|
Supreme Court
- Invoking the original
jurisdiction - Creation of
Legislative Instrument – Whether
or not Amendment differs from
annulment - Whether or not
Parliament could interfere with
such legislation when it is laid
before it for 21 days under the
1992 Constitution. Article
11(7), Article 179(2)(b),
Article 297(d) of the 1992
Constitution - Standing of
Orders Parliament - Order 2
HEADNOTES
the
Ledzekuku-Krowor District
Assembly was made up of two
constituencies of Ledzekuku for
Teshie and Krowor for Nungua.
The electoral areas for the two
constituencies were twelve for
Ledzekuku and twelve for Krowor,
thus making a total of twenty
four. The Local Government
(Creation of New District
Electoral Areas and Designation
of Units) Instruments, 2010 (LI
1983) was prepared and laid
before Parliament. When LI 1983
was first laid before
Parliament, it had twenty four
electoral areas. As required by
the 1992 Constitution, art
11(7), such a Legislative
Instrument had to be published
in the Gazette and laid before
Parliament for twenty-one days
from the day of being published
in the Gazette. When it was laid
before Parliament, Parliament
referred it to its Committee on
Subsidiary Legislation, in
accordance with its Standing
Orders. The rule is that after
21days, the LI automatically
came into force. In the instant
case, by the time the LI came
into force, the number of
electoral areas in Ledzekuku had
been increased to 16 while the
electoral areas for Krowor
remained as twelve. By
increasing the numbers,
Parliament, through the
Subsidiary Legislation Committee
had interfered with the LI as
laid before Parliament. The main
question raised in this case was
how far Parliament could
interfere with such legislation
when it is laid before it for 21
days under the 1992
Constitution.
HELD
What this
decision implies is that all
portions of LI 1983 as laid
before Parliament for 21 days
and in respect of which no
questions or complaints were
raised came into force after the
expiration of the 21days from
the day it was gazetted. That
affected all the electoral areas
mentioned in LI 1983 including
the original twenty four under
Lodzekuku and Krowor when LI
1983 was first laid before
Parliament. The LI cannot be in
force in respect of the four
additional electoral areas which
are the subject matter of this
judgment. They are Oppong Gonno
Industrial Area, Teibibiano ,
Ashitey Akomfra North and
Martey – Tsuru.
For all the
foregoing reasons I conclude
that the provisions of article
297(c) and (d) can only be
relied on by Parliament or any
one else to supplement the
provisions of the Constitution
in a manner consistent with the
letter and spirit of those
provisions and since reliance on
them in this case does not
conduce to such consistency they
cannot avail the defence. Since
LI 1983 pended before Parliament
for not less than 21 sitting
days it took effect on the
expiration of that period less
the 4 offending ex gratia
electoral areas enumerated by my
brother Brobbey, JSC. The
plaintiff’s action therefore
succeeds to that extent.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Local
Government (Creation of New
District Electoral Areas and
Designation of Units) Instrument
L.I 1983
Local
Government Act 1993 (Act 462)
Settlement
Ordinance, Cap. 139, (1951 Rev.)
Courts
Ordinance, Cap 4 (1951 Rev).
Co-operative
Societies Decree, 1968(N.L.C.D.
252).
CASES
REFERRED TO IN JUDGMENT
Butt v.
Chapel Hill Properties Ltd
[2003-2004]I SCGLR 636
Apaloo v.
Electoral Commission of Ghana
[2001-2002] SC GLR 1
Brown v.
Attorney-General (Audit Service
Case) (2010) SCGLR 183
Manzah v
Registrar of Co-operative
Societies (1972)2 GLR 103
BOOKS
REFERRED TO IN JUDGMENT
Chambers 21st
Dictionary, 1996 ed., at page 49
Standing of
Orders Parliament
Garner’s
Administrative Law, Eighth
edition
Administrative Law, Ninth
edition at pp. 339-340 ,Wade and
Forsyth
DELIVERING
THE LEADING JUDGMENT
BROBBEY JSC:
COUNSEL
AYIKOI OTOO
FOR THE PLAINTIFFS
JAMES
QUASHIE-IDUN WITH HIM ANTHONY
DABI FOR THE 1ST
DEFENDANT.
