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J U D G M E N T
ATUGUBA, J.S.C:
The facts of this case have been
related by my brother Dotse,
J.S.C. and I would not repeat
them except where necessary.
The plaintiff claims before us
per its writ of summons as
follows:
“1. A declaration that on a
true and proper interpretation
of the Labour Act 2003 (Act
651), particularly s.1, the
application or the purported
application of the said Act to
cover the Customs, Excise and
Preventive Service (CEPS) as
established by law is
inconsistent with, or in
contravention of Article 24 (4)
of the Constitution and to that
extent the court ought to
declare that restrictions
prescribed by law and reasonably
necessary in the interest of
national security or public
order require that Customs,
Excise & Preventive Service be
excluded from the application of
the Labour Act 2003
(Act 651).
2. That by virtue of the
combined effect of Article 1(2)
and Article 11(6) of the
Constitution the Court declares
a Collective Bargaining
Certificate dated 20th
March 1987 issued to cover the
Customs, Excise & Preventive
Service void and of no effect.”
It is obvious that these claims
could have been better drafted.
However their substance is that
(a)
insofar as the Labour Act 2003
(Act 651) applies to the workers
of the Customs, Excise and
Preventive Service, the same is
inconsistent with or in
contravention of Article 24(4)
of the Constitution and to that
extent is null and void.
(b)
The continued operation of a
Collective Bargaining
Certificate dated the 20th
day of March 1987 in respect of
the Customs Excise and
Preventive Service is for the
same reason also null and void.
Preliminary Points
The defendant objects that the
plaintiff failed to appeal
against the Ruling of the
National Labour Commission dated
the 7th day of June
2006 that it has jurisdiction
over it and therefore is out of
time in this court. But the
plaintiff’s case is not an
appeal but an original action in
this court. As this court is
the only competent court to
entertain and if appropriate, to
grant the reliefs claimed by the
plaintiff in this action, it is
difficult to fathom how there
could be an objection to the
initiation of the same. See
Mensima v. Attorney-General
(1996-97) SC GLR 676. New
Patriotic Party v
Attorney-General (Ciba Case)
(19996-97) SC GLR 729, Sam
(No. 2) v Attorney-General
(2000) SC GLR 305, Adofo
v. Attorney-General & Cocobod
(2005 – 2006) SC GLR 42.
Some other preliminary
objections could, but were not
raised as to the legal capacity
of the plaintiff to institute
this action. However they would
not have defied resolution so as
to allow this action to
survive. See Republic v.
High Court, Accra, Ex parte
Attorney-General (Delta Foods
Case) (1998-99) SC GLR 595.
The Position of CEPS under
ordinary Legislation
The Customs, Excise and
Preventive Service (Management)
Act, 1993 (PNDCL 330) has no
direct provision precluding CEPS
from unionizing. S.235 however
provides as follows:
“For the administration of this
Act all officers shall have the
same powers authorities and
privileges as are given by law
to Police Officers”
There has been much argument as
to the proper scope of this
provision as it applies to CEPS
because s.17 of the Police
Service Act 1970 (Act 350)
provides:
“It is a misconduct
for a police officer
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(f)
to become a member of a trade
union
or of any other association,
other than an association
authorized by the Minister
having similar objects.”(e.s)
Misconduct is a liability. S.235
of PNDCL 330 does not say that
the officers of CEPS should have
the same liabilities as attach
to police officers. Therefore
s.17 of Act 350 does not apply
to CEPS’ officers.
Even assuming that by dint of
s.235 of PNDCL 330 S.17 of Act
350 disentitles CEPS officers
from unionizing, it is clear
that the Labour Act, 2003 (Act
651) which is later in time has
removed that disability against
CEPS. This is the combined
effect of ss.1 and 10(d)
thereof. They are as follows:
“S.1 This Act applies to
all workers and to all
employers except the Armed
Forces, the Police Service, the
Prison Service and the Security
and Intelligence Agencies
specified under the Security and
Intelligence Agencies Act, 1996
(Act 526)
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X
S.10 The rights of a worker
The rights of a worker include
the right to
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X
X
X
(d) form or join a trade
union”
It is clear that s.1 of this Act
does not include CEPS by name.
Its residue refers to the
“Security and Intelligence
Agencies specified under the
Security and Intelligence
Agencies Act, 1996 (Act 526)”
The preamble to the Security and
Intelligence Agencies Act, 1996
(Act 526) is very revealing. It
runs thus:
“An Act to make provision in
respect of the National
Security Council, to provide for
the establishment of regional
and district security councils,
to specify the state agencies
responsible for implementing
government policies on the
security of the Republic and
issues relating to internal and
external security and to
provide for related matters.”
Section 42 defines “Intelligence
agencies” and also “security
services,” as follows:
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“intelligence agencies”
means the internal or external
intelligence agencies
referred to in section 10”
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“security services” means
the services connected with
national security as
determined by the Council”
S.10 provides:
“National security
intelligence agencies
The departments existing
immediately before the coming
into force of this Act and known
as the Bureau of National
Investigation and the Research
Department respectively are
hereby continued in existence
under this Act as the
internal and external
intelligence agencies of the
Republic.”(e.s)
As was said by Edward Wiredu J.A
(as he then was) in Okwan and
others v. Amankwa II (1991)
IGLR 123 C.A at 131 “… the
general rule of interpretation
is that where an enactment
has clearly defined particular
words in its interpretation
section, it is uncalled for and
most unnecessary to look
elsewhere for the meaning of
those words.”(e.s) From the
above extracts it is plain that
Act 526 has not brought CEPS
within the fold of the “Security
and Intelligence Agencies
specified under the Security and
Intelligence Agencies Act, 1996
(Act 526)” as envisaged by s.10
of the Labour Act, 2003 (Act
651).
It is therefore clear that the
Labour Act, 2003 (Act 651) does
apply to CEPS and its workers.
Furthermore, the defendant has
in its statement of case dated
3/10/2007 raised the point that
“Indeed Parliament on 31st
October, 1996 during the
consideration stage of the bill
on “Security and Intelligence
Agencies Bill [COL-780] and as
part of the Constitution of the
Republic of Ghana (Amendment)
Bill, clause 7 voted against
the inclusion of CEPS as part of
the security and intelligence
Agencies. See copy of
Parliamentary Debates: OFFICIAL
REPORT Thursday, 31st
October, 1996 attached.”(e.s)
It is revealing that in the said
attachment marked “B” headed
“PARLIAMENTARY DEBATES
OFFICIAL REPORT
CONTENTS
THURSDAY, 31ST
OCTOBER, 1996”, it is stated as
part of the “Constitution of the
Republic of Ghana (Amendment)
Bill as follows:
“Clause 7: Article 190
(1) (a) of the Constitution sets
out quite extensively the area
of employment that constitutes
the public service of Ghana.
The list is not exhaustive and
Parliament has power to provide
for other areas of employment
that should be classified as
part of the public services of
Ghana. One may note here
that the Armed Forces is not
classified in this list.
It is also noteworthy that in
the interpretation clause of the
Constitution, i.e. article 295
the following definition is
stated.—
‘ “public service” includes
service in any civil office of
Government, the emoluments
attached to which are paid
directly from the Consolidated
Fund or directly out of moneys
provided by Parliament and
service with a public
corporation’.
Government is of the considered
view that services such as the
Police
Service, Prisons Service,
National Fire Service,
Customs, Excise and Preventive
Service and the Immigration
Service are of a
para-military nature. Some of
these services have a right to
bear arms and could be given
orders which they have to comply
with in the interest of national
security. These services are
often called upon to perform
quasi-military service. Looked
at from this angle, these
services cannot strictly be
looked upon as a part of the
public services serving in civil
offices of government as
defined in article 295.
The government is of the view
that the removal of these
para-military services from the
public service will enable
government give these services
treatment similar to those of
the Armed Forces for better
ensuring the security of the
state.
For these reasons, article 190
(1) (a) of the Constitution is
being amended in clause 7 of
this Bill to remove the said
services from the list of Public
Services stated in article 190
(1) (a) of the Constitution.”
It is trite law that in Ghana
under s.19(1) of the
Interpretation Act, 1960 (C.A.4)
the Memorandum accompanying a
Bill is an aid to the
interpretation of a statute but
not the Debates of Parliament.
However like the side notes of
a statute, Adade J.S.C. said of
Parliamentary Debates in New
Patriotic Party v.
Attorney-General (31st
December Case) 1993-94) 2 GLR
35, S.C at 68-71 as follows:
“ The question of the
justiciability of the chapter on
the Directive Principles of
State Policy was debated at
length in the 1979 Constituent
Assembly. At its twentieth
sitting on Friday, 2 February
1979 the assembly expressly
resolved to make the chapter
justiciable:
“MR chairman
[Justice VCRAC Crabbe]: Now I
am going to put the question.
