Thaddeus Sory responds to Nana Ato Dadzie on concerns raised on judicial service letter to media houses

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    1. I have read a write up credited to my learned senior Nana At Dadzie on social media. This write up discusses the statement issued by Sory @ Law on behalf of the Judicial Service. I appreciate it. I also enjoyed reading it.
    2. As stated in that write up, I am also not sure that it is my learned, and certainly most venerable senior who wrote it. I have not verified that from him. I say however that whether my learned and most respected senior wrote it or not, I am certainly obliged to contribute to the discussion at the level of the write up I read since it springs from the letter written by my office for and on behalf of the Judicial Service.
    3. My position stated in paragraph 2 above receives thrust from a statement which appears at the end of the write up in respect of which I set out my contribution herein. It is there stated as follows;
      “I must right from the outset that I am not sure that it is my learned and certainly most venerable senior who wrote it and I have not verified that. Whether he wrote it or not, as I consider it a very erudite contribution to the discourse, I will nevertheless contribute to the discussion at the level of the very learned piece regardless of whether the writer is my most respected senior who knows by virtue of my personal relationship with him that I have the highest regard for his age at the bar, experience has has in very many areas of life and certainly the law and his deep thinking approach to issues.”
    4. I hold my learned senior in the highest level of esteem in our profession and also as a statesman. My contribution will , and should not detract from my personal relationship with him and the very high regard I have for his practice, age at the bar, experience [he has gathered in very many areas of life and certainly the law] and also his deep thinking approach to issues.
    5. I observe first of all that the write up says that the “the original correspondence issued by my great friend and Senior Counsel Mr .Sory Esq on behalf of the “Judicial Service ” to some media houses in Ghana” has not yet been sighted. I am not sure which version is circulated in social media and which was read, but I confirm that my office issued a correspondence on behalf of the Judicial Service but not the “Judicial Service” as authored. The latter Service is quoted. This because the write up suggest by putting it in quotes, something else.
    6. Next, the write up says that I have not been reachable in order to provide “some clarification of some preliminary legal issues” which agitate the writer’s mind. I apologize most sincerely as I have been in Wa. At the time the correspondence was circulating I was in Wa. It was actually released from Wa.
    7. Interestingly, however, my good friend Franklin Cudjoe reached me and a very learned law Professor also reached me on the matter. This learned Professor whose name I withhold for personal reasons, is certainly of vintage beyond description. He left the Faculty of Law years, maybe decades, before I got there. He requested the original correspondence which I sent to him and he responded. He told me in very plain language that he disagreed with me. The rest of the discussion [though not concluded] is between us.
    8. I have read a number of questions raised in the write up and I assume the questions there stated are some of the “preliminary legal issues” which agitate the mind so I will contribute to these preliminary issues.
    9. The first preliminary legal issue raised in the write up poses the question; “Who is counsel representing in this correspondence?” This issue is answered from the very first paragraph of the correspondence. It is also clearly answered in paragraph 2 of the write up which poses the interrogatory; “What is the status of the Judicial Service of Ghana”? That interrogatory is warranted only by an admission that the entity represented in the correspondence is the Service.
    10. The second preliminary issue poses the question; “What is the status of the Judicial Service of Ghana”? The issue is explained by the following question which accompanies it, “A state body or corporation or corporate body with legal personality”?. The Judicial Service is not defined in the 1992 Constitution.
    11. The Judicial Service was created by the Judicial Service Act of 1960 (C.A. 10). Its long title says that it is an “ACT to provide for the creation of Judicial Service posts,… and other matters relating to the Judicial Service.”
    12. The structure and membership of the Service is provided for in section 1(1) of the said Act. It says that the Judicial Service consists of the Chief Justice, as Head of the Judicial Service, the other Justices of the Superior Court of Judicature, among others.
    13. The status of the Judicial Service of Ghana in terms of the second interrogatory is answered by C.A. 10. It is a statutorily established entity. It is neither a corporation, body corporate and has not, as an entity, legal personality in the proper sense of it. I will make this clearer soon.
