Who says Parliament has no power to ‘direct’ AG/GLC to do the ‘right thing’?
Following the direction given by Parliament to the Attorney General (AG) to ensure that the General Legal Council (GLC) complies with its direction to admit all the 499 candidates who passed the Ghana School of Law entrance exams but were unjustly denied admissions to the School, some persons including a few lawyers, have argued, rather strangely, that, Parliament has no such power. I am unable to agree with them, and these are my reasons:
First of all, the point must be made that it was Parliament that created the General Legal Council, through the passage of the Legal Professions Act, 1960 (Act 32), and clothed the body with the mandate to oversee the organization of legal education and the upholding of standards of professional conduct.
Again, it was Parliament that decided on the composition of the GLC, to, among others, include the Attorney General. For some tenable reasons, Parliament deliberately provided in section 1(5) of the Act, that the GLC is subject to the direction of the Attorney General in the performance of its function.
By the nature of our constitutional architecture, the primary function of Parliament, apart from law-making, is the exercise of Oversight of the Executive. The Attorney-General, per Article 88 of the Constitution, is a member of the Executive. And so, the AG, just like every Minister of State, is accountable to Parliament, and can be censured by Parliament in line with Article 82 of the 1992 Constitution if he disobeys the orders of the house.
Equally, failure to obey the orders or directions given by Parliament amounts to contempt of the august house per Article 122 of the Constitution and no individual or institution is immune from this.
Juxtaposing the foregoing with the constitutional principle of IMPLIED POWERS enshrined in Article 297 of the 1992 Constitution, one will be left with no option but come to the conclusion that Parliament can exercise appropriate jurisdiction over the GLC especially where the GLC is failing to discharge its function in accordance with the law establishing it.
Article 297, in effect, provides that the constitutional power given to a body to DO something comes with it the inherent constitutional power to UNDO that which it had done pursuant to that power, as well as the ‘incidental power’ to enforce the necessary compliance of what the law says it has powers to do, except as otherwise explicitly provided in the law/constitution.
There is no provision in the Constitution that bars Parliament from taking appropriate steps to ensure that the powers given to it under the Constitution to set up an administrative body like the GLC to perform a specific function, is enforced to the latter, particularly if, in the wisdom of Parliament, the institution (GLC) is failing to discharge its function in accordance with law.
As noted, Parliament created the GLC and clothes it with the function of overseeing legal education, which includes making legal education accessible to all Ghanaians, and not otherwise. However, the GLC has in recent times significantly deviated from its core function and has proven to be the biggest stumbling block to people’s quest to become lawyers.
The GLC, as an administrative body, has thrown to the dogs every constitutional principle of administrative justice, fairness, transparency and the proper exercise of discretionary powers, espoused in Articles 23 and 296 of the Constitution, and which are inherent in a democratic society. They flout even their own advertised rules of engagement with impunity.
If Parliament, the body the established the GLC, determined its composition and functions, oversees its operations through the AG, approves its budget etc CANNOT intervene even if in the wisdom of Parliament, the GLC is completely going off-track, then who else can intervene? If today, Parliament can, in the exercise of its legislative powers, simply repeal or amend Act 32 to collapse the GLC or change its composition and function, then why can’t Parliament ask the GLC to comply with one direction or another in the interest of justice.
In any case, Parliament is, technically speaking, not giving any direction to the GLC. Parliament is not interfering in the work of the GLC. Parliament is only asking the GLC to respect its own rules of engagement by complying with its [GLC] own published guidelines on admissions criteria into the Ghana School of Law. Parliament is asking the GLC not to unfairly and unjustly deny admissions to the 499 candidates who passed the 2021 entrance, through a retrospective application of new rules, which the GLC came up with after the exams.
The point must be made that owing to the overwhelming public interest in the matter of the 499 candidates who have become victims of gross administrative injustice from the GLC, their plight received a UNANIMOUS RESOLUTION of Parliament, the Peoples’ Representatives. This meant that all our MPs hold the view that the GLC was being unreasonable, exacting injustice to the innocent students, and therefore ought to be called to order.
A unanimous resolution passed by Parliament, for all intent and purposes, qualifies as the sovereign will and wishes of the good people of Ghana. And per the Preamble of the 1992 Constitution, the sovereignty of Ghana resides ONLY in the People of Ghana, not in the Judiciary, let alone in an ordinary administrative body like the GLC, which was created by Parliament to oversee the organization of legal education.
It is also worth submitting that Parliament did not create the GLC as part of the Judiciary, though it is headed by the Chief Justice. The GLC does not perform a judicial function but merely administrative functions. When the CJ sits at the GLC, he performs an administrative function, not a judicial function. That is why decisions taken by the GLC can be reviewed and quashed by a High Court judge notwithstanding the fact that the CJ and 3 most senior Judges of the Supreme Court are members of the GLC.
That is also why the Attorney General can give direction to the GLC in the performance of its functions, as provided for under Section 1(5) of the Legal Professions Act, 1960 (Act 32). I refuse to accept that Parliament is a rubber stamp institution. I equally refuse to accept that Parliament has no authority to give direction and enforce same. It cannot be said that Parliament works in vain, as that will make nonsense of our parliamentary democracy.
In fact, I strongly recommend that beyond resolving the issue of the 499, Parliament should take immediate steps to amend Act 32 (through say, a Private Members Bill) to take away the legal education component of the GLC functions and give it to a newly constituted body, to be called, the Council for Legal Education, which should be made up of academics and lawyers but certainly not Supreme Court justices. The GLC can however still be maintained but only to concern itself with upholding standards of professional conduct, and not to have anything to do with legal education. This cannot be said enough.