And the question is the
amendment as proposed by Mr.
Zwennes that we should make
chapter four non-justiciable be
accepted by the house.”
The question was then put. The
result of the exercise was:
“Question put and negatived.”
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The debates confirm the
interpretation that in the
absence of anything in the
Constitution to the contrary,
chapter 4 (The Directive
Principle of State Policy of the
Constitution, 1992 is also
justiciable.
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The debates themselves are
inadmissible to contradict
the language of the
Constitution. That is not
permissible. As was stated by
Coleridge CJ in R
V Hertford College(1878)
3 QBD 693 at 707, CA:
“We are not, however,
concerned with what parliament
intended, but simply with what
it has said in the statute. The
statute is clear, and the
parliamentary history of a
statute is wisely inadmissible
to explain it, if it is not
[clear].”
The maxim is parliamentum
voluisse quod dicit lex
(what the law says
is the wish of Parliament, ie
the language of the statute
expresses the
intentions of Parliament).”
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X
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X
X X
Thus what the debates in
the Consultative Assembly said
cannot be
admitted to contradict what
chapter 6 of the Constitution,
1992 itself says
or does not say.”
(e.s)
It is clear from the foregoing
that the Executive through
Parliament made an effort in
October 1996 to pull CEPS away
from ordinary governmental
civilian circles but failed.
Certainly they knew the facts
that CEPS was represented on the
National Security Council as
well as on the Regional and
District Security Councils.
However some opportunity
presented itself again with the
passage of the Labour Act, 2003
(Act 651) to do so if they were
still convinced that the
security status of CEPS
warranted it. It is clear that
they did so in terms of the
Armed Forces, the Police
Service, the Prison Service and
the Security and Intelligence
Agencies aforesaid but plainly
excluded CEPS. We may in these
circumstances safely apply the
maxim of statutory construction
that expressio unius est
exclusio alterius.
The Position of CEPS as a
unionizing body under the
Constitution
Article 24(3) of the
Constitution provides:
“Every worker has a
right to form or join a trade
union of his choice for the
promotion and protection of his
economic and social interests.”
This is reinforced by articles
36(11) and 37(2) (a) of the
Directive Principles of State
Policy. This right is however
qualified by article 24(4) which
provides as follows:
“Restrictions shall not be
placed on the exercise of the
right conferred by clause (3) of
this article except
restrictions prescribed by law
and reasonably necessary in the
interest of national security or
public order or for the
protection of the rights and
freedoms of others.”
(a) The need for a
balancing act:
In construing these provisions
it is necessary to bear in mind
the powerful words of Akufo-Addo
C.J delivering the judgment of
the Court of Appeal in State
v. General Officer Commanding
the Ghana Army, Ex parte Barimah
(1967) GLR 192 C.A. (full
bench) at 200 – 201:
“The court in the execution
of its duty to protect the
citizen’s liberty always
proceeds on the well-known
principle, at any rate as
acknowledged in democratic
countries, of the primary
necessity in the administration
of the law to establish a
healthy balance between the need
to protect the community against
crime and the need to protect
individual citizens against
abuse of executive power.
Subject to the limits imposed on
this twofold protection by the
establishment and maintenance of
the requisite balance, the
scales are to be held evenly, at
any rate in normal times,
between the community, that is
the State and the individual and
there can be no question of
“leaning over backward” so to
speak, to favour the State at
the expense of the citizen or to
favour the citizen at the
expense of the community.
And the courts’ vigilance in
protecting the citizen against
any encroachments on his liberty
by the executive becomes
meaningful and real only when
pursued on the basis of this
principle.
Naturally any extension of
the powers of the executive that
tends to impinge upon the
liberty of the citizen is viewed
with the gravest suspicion, for
such extended powers are in
their operation fraught with
serious dangers.”(e.s)
All this means that the
legitimacy of a restriction on
human rights depends on a
balancing act, see Mensima v.
Attorney-General, supra.
Kpegah JSC’s opinion in support
of the majority decision in
Republic v. Tommy Thompson Books
Ltd, Quarcoo & Coomson
[1996-97] SCGLR 804 is
instructive. The court
upheld section 185 of the
Criminal Code as a law
reasonably required as a
limitation on freedom of speech.
In the words of Kpegah JSC at
846:
“The denial of the balancing
doctrine will place the
individual outside society and
make an island of him… there
is the need for a meeting point
between individual and societal
rights for harmony. For,
while an unbridled insistence
on, and enforcement of, personal
rights have the great potential
of leading to anarchy, so also
has a similar insistence and
enforcement of societal rights
the potential of undermining the
democratic values of a society”(e.s)
As was forcefully put by
McLachlin J of the Canadian
Supreme Court in the Canadian
case of R v. Zundel IO
CRR 2d 198 at 209: “Before we
put a person beyond the pale of
the Constitution, before we deny
a person the protection which
the most fundamental law of this
land on its face accords to the
person, we should, in my belief,
be entirely certain that there
can be no justification for
offering protection”(e.s)
Consequently, what the Executive
and Parliament prescribe even in
terms of economic and security
matters, is not uncritically
endorsed by the courts when
convinced that such prescription
is contrary to the
constitution. Hence the
question whether CEPS has a
right to unionise ultimately
depends upon the proper
construction of article 24(3)
and (4) of the Constitution and
not ordinary legislation.
(b) The discharge of
the balancing act
No evidence was led in this
case. But the central theme of
the plaintiff’s worry about
unionizing CEPS is what could
happen if CEPS were to back a
strike or other industrial
action with their weapons. Some
restrictions on CEPS’ rights to
unionise are therefore called
for. However is the plaintiff’s
claim for a total exclusion of
CEPS from unionising
justifiable? When a similar
problem with regard to public
order arose in the celebrated
case of New Patriotic Party
v. Inspector-General of Police,
(1993-94)2 GLR 459 S.C, this
court held, as recounted by Dr.
Bimpong –Buta in his invaluable
book “The Role of the Supreme
Court In the Development of
Constitutional Law In Ghana” at
p. 409:
“The Supreme Court unanimously
granted the plaintiffs a
declaration that certain
sections of the Public Order
Decree, 1972 (NRCD 68) were
inconsistent with and in
contravention of article 21(1)
(d) of the Constitution, 1992
and were to the extent of such
inconsistency null and void.
The nullified sections included:
section 7 which gave the
Minister of Interior the power
to prohibit the holding of
public meetings or processions
for a period in a specified
area; section 8 which provided
that the holding of all public
processions and meetings and the
public celebration of any
traditional custom should be
subject to the obtaining of a
prior police permit; section
12(a) which gave a police
officer an unfettered power to
stop and cause to be dispersed
any meeting or processions in
any public place in
contravention of sections 7 and
8; and section 13(a) which made
it an offence to hold such
procession, meetings and public
celebration without permission.”
(e.s)
He continues at pp.411-412 thus:
“In assessing this positive
development in the law of
demonstrations, it must be
borne in mind that Charles
Hayfron-Benjamin JSC emphasized
the exceptions to the right to
process and demonstrate. It
must therefore be stressed that
(contrary to general belief) the
decision did not render the
police entirely powerless in the
maintenance of law and order in
the country. Charles
Hayfron-Benjamin JSC clearly
indicated what he referred to as
“inherent limitation” and
restrictions on the enjoyment of
the right as conferred by
article 21(1) (d).
First, the operation of the
right to demonstrate without
permission did not affect the
continued operation of section
12(c) of the Public Order
Decree, 1972 which dealt with
the powers of the police and
other authorized public officers
to stop and disperse unlawful
assemblies. In the words of
the judge:
“….we could not grant a
declaration in favour of the
plaintiff affecting section 12
(c) of NRCD 68. It would have
been irresponsible for a court
to order in the light of section
12 (c) ….., that the police
should remain helpless
on-lookers in a situation in
which a “breach of the peace has
taken or is taking place or is
considered by the officer as
likely to take place.”
Second, there were inherent
limitations to the enjoyment of
the right of assembly,
procession or demonstration,
namely, the obligation to
observe the law – particularly
the observation of the public
peace under the Criminal Code…
….
