By Selikem Donkor
The title of this article rings a bell in the mind of the legally savvy. Yes, it is a refinement of the title of Dr. Date Bah’s article on the theoretical implications of Kelsenite theory in relation to the facts and issues raised in the case of Salah v. Attorney General and a further critique of the court’s decision in the aforementioned case. Like that remarkable article, this one attempts to offer a jurisprudential insight in relation to a matter for which a jurisprudential awareness was lacking. Unlike that article, this article’s focus is directed at an event outside the courts though of relevance to the entire legal system.
This article divides into three parts. The first part of the tripartite entity focuses on the aspect of narration. With that, it narrates the facts and events relevant for the analysis to be made in Part 2. Part 2 offers insight into how drawing from the well of knowledge of Lon Fuller, the General Legal Council and or its ancillary bodies could have realized the legal flaw and high risk of unconstitutionalism that surrounded the decision they made as regards the 2021 Ghana School of Law entrance examination results. The third part attempts to find footing for Fuller’s theory in the available positive law.
PART 1: A NARRATION OF THE VEXATIOUS AND THE GHASTLY ANNUAL RITUAL
The facts to be narrated have been overbeaten by the press but due to sheer availability of time on my part, the author will belabor its narration. It goes as, on the 24th of August,2021, about 2900 law students sat for the Ghana School of Law entrance exams (Commonly referred to as the Makola Entrance Exams). Before the said Exams, there was an invitation (advertisement) from the General Legal Council, inviting qualified persons in the public to apply and sit for the said Exams.
Under Section (E) subpart (iii) of the said invitation(advertisement), it was stated that “Eligible Applicants who attain the minimum threshold mark set by the General Legal Council will be offered admission”. Within the period when the said invite was publicly made known and when the candidates sat for the entry exams, the General Legal Council (directly as an entity) did not inform the candidates about any explicit minimum threshold mark. It was a lacuna which the innocent candidates had to fill relying on hearsay, conventions, presumptions and probable conjectures.
It must be noted that for the previous years, the minimum threshold mark was a 50% (a summation of all marks for each section). There was no indication on the part of the General Legal Council that it purports to change this policy nor was there any reason for the candidates to expect or inquire further on that.
The near 2900 candidates sat for the Exams and when the results were published, the formal communication from the General Legal Council indicated that only 790 candidates out of the near 2900 candidates passed. The annual ritual of failure happened again. This time, the published results didn’t contain the marks of those students who had failed. It was only that of those who passed. Through public pressure or not so, the General Legal Council later published the results of all the candidates. It became obvious, that some students who had more than 50% in the Exams, were failed.
To these results, a policy statement was added that the threshold mark was a 50% pass mark for each section and no longer a 50% pass mark out of a summation of all marks. This was the first time, the candidates may have become aware of the pass mark for the Exam they sat for, some two months after.
PART II: A CRISIS OF CONSCIENCE AND A LACKING MORALITY IN LAW
Law is defined as a set of rules made intentionally to govern social conduct of man. It is thus a truism, that, in any civilized society where orderliness is preferred to chaos, laws and orders are set out to regulate actions and inactions of those living in that society. Inevitably, the making of law becomes an intrinsic institution to any civilized human society. But the making of Law alone is necessary but insufficient in creating an orderly and a civilized society. Scholars in legal theory have added an additional requirement necessary for law to provide a means for the attainment of this state of civility. This added requirement is one of “how the law is made”. Thus, it is not enough for a society to make laws but to make laws in a particular manner.
Joseph Raz, H.LA Hart, Lon Fuller and several other erudite scholars in legal theory have inked several ideas on this subject. The author prefers to treat as wholesome and adequate the view of Lon Fuller on how law is to be made.
Lon Fuller offered eight ways through which Law is to be made. He argued, quite interestingly, that, an order fails to be law if it fails to a large extent to follow these “eight ways”. A failure of one may not render a legal system impoverished of good law but may be an indication of an inadequate legal system. The author considers as relevant to this issue, one of the eight ways. This one way is that, Law if made must take effect from the time it was made known to those whose actions and inactions it is to regulate and must offer sufficient and fair notice for them to modify their life in line with the dictates of the Law.