SYLVESTER
WILLIAMS (PSA) FOR THE 2ND
DEFENDANT
JUDGMENT
BROBBEY JSC:
The plaintiff
in this case issued a writ
invoking
the original jurisdiction of
this court. The reliefs sought
in the writ were as follows:
“a) A declaration that
Local
Government (Creation of New
District Electoral Areas and
Designation of Units) Instrument
L.I 1983 which came into
force on 24th
November 2010 was made in
contravention of the
Constitution 1992.
b) An order declaring the said
L.I. 1983 null and void and of
no legal effect.
c) An order directed at the 2nd
defendant restraining the
Commission from holding any
District level and Unit
Elections as scheduled to take
place on 28th day of
December 2010, based upon the
said Local Government (Creation
of New Districts Election Areas
and Designation of Units)
Instrument L.I. 1983 which came
into force on 24th
November 2010.”
Before the
action could be determined,
counsel for the first defendant
filed a motion for an order
restricting the withholding of
the District Assembly and Unit
Committee Elections to the
Ledzokuku-Krowor District. The
plaintiffs did not oppose the
motion. Rather, they asked that
injunction be placed on the four
new electoral areas which were
added to Ledzokuku-Krowor
District.
That motion
was granted. The result was that
the District Assembly and Unit
Committee elections were held
throughout the country with the
exception of the four electoral
areas added to the
Ledzokuku-Krowor District.
The reason
for that ruling was simply this:
The target of the writ was the
validity of the Legislative
Instrument affecting only
Ledzokuku-Krowor District. There
was no basis to have held up
elections in the other parts of
the country where there was no
dispute affecting the
Legislative Instruments setting
them up. The result was that the
issues relating to four
electoral areas added to the
Ledzokuku-Krowor District
remained outstanding.
Before
considering the main question
raised by the writ, it is
necessary to recount the facts
which precipitated the issuance
of the writ. They are as
follows:
the Ledzekuku-Krowor District
Assembly was made up of two
constituencies of Ledzekuku for
Teshie and Krowor for Nungua.
The electoral areas for the two
constituencies were twelve for
Ledzekuku and twelve for Krowor,
thus making a total of twenty
four.
The Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instruments, 2010 (LI 1983) was
prepared and laid before
Parliament. When LI 1983 was
first laid before Parliament, it
had twenty four electoral areas.
As required
by the 1992 Constitution, art
11(7), such a Legislative
Instrument had to be published
in the Gazette and laid before
Parliament for twenty-one days
from the day of being published
in the Gazette. When it was laid
before Parliament, Parliament
referred it to its Committee on
Subsidiary Legislation, in
accordance with its Standing
Orders.
The rule is
that after 21days, the LI
automatically came into force.
In the instant case, by the time
the LI came into force, the
number of electoral areas in
Ledzekuku had been increased to
16 while the electoral areas for
Krowor remained as twelve.
By increasing
the numbers, Parliament, through
the Subsidiary Legislation
Committee had interfered with
the LI as laid before
Parliament. The main question
raised in this case was how far
Parliament could interfere with
such legislation when it is laid
before it for 21 days under the
1992 Constitution.
The answer to
this question was provided in
paragraph 4 of the statement of
case filed on behalf of the
first and second defendants
which read as follows:
“As part of
the said committee’s work a lot
of memoranda were received
from the catchment area of the
Ledzokuku – Krowor Municipal
Assembly, These were in addition
to representations made by
interested parties in the same
areas as well. These memoranda
and representations assisted the
committee enormously. The
effect of these memoranda and
representations was that the
committee saw the need to add
four more electoral areas to the
Ledzokuku (Teshie), thus giving
it sixteen (16) Electoral Areas
instead of the original figure
of twelve (12) Electoral Areas,
whilst Krowor still has twelve
Electoral
Areas.”
The exact
wording of the
1992
Constitution, art 11(7)
which regulates the making of
the law in question is as
follows:
“11. (7) An
Order, Rule or Regulation made
by a person or authority under a
power conferred by this
Constitution or any other law
shall -
(a)
Be laid before Parliament;
(b)
Be published in the Gazette on
the day it is laid before
Parliament; and
(c)
Come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of the twenty-one
days, annuls the Order, Rule or
Regulation by the votes of not
less than two-thirds of all the
members of Parliament.”
In effect,
what the Constitution mandates
Parliament to do is to annul the
Regulation in question. When
that happens, the Regulation
will have to go back to source
from where it was prepared for
such comments, suggestions or
memoranda as Parliament or the
Committee on Subsidiary
Legislation will deem necessary
to be considered in the making
of the Regulation. In fact, it
is that source which has the
power to amend the legislation.
This is supported by the 1992
Constitution, art
297(d) which provides that:
“Where a
power is conferred to make any
constitutional or statutory
Instrument, Regulations or Rules
or to pass any resolution or
give any direction, the power
shall be construed as including
the power exercised in the same
manner, to amend or to revoke
the constitutional or statutory
instrument, Regulations or
Resolutions or direction as the
case may be.”