It should be observed that,
subsequent to the Supreme Court
decision in New Patriotic
Party v. Inspector-General of
Police, the President signed
into law, the Public Order Act,
1994 (Act 491), which
repealed the Public Order
Decree, 1972 (NRCD 68) and the
Public Order (Amendment Law,
1983 (PNDCL 48). Sections 1- 3
of Act 491 govern the holding of
what is referred to as “special
events”…
Section 1 of Act 491 of 1994
requires any person who desires
to hold a special event to
notify in writing the police of
his intention to do so not less
than five days before the date
of the special event. The
notification should give details
of the place, hour, nature,
time, the proposed route and
destination, if any, and the
proposed and the proposed time
of the special event. Under
section 1(4) where a police
officer, notified of a special
event, has reasonable grounds to
believe that the holding of a
proposed special event might “lead
to violence or endanger public
defence, public order, public
safety, public health or the
running of essential services or
violate the rights and freedoms
of other persons” he may
request the organizers of the
special event to postpone the
event to any other date or to
relocate it. Under section
1(6), where the organizers
of the special event refuse
to comply with the request, the
police officer may apply to any
judge or a chairman of a
tribunal for an order to
prohibit the holding of the
special event on the proposed
date or at the proposed location.
The judge or tribunal may issue
the judicial order – prohibiting
the holding of the special event
on the grounds specified in
section 1(4).
It is suggested that the
provisions in section 1-3 of the
Public Order Act, 1994 (Act 491)
are constitutional as being in
line with article 21(4)(a) as
endorsed by the Supreme Court in
New Patriotic Party v.
Inspector-General of Police.”
(e.s)
As regards similar decisions
with respect to economic
activity, see Mensima v
Attorney-General supra , and
New Patriotic Party v
Attorney-General (Ciba case)
(1996-97) SC GLR 729.
From the position of CEPS under
ordinary legislation as
hereinbefore set out, it is
clear that the Executive and the
Legislature have so far found it
safe to allow CEPS to unionise.
I do not think that this court
knows more about the security
requirements of this country
than the Executive and the
Legislature, though as I have
said supra, the courts do not
follow them uncritically on such
matters. For as was aptly put
by the Sri Lankan Supreme Court
in Joseph Perera v.
Attorney-General [1992] 1
SRLR 199: “…..
But even though the Government’s
purpose be legitimate and
substantial that purpose cannot
be pursued by means that broadly
stifle fundamental personal
liberties when the end can be
more narrowly achieved.”
The security concerns in this
case must not be blown out of
proportions. They would seem to
bother more on disruption of
public order than touching on
national upheavals. This
difference should affect the
character and extent of the
restrictions called for under
article 24(4) of the
constitution. As was held by
the Indian Supreme Court in the
case of the Superintendent
Central Prisons Fatehgarh v. Ram
Manchur Lohia (1960) 2 CSR
821 at 839:
“‘Public Order’ is synonymous
with public safety and
tranquility; it is the
absence of disorder involving
breaches of local significance
in contradiction to national
upheavals, such as revolution,
civil strife, war, affecting the
security of the state.”
(e.s) See also Ekwam v.
Pianim (No. 2) (1996-97) SC
GLR 120.
In determining this case, it is
necessary to bear in mind the
powerful words of Lord Atkin
quoted by one of his Ghanaian
counterparts, Taylor J, in
Republic v. Greater Accra
Regional Commissioner; Ex Parte
Naawu III (1976) 2 GLR 25 at
41 as follows:
“I recall the oft-quoted warning
of Lord Atkin in his powerful
and highly respected dissenting
speech in Liversidge v.
Anderson (supra) at p. 244,
H.L. where he said:
I view with apprehension the
attitude of judges who on a mere
question of construction when
face to face with claims
involving the liberty of the
subject show themselves more
executive minded than the
executive”
(e.s)
I also bear in mind the words of
Lord Simon in his dissenting
speech in D.P.P. v. Lynch
(1975) A.C 653 at 695 which were
subsequently followed in the
unanimous judgment of the House
of Lords in Regina v. Howe
(1987) A.C. 417 thus:
“I am all for recognizing
frankly that judges do make
law. And I am all for
judges exercising this
responsibility boldly at the
proper time and place--that is,
where they can feel confident of
having in mind, and correctly
weighed, all the implications of
their decision, and where
matters of social policy are not
involved which the collective
wisdom of Parliament is better
suited to resolve (see
Launchbury v. Morgans [1973]
A.C. 127, 136F-137A, 137G).”
In the circumstances I would
hold, as this court held in
New Patriotic Party v.
Attorney-General, supra,
that the restrictions prescribed
by the Criminal Offences Act,
1960 (Act 29) designed for the
maintenance of public order and
security – see Part Two, chapter
1 (Justifiable Force and Harm),
Part Four (Offences against
Public Order, Health and
Morality, Offences against the
Peace) and the Criminal and
other Offences (Procedure) Act,
1960, Parts 1 and 2, etc, and
the Public Order Act, 1994 (Act
491) do apply, under article
24(4) of the Constitution “as
restrictions prescribed by law
and reasonably necessary in the
interest of national security or
public order or for the
protection of the rights and
freedoms of others.” to
CEPS’ workers’ right under
article 24(3) and ss.1 and 10(d)
of the Labour Act 2003 (Act 651)
to unionise, with its
incidentals.
Since these restrictions are
adequate ( I do not say that
they are exhaustive), for the
purposes and intendment of
article 24(4) with regard to the
security implications of
unionizing CEPS, it will exceed
the bounds of necessity to
exclude CEPS from unionizing.
Such excess would, in turn be a
breach of the ambit of the
restrictions required by article
24(4) and therefore rather
unconstitutional. This accords
with the ratio decidendi in
New Patriotic Party v. Inspector
General of Police, Mensima v.
Attorney-General and New
Patriotic Party v.
Attorney-General (Ciba
Case), supra. There is in this
case no necessity so compelling
as to warrant the virtual
negation or recall of the very
right conferred by the
constitution as this court was
constrained to do in Republic
v. Independent Media Corporation
of Ghana (Radio Eye Case)
(1996-97) SC GLR
258.
If the Executive and Legislature
deem it meet to prescribe
further restrictions, e.g.
prohibiting CEPS’ workers from
embarking on a strike or
otherwise, it is left to them.
After all, as was noted by
Charles Hayfron-Benjamin JSC in
New Patriotic Party v.
Inspector-General of Police,
supra, at p.79. “…some
restrictions as are provided for
by article 21(4) of the
Constitution, 1992 may be
necessary from time to time and
upon proper occasion.” It
is easier for judges to
pronounce on the constitutional
legality of the measures of the
executive and legislature when
taken than otherwise.
CONCLUSION
For all the foregoing reasons, I
would dismiss the plaintiff’s
action subject to the
restrictions on CEPS’ workers’
right to unionise as I have
hereinbefore set out.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
SOPHIA ADINYIRA (MRS):
I have the privilege of reading
beforehand the very
comprehensive opinions of my
learned brothers Atuguba and
Dotse. I find myself agreeing
with the reasoning and
conclusion reached by my brother
Atuguba that the action be
dismissed. I however wish to add
a few words of my own.
The Labour Act, 2003, Act 651
by its preamble is an “Act to
amend and regulate the laws
relating to labour, employers,
trade unions and industrial
relations; to establish a
National Labour Commission and
to provide for matters related
to these”.
It is provided by section 1 of
the said Act that:
“This Act applies to all workers
and to all employees except the
Armed Forces, the Police
Service, the Prisons Service and
the Security and Intelligence
Agencies specified under the
Security and Intelligence
Agencies Act, 1996 (Act) 526.”(Emphasis
mine)
This Court is being invited to
interpret “Security and
intelligence agencies” specified
under Act 526 to include the
Customs, Excise and Preventive
Service, (CEPS). To accede to
this request would have the
effect of depriving the senior
and junior staff of the Customs,
Excise and Preventive Service,
(CEPS) of their fundamental
freedom of association and
economic right to join or form a
trade union of their choice.
I am not persuaded by the views
urged on this Court that by
virtue of the fact that the
Commissioner of CEPS is a member
of the National Security Council
under Act 526 supra it
follows automatically that CEPS
is a security service under the
said Act, and hereby its workers
are prohibited from joining a
trade union of their choice.
Though the phrase “security
services” has been defined under
section 42 of Act 526 as:
“security services means the
services connected with national
security as determined by
council,”
(emphasis mine) the only
security and intelligence
agencies specified in the
said Act 526 are the Bureau of
National Investigation and the
Research Department
respectively.
Under our existing laws CEPS is
considered as a revenue agency
under the Revenue Agencies
(Governing) Board Act, 1996, Act
558. The other agencies
under this board are the
Internal Revenue Service
(I.R.S.), and the Value Added
Tax Service (VATS). The primary
function of CEPS is to safeguard
and protect the economic
security of the nation by the
collection of duties, taxes,
revenue and penalties payable
under the Customs, Excise and
Preventive ((Management) Act,
PNDCL 330 and also to carry out
border patrols on our frontiers
and coastlines for the purpose
of preventing smuggling and any
other custom and excise
offences. This role is as
important and sensitive as the
role of political security
undertaken by the armed forces
and the police service.
