SC is poisoning many minds with confused, misleading statements – Prof. Asare

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I write only to express my concern that the Supreme Court is poisoning the minds of too many people with its increasingly confused, inconsistent and misleading statements about generally accepted matters of law.

I am particularly disturbed by Justice Gbadegbe’s recent holding in the Abu Ramadan case that, “as the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically render them void.”

This is a seriously misleading statement of law. Ghana’s Constitution is the Supreme law of the land and any law that violates it is no law at all.

It is a proposition of law that has been affirmed everywhere and too often that “an Unconstitutional Act, Regulation, Statutory or Constitutional Instrument, though having the form and name of law is, in reality, no law, but is wholly void, and ineffective for any purpose.

Further, the unconstitutionality dates from the time of the enactment and not merely from the date of the decision so branding it.”

An unconstitutional law is as inoperative as if it had never been passed. Thus, an unconstitutional law cannot and does not impose duties; confers no rights; creates no office; bestows no power or authority on anyone, etc.

It is, therefore, untrue that the impugned registrations were made under a law that was then in force. The law was never in force, if it was unconstitutional as the Supreme Court tells us. It also follows that the right the law conferred was conferred unconstitutionally and carries no legal weight.

The Supreme Court knows this dogma. That is why the same Supreme Court invalidated international business contracts signed without the involvement of Parliament, as required by the Constitution (e.g., FAROE).

Of course, the Court may have good reasons to want to save the registrations. If that is the inclination, the Court could and should have stayed away from the constitutional question.

After all, the Constitution does not talk about NHIS card so there is no compelling reason to answer the question whether the use of NHIS card violated the Constitution.

The Court should have answered a narrower question, such as whether the use of the NHIS card is sufficient to establish citizenship and if not whether the registrations should be voided.

On this narrower question, the Court could say the use of the NHIS card is not sufficient to establish citizenship but the registration should not be voided on equity grounds.

That is, the Court could step in with some equity doctrine to save the registrations, as it appeared inclined to do. The Court is after all a Court of Equity and Equity can step in and do all sorts of crazy thing (e.g., the cy-pres doctrine, estoppel, etc.)

BUT for the avoidance of doubt and the sanity of our constitutional jurisprudence, it must be emphasized that a card or anything procured through unconstitutional means is incurably void. It is legally strange and unmistakably flawed to suggest otherwise.

Da Yie!

 

By: Prof Kwaku Asare

 

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