This article
affects the power which is
making the regulation. The
question to be considered is
“Who is making the Regulation or
who are the makers of the
Regulation?” The makers of the
Regulation are those who
initiated the Regulation and
actually drew up its terms. They
are the source from where the
Regulation was made. They
comprise people on the ground
who are conversant with the
issues, facts and circumstances
which informed the making of the
Regulation. If suggestions,
comments or memoranda are made,
it is the makers who are in the
best position to appreciate and
consider them, their
implications and ramifications
before coming to the final
determination on the form and
content that the Regulation
should take when it becomes law.
That is why article 297(d),
gives the power to the makers to
make amendments to the
Regulation.
The makers
are different and distinct from
Parliament. While article 297(d)
empowers the makers to make
amendments, article 11(7)
empowers Parliament to annul
Regulations. If the power to
make amendments were to be given
to Parliament, it would mean
that Parliament could interfere
with Regulations laid before it
without the involvement of the
very people who saw reason for
initiating and bringing about
the Regulation. That would be
wrong. That cannot be taken to
have been the intendment of the
framers of the Constitution as
far as article 11(7) is
concerned.
In the
instant case, what Parliament
did by increasing the number on
the electoral area of Ledzekuku
from twelve to sixteen amounted
to amending the Regulation laid
before it. That amounted to
usurping the powers of the
makers as provided in article
297(d). There is no provision
in article 11(7) quoted above
for Parliament to amend the
Regulation as laid before it.
Parliament is authorized to
annul the Regulations. To annul
has been defined in the
Annulment differs from
amendment. Annulment, as defined
in the
Chambers 21st
Dictionary, 1996 ed., at page 49
as:
“To declare … publicly as
invalid.”
To amend is
to alter or vary. The effect of
annulment is to revoke, abolish
or render legally nonexistent.
The effect of amendment is to
bring about a variation,
alteration or change. The latter
pre-supposes the continued
existence of a fact or
situation. The former
pre-supposes the abolition of
the fact or thing or its
non-existence.
Amendment
therefore differs from annulment.
If the legislature intended to
give power to Parliament to
amend such regulations, it would
have done so in no uncertain
terms.
Standing
Order 2
which counsel
for the defendants relied on
does not empower Parliament to
make amendments to such
regulations.
To the extent
that Parliament amended the
Local Government (Creation of
New District Electoral Areas and
Designation of Units Instrument,
2010 (LI 1983) differently from
what was laid before Parliament
instead of annulling it, the LI
is ultra vires article 11(7) of
the 1992 Constitution. It is
therefore void and of no legal
effect.
The first
two reliefs in the plaintiff’s
action succeed and are granted.
The third relief was disposed of
as already explained above.
What this
decision implies is that all
portions of LI 1983 as laid
before Parliament for 21 days
and in respect of which no
questions or complaints were
raised came into force after the
expiration of the 21days from
the day it was gazetted. That
affected all the electoral areas
mentioned in LI 1983 including
the original twenty four under
Lodzekuku and Krowor when LI
1983 was first laid before
Parliament.
The LI cannot
be in force in respect of the
four additional electoral areas
which are the subject matter of
this judgment. They are
i.
Oppong Gonno Industrial Area
ii.
Teibibiano
iii.
Ashitey Akomfra North and
iv.
Martey – Tsuru.
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
ATUGUBA,
J.S.C:
I have had
the advantage of reading
beforehand the lucid judgment of
my brother Brobbey JSC and I
agree with the same.
However owing
to the constitutional virginity
of this matter I feel it is
necessary to set forth my
thoughts as to the same. As he
has recounted the facts I will
not repeat them except where
necessary. The resolution of
this case depends on the powers
of Parliament relating to the
making of subsidiary legislation
as laid down in article 11(7) of
the 1992 Constitution, as
follows:
“(7) Any Orders, Rules or
Regulations made by a person or
authority under a power
conferred by this Constitution
or any other law shall,
(a)
be laid before Parliament
(b)
be published in the Gazzete
on the day it is laid before
Parliament;
and
(c)
come into force at the
expiration of twenty-one sitting
days after
being so laid unless
Parliament, before the
expiration of the twenty-
one days, annuls the Orders,
Rules or Regulations by the
votes of not
less than two-thirds of all
the members of Parliament.”(e.s)
In the face
of this provision the plaintiff
contends that Parliament can
only annul delegated legislation
laid before it before the
expiration of 21 days but cannot
amend the same. To this
stance counsel for the 2nd
defendant has contended that
under article 297(c) and (d) and
103(3) Parliament can amend
proposed subsidiary
legislation.
