Lesson 1: Constitutional and Administrative Law for Postgraduates

Case Study: Tuffuor v Attorney-General GLR 637 (Ghana)

Facts. Ghana’s 1979 Constitution provided that the sitting Chief Justice would continue in office. Mr Justice Apaloo was Chief Justice when the Constitution came into force. The new government took the view that he nonetheless needed fresh parliamentary vetting and appointment; Parliament purported to reject him, effectively removing him by a procedural device. Tuffuor, a citizen, sued. Issues. Did the Constitution automatically continue the Chief Justice in office? Could a purported fresh vetting be used to unseat him? Decision. The Court of Appeal, sitting as the Supreme Court, held through Sowah JA that the Chief Justice continued in office by force of the Constitution itself; the parliamentary vetting was a nullity. The judgment contains the celebrated description of a constitution as a living organism capable of growth and development, to be interpreted broadly and purposively rather than like a tax statute. Principles. (a) Constitutional supremacy: acts inconsistent with the Constitution are void. (b) Security of judicial tenure: the judiciary cannot be manipulated through technical reappointments; form cannot be used to defeat substance. (c) Purposive, generous interpretation of constitutions. Why it matters in Sierra Leone. Tuffuor is cited across the Commonwealth, including in Sierra Leone, for both judicial independence and the living-organism approach to interpretation; it is the standard authority whenever an executive tries to reset a judge’s tenure by procedural tricks.

SUMMARY

• Separation of powers: three functions in three hands; Aristotle, Locke, Montesquieu.
• SL anchors: Parliament ss 73/106; President ss 40/53; Judiciary s 120. Doctrine implied from structure.
• Not absolute: division of powers plus checks and balances; chief danger is executive dominance.
• Liyanage: implied separation; legislature cannot judge; no targeted retroactive criminal laws.
• Tuffuor: tenure cannot be defeated by technical reappointment; constitution = living organism.

Case Study: Marbury v Madison 5 US (1 Cranch) 137 (1803)

Facts. In the dying hours of his presidency, John Adams appointed dozens of justices of the peace, including William Marbury. The commissions were signed and sealed but some, Marbury’s among them, were never delivered. The incoming Jefferson administration, through Secretary of State James Madison, refused to deliver them. Marbury sued directly in the Supreme Court, relying on a statute that gave the Court original jurisdiction to issue mandamus. Issues. Was Marbury entitled to his commission? Could the Supreme Court order Madison to deliver it? And, decisively, could the Court apply a statute that conflicted with the Constitution? Decision. Chief Justice Marshall held that Marbury had a right to the commission, but that the statutory grant of original mandamus jurisdiction exceeded what the Constitution allowed; faced with a conflict, the Court must apply the Constitution and treat the statute as void. "It is emphatically the province and duty of the judicial department to say what the law is." Principle. Judicial review of legislation flows logically from constitutional supremacy even where the text nowhere grants it expressly. Why it matters in Sierra Leone. Sierra Leone did not need to imply the power: ss 124 and 171(15) confer expressly what Marshall had to construct. But Marbury remains the theoretical foundation every examiner expects, and its logic explains why supremacy clauses and judicial review always travel together.

SUMMARY

• Review asks lawful, not right; appeal asks right.
• Two tracks in SL: constitutional review (Supreme Court, s 124; referrals s 127) and administrative review (High Court, s 134).
• Justiciability: is the question fit for courts? Standing: traditional personal-interest rule (Gouriet) vs modern expansion (India PIL; SA s 38; Kenya).
• Marbury: judicial review deduced from supremacy; SL confers it expressly.

SUMMARY

• Constituent vs constituted power; amendment lets the latter borrow the former under conditions.
• s 108 two tiers: ordinary = two-thirds of Parliament; entrenched = two-thirds plus referendum.
• Kesavananda: amending power cannot destroy the basic structure; migrated across the Commonwealth.
• Conventions: binding in politics, unenforceable in court (Miller on Sewel).