This way of making law prohibited the possibility where law is to be made in hindsight. It offers only one path of making law, which is to make law now to govern the actions of the future and not a law in the future to govern the affairs of the past. The constitutional lawyer prefers to term this as the doctrine of non-retrospectivity. The author prefers to add, that this one way proposed by fuller is more expansive than the doctrine of non-retrospectivity. With the doctrine of non-retrospective legislation, concern is more about not making law in the future to deal with the past. Thus, so long as the law was made before it was applied, it sufficiently satisfies the demand of non-retrospectivity. Though making law earlier and applying it later will satisfy the doctrine of non-retrospectivity, it will fail to satisfy fuller’s one way- the need for fair and adequate notice to be given to the public of the said law.
Illustratively, consider a situation where in fact the General Legal Council actually made the policy of sectional 50% threshold mark before the students sat for the exams but only failed to communicate it to them. By this example, GLC’s decision will satisfy the doctrine of non-retrospectivity to the extent that the Law (the policy decision) was made before the Exams thus, it cannot be said that the policy was made retroactively. But this will fail to satisfy Fuller’s one way because it fails to give fair notice to the subjects whose actions are to be regulated by this law.
So, to Fuller, it is inadequate for law to be made only to govern future acts but also, law thus made, must be made known to the public and fair notice of it, given. With this, the General Legal Council’s decision to change the policy fails to meet Fuller’s minimum threshold of constitutionalism to the extent that, the law was secretive and could not justly be regarded as being made since it was not known to the candidates.
The candidates who sat for the entrance Exams could not reasonably be expected to have knowledge of this policy which was secretly by the GLC. In effect, the General Legal Council’s policy was a failure to make a policy. They made an order by the authority residing in them but the order failed to meet the minimum threshold of constitutionalism expected in any civilized human system. To make law and keep it in the dark, is to fail to make law.
PART III: FINDING FOOTING FOR THEORY IN THE BLACK LETTER LAW
Chronic positivism is as deadly as chronic naturalism. Both are of the radical left and right and often, they understand history from a two-sided point; either this or that, without the possibility of this and that. To satisfy the earnest urge of those chronic positivists who have no regard for jurisprudence/theory and their notion of the science of law is merely that which is expressly found in legislation or other token sources of law, this part of essay attempts to provide some positive law that supports of Fuller’s view.
The apex positive norm in Ghana’s legal system is the 1992 Constitution. Any search for legal support must first begin with it. The need to maintain constitutionalism was partly the major reason why several procedural provisions were inserted into the 1992 Constitution by the framers. These procedural provisions place a fetter on how and when an authority reserved in an institution or an individual can be used. The paragraphs below considers some applicable provisions that may assist in elucidating the illegality or otherwise of the General Legal Council’s policy decision.
We begin first with Article 296(c) of the 1992 Constitution which places a procedural limitation on the exercise of discretionary power conferred on a person or any authority by this Constitution or any other law. The procedural setup under Article 296(c) demands that where such an authority is to be exercised but for the case of a judge or any judicial officer, there must be a publication of set of rules either by a Constitutional instrument or a statutory instrument. In the case of Ransford France v. Electoral Commission & Attorney General, Dr. Date-Bah JSC, speaking for the court, rejected the more expansive view of Article 296(c) and concluded that, the said procedural demand is applicable only where a quasi-judicial authority is being exercised but not in all cases where a matter of discretion applies. The author holds the view that this interpretation by the learned judge weakens the strength of control Article 296(c) presents and more or less renders it nugatory. But proceeding with the Court’s interpretation as it stands as the potent law, the author assesses the view of whether or not the exercise of the power to admit students each year by the General Legal Council to the extent of making policy decisions as to what mark counts as the pass-mark for entry should be governed by rules and regulations set out in either a constitutional instrument or a statutory instrument as dictated by Article 296(c). In defense of this view, it must first be demonstrated that the exercise of the power to make policy as regards who passes the entrance exams or not, is a quasi-judicial power.
The learned Justice, Dr. Date-Bah, defined “quasi-judicial power” in the case supra to mean “the exercise of discretion or power where adjudication is involved”. If one refers to the definition as given, it is essential that if any proper meaning be made out of it, the word “adjudication” should be properly understood. For purposes of this explication, I rely on the Black’s Law dictionary. It defines “adjudication” to mean, the legal process of resolving a dispute (it is the effort to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs, validity or invalidity of their actions).