    14. The third legal issue says that the “Judicial Service is made up of 3 distinct segments, Superior Judicial officers administering justice ; ” inferior/lower” judicial officers and finally Administrators (Jusag).”
    15. There is no dispute about that. This part of the submission in the write up, is supported by section 1(1) of C.A. 10. This third issue is then followed by the question; “Is counsel representing the Superior judges , Lower court judges ( Association of Circuit court judges and Magistrates) or the Administrators (Jusag) or all three .”
    16. The context of the correspondence is very very unequivocal. The correspondence says clearly that persons who make statements and speeches on the administration of Justice should do that within the context of the clearly defined rules for so doing. They should avoid hateful and incendiary speeches and statements.
    17. The correspondence says clearly that it has been necessitated by speeches and statements made in connection with decisions of the Court on the pending petition which is clearly referred to.
    18. The correspondence says again in no uncertain terms that the speeches and statements made in connection with the decisions, make no attempt to objectively engage the minds of the public on the judgments as they relate to the applicable legal rules and principles.
    19. The speeches and statements directly suggest and insinuate that the Justices presiding over the matter sweep aside the applicable and relevant principles on each point of law to be decided and render their decisions based on interest, bias or corrupt motives.
    20. In what would seem to be highly charged political proceedings, such speeches and statements expose the Justices to threat of harm to person and property. The fear is real having regard to the judicial history of the country. This is also patent on the fact of the correspondence.
    21. The brief context of the correspondence clears the fourth issue as to whether “counsel is representing the Superior judges , Lower court judges ( Association of Circuit court judges and Magistrates) or the Administrators (Jusag) or all three”? To say the least JUSAG members of the Service do not deliver decisions which are subjected to public discussion, properly or improperly.
    22. To wind it up on this point, the Service will not be acting ultra vires if it instructs a lawyer to issue a statement on behalf of any of the groups which make up the Service. To the extent that the matter affects any of the identified groups within the Service, it is within the province of the Service to act to protect that group.
    23. Then there is issue number six. It says that the “Supreme Court does not exercise supervisory jurisdiction over the Judicial Service” and the case of Rep v Judicial Service of Ghana and Anor. Civil Motion 15/2/ 2017 is cited. I am struggling to understand how the submission and the case cited, relate to the correspondence. The Supreme Court instructed no lawyers. The correspondence raises no issues regarding the relationship between the Service and the Supreme Court. This was neither suggested, implied nor can it even be legitimately inferred from the correspondence.
    24. Issue seven says that the “Judicial Council …exercises specific functions in respect of conduct etc involving Judges and through the Chief Justice advices the President accordingly.” I am not sure again how this relates to the correspondence. The correspondence was not issued upon the instructions of the Judicial Council. The correspondence does not hint at, suggest or imply and no fair inferences to that effect may be drawn from the correspondence.
    25. Article 154(1)(a) of the 1992 Constitution says that the,
      “(1) The functions of the Judicial Council are,
      (a) to propose for the consideration of Government, judicial reforms to im- prove the level of administration of justice and efficiency in the Judiciary;
      (b) to be a forum for consideration and discussion of matters relating to the discharge of the functions of the Judiciary and thereby assist the Chief Justice in the performance of his duties with a view to ensuring efficiency and effective realisation of justice; and
      (c) to perform any other functions conferred on it by or under this Constitution or any other law not inconsistent with this Constitution.”
    26. On the other hand, the long title of C.A. 10 which creates the Service says that it is “to provide for the creation of Judicial Service posts, for the appointment, promotion and retirement of members of the Judicial Service and for conditions of service, disciplinary proceedings and other matters relating to the Judicial Service.”
    27. Reading the constitutional provisions on the Judicial Council and C.A 10 on the Service, I am not sure that it is the function of the Judicial Council rather than the Service to deal with “conduct etc involving Judges and through the Chief Justice advices the President accordingly.”
