Legislative independence and autonomy from the judiciary are fundamental principles in democratic governance.
These principles ensure the effective functioning of a system of checks and balances, which is crucial for preventing the concentration of power and promoting accountability and transparency.
By maintaining independence, legislatures can fulfill their roles as lawmakers and representatives of the people without interference from other branches of government.
Accordingly, Prof. Kwaku Azar Asare, a lawyer and CDD-Ghana fellow has argued that merely filing an injunction against Parliament does not, and should not, halt its operations, citing the principle of separation of powers.
Prof. Asare indicated that as an independent legislative body, Parliament has a constitutional mandate to enact laws and provide oversight over the executive, which should not be impeded by judicial actions.
“This principle is not novel. In Republic v. High Court; Ex Parte Perkoh II [2001-2002] 2 GLR 460, the Court stated clearly that “the mere filing of an application for an interim injunction seeking to restrain a chief from performing the functions of a chief would not operate to restrain him from performing the functions of his office when he had not been destooled and the court had not so ordered.”
“This ruling affirms that an application for an interim injunction, without a final order, does not halt the performance of official duties”.
Prof. Kwaku Azar Asare
Prof. Asare further noted that courts have recognized that any conduct that tends to undermine the authority and administration of the law or interfere with pending litigation constitutes contempt of court.
He pointed out that in “Republic v. Moffat and Others; Ex Parte Allotey” [1971] 2 GLR 391-40, the court emphasized that once a respondent becomes aware of a pending motion, any action likely to prejudice a fair hearing is considered contempt of court.
Additionally, Prof. Asare stated that any behavior that disrupts the due administration of justice also constitutes contempt.
The astute lawyer noted, however, that the “Moffat” ruling generally applies to civilian respondents.
He stated that it specifically concerns those who, despite being aware of pending motions, proceed to take actions that affect the subject matter of the litigation. “Moffat was never intended to apply to public entities, such as universities, hospitals, or legislatures”.
Prof. Asare explained that the presumption of regularity—assuming that public officials perform their duties properly and in good faith—applies to public bodies.
As such, he asserted that in such cases, the “Ex Parte Perkoh” ruling is generally applicable.
Prof. Asare noted that this principle is even more relevant to the operations of Parliament, as it is a coequal branch of government.
According to him, allowing an injunction to halt parliamentary activities could undermine its constitutional mandate and lead to judicial interference in the legislative process.
Judicial Non-Interference in Parliamentary Proceedings
Furthermore, Prof. Kwaku Azar Asare stated that courts have consistently maintained that they will not interfere with parliamentary proceedings, as such interference would compromise the autonomy of the legislative branch.
He indicated that courts acknowledge the necessity of preserving parliamentary privilege to shield the legislative process from unwarranted judicial intervention.
Additionally, the lawyer indicated that parliamentary activities frequently encompass time-sensitive issues or matters of national significance.
As such, he asserted that any disruption could significantly impede governance and the effective functioning of the state.
“If individuals could stop parliamentary work simply by filing an injunction, it would create opportunities for abuse and delay. Anyone with a personal or political agenda could file repeated or frivolous injunctions to disrupt the legislative process, using the courts as a tool to frustrate or manipulate parliament’s activities.
“This could prevent the passage of laws, delay debates on crucial issues, or interfere with government oversight. Such a precedent could lead to a situation where critical legislative decisions are stalled indefinitely, hampering governance and national development”.
Prof. Kwaku Azar Asare
He stated that the constant threat of judicial intervention could undermine parliamentary efficiency, forcing Parliament into a disruptive stop-start process while awaiting court rulings.
This would severely compromise its ability to fulfill its constitutional role as outlined in the doctrine of parliamentary autonomy.
Prof. Asare stated that courts should exercise caution in issuing injunctions against Parliament to avoid undermining its independence and the principle of non-interference.
The judiciary, according to him, must respect Parliament’s constitutional role and its freedom to conduct legislative business without unnecessary interruption.
Prof. Asare indicated that frequent injunctions risk judicial overreach, which could influence legislative priorities and outcomes, thus violating the separation of powers.
He pointed out that in “Tuffuor v. Attorney General [1980] GLR 637-667”, Justice Sowah emphasized the importance of maintaining distinct roles among government branches to preserve constitutional balance. “This judgment highlights the judiciary’s responsibility to exercise restraint when considering interventions in legislative matters”.
Prof. Asare further stated that courts should intervene only in exceptional circumstances where there is a clear legal foundation and the potential harm to constitutional rights or public interest justifies such action.
However, he indicated that even in these cases, courts must carefully balance the protection of individual rights with the need to uphold Parliament’s autonomy.
Accordingly, he maintained that judicial restraint is essential to prevent the judiciary from becoming a tool for delay or political influence over parliamentary operations.
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