Article 297
(c)
Article
297(c) is as follows:
“(c) where
a power is given to a person or
authority to do or enforce the
doing of an
act or a thing, all such powers
shall be deemed to be also given
as necessary to enable that
person or authority to do or
enforce the doing of the act or
thing;”
Applying
article 297(c), it will be seen
that the power conferred on
Parliament under article 11(7)
relating to subsidiary
legislation laid before it, is
the power to annul the same
before the expiration of 21
days.
Thus the
incidental powers conferred on
Parliament by article 297(c) are
those that relate to that power
of annulment. Such incidental
powers include the power of the
Parliamentary committee on
subsidiary legislation to
consider the matter and make
recommendations on it to the
House, pursuant to article
103(1), which provides as
follows:
“103 Committees of Parliament
Parliament
shall appoint standing
committees and other committees
as may be necessary for the
effective discharge of its
functions.” (e.s)
Parliament
may pass a resolution that the
proposed legislation should not
be annulled.
Where,
however Parliament finally
decides not to annul the
proposed subsidiary legislation
it must leave it lying before it
until it takes effect vigore
consitutionis after 21 days.
Article 297
(d)
This provides
as follows:
“(d) where a
power is conferred to make any
constitutional or statutory
instrument, Regulations or Rules
or to pass any resolution or
give any direction, the power
shall be construed as including
the power, exercisable in the
same manner, to amend or to
revoke the constitutional or
statutory instrument,
Regulations, Rules or resolution
or direction as the case may
be;”(e.s)
The opening
words of this provision are
crucial. They relate to “a
power ...to make” thereby
clearly showing that they are
concerned with the maker of the
various things enumerated. The
1992 Constitution itself has in
several provisions, such as
articles 157(2), 158(2) and 230
conferred the power of
subsidiary legislation on
various persons or bodies and it
is clear that it is those
persons or bodies who would be
the makers of the pursuant
legislation. The opening words
of L.I. 1983 itself show who
it’s maker is. They are as
follows:
“IN EXERCISE
of the powers conferred on the
Minister responsible for Local
Government by sub-sections (3)
and (4) of section 3 of the
Local
Government Act 1993 (Act 462)
and with the prior approval
of Cabinet this Instrument is
made this 19th day of
October, 2010.”
It is plain
that this is an instance of the
subsidiary legislative power
contemplated by the very opening
words of article 11(7) itself,
namely, “Any Orders ...made by a
person or authority under a
power conferred by this
Constitution or any other laws
...”
Quite clearly
then the power to make L.I. 1983
is vested in the Minister of
Local Government by the Local
Government Act 1993 (Act 462)
and he is the recipient of the
provisions of article 296(d),
inclusive of the power to amend,
as far as the making of L.I.1983
is concerned. Thus in
circumstances of verisimilitude
with the present in Amoako Atta
II v. Osei Kofi II (1962) IGLR
384 it is stated in holding (6)
of the headnote thus:
“(6)
although section 3, subsection
(2) of the Stool Lands
Boundaries
Settlement
Ordinance, Cap. 139, (1951 Rev.)
which empowers the minister to
make orders, does not expressly
empower him to revoke any orders
made, the minister was entitled
by order E.I. 60/1960 to revoke
orders L.N. 105/1956 and L.N.
214/1957; for where a statute
confers a power to appoint an
officer or make an order, that
power implies a power to revoke
the appointment or cancel the
order;”(e.s)
Even there,
in Butt
v. Chapel Hill Properties Ltd
[2003-2004]I SCGLR 636
holding (5) of the headnote
states as follows:
“(5) Obiter
per Dr Date-Bah JSC
(Bamford-Addo, Baddoo and Prof
Kludze JJSC concurring):
Although the courts would treat
subsidiary legislation as
legislation and therefore such
legislation had the power to
amend earlier inconsistent
legislation, there were
constraints on the amending
power of subsidiary or delegated
legislation flowing from the
doctrine of ultra vires.
Subsidiary legislation, made
pursuant to enabling power in
the principal legislation, might
not be wide enough to authorise
the amendment of delegated or
subsidiary legislation under a
different principal
legislation. For example, LN
140A was made by the Rules of
Court Committee pursuant to its
powers under section 107 of the
Courts
Ordinance, Cap 4 (1951 Rev).
It was very doubtful whether
the enabling power in section 98
of the Courts Act, 1993 (Act
459), was wide enough to enable
the repeal under its authority
of the express rule made by the
Rules of Court Committee in
Order 42, r 15.”(e.s)
Though I do
not necessarily share in that
view the said holding (5)
illustrates the point that even
a person seised of delegated
legislative authority with
regard to a matter has to thread
cautiously in making amendments
with regard to that mater.