I agree with my brother Atuguba
JSC that it is not for this
Court to assume the role of the
legislature or the executive to
convert CEPS into a security and
intelligence agency in the
absence of any express
legislation. Such a role by the
Court would be undemocratic as
it may result in stifling CEPS
workers from exercising their
economic right of joining or
forming an association of their
own choice. This would not only
be in contravention of articles
21 (1) (e) and 24 (3) of the
Constitution but also of
article 2 of the International
Labour Organisation (ILO)
Convention C87 Freedom of
Association and Protection of
the Right to Organise
Convention, 1948, to which
this country subscribe as a
member of the ILO. Article 2
of Convention C87 provides
that:
“Workers without distinction
whatsoever shall have the right
to establish and, subject only
to the rules of the organisation
concerned, to join organisation
of their own choosing without
previous authorisation.”
I believe that any restrictions
on the fundamental freedoms and
human rights of a citizen or any
person ought to be by express
legislation. In the absence of
any express statutory
restrictions, it is rather the
duty of the Court to enforce
these fundamental freedoms and
rights and not to whittle them
down. I accordingly endorse the
views expressed by the learned
Justice Bamford Addo JSC in the
case of New Patriotic Party
vrs. Inspector General of Police
[1993-94] 2 GLR 459 at 482 that:
“This Court is therefore not
permitted to give an
interpretation which seeks to
tamper in any way with the
fundamental human rights but
rather to see that they are
respected and enforced.”
International norms and
conventions recognise the need
to regulate members of the armed
forces and the police in the
expression of their economic
rights and freedom of
association, due to the
sensitive nature of their work
and the implications for
national security. Article
9(1) of ILO Convention C87
therefore provides:
Article 9 (1)
“The extent to which the
guarantees provided for in this
Convention shall apply to the
armed forces and the police
shall be determined by national
laws or regulations.”
In consonance with the above
convention, members of the
Police and Prison Services are
specifically restricted from
joining or forming trade unions
under the statutes establishing
them under our domestic laws.
See section 17 (f) of the
Police Service Act, 1970, Act
350 and section 16 (f) of
the Prison Service Act, 1972,
NRCD 46. Even then the
members of these two services
are permitted to join
associations authorised by the
minister with similar
objectives. Section 17 (f)
of the Police Service Act,
1970, Act350 is reproduced
for illustration. It states:
s.17 “It is misconduct for
a police officer
(f) to become or be a member of
a trade union or of any other
association other
than an association authorised
by the Minister having similar
objects.”
However, there is no such
express restriction on the right
of members of CEPS to join or
form a trade union in the
Customs, Excise and Preventive
Service (Management) Act, 1993
PNDCL 330.
It is my considered opinion that
section 1 of the Labour Act is
clear and unambiguous and it is
merely re-stating the existing
laws by restricting the
application of the Labour laws
to the Armed Forces, Police and
Prison Services respectively.
The section does not call for
any purposive and strained
meaning. In the unreported case
of The Republic v. The High
Court, Accra, Ex parte Paa Kwesi
Yarlley and 2 Ors. S.C. Suit no.
J7/2/2007, dated.. her
ladyship, Chief Justice Wood
after reviewing the purposive
rule of construction said:
“ It does appear to me that
where the purposive and
literalist approach, advocated
by Bennion, which in my view is
synonymous with the subjective
purpose theory of Justice
Barrack, advances the
legislative intent and does not
lead to injustice, then it is
not proper to apply the
purposive strained meaning or
objective purposive rule”
This Court is under a duty to
interpret the Constitution and
statutes to conform to
international legal norms and
also to promote and encourage
respect for human rights and
freedom. It is therefore my
considered view that section 1
of the Labour Act does not cover
CEPS.
I accordingly dismiss the
action.
S. O. A. ADNIYIRA
(JUSTICE OF THE SUPREME COURT)
JONES DOTSE (J.S.C)
The Plaintiffs’ claim against
the Defendants’ the following
reliefs as per their writ filed
on 27th of August,
2007;
“1. A declaration that on a
true and proper interpretation
of the Labour Act 2003 (Act
651) particularly S.I, the
application or the purported
application of the said Act to
cover the Customs, Excise and
Preventive Service (CEPS) as
established by law is
in-consistent with, or in
contravention of Article 24(4)
of the Constitution and to that
extent the court ought to
declare that restrictions
prescribed by law and reasonably
necessary in the interest of
national security or public
order require that Customs,
Excise and Preventive Service
be excluded from the
application of the Labour Act
2003 (Act 651)
2. That by virtue of the
combined effect of Article 1(2)
and Article 11(6) of the
Constitution the Court declares
a Collective Bargaining
Certificate dated 20th
March 1987 issued to cover the
Customs, Excise and Preventive
Service void and of no effect.
Originally, the plaintiffs’ writ
was against the National Labour
Commission the Defendants
herein, but as the rules of
procedure in the Supreme Court
require i.e. Supreme Court
Rules, 1996 C.I. 16 rule 45 (3)
the Attorney-General was made a
party for its opinions in the
matter to be made known.
Thereafter, the Interested
party, the Public Services
Workers Union of TUC was also
made an interested Party,
pursuant to rule 45(4) of the
Supreme Court Rules, 1996 C.I.
16 already referred to supra.
The plaintiffs’ are the body
that has been mandated under the
Customs, Excise and Preventive
Service (Management) Act, 1993
PNDC Law 330 to collect and
account for the duties, taxes,
revenue and penalties payable
under this Act for and on behalf
of the state.
The Head of the Plaintiffs’
organization is the Commissioner
who shall be appointed by the
President in accordance with
article 195 of the Constitution.
There shall also be Deputy
Commissioners to head various
departments of the Service as
may be determined by the Sector
Minister acting on the
recommendations of the Board
which shall include the
following departments, Finance
and Administration, Operations,
Research, Monitoring, Planning
and Preventive.
Section 235 of PNCDL330 provides
as follows:-
For the administration of this
Act, all officers shall have the
same powers, authorities and
privileges as are given by law
to Police officers”.
The Law establishing the
plaintiffs’ also lists some of
the powers granted them as
follows:-
1.
Power to stop ships, aircraft
and vehicle – section 245 of
PNDCL 330.
2.
power to board ship or aircraft
– section 256.
3.
Power to search persons and
premises.
4.
Power to patrol freely any part
of Ghana etc etc.
It can therefore be seen that
the powers granted to the
plaintiffs’ under PNDCL 330 are
really very extensive and penal
in character.
On the other hand, the original
defendants herein, the National
Labour Commission had been
established by the Labour Act,
2003 (Act 651) and Sections 135
– 152 thereof deal with the
composition, functions and
powers of the Commission. Of
particular interest to this case
are Section 139 (1) (a)-(d) and
(2) of Act 651. Section 139 (1)
(a) of (Act 651) provides as
follows:-
“The commission shall exercise
the following powers:
a. receive complaints from
workers, trade unions, and
employers, or employers
organizations
i. on industrial
disagreement and
ii. allegations of
infringement of any requirements
of this Act and the
Regulations.
Section 139(2) provides thus
“without prejudice to section
(1) the commission shall in
settling an industrial dispute
have the powers of the High
Court in respect of
a. enforcing the
attendance of witnesses and
examining them on oath,
affirmation or otherwise
b.
compelling the
production of documents and
c.
the issue of a commission or
request to examine witnesses
abroad.
3. The commission shall in
respect of its proceedings enjoy
the same privileges and
immunities pertaining to
proceedings in the High Court”.
It is also clear that the
commission has very extensive
powers and in some instances has
powers equivalent to the High
Court.
What then are the brief facts of
this case?
BRIEF FACTS OF THE CASE
Due to protracted and
inconclusive legal battles
between the PSWU and CEPS over
an earlier directive in or about
1988 or 1989 which declared that
the local union of PSWU had been
proscribed at CEPS, the senior
staff association of CEPS
formally applied to the Labour
Department to be allowed to
unionize under section 1 of the
Labour Act, 2003 (Act 651).
The Attorney General’s
Department upon being requested
to advise on whether CEPS staff
association can form or join a
trade union stated unequivocally
as per a letter dated 25th
August, 2005 as follows:-
“Customs, Excise and Preventive
Service cannot form and or join
trade union” citing section 234
of PNDCL 330 as authority and
applying the “ejusdem generis”
rule of legal interpretation.