The question then is, does determining what the pass mark for an entrance exam is, imply making a determination on the rights of a party(parties), a validity or invalidity of their claim of entitlement to some benefit? I dare reason that it is not. The lexical meaning as presented by the Black Law dictionary in conjunction with the operational definition given by the learned judge leads the author to an obvious conclusion that the exercise of this power cannot be deemed quasi-judicial. This is so because the GLC in making these policies does not sit in the capacity of an adjudicatory body in determination of any ripened right or privileges of the candidates. If the candidates do have any right at all, it is a right dependent on the kind of policy the GLC develops as regards what the threshold pass mark is. In effect, their right only accrues after the policy is made and not before that. On that note, they simply cannot be deemed parties on whose rights or actions the General Legal Council sits to adjudicate upon. Thus, Article 296(c) cannot be validly invoked to invalidate the making of the said policy.
The next set of provision to be considered is Article 23 of the 1992 Constitution which sets outs the rule of justice and fairness as both substantive and procedural limitation on the administrative powers. It is a necessarily go-to provision because in the case of Kwaku Asare v. General Legal Council & Attorney General , it was stated that Article 23 and 296(a) go hand in hand and a seeming violation of one may imply a sin against the other. In the case of Awuni v. West African Examination Council, it was stated that Article 23 contains in it, the elevated common law rules of natural justice. Thus, it is now a constitutional mandate that administrative bodies observe the twin rules of audi alteram partem and nemo judex in causa sua. Obviously, per the facts as narrated under Part 2, it cannot be said that there is a violation of the twin rules of natural justice in their pristine essence. But in the Asare case supra, the learned Gbadegbe JSC stated that Article 23 is more expansive and goes beyond the common law rules of natural justice. It comes with it; all the rules of fairness and justice as is necessary in a functional democratic state. Hence, an examination of the unfairness, arbitrariness or otherwise of an administrative act under Article 23 and 296(a) should not and is not limited to only the rules of natural justice.
The power of the General Legal Council to exercise this discretion is consecrated by Section 13 of Legal Profession Act, 1960. Subsection (1)(d) & (e) states that: It shall be the duty of the General Legal Council to make arrangements for regulating the admission of students to pursue courses of instruction leading to qualification as lawyer and for holding examinations which may include preliminary or intermediary examinations as well as final and qualifying examinations. In furtherance of the above duty, the General legal Council made a Legislative instrument (L.I 2427) under Article 11(7) of the 1992 Constitution. Regulation 1(a)&(d) of L.I 2427 states that, “the General Legal Council may determine the number of students to be admitted to the Professional Law Course each academic year and may conduct an entrance examination for the admission of students to the school“. This subsidiary legislation was made purposely to provide simpler and basic rules to regulate the performance of the duties of the General Legal Council as contained under Section 13 and 14 of Act 32 and to make the exercise of those powers less arbitrary and haphazard.
The analysis to be made infra pertains to whether this discretion was exercised unfairly or arbitrarily so as to amount to a violation of Article 23 and 296. As earlier stated, Article 23 on administrative fairness and justice allows for a more expansive notion of fairness and justice beyond the twin rules of natural justice under common law. It is thus the view of the author that the doctrine of fair notice has gained root under Article 23 and to that extent, counts as a rule of administrative justice. The doctrine of fair notice simply suggests that, on any matter affecting a person’s right and interest, an applicable rule which will determine the viability of his rights or action must be made known to him prior. Related to the facts of this issue, the doctrine of fair notice demands that the General Legal Council should have informed the candidates on the applicable threshold pass mark before the Examinations and the attempt to introduce a policy after the exams should be deemed as a violation of the doctrine of fair notice. In the Asare case (supra), Gbadegbe JSC sharing in the conscientiousness of the doctrine of fair notice stated that, the interview regime being used as a means to assess whether a student is otherwise qualified to be admitted for the professional law course creates a situation where the students are not sure what is required of them to pass the Exams and be admitted into the Ghana Law School. Thus, any regime of administration that makes the policy of passing exams a secret and only a mental element in the minds of those who constitute the General Legal Council fails to pass the test of fair notice and to that extent, stands as unconstitutional. In conclusion, natural justice demands not only that a person be given hearing in a matter that affects him but also, the applicable rules which are to govern his affairs, must be fairly made known to the public to the extent that it can reasonably be expected that he acted in awareness of these rules. It is for this reason why, the 1992 Constitution makes it mandatory that, any order or rule which is of a legislative character must first be made known to the public through a Gazette notification before it can take any legal force.