The incidence
of the annulment power of
Parliament over the Minister’s
proposed subsidiary legislation
does not dislodge the Minister
from his status as the maker of
that subsidiary legislation.
Thus in Metcalfe v Cox (1895) AC
328 H.L at 339-340 Lor Herschell
in reaction to a contention that
because a statutory power of
making subsidiary legislation
was subject, inter alia,
to parliamentary and Crown
approval the actual power
did not reside in the
Commissioners, said:
“It is urged
by the respondents that .... it
cannot be correct to say that
the Commissioners have power to
affiliate the college, and make
it form part of the university,
inasmuch as all the ordinances
made by the Commissioners are
ineffectual unless approved by
the Queen in Council. I do not
feel pressed by this argument.
Although it is true that an
ordinance might be disapproved
of, and might therefore never
become effectual, yet, when
approved of, that which is
ordained by it takes effect by
the act of the Commissioners,
and it does not seem to me
inaccurate to say that the
Commissioners have power to do
everything which they can direct
to be done by an ordinance,
merely because that ordinance is
made subject to the approval of
the Sovereign. It is a common
case for appointments made by
one public official to require
the approval of another. Such
appointments cannot take effect
without that approval; but I do
not think that any one would
hesitate to say that the
appointment was made by the
person who selected and
nominated the appointee.”(e.s)
Similarly, at
351 Lord Macnaghten said:
“The learned
counsel for the respondents
...dwelt mainly on the
difference in language between
sect. 15 and sect. 16. In the
latter section they pointed out
that the power of affiliation is
given directly to the
Commissioners. In the former
the Commissioners have only the
power of making ordinances to
extend any of the universities
by affiliation. The ordinance
is inoperative without more.
The real power, they said, is in
Her Majesty in Council. But
there is a fallacy, I think, in
that view. The power is in the
Commissioners, though they do
proceed by ordinance. The
power, no doubt, is in suspense
until the ordinance is duly
published, laid before
parliament, and approved by Her
Majesty in Council. But when
the final stage is safely
reached whatever the ordinance
does is the doing of the
Commissioners.”(e.s)
Article
297(d) therefore cannot enable
Parliament which is not the
maker of L.I 1983 to amend it.
However, as earlier stated,
supra, Parliament has power to
resolve that subsidiary
legislation laid before it
should not be annulled. But
having done so and being the
maker of that resolution,
article 297 (d) enables a change
of mind by Parliament and
reversal of the resolution
(with the requisite votes) in
favour rather of annulment or
vice versa.
Article 103
(3)
As aforesaid,
counsel for the second defendant
also contends that article
103(3) justifies the amendments
that were inserted by Parliament
regarding the extra 4 electoral
areas. Article 103(3) is as
follows:
“103.
Committees of Parliament
(3)
Committees of Parliament shall
be charged with such functions,
including the investigation and
enquiry into the activities and
administration of ministries and
departments as Parliament may
determine; and such
investigation and inquiries may
extend to proposals for
legislation.”(e.s)
It is a well
settled rule of construction of
statutes that verba generalia
specialibus non derogant.
And so it was laid down in
Barker v Edger [1895-99] All ER
Rep. 1642 P.C as per the
headnote thus “Where the
legislature has given attention
to a special subject and has
provided for it, it cannot be
presumed that a subsequent
general enactment is intended to
interfere with the special
provision, unless that intention
is very clearly manifested.”
The constitution has made
express provisions governing the
situations in which the proposed
legislation is actually before
Parliament and therefore those
are the proximate and operative
provisions in such situations.
Thus article 106(4) to (6)
provide as follows:
“106.
Mode of exercising legislative
power
(4)
Whenever a Bill is read the
first time in Parliament, it
shall be referred
to the
appropriate Committee appointed
under article 103 of this
Constitution which shall examine
the Bill in detail and make all
such inquiries in relation to it
as the Committee considers
expedient or necessary.
(5)
Where a Bill has been
deliberated upon by the
appropriate Committee, it shall
be reported to Parliament.
(6) The
report of the Committee,
together with the explanatory
memorandum to the Bill, shall
form the basis for a full debate
on the Bill for its passage,
with or without amendments, or
its rejection by
Parliament.”(e.s)
Quite clearly
article 106(3) gives Parliament
the dual power of passing a
bill “with or without
amendments, or its rejection.”
By contrast
article 11(7) is the specific
provision wherein a specific
role has been carved out for
Parliament with regard to
subsidiary legislation laid
before it.
Under this
provision, a one-way power of
only annulment, is given to
parliament with regard to
pending subsidiary legislation;
no additional power of
amendments is given. In
fact Parliament has no power of
passage of subsidiary
legislation unless in an
indirect and incidental manner.
