Deputy Attorney-General, Dr. Justice Srem Sai
The Deputy Attorney General, Justice Srem-Sai, has stated that President John Mahama does not require the prior publication of a Constitutional Instrument (C.I.) in order to exercise discretionary powers granted by the Constitution.
His remarks come in response to concerns raised by the Ghana Bar Association (GBA) over the recent suspension of the Chief Justice, Gertrude Torkornoo.
Speaking on Joy FM‘s NewsNight on Tuesday, April 29, Justice Srem-Sai stated that the absence, delay, or refusal to publish a C.I. does not invalidate the President’s ability to act within his constitutional mandate.
“The failure or inability or refusal to publish a regulation to guide how the discretion is exercised does not in any way disable the person from exercising that discretion,” he stated.
Citing several examples, the Deputy Attorney General noted that many presidential functions, including the appointment of ministers, granting of pardons, and signing of international agreements, have routinely been carried out without the backing of a C.I., yet remain legally valid.
“Does that mean the President cannot appoint a minister? Should that mean the President cannot sign international agreements? Or that the President cannot grant a pardon? Clearly not,” he stressed.
He was reacting to the GBA’s communiqué, which questioned the legality of the President’s decision to suspend the Chief Justice, citing the lack of regulations governing such discretionary actions.
The Association maintains that President Mahama’s suspension of the Chief Justice violates Article 296 of the 1992 Constitution, which requires published regulations for the exercise of discretionary powers.
The GBA argues that the absence of such rules renders the suspension unlawful.
On the back of this, Justice Srem-Sai accused the GBA of straying from established legal principles and basing its position on non-legal grounds.
“The more I read it, the more I get convinced that the GBA has decided to abandon principles of law and rely on something else to form their opinion,” he said.
While acknowledging the GBA’s right to express political or institutional opinions, Justice Srem-Sai maintained that the Attorney General’s Department will treat their statement as just one of many views submitted on the issue.
“We’ll consider it. We’ll add all the other views that we keep receiving on this matter, we will consider all of them and advise the government going forward,” he said.
When asked whether the Attorney General’s Department is prepared to respond if the GBA follows through on its threat to challenge the suspension in court, Justice Srem-Sai said he was confident in the government’s legal position.
“We are convinced that our position is the right one. We don’t know whether the GBA will gather the confidence and courage to proceed to court on something like this,” he said.
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