    28. I am also not sure how that will sit well with the doctrine of separation of powers ingrained in our Constitution regardless of the interdependence theory affirmed In in the Steel Companies cases in the United States of America.
    29. In issue number eight, it is written that the “President / Head of State has some constitutional obligations to exercise on receipt of such preliminary report from the Chief Justice.” Having regard to the distinction in terms of the functions of the Council and the Service, and my view on the separation of powers theory and its place in our constitutional law, I am again not sure what “constitutional obligations” the President exercises on receipt of preliminary reports [if provided for by law] written to him [the President] by the Council.
    30. Issue eight appears linked to issue eight (a) which says that “Subsequent investigations and enquiries may lead to final decision on the conduct of the stated judge.” This issue clearly does not arise from the correspondence. The correspondence does not suggest, hint at or imply, and nothing in it can fairly justify this issue as arising from it.
    31. Issue nine says that my office “in representing Judicial Service here , may very well be representing no legal personality.” As a general statement of law, that is unassailable but on the facts, two legal points detonate its efficacy.
    32. First of all, it is not the law that only legal persons can assert rights. Unincorporated persons may assert rights. An ocean of authorities settle this point. This being the law, the Service can instruct solicitors to act on its behalf and assert those rights in court.
    33. Further, recent jurisprudence has established without any fear of contradiction that several statutory bodies have been accorded the right to assert rights in legal proceedings without being statutorily incorporated [even though so established]. See the case of Amegatcher v Attorney-General (No2) [2012] 2 SCGLR 933.
    34. It is also clear from C.A. 10 that the Service is a legally constituted statutory entity. It has clear functions. It is doubtful that a non-existent entity [without any capacity to take any action whatsoever] can be tasked with such important functions which include filling vacancies within the Service, discipline of its members among others.
    35. The last issue in the write up dovetails into the ones earlier raised. It says that if the argument that my office is representing no legal personality “is correct, then Counsel Sory’s correspondence and admonition may be said to be brutum fulmen”. My answers to the issues raised are clear. I leave it to our readers to judge whether the admonition in the correspondence is brutum fulmen, but I must add a few words on the brutum fulmen argument.
    36. So I was actually tickled when I remembered this point and which I state rhetorically thus; which lawyer’s letter ever had a sanctioning effect? It has always been to admonish on the consequences of certain conduct and if that is what my office did, then we have not been deviant. Granted therefore that the correspondence is brutum fulmen as every lawyer’s letter is, and has always been, at least it serves the purpose of such letters, which is admonition and they have never been in this context considered brutum fulmen, as they are not intended to exact penalties.
    37. In this context, I think the following interrogatories relevant to the discourse:
      i. is it the law that all acts which disparage the Court whether in speech, statements or otherwise are punishable?
      ii. And is it the law that all acts which interfere with the due administration of justice including threats by way of speech and statements or otherwise are punishable?
      iii. And does the correspondence clearly say that all such matters are not within the boundaries of permissible criticism of the administration of Justice?
    38. I believe my contribution has eased my learned senior’s mind with regard to “Paragraphs 1-10” of the write up which “agitated [your] mind over the last 2 days”.
    39. This should have ended my contribution but several other questions followed the ten questions. It is also asked; “Who speaks/ represents judges ???” And reference is once again made to the case of Rep v Judicial Service of Ghana and Anor. Civil Motion 15/2/ 2017.
    40. There is no discussion of the decision above referred. It’s relevance to the correspondence is not stated. My reading of it gave me no assistance as to how to answer the question. The decision does not answer the question who speaks for the Judges.
    41. For this reason, I respect the submission made in the write up that “Counsel’s representation of the Judicial Service [not Judges in terms of the question posed] in this present matter, advising and warning of legal sanctions appears otoise , inappropriate and doubtful” but I struggle to understand its meaning.