Thus if Parliament, within the
21 sitting days during which
subsidiary legislation is
pending before it, even
unanimously resolves that it
should not be annulled, such
resolution has no force of
passage of it unless the full
period of 21 days passes
whereupon it will “come into
force” proprio vigore
constitutionis.
The
contrasting provisions of
articles 11(7) and 106(3) are
explicable on the basis that
Parliament has power to make
laws only “by bills
passed by Parliament and
assented to by the President”
as laid down in article 106(1).
It follows therefore that whilst
Parliament can delegate power to
a person or authority to make
subsidiary legislation
Parliament by itself cannot make
subsidiary legislation. Clearly
then Parliament cannot amend
what it cannot make.
True Role of
Parliament in Subsidiary
Legislation
In a common
law democracy Parliament usually
has oversight control over the
acts of the executive but it’s
controlling power over delegated
legislation is often of a very
restricted nature. It is in
that vein that Ampiah JSC viewed
the power of Parliamentary
control over subsidiary
legislation in Ghana in
Apaloo v.
Electoral Commission of Ghana
[2001-2002] SC GLR 1 at 27
when he said:
“As stated
before, the Electoral Commission
is empowered to make regulations
for the effective performance of
its duty. That power, gives a
discretion to the commission;
the exercise of which shall not
be arbitrary, capricious or
biased. It is to avoid such
situations that a constitutional
instrument is required. This is
to give the legislature, an
opportunity to have a look at
the intended constitutional
instrument. It is provided by
article 11(7) that:
“Any Order,
Rule or Regulation made by a
person or authority under a
power conferred by this
Constitution or any other law
shall –
(a)
be laid before Parliament;
(b)
be published in the Gazette on
the day it is laid before
Parliament; and
(c)
come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of the twenty-one
days, annuls the Orders, Rules
or Regulations by the votes of
not less than two-thirds of all
the members of Parliament.”(e.s)
In other
words Ampiah JSC viewed
parliamentary control over
executive subsidiary legislation
only as it is contained within
the ambit of article 11(7) of
the Constitution. Similarly in
the monumental work,
Garner’s
Administrative Law, Eighth
edition, at pp. 86-89 the
learned authors discuss the mode
of parliamentary control over
subsidiary legislation through
the requirement of laying it
before parliament. The authors
demonstrate that such laying
before Parliament may take one
of 4 forms, namely (a) where to
become law the subsidiary
legislation is merely required
to be laid before Parliament,
(b) where it is to be laid
before Parliament subject to
the ‘negative resolution’
procedure, (c) where it is laid
subject to the ‘affirmative
resolution’ procedure and
(d) where such laying before
Parliament is to be in draft
subject to affirmative or
negative resolution
procedures. It is obvious that
brand (b) of laying before
Parliament is what the 1992
constitution of Ghana has opted
for under article 11(7). The
authors make it emphatically
clear that this brand, i.e, the
“negative resolution”
procedure of laying subsidiary
legislation before Parliament
does not permit
Parliament to amend or partially
annul such subsidiary
legislation.
In their
celebrated work,
Administrative Law, Ninth
edition at pp. 339-340 the
learned authors Wade and Forsyth
also reach the same
conclusion with regard to the
same type of subsidiary
legislation. Consequently it is
only the donee of subsidiary
legislative power that can amend
it and in so doing, must, in
terms of article 297(d) follow
the same procedure by which he
can make it. This was
strenuously pointed out by
Kpegah JSC in Apaloo v.
Electoral Commission, supra, at
34-35 as follows:
“The
plaintiff’s case, as I
understand it, is that by its
directives issued in the Gazette
Notice on 27 November 2000, the
Electoral Commission is
indirectly amending regulation
30 of CI 15 by limiting a voter
identification to Photo ID Cards
only; and this, the plaintiff
submitted would be inconsistent
with article 51 of the
Constitution which requires the
Electoral Commission to do so
only by constitutional
instrument, which instrument
must comply with article 11(7)
of the Constitution, namely, be
laid before Parliament for
twenty-one sitting days and
published in the Gazette. To
simply publish administrative
directives in a Gazette Notice,
as did the Electoral Commission
in this case, and expect such
directives to supersede a
regulation made by a
constitutional instrument is
clearly inconsistent with
article 297(d) of the
Constitution which reads:
“where a
power is conferred to make any
constitutional or statutory
instrument, regulation or rule
or pass any resolution or give
any direction, the power shall
be construed as including the
power, exercisable in the same
manner, to amend or to revoke
the constitutional or statutory
instrument, regulation, rule or
resolution or direction as the
case may be.”
