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A proposal to amend section 16A of the Legal Profession Act (1960)

The purpose of this paper is to examine section 16A in the context of the Legal Profession Act and its Rules 9(1) and 9(2) Legal Profession (Conduct and etiquette) Rules 1969 (L.I 613) as a whole, analyze its related sections 17, 18, and 20 and juxtapose it with the supremacy of the linguistic construction contained in articles 19(13), 23 and 296 of the 1992 constitution.

In effect, like in the Construction of Statutes, by Elmer Driedger, a leading Canadian Drafter,to read the Legal Profession Act in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Legal Profession Act,and its Rules 9(1) and 9(2) Legal Profession (Conduct and etiquette) Rules 1969 (L.I 613), the object of the Act and the intention of Parliament as well as the scope of the supremacy of the 1992 constitution as it relates to the Legal Profession Act. (see Construction of Statutes, by Elmer Driedger at page 117, 1983 2nd edition)

At the end, this paper will deduce the legislative imperfection within the construction of section 16A, submit a modification to section 16A of the Legal Profession Act (Act 32), and if the authority permits, to propose that an amendment to the Legal Profession Act (1960) Act 32, be made subject to the amending procedure of the Legislature.

This paper does not attempt to make an iconoclastic attack on the General Legal Council–No,far from it. Neither does it attempt to deprecate decrees enacted by past military governments–No,not at all. Indeed, the existing laws under Article 11(4) of the 1992 Constitution include decrees.

We take our strength,however, from Article 11(6) of the 1992 Constitution and section 178 of the Standing Orders of Parliament, to write to the Legislature, and in particular, to the Ministry of Justice and Attorney General’s Department and to the Parliamentary Select Committee on Legal and Constitutional Affairs for the necessary examination, modification and amendment necessary to bring the Legal Profession Act 1960 (Act 32) into conformity with the provision of the 1992 Constitution. We write, for the greatest good of society.

It is true that, the Courts have the competence and the legal Interpretative skills to discover and give effect to statutory instruments like the Legal profession Act. However, the Courts have neither the need nor the mandate to make or modify laws of the legislature. It is the legislature (the elected representative of the people) that has the legitimate power to modify; to cure a legislative oversight; to amend a legislative imperfection.

Of course, the Supreme Court in Nartey v Gati(2010) S.C GLR 745 had the occasion to render a decision on the constitutionality or otherwise of the Legal Profession Act 1960 (Act 32). However, the ratio which is considered to have been necessary to the decision in Nartey v Gati was that section 30 of the legal Profession Act is not inconsistent with the provisions of Article 17(1) of the 1992 constitution. It did not decide that section 16A of the Legal profession Act 1960 (Act 32) was not inconsistent with the 1992 constitution.

Indeed, the call to reexamine the Legal Profession Act has been loud in the Legal fraternity. On Jun 7, 2017, a Senior Law Lecturer at the Faculty of Law of the University of Ghana, Legon, Dr. Raymond Atuguba in an article caption General Legal Council Must Review ‘archaic’ Rules, published in Ghana Star, described as archaic the country’s legal guide used to regulate the profession.

Similarly, in a 5-page resolution passed at its 2017/2018 annual conference held in Sunyani in September 2017, the Ghana Bar Association called for the amendment of the Legal Profession Act to vest the Bar with the authority to discipline lawyers.

But the question remains, why the need for the amendment? Is there no procedural fairness at the General Legal Council, the regulatory body of the legal Profession? Before we proceed it is only pertinent to give a brief background of procedural fairness and due process of law in the Legal profession Act 1960 (Act 32) in order to appreciate the legal conundrum facing the General Legal Council.

BRIEF BACKGROUND

The rule of procedural fairness has been part of the common law of Ghana since the introduction of the common law in the 19th century. This is illustrated by the law governing disciplinary procedure of professional bodies including the General Legal Council

During the period when Ghana was a British Colony, the jurisdiction to Discipline Lawyers was vested in the Court until 1931 when the Legal practitioners’ Ordinance No. 5 of 1931 was passed and amended as Cap 8 of the Laws of the Gold Coast 1951 Rev. which made provision for the establishment of a Disciplinary Committee.

Section 49 of the Ordinance provided that The Attorney-General (as Chairman) may require any person who makes allegations of misconduct against any legal practitioner to support these allegations by an affidavit setting out the facts on which he relies as proof of the misconduct.

