describing the apex court’s action as plunging the country into a constitutional crisis.

He said the Supreme Court gave a ruling on a non-existing fact because as of the time the ruling was given, the Speaker of Parliament had already made his decision, which, according to him, meant the application for the stay of execution had no accrued cause of action.

Again, counsel wondered why the Supreme Court granted a stay of execution against the Speaker’s ruling which was a non-judicial decision, an action, he said, was non-compliant with the rules of court.

Nevertheless, Mr Quashigah said, as a principle of law, the decision by the Supreme Court was binding, irrespective of its “incurable defects”.

Tension

For his part, Mr Abdulai said there was already tension in the country, therefore, such constitutional crisis must not be allowed to continue to fester.

He said the Supreme Court got it wrong and heightened the current tensions, especially when the other party went to the court on an ex parte motion on the blind side of the other party.

Mr Abdulai said the Supreme Court must be the conscience of the nation and not dabble in political matters or allow political issues to influence the way it (the Supreme Court) operated.

He urged the NPP MPs to be mindful that there was government business to be attended to in Parliament, hence the need to engage in dialogue with their counterparts so that the country would not suffer from the current tensions and differences in the House.

Background

Last Thursday, the Speaker of Parliament, Alban Sumana Kingsford Bagbin, declared four parliamentary seats vacant on the premise that the current occupants had defected by filing to contest the next elections on tickets different from what they represent in the current Parliament.

This followed a petition by a former Minority Leader and MP for Tamale South, Haruna Iddrisu, who argued that pursuant to Article 97 (g) and (h), the four MPs have forfeited their seats.

The ruling effectively ended the tenure of Agona West Member of Parliament (MP), Cynthia Morrison of the New Patriotic Party (NPP); Amenfi Central MP, Peter Yaw Kwakye-Ackah of the National Democratic Congress (NDC); Suhum MP, Kwadwo Asante of the NPP, and Fomena MP, Andrew Asiamah Amoako, an independent MP.

Ms Morrison, Mr Asante and Mr Kwakye-Ackah have all filed as independent candidates for the December 7 elections, while Mr Asiamah Amoako, who was the Second Deputy Speaker of Parliament until Mr Bagbin’s ruling, had filed to contest the Fomena seat on the ticket of the governing NPP.

The next day after the Speaker of Parliament’s ruling, the Supreme Court put it on hold until the final determination of a suit seeking an interpretation of Article 97(g) and (h), following an ex parte motion of a stay of execution.

The Supreme Court held that if the ruling by the Speaker was not stayed, it would render the issues for determination in the substantive suit nugatory.

Again, the apex court was of the view that the ruling by the Speaker ought to be stayed because the four MPs were not given a hearing before their seats were declared vacant.

“On the balance of the law, exhibits and facts placed before us, we are satisfied that the duly elected representatives in question were not heard on the extremely critical issue raised the court averred.”

Consequently, the court put on hold the ruling by the Speaker pending the final determination of the suit which is seeking a constitutional interpretation of Article 97(g) and (h) of the 1992 Constitution.

Writer’s email: emma.hawkson@graphic.com.gh