The final provision to be considered in this piece is Article 11(7) of the 1992 Constitution. It is one of the few provisions of the Constitution that continues to puzzle legal minds and has created unsettled confusion even among members of the bench. Amidst its puzzling storm, there is a niche of peace where this article resides. It is not in doubt that Article 11(7) demands that where a power is to be exercised in a manner of an order, a rule or a regulation, that power can only take effect if the said rule, order or regulation is laid before parliament, published in the Gazette on the day it is laid and a time of 21 days expires on it without it being annulled by parliament by a 2/3rd majority. The case of Republic v. Minister for the Interior; Ex Parte Bombelli is the first of such case which confronted this puzzle. Since that case, it is settled law that whether a decision counts as a rule, order or a regulation for the purposes of Article 11(7) depends entirely on the context of use and the nature of the decision. In that case, the order of a minister was determined as not to have this character. The test is whether the order, rule or regulation is of a legislative character or is merely a token administrative order. A further elaboration of this issue, a futuristic affirmation of the position in Ex parte Bombelli happened in the case of Osei Akoto v. Attorney General. The meaning of Article 11(7) which appears to have been settled was rendered unstable in the case of Associated Finance Houses v. Bank of Ghana & Attorney General. In that case Kulendi JSC siding with the defendants used policy with a mixture of an unwinding principle to suggest that, even in cases where a decision appears legislative such that it sets a rule that affects in recurring terms the rights of others, that decision may not count as an order, a rule or a regulation for purposes of Article 11(7). This view, the author distances himself from and he considers it as standing block in the path of wise and tenable legal reason. For lack of time and to avoid needless duplication and repetition, I refer the audience to an article written by Thaddeus Sory on why the decision of the court in Associated Finance case is problematic and wrong, with all respect. Why the nagging and ceaseless concern about Article 11(7)?
The author attempts to consider whether or not the powers conferred on the General Legal Council under Section 13 and 14 of Act 32 comes under Article 11(7) and if yes, does the exercise of the discretion to determine the pass mark for entry into the Ghana School of Law counts as an order, rule or regulation under Article 11(7)? To my mind, the obvious answer is a Yes.
Consistent practice of the General Legal Council itself affirms the viewpoint that it regards its decision made under Section 13 and 14 of Act 32 as orders and regulations coming under Article 11(7) and for that reason, the General Legal Council proceeded to make L.I 2427 (Legal Profession- Professional and Post-Call Law Course) Regulations, 2020.
In the case Asare v. General Legal Council & Attorney General, the learned Gbadegbe JSC affirmed this consistent practice by stating that “The power conferred on the Council is to be actually exercised by means of statutory instruments and not by means of administrative fiat or executive fiat since it confers discretion exercised within the framework of statutory provisions and requires to have the attribute of law in order to ensure its compatibility with the Constitution”.
It is clear from the above that for the performance of its functions, the clear rules and regulations which are to regulate the carrying out of the mandate of the General legal council must be by a statutory instrument so made under Article 11(7). In the Asare Case, rejecting the claim of the 2nd Defendant that the General Legal Council can by a mere administrative order determine what metric counts as the metric to be used in passing pupils into the Ghana School of Law, the learned Gbadegbe JSC stated that “By the making of LI 1296, the clear position regarding admissions into the school is that from the date of its making, the admission of students …. must be derived from the said legislative instrument…… Therefore, it is wrong for the Council without utilizing the appropriate mechanism provided by law in article 297 of the Constitution to purport to bring about a change in the admission requirements. The introduction of the new criteria which came into effect in 2015 is thus not only in violation of Article 296 of the Constitution but devoid of any force at all”. He further stated that “Judicial notice is also taken of the fact that the recent guidelines contained in a publication in the media authored by a body described as the IEB, an entity unknown to Act 32 or LI 1296 has made changes to the existing format of examination to be taken by the law students. The requirement in section 14 of Act 32 to the council to proceed by regulations is to ensure certainty, a characteristic feature of laws as opposed to administrative fiat which may be issued from time to time and results in prejudicing the reasonable expectations of persons that the format of the examination would be as was the case in 2015”.