After the receipt of the advice
from the Attorney-General’s
Department, the Senior and
Junior Staff Association of CEPS
lodged a joint complaint with
the National Labour Commission
against the management of CEPS
for unfair labour practices.
The management of CEPS raised
the preliminary issue that the
Labour Commission had no
jurisdiction over CEPS. However,
after reception of arguments,
the Labour Commission held on 23rd
May, 2006 that it had
jurisdiction in the matter and
concluded the matter thus:-
“….In the light of the
foregoing, the commissions
decision is that CEPS is not one
of the security institutions
listed under section 1 of the
Labour Act 2003, Act 651 and
therefore the commission has
jurisdiction to determine the
complaint of unfair labour
practices against the management
of CEPS from its staff groups”.
It is significant to note that
the rationale for the Labour
Commission’s decision referred
to supra had been prefaced on
the fact that CEPS is not
mentioned anywhere in the
Security and Intelligence
Agency Act (1996) Act 526. With
this background, the Labour
Commission concluded that it is
only the Bureau of National
Investigations and the Research
Department which had been
redesignated as Internal and
External Intelligence Agencies
together with the Armed Forces,
the Police Service and the
Prisons Service that qualify to
be referred to as security
agencies and therefore fall
outside the jurisdiction of the
Labour Act 2003 (Act 651)
section 1, thereof.
After the decision of the
National Labour Commission on 23rd
May, 2006, even though the
Management of CEPS did not
accept the decision, they did
not take any steps to set it
aside or appeal.
Since the adjudicatory process
of the National Labour
Commission is equated to that of
a High Court, reference section
139 9(2) (a) (b) (c) and (3) of
Act 651. It follows that any
decision to appeal against it to
the Court of Appeal must be done
within three months of the
original decision and that is 23rd
August, 2006. From the records
available to me, it is clear the
plaintiffs did not avail
themselves of the appeal
process. Finding themselves
hopelessly out of time to file
any appeal against the Labour
Commission decision and faced
with a further legal challenge
by the Labour Commission seeking
to compel the management of CEPS
to negotiate with the PSWU
pursuant to a motion filed in
the High Court, the plaintiffs
filed the instant writ.
LEGAL SUBMISSIONS
PLAINTIFFS’
The plaintiffs contention is
that the interpretation by the
Labour Commission of Section 1
of the Labour Act, 2003, (Act
651) to exclude CEPS from the
list of security agencies
mentioned in that law is
inconsistent with or in
contravention of Article 24(4)
of the Constitution 1992 and
that the restrictions
stipulated by law can reasonably
be inferred in the interest of
national security or public
order to include CEPS such that
they the plaintiffs be exempted
from the application of the
Labour Act 2003, (Act 651).
The plaintiffs further contend
that grant of the Collective
Bargaining Certificate is in
breach of Section 3(6) of Act
299 the Industrial relations Act
which was the operative law at
the material time.
Accordingly, the plaintiffs’
argue that the said Certificate
is invalid and void for failure
to have it published in the
Gazette as is mandatorily
required to be done in Act 299
just as it has been re-stated in
Act 651.
It is provided in Article 1(2),
2(1) & (2) of the Constitution
1992 as follows:-
Article 1(2)
“This Constitution shall be the
Supreme Law of Ghana and any
other law found to be
inconsistent with any provision
of this constitution shall, to
the extent of the inconsistency,
be void.” Emphasis is mine
Then article 2(1) (a) and (b)
provides:
“A person who alleges that
a. an enactment or anything
contained in or done under the
authority of that or any other
enactment, or
b. any act or omission of any
person
Is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect”.
The plaintiffs therefore contend
that the Constitution 1992 is
Supreme i.e principle of the
Supremacy of the Constitution.
The plaintiffs further contend
that any law, or act or omission
by anybody or institution which
is inconsistent with or in
contravention with the
Constitution 1992 must be
declared void.
There is no doubt in my mind
that articles 1(2), 2 (1) (a)
and (b) of the Constitution 1992
stipulates the Supreme Court as
the defender of the Constitution
1992. To that extent, the
instant writ by the plaintiffs
should be considered as an
exercise of their right in the
Constitutional provisions in the
articles of the Constitution
1992 referred to supra.
The CRUX of the plaintiffs’
submission is that, the
interpretation by the Defendants
that section 1 of the Labour Act
does not permit the plaintiff to
claim the status of being a
Security or an Intelligence
Agency is inconsistent with the
Constitution. They further
contend that such an
interpretation is in
contravention of Article 24(4)
of the Constitution 1992.
It is note worthy to refer to
the provisions of section 1 of
the Labour Act, (Act 651)
which provides as follows:-
“This Act applies to all
workers and to all employers
except the Armed Forces, the
Police Service, the Prison
Service and the Security
and Intelligence Agencies
specified under the Security and
Intelligence Agencies Act, 1996
(Act 651)”.
From the above provision, it is
clear that the intendment of the
scope of application of the
Labour Act was clearly meant to
cover and deal wit the Security
and Intelligence Agencies. Put
in another way, the Labour Act
1996 is clearly not referable
and applicable to all staff of
the Armed Forces of Ghana, the
entire Police Service in Ghana
as well as the Prison Service in
additional to all other Security
and Intelligence Agencies
covered in Act 526.
It is perhaps pertinent at this
stage to refer to constitutional
provisions that guarantee and
restrict the right to join or
form a trade union. It is only
when these rights are determined
that it will be possible to
conclude whether the decision of
the defendants that the
plaintiffs’ are a non security
organization, and therefore
cognizable under the Labour Act
is right or wrong..
Articles 24(3) and (4) of the
Constitution 1992 which deal
with economic rights and
restrictions placed therein
state as follows:-
“24(3) “Every worker has a
right to form or join a trade
union of his choice for the
promotion and protection of his
economic and social interests”.
This means that every worker in
Ghana has an unfettered right of
his choice to affiliate or join
any trade union in pursuit of
his or her economic or social
rights.
However, article 24(4) imposes
some restrictions on the
exercise of those rights in the
following words.
“Restrictions shall not be
placed on the exercise of the
right conferred by clause (3) of
this article except
restrictions prescribed by law
and reasonably necessary in the
interest of national security or
public order or for the
protection of the rights and
freedoms of others.”
What this means is that, the
provisions admit of the
guarantee of the workers right
to form and or join any trade
union of his choice in pursuit
of his or her economic or social
rights. These are however
subject to the restrictions
imposed by law eg under section
1 of the Labour Act or under
those conditions as are
reasonably necessary in the
interest of national
security or public order to
protect the rights and freedoms
of others.
It therefore means that the list
of those class of workers or of
employers capable of being
restricted in their quest to
form or join trade union is
flexible and capable of being
expanded as and when the
exigencies of national security
or public order concerns demand.
This being the case, what then
is the peculiar position of the
plaintiff vis-à-vis the
constitutional provisions
referred to supra.
CASE FOR DEFENDANTS
The defendants have beautifully
set out the facts which are not
different from the facts that
have already been narrated
supra.
They however contend that since
there is no ambiguity, conflict
or doubt in the meaning of the
provisions of the statute
referred to, no issue of
interpretation arises thereby.
After referring to the cases
listed hereunder, the defendants
invited this Court to dismiss
the plaintiffs’ case and refer
same back to the High Court
where it properly belongs.
The cases are:
a. EDUSEI vs A.G [1996-97]
SCGLR 1
b. YIADOM I vs AMANIANPONG
[1981] GLR 3
c. TAIT vs GHANA AIRWAYS
CORPORATION [1970] G&G 527
d. GBEDEMAH vs AWOONOR
WILLIAMS [1970] 2GLR 438
The defendants in a
supplementary statement of case
further argued that the Supreme
Court has no jurisdiction in the
matter since to attempt to do so
would amount to this court
legislating and not interpreting
or enforcing as the Constitution
1992 requires of the Court.
POSITION OF THE ATTORNEY GENERAL
The Attorney General in his
opinion stated clearly that the
case before this court does not
fall into any of the parameters
set out by an earlier Supreme
Court decision in the case of
ADUMOAH II vs ADU TWUM II
[2000]SCGLR 165.
The Attorney General therefore
concluded that the instant suit
is therefore not one in which
the original jurisdiction vested
in the Supreme Court under
Articles 2(1) and 130(1) of the
Constitution arises.
CASE FOR INTERESTED PARTY
After associating themselves
with the submission of the
Defendants, the Interested Party
also concluded by inviting the
Supreme Court to decline
jurisdiction arguing that there
is no real and genuine issue of
interpretation to enable this
courts exclusive original
jurisdiction to be invoked.