Section 51 stated that “the Committee may in the course of their inquiry hear such witness and receive such documentary evidence as may assist them to arrive at a conclusion as to the truth or otherwise of the allegations of misconduct”.

Pursuant to section 52 the Committee was mandated to “give the legal practitioner an opportunity to appear before them for the purpose of disproving the charge made against him. At the end of the inquiry, the Committee was to embody their finding in a report to the Judges of the Supreme Court after which the Committee and the legal practitioner were required to appear before the Court at the consideration of the report.

The Court after consideration of the evidence taken by the Committee exercised its jurisdiction on whether or not to suspend the legal practitioner for any specified period or may order the Chief Registrar to strike his name off the Roll of lawyers.

Following the country’s independence in March 1957, the Legal Practitioners Ordinance was repealed and replaced by the Legal Profession Act, 1960 (Act 32) which came into force in 1961 in which by section 17 thereof a new Disciplinary committee was established to exercise disciplinary jurisdiction over legal practitioners.

The rule that no man should be condemned unheard or without having had an opportunity of being heard and both parties must be heard (Audi alteram partem, audiatur et altera pars) was retained in the Act.  It provided in section 18 that “A complaint by a person relating to the conduct of a lawyer shall be referred to the disciplinary committee and, if it appears to the disciplinary committee that an inquiry ought to be held into the complaint, it shall proceed to hold the inquiry”.

Then section 20(1) states that:-

“After holding an inquiry into a disciplinary case, the disciplinary committee shall decide whether the allegations enquired into are proved and if it decides that the allegations are proved, it may direct the taking of the disciplinary measures that are specified in section 16 and make an order as to costs”.

Thus, the legal values and norms underlying procedural fairness that, an individual including a lawyer affected should have the opportunity to present his case fully and fairly and have decision affecting his rights, interests or privileges made using a fair, impartial and open process was indeed jealously guarded in the Legal Profession Act, Act 32.

This is the kind of adjudicating process that Lord Hewart meant in his oft-cited aphorism that Justice must not only be done, it must manifestly be seen to be done. (See R v Sussex Justices Ex-parte McCarthy 1924 1 KB 256.) Likewise, this is what her ladyship Justice Sophia Akuffo (now chief Justice) was incensed with when she said these salient words in the case ofAwuniv West African examination Council SCGLR 2006-2007 at page 510:

when fundamental human rights have been, are being or likely  to be contravened, access to judicial redress must be swift and timely as feasible to ensure that such rights or freedoms are not lost or irremediably damaged forever

Notwithstanding the sensitivity to procedural fairness, a constitutionally guaranteed fundamental human right, research reveals that the jurisprudence on Disciplinary matters concerning procedural fairness at the General Legal Council pursuant to the Legal Profession Act is at best scanty; causing legal rights to be irremediably damaged.

Indeed one offending section which was inserted by a military decree in the Legal profession Act and which, when applied in disciplinary matters, creates absurd consequence is section 16A which, we now turn.

SECTION 16A OF THE LEGAL PROFESSION ACT 1960(Act 32)

In 1966, following the overthrow of the 1st Republic under President Kwame Nkrumah, the 1st Republican constitution was not only abolished and Parliament dissolved, the then civilian government was also replaced by a military government, the National Liberation Council.

Indeed, a solicitous study suggests that following the overthrow by the military government, the Legal profession Act saw an amendment by the insertion of the Legal Profession Act (Amendment) Decree 1969 (N. L. C. D 338) and signed by Lt. General J.A Ankrah, chairman of the National Liberation Council. In fact, the architect of this amendment linguistically constructed in the legal Profession Act 1960 Act 32 a new section 16A as follows:

The General Legal Council may direct the Judicial Secretary to strike off from  the Roll of Lawyers without the holding of a Disciplinary Enquiry the name of any lawyer who has been convicted of an offence involving dishonesty or moral turpitude and the Judicial Secretary shall comply with any such direction

on the grounds of Rule 9(1) Legal Profession (Conduct and Etiquette) Rules, 1969(L.I 613), as follows:

The conviction of a lawyer for a criminal offence involving dishonesty or moral turpitude makes him prima facie unfit to continue on the Roll of lawyers.

This legislative instrument was made in pursuance of the proclamation of the constitution of the National Liberation Council (N.L.C.D) which gave the Council power to legislate by decree.

