Mensah Thompson of ASEPA writes…

One of the first cases a first year law student will learn in Constitutional law is the case of Marburg V Madison, a US Supreme Court Landmark case which established the Judicial Review Powers of the Court.For the purpose of non-law students let me simplify this case;An outgoing US President had appointed William Marbury as a Judge days before he left office, his commission(appointment letter) was signed by the outgoing President but unfortunately could not be delivered to him before the new President took over with his new Attorney General Madison.

The new Attorney General Madison decided not to deliver the commission to Marbury without which he cannot assume the office as a Judge. Marbury then went to Court to seek a mandamus to compel AG Madison to deliver his appointment letter.Now when the issue went to Court, the Court led by Chief Justice Marshall was left in a serious dilemma because of the political nature of the case; if they ruled in favor of Marbury to compel the Attorney General to deliver the commission/letter, the AG and the Government could ignore the order of the Court and that would undermine the authority of the Court.

If they ruled against the plaintiff and said they cannot compel the AG to deliver the commission, it would have also created an impression that the Court was in bed with the Executive and Chief Justice Marshall would have none of that. Chief Justice Marshall then had an arduous task to come out with a judgment that would preserve the authority of the Judiciary whilst avoiding the traps of negative public perception about the Judiciary. In resolving the crisis in the judgment the learned Chief Justice asked and answer three key questions.1.Does Marbury has a right his appointment letter which has already been signed?2.If yes, and his right has been violated, did the law provide him a remedy?3.If yes, is that remedy a Mandamus?

In the first question the learned Chief Justice Marshall answered Yes, that Marbury was entitled to his appointment letter.In the second question again he answer Yes, that once Marbury was entitled to his letter,failure to deliver the letter by the AG was a violation of his rights.But in the third question even though C.J Marshall could have ruled in the affirmative and granted the mandamus, he rather surrendered the Jurisdiction of the Supreme Court to grant the mandamus sought by Marbury but in doing so he gained for the Court a far more superior power, the Powerful of Judicial Review, which exists till today and by so he kept all parties satisfied.Now let’s come back home, the Supreme Court of Ghana could have taken a serious cue from Marbury V Madison because even though the cases are technically different, they exude similar political and judicial interest.The serious dilemma that faced Chief Justice Marshal and the US Supreme Court in the Marbury and Madison case was very much visible in the instant one as well.If the Supreme Court interpreted the Constitution and say the Deputy Speakers can Vote, the Minority MPs in Parliament can simply ignore the ruling and physically prevent any deputy Speaker from voting and that would undermine the authority of the Court and also affirm the accusation of bias.

If they interpreted the Constitution and said, the deputy Speakers cannot vote, the Government could also ignore their ruling and still force the deputy Speakers to vote. What the Supreme Court failed to do was to identify this land mine critically and allow themselves to be guided by the steps of Chief Justice Marshall in Marbury Vrs Madison.They could have navigated this dilemma in a more conciliatory manner that would have toned down the tension in Parliament but they did not.

Now let’s come to the substantive questions of the instant case as in Marbury V Madison.

1.Does a Deputy Speaker has a right to vote when presiding?

2.If Yes, Is he able to exercise that right without compromising the proceedings of the house?

3.If Yes or No, does the Supreme Court has the power to decide that? I will leave you to answer this yourself.

Finally I am NOT a lawyer, atleast Not yet, but as a student of the law, I have heard how the Latin maxim Expressio unis est exclusio ulterius is being used rationalize the decision of the Court that since Article 104 did not make express mention of the one presiding or the Deputy Speakers as it did in Article 102, it means the framers of the Constitution did not want to exclude the Deputy Speakers from voting and forming part of quorum for decision making.As a student of the law I am not only scandalized by this narrow sense of interpretation, I am also extremely terrified of this disingenuous spin from members of the legal fraternity and of course the Court. In Constitutional drafting, because of lack of space, there is no need for the drafters to keep repeating certain things when the basis has been set in a preceding provision. It is No accident that the 102 which set out the quorum to commence business in the house comes before Article 104 which sets out the quorum for the decision making. Decision making is a resultant action of conducting Parliamentary business, if you cannot sit to deliberate or conduct business how can a matter of a vote arise? So to expressly say Article 102 is totally different and not dependent on Article 104 is saying that the drafters of the law should have been more repetitive in their drafting. In any case the Constitution is not a document which you pick and choose, the Constitution must be read as a whole document to make meaning of it because most of the provisions are interdependent.

Finally, let’s ignore the legal gymnastics for a second and let’s come to common sense. Assuming the Speaker is not around and the 1st Deputy is also not around and the Second Deputy Speaker takes the Chair and a vote arise and there is a division which requires members to be separated and be head-counted to decide the votes, when the Second Deputy Speaker gets up from the Chair to cast his vote, who will preside over the house at that time when he is casting his vote? Will they leave the Chair empty? Can any Parliamentary process go on without a Speaker sitting in the Chair? Well, Let’s see whether the Supreme Court will provide the remedy for this in their judgement on Friday. God Bless!!!

Mensah Thompson

Executive Director, ASEPA