JURISDICTION OF SUPREME COURT
Does this Court, have
jurisdiction in the matter?
Looking at the memorandum of
issues that has been filed,
since the issue of jurisdiction
is basic and goes to the root
of the courts powers to
determine the matter, it will be
first be taken as a preliminary
issue. Depending upon the
outcome of that determination,
all the other issues would be
dealt with under only two
headings to be formulated later.
In the case of
GbedemahVs Awoonor Williams
[1970]2 G&G 438 at 439
the Court of Appeal, sitting as
the Supreme Court stated the
limits within which the original
and exclusive jurisdiction of
the Supreme Court can be invoked
and exercised thus:
“It seems to us that for a
plaintiff to be able to invoke
the original and exclusive
jurisdiction of the Supreme
Court his writ of summons or
statement of claim or both must
prima facie raise an issue
relating to
(1)
the enforcement of a provision
of the Constitution, or
(2)
the interpretation of a
provision of the Constitution,
or
(3)
a question whether an enactment
was made ultra vires
Parliament, or any other
authority or person by law or
under the Constitution”.
The Supreme Court rejected a
similar invitation made to it
to intervene in the case of
TAIT vrs Ghana Airways
Corporation already referred to
supra where it held that the
plaintiffs case was essentially
one of wrongful dismissal and
rejected the contention that it
was a case of Constitutional
Interpretation.
This is how the Supreme Court
summed it up all in the TAIT
case:
“In our view, unless the words
of an article of the
Constitution are imprecise and
ambiguous, an issue of
interpretation does not arise.
Where the language of the
Constitution is not only plain
but admits of but one meaning,
the task of interpretation does
not arise. In our opinion, the
task of interpretation does not
arise where…..it is manifestly
clear that the dispute is not
about the true meaning of
ambiguous or vague words in the
Constitution…”
The constitutional provisions
which needs to be looked at
critically in this case before a
determination can be made in
respect of relief (one) 1 of
the Plaintiffs writ are
articles 24(3) and 24(4). The
words in article 24(3) admit of
no controversy and are clear,
unambiguous and straight to the
point. Not so, however with
article 24(4).
There are two indicators that
have been stated therein, these
are
(i)
Restrictions imposed by law,
and
(ii)
Restrictions necessary in the
interest of national security
and public order.
Which body or institution is
best suited under the
circumstances to interprete the
said provisions by making them
applicable.
I am also aware of the Practice
Direction as contained in
Judicial Circular No. 146/12
dated 15 June 1981 and reported
in [1981] GLR1 which admonishes
the assumption of jurisdiction
by the Supreme Court as a
Court of first instance in such
cases. This is what is contained
therein:
“It is also to be noted that
where a cause or matter can be
determined by a Superior Court,
other than the Supreme Court,
the jurisdiction of the lower
Court shall first be invoked.
The Supreme Court may dismiss
any such cause or matter, with
punitive costs to be paid
personally by Counsel or by the
party responsible for bringing
such cause or matter to the
Supreme Court in the first
instance”.
The above statement in the
Practice Direction was cited
with approval by Kpegah JSC as
he then was in his dictum in the
EDUSEI vs A.G case
already referred to. As a matter
of fact, the majority decision
in the EDUSEI case held that
“assuming the Supreme Court had
concurrent jurisdiction with
the High Court in enforcing the
fundamental human rights and
freedoms of the individual, the
court was precluded from
assuming jurisdiction in the
matter as a court of first
instance because of the 1981
Practice Direction” and by the
said decision, declined
jurisdiction in the matter.
It is my considered opinion that
the facts in the EDUSEI case are
significantly different from the
facts in the instant case.
FACTS OF EDUSEI CASE
The Plaintiff (EDUSEI) a
Ghanaian citizen was before the
coming into force of the
Constitution 1992 allowed to
leave Ghana with other Ghanaian
citizens to the United States on
allegations that they engaged in
espionage activities on behalf
of the U.S. His Ghanaian
Passport was seized from him
shortly before he left Ghana.
After the Constitution 1992 came
into force, the plaintiff wrote
a letter to the Minister of
Foreign Affairs and requested
that his old Passport be
returned to him to enable him
apply for a new one. There was
stoic silence to this request.
The plaintiff then brought an
action in the Supreme Court for
a declaration that:-
(i)
“Sections 5(1) and 12(3) of the
Passports and Travel
Certificates Decree, 1967 (NLCD
155) which sought to give the
Minister for Foreign Affairs
wide discretionary powers in
the grant, refusal, revocation,
cancellation or impounding of
passports and travel
certificates, section 5(2) (a)
and (b) (ii) and (iii) which
provided that the Minister
should not issue a Passport to
specified categories of persons
and also section 17(e) of the
Decree were inconsistent with
and in contravention of the
letter and spirit of the
Constitution, especially
articles 17(1) –(3) and 21(1)
(g) and thus void and
unenforceable and
(ii)
That as a citizen of Ghana by
birth, he had the Constitutional
right to enter and leave Ghana
and a fortiori to a passport to
enable him exercise and enjoy
that right”.
In their statement of case, the
defendant the Attorney-General
among other reasons argued
that, since the plaintiff was
seeking an enforcement of his
right of freedom of movement a
fundamental human right, the
court had no jurisdiction to
determine the claim because it
was the High Court, and not the
Supreme Court that had exclusive
jurisdiction to entertain the
suit.
The Supreme Court by a majority
decision dismissed the
plaintiffs action and held that
“the effect of articles 33(1)
and 130(1) and 140(2) of the
Constitution 1992 was to vest in
the High Court, as a court of
first instance, an exclusive
jurisdiction in the enforcement
of the fundamental human rights
and freedoms of the individual.
The Supreme Court had only
appellate jurisdiction in such
matters. It has no concurrent
jurisdiction with the High Court
in the enforcement of
fundamental human rights
contained in Chapter five of
the Constitution”.
In the Edusei case no matter how
ingeniously the reliefs were
couched, it is to be generally
seen as a breach of the
fundamental human rights of the
plaintiff and therefore the
right to seek enforcement of
those rights.
In the instant case, the
plaintiffs contend that an
interpretation of a statutory
provision in the Labour Act (Act
651), enacted after the
Constitution 1992 came into
force is inconsistent with or
contravenes a Constitutional
provision in article 24(4).
Is such a claim legitimate?
Taking a cue from the decision
of the Supreme Court in the case
of ADUMOA II vs ADU TWUM II
[2000]SCGLR 165 Where the
court in answering the question,
stated thus:
“When then does a real or
genuine issue of interpretation
or enforcement of a provision
of the Constitution arise for
determination by the Supreme
Court, either in the exercise of
its original jurisdiction under
article 130(1)
(a) or in its reference
jurisdiction under article
130(2) of the Constitution
1992”. The Supreme Court itself
answered the question bY
referring to the decision of the
TAIT case already referred to.
In my mind, the words in article
24(4) of the Constitution 1992
are ambiguous and capable of
different meanings depending
upon the circumstances of each
case. This is because, whilst
the article in question is
dependent upon the general
provisions of chapter five of
the Constitution which deals
with fundamental human rights,
article 24 deals with economic
and social rights.
Secondly, whilst article 24(4)
re-emphasizes the grant and
enjoyment of the rights
enshrined in article 24(1) (2)
and (3) in particular, it also
in another breadth takes away
some of these rights. The
scenario is that, whilst
Ghanaian workers have the right
to work, to form and join trade
unions of their choice, their
rights to enjoy those freedoms
can be curtailed by (1)
operation of law, or
(2) in the interest of national
security and public order.
It does appear that by reference
to operation of law would be
easy to determine and might not
admit of any ambiguity
whatsoever.
However, if one considers the
contents of section 1 of the
Labour Act, already referred to,
it is clear that the provisions
therein contained admit of some
controversy and ambiguity. To
that extent therefore, there is
the need for judicial
intervention to help solve the
confusion.
Secondly, who determines the
issue of national security and
public order?
In my mind, the Judiciary is
best suited to determine such
issues in an unbiased and
impartial manner.
To what level then of the
judiciary is such a delicate
task to be entrusted?
The Edusei case just like the
other cases TAIT,
GBEDEMAH, YIADOM etc all
referred to supra seem to
suggest that the High Court is
the commencement point or level.
Thereafter, if there is the need
for a referral of an
interpretation or enforcement,
then that would be made to the
Supreme Court.
