Parliament Versus The Judiciary

Recent Internet news report on the Parliament Select Committee to investigate the Judiciary's "perceived corruption" has generated lot of exchanges in the chart room. Even the revised mandate by First Deputy Speaker Freddie Blay and Parliamentary Minority Alban Bagbin that the investigation should be geared towards holding public hearings to solicit information but not to investigate the whole judiciary did not calm matters either. In reacting to this mandate. On the other hand, Chief Justice EK Wiredu reacted that it was wrong for a Parliament select committee to investigate an equal branch of government without its consent.

In rebuttal Blay's position was that action of Parliament was legitimate and that Parliament can "initiate investigation and impeachment of the Juicary" The litany of views expressed in the chart room mirror the respective positions of the CJ and the two Parliamentarians. Be it as it may, such a view pales in comparison to the combative view of the late Krobo Edusei a one time Minster of Interior in Nkrumah's government who used to warm up his platform speeches with his boasting that that the CPP dominated Parliament could do any thing but "change a man into woman". Poor Krobo is probably shaking in his grave to find that that under the ambieecne of constitutional democracy ( Pres. Kuffour's climate of positive chage), it is the Judicary rather than Parliament which has the last say on who is a man or woman in Ghana.

The gravamen of the debate is whether Parliament can constitutionally investigate the Judiciary at any time it so desires ? The other question is why a select committee but not the responsible standing committee to do the investigation?

According to Deputy Speaker Blay, Parliament has the legitimate right to investigate the Judiciary as well as initiate impeachment against any member of the Judiciary. It is interesting to note the Speaker did not mention the constitutionality of the act. Since constitutionality or legitimacy of a governmental acts behaviors are two different concepts. Also, one wonders whether the protagonists Blay and Bagbin are right about their view on the Parliamentary prerogatives in investigating another branch of government without its consent?

To avoid such surreptitious and self serving expressions of opinions or arguments among members of the different branches of government calls for establishment by the other two branches, i.e., Parliament and the Judiciary of their own law departments headed by General Counsel to objectively and dispassionately render an advisory opinions on legal matters that affect their operations and to, also. represent their interest in courts on adversarial actions when necessary. As it is the practice now, the reliance on the Attorney General to represent the two branches is dis ingenious since the AG can not be everything to every branch . In actual fact the AG is the lawyer for the executive branch of government.

Without bringing out the holy book of the Constitution let me reflect broadly on the CJ contention.. There is a delicate balance in the separation of powers concept which should not be undermined by a too zealous legislator or a member of the Judiciary in his/her enthusiasm to right a perceived wrong. This fragile balance is such that if it is not cautiously and judiciously protected may catapult the new "climate of positive" change into an un needed constitutional crisis. In the final analysis , no matter what the Supreme Court, without the cooperation and consent of the executive branch of government .of a citizen -official or private.

Parliament exercises its oversight responsibility through its standing committees. The responsible standing committee is the Judiciary and Constitutional Committee. The function of this Committee , inter alia, is to screen judicial appointments of the High Courts for Parliament, to vet the annual Judicial budget for the entire Parliament to act on , contrary to the current practice whereby the Minister of Finance has the ultimate say . The other function of Parliament , if it wants to exercise its supervisory authority, is to help the Judicial Council and CJ draft new Court Rules such as Civil and Criminal Procedure, Evidence , Criminal Code and others for the Judiciary to act on. The Committee may also recommend to Parliament proposed amendments to sentencing guidelines for the Judges to supersede their unfettered discretion of Judges in the criminal justice system on sentencing of convicts and finally to formulate new rules of practice for both the practicing lawyer and the Judges to meet their professional responsibilities..

No doubt Deputy Speaker Blay mis spoke when he said that Parliament could initiate impeachment proceedings against a member of the Judiciary. The procedure for removing of the CJ is laid out in Article 146 (6) et seq. Certainly, Parliament plays no role in such as an exercise

I have constantly advocated elsewhere that the best way for Parliament to check on Judiciary excesses or monitor the conduct of the Judges is for it to pass into law creating an agency such as the Judiciary Removal Commission to assist the CJ in discipline defaulting or corrupt Judges. It does not take a genius to figure out the causative factors of the uncontrolled perception of corruption among the Judiciary is the government cavalier attitude towards the administration of justice and public laissez faire attitude towards the function of the Judiciary.

The volume of work inundating the Judges is mind bulging. The Judges working under primitive conditions with no tools, updated library, law clerks to help in research , court trained reporters who could use such low tech equipment's such tape recorders and stenographic machines, even a simple word process computer are all factors which would definitely affect the competency of the Judges as well as and the quality of their work.

We can talk about corruption in the Judiciary until kingdom come but without the concomitant effort to reform , modernize our court system and equip the Judges with the right tools, with the right knowledge on the nuance of their roles in promoting modern democratic and constitutional government all a our hyped concern about the performance as well as the integrity of the Judiciary will amount to hill of beans. The place will become a den of corruption and corrupt Judges . Thereby validating the concerns of the U.S. Chief Justice John Marshall about the corrupt, incompetent and bias Judiciary as the worst form of punishment God would inflict on an offending nation. No doubt absence of such reforms breed the ambience for corruption and a national disaster One perceptive legal scholar Rev. Arthur A. N. North, S.J. of Fordham Universtiy writing on why American constitution has survived for so long observed that the "Constitution has endured so long and served so effectively basis of government of a dynamic nation is not due to chance but to the common sense of the American people, the prudence of their representatives and the calculated wisdom of the judicial interpreters, the Supreme Court of the United States."

For our constitution to survive the checkered history of our present and future political evolution calls for the commonsense of the legislators , support of our people and calculated wisdom of our Judges who are the ultimate judicial interpreters of the constitution. In essence, what I am talking about, contrary to the emotive outburst of some people to solve the endemic corruption which is perceived to have inflicted our Judiciary does not call for unilateral and "buga buga" action of a branch of government to undermine or intrude into the function of another branch of government. The past twenty years of Ghana history was in fact a dark ages of during which all our institutional branches of government were ran into the ground.

We are now in a period of renaissance which calls for rebuilding of our national institutions which calls for patience, ingenuity, creativity ,tolerance and cooperation by all the stake holders.

Therefore, there must be a marriage of theories, commonsense and pragmatism to undergird the adaptability and survivability of our constitution to solve present and future political challenges. In this context, our CJ to some degree, hits the nail rightly on its head.

Dr. Agyenim Boateng(KYOAG)
Frankfort, KY. USA

Views expressed by the author(s) do not necessarily reflect those of Ghanaweb.