Paragraph 3(3) of the N.L.C.D provided as follows:

“Where an enactment or rule of law in force immediately   before the 24th February 1966, is in conflict with any provision   of a decree made by the National Liberation Council, the said   provision shall prevail over the enactment”

By the provision of paragraph 3(3) of N.L.C.D no one could successfully challenge the decree of the then military government nor challenge the constitutionality of section 16A of the Legal Profession Act passed under paragraph 3(3) NLCD.

In respect to the above, we now turn to section 16A of Act 32 which has never been examined nor challenged.

THE ABSURDITY IN SECTION 16A

In reading section 16A of ACT 32, in isolation, using a plain or literal meaning approach, the social policy reasoning cannot be faulted, if an allegation of conviction of a criminal offence is grounded on facts.

But reading a statutory text or provision is not like reading Shakespeare’s Hamlet or Macbeth where one is moved by plots, intrigues and emotions nor is it like reading a newspaper where a reader can read articles in isolation of other stories in the newspaper. To read a statutory text or provision for purposes of understanding its meaning includes reading the statute in the context of its co-texts to some extent.

The recent call by members of the Legal Profession including the Ghana Bar to amend the laws of the General Legal Council has drawn sharp attention to some of the absurd consequences in Act 32 including but not limited to section 16A which, when read and applied in isolation to sections 17, 18, and 20 of Act 32 and the 1992 constitution creates conflict and disharmony in construction of statutes.

As observed in sections 17 and 18 of Act 32, it is the Disciplinary committee alone that has the judicial duty and jurisdiction to exercise a judicial function to conduct a disciplinary hearing. As can be seen in section 16A the legislative power conferred on the disciplinary committee in sections 17 and 18 of Act 32 is now taken over by the General Legal Council and delegates it to a Judicial Secretary

Yet, nowhere in the statutory scheme of Act 32 has the power conferred on the Disciplinary committee by virtue of section 17 and 18 been diverted by a legislative instrument to any party or person except the insertion of section 16A in 1969 to the General Legal Council to direct a judicial secretary to strike the name of a lawyer without the holding of an enquiry.

Indeed, section 16A is not in harmony with the rest of Act 32, its Rules 9(1) and 9(2) Legal Profession (Conduct and etiquette) Rules 1969 (L.I 613) and the 1992 constitution.

Even if it is alleged in section 16A that the General Legal Council has a discretionary power to delegate to a judicial secretary to strike the name of a lawyer without holding an enquiry, the answer to that can be found in Articles 23 and 296 of the 1992 Constitution which states that:

23. Administrative bodies (including public bodies such as the General Legal Council) and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal

296.  Where in this Constitution or in any other law discretionary power is vested in any person or authority –

(a)       that discretionary power shall be deemed to imply a duty to be fair and candid;

(b)       the exercise of the discretionary power shall not be arbitrary, capricious or biased whether by resentment, prejudice or personal dislike and shall be in accordance with due process of law

Furthermore, even if it is alleged that section 16A can be justified because it deals with the conviction of a criminal offence and that no hearing is warranted, the answer to the assertion can be found in articles 19(1) of the 1992 constitution which provides that

“A person charged with a criminal offense shall be given a fair hearing within a reasonable time”

Indeed, even if it is presumed that the framers of section 16A were careful users of language; that in drafting section 16A in 1969they meant what they said and said what they meant and that they were meticulous and solicitous in the drafting of section 16A, that assertion can be refuted by the framers of Rule 9(2) enacted in 1969.

Rule 9(2) provides that

the Disciplinary Committee may, however, take into consideration the nature of the offence of which the lawyer is convicted and in particular if the offence is not such a character as to make the person guilty of it and unfit to remain an officer of the court and a member of such honorable profession, then the disciplinary committee may modify such order as it thinks fit instead of striking the name of such a person off the Roll of lawyers

Indeed, Rule 9(2) departs and contradicts section 16Aof Act 32 in that it is not automatic that a person’s name can be struck off. 9(2) contradicts the powers bestowed on the Judicial Secretary by the General Legal Council in section 16A to the Disciplinary Committee to take into consideration the nature of the offence (if indeed so) and inappropriate cases determine other sanctions. Clearly, Rule 9(2) shows drafting sloppiness in section 16A of (Act 32)

Moreover, even if section 16A deals with a criminal offence as stated therein, was the framers of section 16A referring to the meaning of criminal offence within the territorial jurisdiction of Ghana as stated in Article 19(19) of the 1992 Constitution?