I am however of the opinion
that, where the interpretation
of a Constitutional provision or
statute is capable of different
meanings, or where the
provisions therein contained are
ambiguous and admit of more than
one meaning, and there is no
existing Supreme Court decision
or interpretation on the issue,
it is better for the Supreme
Court to assert its role as the
defender and protector of the
Constitution by assuming
jurisdiction.
What should be noted is that, in
construing the Supreme Courts
role as envisaged in Articles
1(2) 2(1) and (ll) and 130(1)
of the Constitution 1992 the
magnificence of the supremacy
of the Constitution should be
allowed to work perfectly.
When the Supreme Court functions
like it is supposed to do,
taking into consideration the
policy measures that lie behind
the enormous role assigned the
Court against the historical
background that gave birth to
the Constitution 1992, the need
of a robust, but fair minded
court that transcends policy
prejudices and preferences that
may exist at any point in time
in order for the purpose and
will of the constitution itself
to be clearly manifested have to
be clearly distinguished and
made functional and applicable.
I am of the opinion that, it is
better to leave this critical
and crucial role to the
Supreme court Justice who are
at the apex of the judicial
system and whose judicial oath
among others is to preserve the
core values of the Constitution
1992 and the Constitutional
system.
In this respect therefore I will
dismiss the contention that this
Supreme Court has no
jurisdiction in the matter.
There is no matter for the High
Court to decide in this case.
The Supreme Court is therefore
best suited to determine the
remaining issues, which have
been re-formulated as follows:-
REMAINING ISSUES
-
Whether or not upon a true
and proper interpretation of
the Labour Act, (Act 651)
especially section 1 thereof
vis-à-vis the Security and
Intelligence Agencies Act,
1996 (ACT 526) and the
application of the said
laws in respect of the
Customs, Excise and
Preventive Services as
established by law denoting
CEPS as a non-security
organization is
inconsistent with or in
contravention of article
24(4) of the Constitution
1992.
-
Whether or not the
Collective Bargaining
Certificate issued to cover
CEPS is valid.
ISSUE 1
The Labour Commission in their
decision dated 23rd
May, 2006 concluded the aspect
of their decision touching and
dealing with Security and
Intelligence Agencies Act, (Act
526) as follows:-
“The law makers in the section 1
of the Labour Act, 2003, Act 651
unambiguously mentioned those
institutions whose employees are
not covered by the Act and it is
trite learning that when a law
expressly mentions a class as
the Armed Forces, the Police
Service, the Prison Service and
the Security and Intelligence
Agencies which in the Security
Agencies Act 1996, (Act 526)
refers to the Bureau of National
Investigations and the Research
Department without mentioning
CEPS, it is conclusive in the
absence of anything to the
contrary that CEPS is not part
of that class. Until the law
makers amend the law regulating
CEPS to change it from
para-military institution to a
full fledge Security agency, the
Commission finds CEPS not to be
part of the Security and
Intelligence Agencies whose
employees fall outside the
scope of the application of the
Labour Act 2003, CEPS
cannot be said to be part of the
Security Service by necessary
implication of statutes”.
Based on the above reasoning the
Defendants concluded that the
Plaintiffs are not a Security
Institution mentioned in section
1 of the Labour Act to
qualify them to be exempted
from unionization.
What then is this security and
Intelligence Agencies Act, (Act
526)?
The preamble to Act 526, states
as follows:-
“An ACT to make provision in
respect of the National Security
Council, to provide for the
establishment of Regional and
District Security Councils, to
specify some of the state
agencies responsible for
implementing government
policies on security of the
state and attendant issues on
or relating to the internal and
external security of Ghana and
to provide for related matters”.
In making use of the preamble to
Act 526, I am aware of the fact
that a Preamble to an Act of
Parliament is only a narrative
of the facts that gave rise to
the passage of the Act and will
give a semblance of the main
objectives of the Act. It thus
gives a historical basis for the
passage of the Act and can be
described as the gateway to
understanding the reasons why
the Act was enacted and the
problems which it was meant to
solve.
The authorities are quite
certain that, even though a
Preamble is not part of the Act
of Parliament, the facts so
stated in the preamble can be
looked at by the courts although
not without challenge.
In R v. Haughton (Inhabitants)
{1853] 6 Cox. CC. 101, E & B,
501 at 506 Lord Campbell stated
thus:
“A mere recital of an Act of
Parliament, either of fact or
law, is not conclusive, and we
are at liberty to consider the
fact or the law to be different
to the Statement in the
recital”.
Under these circumstances, I
will take the preamble to Act
526 into consideration in an
attempt to fully comprehend the
objects of the Act, and the
mischief that the law was meant
to cure. Such an approach will
enable me to unravel any missing
links if any that are needed to
make the Act functional in
practice. I am not to be
understood to be attempting to
legislate or insert new words
into the Act when the
legislature did not intend any
such effect.
From this standpoint, Act 526
must be understood to be an
Act designed to specify some
of the state agencies
responsible for implementing
government polices on security
of the state and related issues
bordering on internal and
external security of Ghana.
In that respect therefore,
sections 1, 6 and 8 of Act 526
establish and indicate the
membership of the National,
Regional and District Security
Councils respectively.
It is significant to observe
that Section 1(2)(j) names the
head of the Plaintiffs
institution as one of the
members of the National Security
Council. Sections 6(l)(h) and
8(i)(e) mention the plaintiffs
as an Institution comprising
membership of the Regional and
District Security Councils.
A consideration of the functions
of the National Security
Council, as is stated in section
4 of Act 526 clearly shows that
the functions of the plaintiffs
as spelt out in PNDCL 330 the
CEPS Management Law in theory
and practice are in tandem
with those of a Security
apparatus as is spelt out in Act
526.
It is also to be noted that Act
526 is divided into six parts
as follows:-
-
Part I -
National Security Council.
-
Part II -
Regional and District
Security Councils.
-
Part III -
The Internal and External
Intelligence Agencies.
-
Part IV -
National Security
Coordinator.
-
Part V -
Complaints Tribunal and
Warrants.
-
Part VI -
Financial And Miscellaneous
provisions.
It is therefore certain that
there are clear differences
between a Security Service and
an Intelligence Agency as is
depicted in Section 42 of Act
526, the Interpretation Section.
Under this section, Intelligence
Agency is defined as “Intelligence
Agency” means the Internal or
External Intelligence Agency
established under this Act”.
Whilst security services is
defined as “Security Services”
“means such services connected
with national security as the
Council may determine”.
The above definitions
re-enforces the divisions of Act
526 referred to supra into
different segments.
When therefore the Defendants
state in their decision that
“It is worthy of note that CEPS
is not mentioned anywhere in
the Security and Intelligence
Agencies Act (1996) Act 526”, it
is clear that the said
assertion is not only false but
misleading. It appears, the
Defendants were only referring
to section 10 of Act 526 which
dealt with the Intelligence
Agencies and not the Security
Services which had been dealt
with in part I and II of Act
526.
Section 1 of the Labour Act,
exempts the Armed Forces, the
Police Services, the Prison
Service and the Security and
Intelligence Agencies specified
under the Security and
Intelligence Agencies Act 1996
(Act 526) from the application
of the Labour Act.
In other words, all workers and
or employees in the institutions
mentioned therein in section 1
of the Labour Act are not
subject to the Labour Laws of
this country. It also means that
they cannot unionise under the
provisions of the Labour Act in
its entirety.
The Plaintiffs main complaint is
that, even though article 24(3)
of the Constitution 1992
guarantee’s certain rights to
workers as is contained therein,
article 24(4) restricts those
rights in cases of national
security or public order or for
the protection of the rights and
freedoms of others.
I have perused the erudite
submissions of all the parties
in this case. I also appreciate
the fine distinctions that have
been drawn by all the parties in
respect of the Constitutional
and Statutory interpretations in
their statements of case.
In attempting to determine
whether there is any
inconsistency or contravention
of article 24(4) of the
Constitution 1992 and section 1
of the Labour Act and how the
interpretation of a Security and
Intelligence Agency under Act
526 has been dealt with it
behoves on a Constitutional
Court such as the Supreme Court
to adopt a holistic and
purposive approach.
This therefore means that all
the relevant provisions of the
Constitution 1992 that touch and
deal with matters of National
Security would have to be
considered alongside other
statutory provisions on security
and Intelligence.
For example, article 83(1) of
the Constitution 1992 contained
the membership of the National
Security Council. It states as
follows:-
“There shall be a National
Security Council which shall
consist of
(a)
The President
(b)
The Vice-President
(c)
The Ministers for the time being
holding the portfolios of
foreign affairs, defence,
interior, and finance and such
other ministers as the President
may determine.
(d)
The Chief of Defence Staff and
two other members of the Armed
Forces.