    42. I respect it because of the source. I have venerated the source already. My point, however, is that, it may well be that “Counsel’s representation of the Judicial Service [not Judges in terms of the question posed] in this present matter” is “otoise” [if that is correct at all] but I am not sure that being otiose, it can still be “inappropriate and doubtful”. These words won’t sit well on one another in the context of the same factual circumstances.
    43. And just why is it “inappropriate and doubtful”? What test was applied to reach this conclusion? At this point, my deferring to the submission is based solely on my respect for the writer but not on the legal basis on which it is planked. If it is based on experience or some useful practice, it is good to share but I am unable to agree that what is thought desirable should be conveyed so strongly as if it had statutory force.
    44. Perhaps the submission that the Service’s representation by my office is “doubtful“ results from the further submission which raises the question of “whether Counsel’s actions are in consonance with Article 88(3) of the 1992 Constitution”. Thankfully, this constitutional provision is reproduced in the write up. All it says is that,
      “The Attorney General shall be responsible for the initiation and conduct of all prosecutions of criminal offenses “.
    45. I see nothing in this constitutional provision which justifies a passionate submission that counsel’s representation of the Service is “doubtful”. There is nothing in it which says that the Service cannot engage counsel to write a letter for and on its behalf.
    46. I will add that in view of the decision of the Supreme Court in the case of Ackah v Adjei Acheampong [2005-2006] SCGLR 1 it is not correct to assert without qualification that all contempts must be prosecuted by the Attorney-General to be duly constituted. See page 13 per Atuguba JSC
    47. Then the question is asked, what “are the limits of contempt of court in modern times .??” There is once again no suggestion as to what the limits are. I will add, however that whatever its limits are in modern times [and even in the future] I cannot fathom any principle which says that scandalizing, disparaging the courts or interfering with the due administration of justice, conduces to proper administration of justice.
    48. In any case, the decision of the Supreme Court in the case of Amegatcher v Attorney-General (No.2) [2012] 2 SCGLR 933 says clearly that the Attorney-General is not the fixed choice of all statutory institutions in all proceedings. In that case, Atuguba JSC held as follows:
      “Consequently, we consider that the time has come for a realistic revisit to article 88(5).  Accordingly we come down on articles 88(5) as follows. All the constitutionally established independent bodies like the Commission on Human Rights and Administrative Justice, The Electoral Commission, etc can sue and be sued on their own relating to their functions per counsel of their choice”
    49. It is worthy of note that the learned Justice did not limit the list of bodies which can sue and be sued on their own relating to their functions per counsel of their choice. Date-Bah’s voice echoed thus;
      The plain meaning of article 88(5) is given effect through the interpretation that the presumptive rule is that the Attorney-General is to be the defendant in all civil proceedings against the State.  However, there are exceptions to this presumptive rule, necessitated by the core values of the Constitution and the overriding constitutional need to avoid conflicts of interest.  The exceptions are meant to buttress the autonomy of the independent organs of the State…”
    50. It is also asked whether threats of “bodily harm etc against a sitting judge remain where they are –criminal offence not contempt of court?” My answer? Please read this from Bamford Addo JSC:
      “Indeed, there are many weapons in the legal armoury available to litigants seeking justice and no court can dictate what remedy one has to adopt.” Republic v High Court, Accra; Ex parte Asakum Engineering and Construction Ltd and Others [1993-94] 2 GLR 643 at page 559.
    51. My view above stated suffices to answer the submission that;
      “Same has kicked a lot of dust on a message which otherwise should be crisp and clear advice to the general public , possibly from the Judicial Secretary or His Lordship the Chief Justice or Attorney General to join the bench keep our legal system sacrosanct.”
    52. It is true, that we “still growing and nurturing our Constitutional democracy” which makes your very valuable “2 pesewas” very enriching to our democracy. Our democracy is not poorer when I add my one pesewa or even less to yours. Like you, I am also still learning my learned senior. And if you can subject yourself to learning, mine must free and compulsory because I need it.
      Thank you learned senior for the opportunity to contribute to the discourse.

    Thaddeus Sory