What is more, section 16A does not only remind us that it excludes or curtail the common law norm of procedural fairness and the supremacy of constitutional fairness contained in articles 296 (1)a and b, and 23 of the 1992 Constitution, it also reminds us that there is no opportunity to submit any independent credible evidence to exonerate a lawyer against an allegation of conviction of a criminal offence – whether imaginary or real – to the Judicial Secretary under section 16A neither does it allow for even oral or written submission.

More fundamentally dangerous is that the section 16A may be used particularly against lawyers who may appear to sit on the wrong side of the political divide. Likewise, lawyers who may by their legal dexterity, find disfavour with certain “connected lawyers” in high places could be entrapped and contained by section 16A.  In fact, by the language in section 16A, an alleged convicted person cannot be called upon to even confirm whether the allegation of conviction relates to him.

A legal Scholar is tempted to ask: Would that not amount to a miscarriage of Justice when in fact there is or could be an independent credible evidence to the contrary? Does the current legislature intend to exclude or curtail the supremacy of the constitutional fairness contained in articles 19(13), 23 and 296(1)a and b of the 1992 Constitution? Should our current legislature disallow the content and duty of procedural fairness at the General Legal Council? Or should we refuse to be “spectators” as His Excellency, President Akufo Addo puts it in his recent Inaugural address to the Nation?

Indeed, a careful comparative review and study of Ghana’s equivalent of Legal Profession Act, 1960 (Act 32), to (Canada’s)Ontario Law Society Act, R..S.O 1990, Australia’s Legal Profession Act, 2004 and South Africa’s Legal Practice Act, 2006, reveal that the equivalent of our Section 16A is incongruous and inharmonious, unknown and unfamiliar to the above legislation in these common law jurisdictions.

In view of the above, the proper question for a Legislative Drafter is: to what extent shall we modify section 16A in order for it to be in conformity with the 1992 Constitution? It is this subject that we now ponder.

PROPOSED AMENDMENTS OF SECTION 16A

The phrase “the duty of fair hearing,” a constitutionally guaranteed human rights, used in judicial proceeding is not based on hearsay evidence or an orchestrated litany of bias, impartiality or personal dislike between an adjudicating authority and a lawyer but based on the application of a law which hears before it condemns, which proceeds on an enquiry, which gives an individual the opportunity to present credible evidence,which permits submissions especially when credibility is an issue, and which renders judgment.

This is what is referred to in Article 296 as due process and referred to in Articles 23 and 296 as the duty to act fairly. In his authoritative book, Modern Approach to the law of Interpretation Dennis Dominic Adjei, Author and Judge at page 259, states that

the rationale behind fundamental human rights is that they are inalienable rights and that the law should always protect individual fundamental human rights from abuse.

It becomes obvious that in reading the entirety of section 17, 18 and 20 the (Act 32) as a whole, its structure, its Rules 9(1) and 9(2) Legal Profession (Conduct and etiquette) Rules 1969 (L.I 613) and the constitutional provisions in articles 19(13) 23, and 296 of the 1992 Constitution, the legislature has never had the intention of depriving lawyers procedural fairness. Hence, the need to harmonize the provisions, avoid absurdity and inconsistency.

As explained in as far back as 1857 in the English case by Lord Wenleydale in Grey v Pearson

“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency but no further” (see Grey v Pearson (1857) 6 H.L. Cas 61 at page 106)

Similarly in a 1982 recent Canadian case of R v Paul the Supreme Court per Lamer C. J, the former Chief Justice of Canada virtually relied on Maxwell on the interpretation of Statutes to virtually redraft s.645(4) c of the criminal code with  these salient words

MODIFICATION OF THE LANGUAGE TO MEET INTENTION

Where the language of a statute, in its ordinary and grammatical construction, leads to manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the grounds that the legislature could not possibly have intended what it words signify( see R v Paul (1982) S.C.J No 32, 1 S.C.R 621 at page 662(S.C.C)

The duty to act fairly must therefore be inserted to the said section 16A to modify the meaning of the word therein and it bring it in conformity with the common law and constitutional law of Ghana.