In totality, what the learned Lordships held in the Asare case (supra) is that, failure on the part of the General Legal Council to make a policy directive through a statutory instrument in performing its functions will render that policy directive as lacking any legal effect. Thus, the question to be raised here is that, was the policy decision to make the threshold pass-mark a sectional 50% made through a statutory instrument? The obvious answer is a NO.
If one peruses L.I 2427 (Legal Profession- Professional and Post-Call Law Course) Regulations, 2020 which the General Legal Council made to give effect to regulations and rules for carrying out its functions, no regulation in the said L.I 2427 contains what counts as the pass mark for the entrance Exams. Neither does L.I 2427 contain any set out guidelines as to how the pass mark is to be determined each year by the Council or to be communicated to the public. Additionally, the known formal communication which the Council made inviting candidates to sit for the entrance Exams contains no such guideline on what counts as a pass mark. It is the view of the author that, all procedures, rules, regulations and orders of a legislative kind that regulate the conduct of entrance Examination should be made by statutory instrument and failure to do so renders any such order void. In further support of this view point, Gbadegbe JSC stated that “It is clear from the above that where power is conferred on an authority to make regulations dealing with its powers then that mode of the exercise by it its powers must be preferred.” ……. “Judicial notice is also taken of the fact that the recent guidelines contained in a publication in the media authored by a body described as the IEB, an entity unknown to Act 32 or LI 1296 has made changes to the existing format of examination to be taken by the law students. The requirement in section 14 of Act 32 to the council to proceed by regulations is to ensure certainty, a characteristic feature of laws as opposed to administrative fiat which may be issued from time to time and results in prejudicing the reasonable expectations of persons that the format of the examination would be as was the case in 2015”
There is further evidence in support of the viewpoint that setting the pass mark and criteria of admission into the Ghana School of Law should be by a statutory instrument and this evidence is contained in LI 2427 itself. Regulation 2 L.I 2355(amended by L.I 2427) states the procedure for applying to the Ghana Law School. It states that an applicant must make an electronic application on the website of the school accompanied with a declaration form and a police clearance. Regulation 14 of L.I 2355(as amended by L.I 2427) sets out the criteria to be used in determining whether a person has an academic year in the Ghana School of Law. If these matters (how application to Ghana Law School is to be made, what criteria is to be used to deem a person to have passed the PLC-Professional Law Course) are matters considered by the General Legal Council as counting as orders, rules and regulation worthy of being made by a statutory instrument then why should a matter such as what pass mark counts as the minimum threshold mark, should not be made by a statutory instrument? Why the differential treatment? Obviously, the Law does not leave the discretion to GLC to determine which orders, regulation or rules it prefers to make by statutory instrument and those it prefers to make through Newspaper advertisement or behind close doors to the hearing of no one. Once the order, regulation or rule takes a legislative character of setting standards of a recurrent nature that affect the rights and privileges of others and sets a regulating standard, it counts as an order, rule or regulation that must be so made by a statutory instrument as dictated by Article 11(7).
Clearly it is for purposes of certainty and to ensure that power is not exercised arbitrarily in determining who passes to be admitted into the Ghana Law School is why Article 11(7) demands that regulations to be made are made by statutory instrument of a kind that exhibits certainty and carries the character of a law- awareness and predictability. Thus, a failure by the GLC to make such rules using a legislative instrument renders any such rule purported to have been made invalid.
A MESSAGE TO THOSE SITTING ON THE FENCE
There are some, I count as many, who asked of my view on the issue or were amazed at my silence on the matter. To them I say, take this as my take on the issue. If it meets your expectations or not, take it as my candid judgement of these matters and my fairest assessment of its soundness or otherwise. There isn’t much to be done at this point but we must not resile from our natural duty to speak on matters that appear as unjust, unfair, fair or just. We must not. This piece is in furtherance of that duty.