There can
hardly be any answer to the
plaintiff’s case.”(e.s)
This position
is affirmed by analogy by this
court’s decision in
Brown v.
Attorney-General (Audit Service
Case) (2010) SCGLR 183. In
that case this court had to
construe the following
constitutional provisions:
“178.(1) No moneys shall be
withdrawn from the Consolidated
Fund except-
(a)
to meet the expenditure that is
charged on that Fund by this
Constitution or by an Act of
Parliament;...”
“179(2) The estimates of the
expenditure of all public
offices and public corporations,
other than those set up as
commercial ventures -
(b)
shall in respect of payments
charged on the Consolidated
Fund, be laid before Parliament
for the information of the
members of Parliament.”
“187(14) the Administrative
expenses of the office of the
Auditor-General including all
salaries, allowances, gratuities
and pensions payable to or in
respect of persons serving in
the Audit Service shall be a
charge on the Consolidated
Fund.”(e.s)
The facts as
per the headnote in that case
are as follows:
“In his
statement of case, the plaintiff
argued, inter alia, that on the
strength of the provision
specified in article
179(2)(b)
of the 1992 Constitution
(reproduced above), the annual
estimates of the Audit Service,
being payment charged on the
Consolidated Fund, were required
to be laid before Parliament for
the information of members only
and not for debate or
approval.“In his statement of
case for the defence, the
Attorney-General also argued,
inter alia, that the President
of the Republic, in the exercise
of his executive powers under
the 1992 Constitution, could
delegate to the minister of
Finance, acting in conjunction
with the Controller and
Accountant-General, some of
those powers relating to the
efficient management of the
Consolidated Fund. The
attorney-General further argued
that the resources of the
country should be distributed in
an equitable manner. The
Minister of Finance therefore
had the right to adjust the
estimates of the Audit Service
before the President could lay
them before Parliament in terms
of article 179(2)(b).”(e.s)
The pertinent
decisions of this court on the
controverted issues of the case
are per the headnote thereof as
follows:
“(2) (Per
Georgina Wood CJ and Dr Date-Bah
and R C Owusu JJSC (Dotse JSC
dissenting in part and Anin
Yeboah JSC dissenting)): on a
true and proper interpretation
of articles 178(1)(a),
179(2)(b), 187(14) and 189(2)
and (3) of the 1992
Constitution, the plaintiff was
entitled to a declaration that
there was no express
constitutional provision,
mandating Parliament to formally
approve the administrative
estimates of the Audit Service.
In other words, the
administrative expenses of the
Audit Service including
salaries, allowances, pensions
and gratuities, being a direct
charge on the Consolidated Fund,
were not subject to annual
appropriation or any amendment,
ie reduction before submission
to Parliament. However, that
declaration was subject to the
proviso that Parliament had an
implied authority in certain
circumstances to reject those
administrative estimates or to
ask question or seek
clarification on the estimates.
Those circumstances would
include: (i) fundamental errors
in relation to the information
laid before Parliament; and (ii)
fundamentally unreasonable
estimates.
(3) the
court would unanimously grant
reliefs (2)-(4) endorsed on the
plaintiff’s writ, namely, the
practice of ministerial downward
review or reduction of the
annual estimates of the
administrative expenses of the
Audit Service; the deliberate
and specific submission of those
estimates by the Ministry of
Finance to Parliament for
express formal approval; and the
express and direct subjection of
the annual administrative
expenses of the Audit Service to
budget policy directives of the
executive were unconstitutional.
(4) Per
Georgina Wood CJ, Dr Date-Bah, R
C Owusu Anin Yeboah JJSC- Dotse
JSC dissenting: the court would
refuse the fifth declaration
sought by the plaintiff on the
grounds that: (i) interaction
between the Audit Service and
Parliament would be needed to
ensure that the estimates to be
laid before Parliament for its
information was not flawed; (ii)
the declaration sought might
lead to absurdity; and (iii) the
grant of the declaration would
defeat the very concept of
probity and accountability as
stated in the preamble to the
1992 Constitution; and (iv), the
framers of the Constitution
never envisaged a situation
whereby an agency of the
government by virtue of its
peculiar functions under the
Constitution would be vested
with such uncontrollable
financial powers.”