(e)
The Inspector General of Police
and two other members of the
Police Service, one of whom
shall be the Commissioner of
Police responsible for Criminal
Investigations Department;
(f)
The Director-General of the
Prisons Service.
(g)
The Director of External
Intelligence.
(h)
The Director of Internal
Intelligence
(i)
The Director of Military
Intelligence
(j)
The Commissioner of Customs,
Excise and Preventive Service,
and
(k)
Three persons appointed by the
President.
Article 84 of the Constitution
1992 deals with the functions of
the National Security Council.
The key function therein
contained is the “considering
and the taking of appropriate
measures to safeguard the
internal and external security
of Ghana”, among others.
If one considers the membership
o f the National Security
Council as listed in article
83(1) of the Constitution, it is
clear that apart from the
holders of political power e.g.
the Presidency and Ministerial
Portfolio’s , membership is
drawn from institutions of
national security or quasi
security.
Is the membership of such an
august body like National
Security Council by CEPS
accidental or by design which
took into consideration the
practical realities of the
functions being performed by
CEPS under the law establishing
it, irrespective of its
historical underpinnings?
I have in the early parts of
this judgment set out in some
detail the functions and powers
of the plaintiffs. Their powers
are rather extensive and the
provisions give them wide
discretionary powers similar to
those that are granted to the
Police.
As a matter of fact, most of the
sanctions that apply in the
event of a breach of the rules
and regulations of CEPS as is
contained in the CEPS Management
Law PNDCL 330 are penal in
character.
This, coupled with their
membership of the National
Security Council established
under both the Constitution 1992
and the Security and
Intelligence Agency Act means
that to a very large extent CEPS
is a Security organization.
What should be noted is that,
Constitutions are made by people
to control, regulate and guide
the Community to achieve certain
goals and or objectives. The
modern view to constitutional
interpretation seems to dwell on
purposive approach.
This view has been echoed in the
following notable decisions by
the Supreme Court in Ghana,
1
TUFFOUR vs ATTORNEY-GENERAL
[1980] GLR 637, at 650
and
2
ASARE vs ATTORNEY –GENERAL
[2003-2004] SCGLR 823 at 825
where the court stated in
holding 1 as follows:-
“Modern judicial technique had
tended away form simple
liberalism towards a purposive
approach to interpretation which
was more likely to achieve the
ends of justice. It was a
flexible approach which would
enable the judge to determine
the meaning of a provision
taking into account the actual
text of the provision and
the broader legislative
underpinning and purpose of the
text. In applying the
purposive approach, a court
might give an ordinary or
artificial meaning of words in
a statute or constitution,
depending upon its perception of
the legislative purpose of the
provision……………..Consequently,
the court would give purposive
interpretation”.
On the basis of the above
quotation I would be minded to
give a really pragmatic and
purposive approach to the
interpretation of article 24(4)
of the Constitution 1992 to
include plaintiffs set up,
(CEPS) as an exception
prescribed not only by law e.g.
the Labour Act and Act 526,
but also as an exception
necessary in the interest of
national security and public
order.
This view to me is a better
approach as it takes into
consideration the realities on
the ground as to the real
practical functions of CEPS as
stipulated under law.
The time is certainly ripe for
courts faced with construing
ambiguous provisions in a
Constitution and or statute to
consider not only the practical
realities of the effect of their
decisions on society in general,
but also the total and
complete meaning of the
provisions on the effective and
harmonious relationship and
functioning of state machinery.
In coming to the decision that
CEPS is a security institution
capable of being considered as
an analogous security
organization in line with those
institutions listed in Section
1 of the Labour Act, I have
also been very mindful of the
entire provisions of the
Labour Act and the Security
and Intelligence Agencies Act,
1996 (Act 526).
Viewed from that angle, and
looking at the provisions in the
Laws applicable and taking a cue
from the admonition of the Court
of Appeal per Edward Wiredu J.A
in the case of
OKWAN & OTHERS vs AMANKWA
11[1991]1 GLR 123
where it was held that
“For the general rule of
interpretation is that where
an enactment has clearly
defined particular words in its
interpretation Section it is
uncalled for and most
unnecessary to look elsewhere
for the meaning of those words”.
In this respect, I have already
referred to the definition of
State Security in Section 42 of
Act 526 and other references in
the Law which make it really
imperative and necessary for the
Plaintiffs institution to be
regarded as a security
organization.
I have apprized myself of the
English authorities referred to
in the statement of case of the
Interested Party.
Cases such as
1. ROYAL COLLEGE OF NURSING Vs
D.H. S.S [1981] AC800
2. DUPORT STEELS LTD vs SIRS
[1980] 1WLR 142 at 541
3. D. P. P. vs LYNCH [1975] AC
653 and
4. REGINA vs HOWE [1987] AC 417
All the above cases reiterate
and reinforce the principle
that, whenever Parliament enacts
a law, it is not the duty of the
Courts or for that matter Judges
to attempt to unravel the
intentions of Parliament in the
passage of the enactment. In
other words, it is not the duty
of judges and Courts to provide
missing links whenever these
appear in legislation.
Of particular interest to me are
the words of Lord Simon in the
case of Regina vrs. Howe,
referred to supra, where he
stated thus:
“ I am all for recognizing
frankly that judges do make
law. And I am all for judges
exercising this responsibility
boldly at the proper time and
place that is, where they can
feel confident of having in
mind, and correctly weighed, all
the implications of their
decision, and where matters of
social policy are not involved
which the collective wisdom of
Parliament is better suited to
resolve”.
The above is the correct
statement of the Constitutional
relationship between the
Legislature, (Parliament) and
the Courts, (the Judiciary).
The Constitution 1992 recognizes
this relationship by granting
to Parliament in article 106(1)
the power to make laws, and also
granted the Judiciary in article
125(3) judicial power and the
Supreme Court has its
jurisdictions specified in
articles 129; 130, 131 and 132
of the Constitution.
There is thus a fine balance
between these two institutions
of state, the power to make laws
and the power to exercise
judicial power respectively.
In the exercise of this
judicial power, the Supreme
Court is not expected to act as
a robot or consider itself as
being placed in a straight
jacket. The Supreme Court and
indeed any other Court should
not have any undue limitations
about the exercise of judicial
power that has been entrusted to
it save references to the
Constitution and legislations.
Indeed, the Supreme Court as the
highest court and the
Constitutional Court for that
matter must consider itself in a
unique position as shaping the
constitutional and legal
development of the country. This
it can do, by ensuring that it
asserts its authority by giving
meaningful and progressive
decisions that will affect the
ship of state and lead to
incongruous results.
It is in this respect that I am
of the view that the time is
ripe and proper for this court
to take a bold and progressive
decision that will recognize the
Plaintiffs institution as a
Security organization. This is
because if one considers the
statutory functions that they
perform and the powers that has
been granted their officials,
equating them to Police
officers, reference section 234
of PNDCL 330, then the only
logical, prudent and practical
approach is to consider CEPS as
a Security set up.
Much as I concede the fact that
trade union activities by their
nature can be turbulent and
unpredictable, especially taking
into account the sensitive
nature of the Plaintiffs work
and the tools with which they
carry out their assignment,
these factors alone cannot be
used to determine the
categorization of the Plaintiffs
institution as a security
organization.
In coming to the conclusion I
have reached in this matter, I
have been guided solely by the
Constitution 1992 and the laws
that are relevant for that
purpose and the philosophical
underpinnings of Constitutional
and Statutory interpretation.
CONCLUSION
This means that, I will declare
that upon a true and proper
interpretation of the Labour Act
2003 Act 651, particularly
Section 1 thereof, the
application of the said law to
include, the Customs, Exercise
and Preventive Service (CEPS) is
inconsistent and contravenes not
only the provisions of the
Security and Intelligence
Agencies Act, 1996, (Act 526)
but is also inconsistent and
contravenes article 24(4) of the
Constitution 1992.
The Plaintiffs are therefore by
operation of the Constitution
and law exempt and excluded from
the operation and application of
the Labour Act 2003 Act 651.
This means that the Plaintiffs
employees cannot unionise
because of the sensitive and
security nature of their work.
Having come to this conclusion,
it is not considered worth while
to deal with the other issue
which deals with the validity or
otherwise of the Collective
Bargaining Certificate.
Judgment is accordingly entered
for the Plaintiffs on relief one
of their writ of summons.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
FIIFI YANKSON FOR THE PLAINTIFF
EFIBA AMIHERE FOR THE DEFENDANT
NAANA JANTUAH BANFUL (CHIEF
STATE ATTORNEY)
PHILIP ADDISON FOR THE
INTERESTED PARTY |