As such, we hereby submit that section 16A of the legal Profession Act which reads as follows

The General Legal Council may direct the Judicial S secretary to strike off from  the Roll of Lawyers without the holding of a Disciplinary Enquiry the name of any lawyer who has been convicted of an offense involving dishonesty or moral turpitude and the Judicial Secretary shall comply with any such direction

must be modified by the deletion of the word “without” in section 16A and in substitution thereof by the word “after” so that a modified section 16A can read as follows:

The General Legal Council may direct the Judicial S secretary to strike off from  the Roll of Lawyers after  the holding of a Disciplinary Enquiry the name of any lawyer who has been convicted of an offense involving dishonesty or moral turpitude and the Judicial Secretary shall comply with any such direction

This is what was stated in the case of (Andrews School town v Heinly) 178 1, NE 628, 43 LRANS 1023, Ann (as 1915B 1136) that a portion of a statute may be eliminated, if the remaining portion is sensible, complete and within the scope of the legislative power

Respectfully, this current unconstitutional section 16A is not immune from scrutiny and must not be allowed to stand in the statute books. In a recent articulation of unconstitutional provisions in our statutes books Her Ladyship, Georgina Wood, the former Chief Justice, in Republic v High Court (FastTrack Division) Accra  Exparte Commission for Human Rights & Administrative Justice( Richard Anane Interested party{2007-2008]S.C.G.L.R at 236 had these salient words for unconstitutional and unlawful acts

“No constitutional or unlawful act, no matter the number of times it has been perpetrated without question or challenge, can ripen into constitutional or lawful practice, procedure or precedent” As I observed in Attorney General v Faroe Atlantic Co Ltd [ 2005-2006] 271 unconstitutional acts cannot be validated either by the estoppel doctrine of res judicata. Equally, act violating the constitution or the statutes cannot be validated on the grounds of practice, precedent custom or usage

CONCLUSION

We conclude by saying that a poorly drafted provision in a statute may lead to violations of fundamental Human Rights as guaranteed in the 1992 Constitution. As such, we have drafted a modification in a manner that is legally sound, clear and responsive to the legal norms of fairness and due process.

Indeed, we have shown that a revised section 16A is in substance, not only in conformity with the legal norms of the common law, it is also in harmony  and consistent with entrenched Fundamental Human Rights guaranteed in the 1992 constitution and reflects our freedom and justice inherent in our Ghanaian society.

We have also demonstrated that the object of this paper is not to make anagnostic  attack on the General Legal Council.No, for all intent and purposes,this research is to build our institution of state; to strengthen our administration of justice; to promote a fair and just society; to inure to the benefit of the Bar.

It is our fervent belief that our legislature,subject to the amending procedure of Parliament, willsuitably amendthe current unconstitutional section 16A to mark a new approach to disciplinary matters that conforms to international best practices.

We shall be at liberty to comment, when called upon, solely on this draft amendment and its related drafting matters.(If need be, we shall propose a draft amendment to the provision of Advertising, Touting and Publicity, as contained in Rule (2) Legal Profession (Conduct and Etiquette) 1969 (L.1 613) andif  yourauthority will permitto provide a major draft amendment to the entire legal profession act in conformity to international best practice

All of which is Respectfully Submitted.

LIST OF AUTHORITIES

1.         The Legal Profession Act 1960 (Act 32)

2.         Legal Profession ( Conduct& Etiquette) Rules 1969 L.l 613)

3.         Elmer Driedger, Construction of Statutes 2nd Edition, 1983

4.         Legal Profession Act (Amendment) Decree 1969 (N. L. C. D) 338

5.         Awuni v west African Examination Council SCGLR 2006–2007 page 501

6.         The 1992 Constitution of Ghana

7.         Nartey v Gati(2010) S.C GLR 745

8.         Grey v Pearson(1857) 6 H.L. Cas 61 at page 106)

9.         Dennis Dominic Adjei- Modern Approach to the law of Interpretation

10.       See R v Sussex Justices Ex-parte McCarthy 1924 1 KB 256.)

11.       National Liberation Council (N.L.C.D)

12 Rv Paul (1982) S.C.J No 32, 1 S.C.R 621 at page 662(S.C.C)

13. (Andrews School town v Heinly) 178 1, NE 628, 43 LRANS 1023, Ann (as 1915B 1136)

14. Republicv High Court (FastTrack Division)Accra  Exparte Commission for Human Rights & Administrative Justice( Richard Anane Interested party{20072008]S.C.G.L.R

 

Seth Kwame Awuku, Esq

sethawuku.sa@gmail.com

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