It is clear
that in the Brown case brand (a)
supra, of laying before
Parliament, (similar to
subsidiary legislation), has
been adopted in article 179(2)
pertaining to public offices
such as the Audit Service and
non commercial public
corporations. Again in
Manzah v
Registrar of Co-operative
Societies (1972)2 GLR 103
the facts and relevant decision
thereon as per the headnote are
as follows:
“The
plaintiffs by their solicitor
sent an application to the
Senior Co-operative Officer,
Takoradi, for the registration
of their society as a
co-operative society. On
receiving a reply to their
application for registration,
the plaintiffs discovered that
certain conditions had been
imposed on them which had not
been provided for by the
Co-operative Societies Decree,
1968(N.L.C.D. 252). The
plaintiffs therefore brought the
present application by an
originating summons for the
determination of the following:
(a) whether under N.L.C.D.252,
para. 4 the Registrar of
Co-operative Societies and the
Senior Co-operative Officer,
Takoradi, could impose on the
plaintiffs the pre-requisites
and the pre-conditions contained
in their reply, (b) whether such
conditions are not ultra vires,
(c) whether the plaintiffs have
not complied with the
requirements of N.L.C.D. 252 and
(d) whether the plaintiffs are
not entitled to have their
proposed society registered.
It was
submitted on behalf of the
defendant that the registrar was
only asking such information as
he was empowered to under
N.L.C.D. 252, para. 4(2) and not
imposing any pre-requisities or
pre-conditions.
Held: (1)
Although the registrar has the
power under paragraph 4 (2) to
ask for any information that
will assist him in considering
an application for the
registration of a co-operative
society, the information sought
in this case took the form of
pre-conditions which were
additional to those contained in
paragraphs 3(1) and 34(1) of the
Decree. The plaintiffs had
already complied with the
conditions laid down by the
Decree and the registrar acted
ultra vires in imposing further
conditions.” (e.s)
Ministerial
Adoption of Amendment
But Mr.
Sylvester Williams (Principal
State Attorney), with some
courage and ingenuity has
submitted that the Minister for
Local Government (himself a
member of Parliament) did not
disapprove the amendments made
by Parliament to LI 1983 and
therefore adopted them. They
should therefore hold good. But
this ingenious submission
suffers from the virus of
acquired immune deficiency of
evidence. That matter was not
even pleaded and no evidence was
led thereon. Were evidence to
that effect led, I for my part,
would have been favourably
disposed towards it. I should
not think that anything in the
common law principles of
ratification should hinder the
smooth and purposive functioning
of the constitution. That is
the healthy similar theme in the
decision of this court in Brown
v Attorney-General, supra.
On the
contrary, however, the tenor of
the 2nd defendant’s
statement of case is that the
amendments were purportedly made
per potestatem Parliamenti,
which I have already held, to be
lacking. Another alternative
for Parliament is what was
suggested to the Registrar of
Co-operative Societies in the
Manzah case, supra, as per the
headnote thereof as follows:
“Obiter. If
the registrar thought these
conditions are necessary
pre-requities to registration,
he should have recommended
their, inclusion in the Decree
to the Minister responsible for
the Department of
Co-operatives. Perhaps the
Registrar with his enormous
experience in the field of
co-operative movements in this
country, may consider it
necessary to recommend to the
appropriate authority to have
the Decree amended to include
such matters as would promote
the advancement of the
co-operative movement in the
country.”(e.s)
Standing
Orders of Parliament
Although we
were referred to some standing
orders of Parliament they were
not made available to us. But
preserving a recollection of
their import, as counsel for the
1st defendant drew
our attention to their contents,
they only lend support to the
construction I have put on the
relevant articles of the
constitution herein. Plainly no
standing orders and not even
Acts of Parliament can derogate
from the true import of a
Constitutional provision.
Conclusion
For all the
foregoing reasons I conclude
that the provisions of
article 297(c) and (d) can only
be relied on by Parliament or
any one else to supplement the
provisions of the Constitution
in a manner consistent with the
letter and spirit of those
provisions and since
reliance on them in this case
does not conduce to such
consistency they cannot avail
the defence.
Since LI 1983
pended before Parliament for not
less than 21 sitting days it
took effect on the expiration of
that period less the 4 offending
ex gratia electoral areas
enumerated by my brother
Brobbey, JSC. The plaintiff’s
action therefore succeeds to
that extent.
[SGD] W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
[SGD]
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD] S. O. ADINYIRA
[MRS]
JUSTICE OF THE SUPREME COURT
[SGD] J. DOTSE
JUSTICE OF THE SUPREME COURT
[SGD]
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD] B. T.
ARYEETEY
JUSTICE
OF THE SUPREME COURT
[SGD] N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
AYIKOI OTOO
FOR THE PLAINTIFFS
JAMES
QUASHIE-IDUN WITH HIM ANTHONY
DABI FOR THE 1ST
DEFENDANT.
SYLVESTER
WILLIAMS (PSA) FOR THE 2ND
DEFENDANT |
