Ways to deal with absence of constitutional limit on Supreme Court size
We tend to act in these matters as if we inhabit this legal universe alone or do not share a common legal tradition with many other countries.
In every one of those countries, where the Constitution names only a minimum but is silent on the upper limit of the apex court, the Constitution either says expressly that Parliament shall provide for an upper limit by legislation (which can be amended from time to time) or it leaves Parliament to do so by granting it a general Residual Power by which it is empowered to fill in such constitutional silences.
As is the norm, Residual Power under the constitution is granted expressly (by Article 298 in Ghana’s case) only to Parliament, not to any other branch, and it is to be exercised by means of an Act of Parliament (which means, after all, that both the Legislature and the Executive would be involved).
The reasons for giving that Residual power to Parliament to vary the upper limit by legislation are manifold:
1) it ensures that variations in the size of the court are done in accordance with a prescriptive law, not by convention or episodic unilateral or bilateral dealings between the Executive and/or the CJ
2) Variation in the size of the SC is an important change in policy with implications for the resourcing and financing of the Court. It must be done under the authority of the branch that controls the power of the purse.
3) Parliament, in the exercise of its power of oversight of the public administration, which includes the courts, is the body that enacts legislation for regulating the business of the courts. There are many such statutes on the books. A Supreme Court Act, which is standard in most common law jurisdictions, follows in that path.
4) Being a significant change in national policy in relation to the apex court, variation in the size of the SC must be done pursuant to a transparent, party-diverse process that allows multiple stakeholders to put their case before the people’s sole representative assembly. Only the Legislative processes of Parliament allow for such democratic participation in the change of an important public policy.
5) Varying the size of the SC based on existing legislation enacted transparently by and through a party-diverse legislative process allays concerns about opportunistically-timed court-packing by the Executive in cahoots with a CJ.
In the end, however, the single authoritative justification for varying the upper limit of the SC by legislation, as opposed to leaving it to the Executive and some other party to do it as pleases them, is that only Parliament is granted the RESIDUAL POWER to use legislation to fix constitutional silences (and amend them from time to time).
The practice we have followed is simply a carryover from the days when Parliament did not exist and the composition and size of the apex court was, thus determined, unilaterally by the governing military council or bilaterally between the council and whichever body played the role of a judicial council.
With the restoration of constitutional rule and a duly elected and representative Parliament that is granted Residual Power under Article 298, we must abandon the old unilateral or bilateral course of dealing between the Executive and some judicial body and allow Parliament to assume its proper role by exercising its power under Article 298 to pass legislation on setting the upper limit to the size of the Court and how we go about doing that from time to time.
That is how it has been done in every other common law jurisdiction I know of. There is no reason under the sun why we must do it differently in Ghana.
I believe that one other reason why we have not passed an Act of Parliament to set an upper limit on the size of the SC is because we lawyers have somehow persuaded ourselves that to do so would be unconstitutional. That is absolutely an error and misunderstanding of how we must go about determining the constitutionality and unconstitutionality of an act.
If the Constitution says, as it does in Article 128, that the minimum number of Justices on the SC is a CJ plus 9, an Act of Parliament would be unconstitutional if it provided for a number below 9 other justices. That minumum number cannot be varied except by constitutional amendment.
However, as Article 128 does not say anything about a maximum number of other Justices, varying that upper limit by an Act of Parliament is not unconstitutional (and does not require a constitutional amendment), insofar as the passage of an Act of Parliament is the method prescribed by the Constitution either by grant of a general Residual Power to Parliament (as is done in article 298) or by express words in Article 128 (which is not the case).
The use of legislation is constitutionally approved as an efficient and flexible way of varying the size of the Court without having to go through a process of constitutional amendment. This is not at all a controversial proposition. Not must it be difficult.
An Act of Parliament requires only a simple majority. It is the inclusiveness, transparency, and participatory character of legislative PROCESS and the legal bindingness of its outcome that are the critical matters here.
Again, notice that Parliament is involved in the appointment of justices to the Supreme Court. However, that appointment process is not the same as the legislative process for the passage of legislation.
Therefore, it is not enough to say that, because Parliament must approve nominees to the Court anyway, we can just do it without worrying about whether legislation exists setting the upper limit or not
Professor H. Kwasi Prempeh is the Executive Director of Ghana Center for Democratic Development (CDD-Ghana)