The Ghana Bar Association's official position on the observance of the legal vacation by the superior courts does not merely state a preference; it articulates black-letter law and long-standing convention.

Stripped of the specific ORAL cases, the Bar’s intervention lays bare the fundamental principles that govern courtroom practice during recess - principles that no active litigation lawyer will dispute.

If we are to maintain a principled position on the rule of law, three foundational truths set out in the rules and settled practice must be understood:

1. Statutory Design and Mandatory Recess: Under Order 79 Rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), the two-month long vacation is not an administrative courtesy. The framers of the rules recognized that judges, and lawyers require a mandatory period of rest following an exhaustive ten-month legal term.

2. The Scope of Vacation Courts: By long-standing convention, vacation courts, whether sitting in-person or virtually, are established to handle emergencies. Traditionally, they deal with urgent interlocutory applications, such as bail, injunctions, or fundamental rights enforcement. Vacation courts almost never conduct full substantive trials.

Consent and Availability of Counsel: The bedrock requirement for any matter listed before a vacation judge is the voluntary availability and willingness of counsel to appear. Counsel have not been under legal compulsion to attend court during the vacation.

Once a lawyer indicates unavailability, whether due to pre-scheduled conferences, international engagements, or necessary leave, the court does not force the matter forward. The absence of counsel during recess is never treated as willful default, and litigants are not coerced into self-representation.

To compel trial participation during the statutory vacation strikes at the heart of procedural fairness. Lawyers are personally responsible for their professional well-being and maintaining a sustainable work-life balance. Honouring the sacred silence of the legal vacation is not a hindrance to justice - it is its ultimate safeguard.

The Status Quo

It is worth noting that cases continue to run actively in the lower courts throughout the legal vacation, operating under an established leave roster system. This operational model in the lower courts offers a practical template that could potentially be adapted for the superior courts in future administrative reforms.

However, until such reform proposals (including as suggested in Part 2) are formally considered by the Judicial Service, the status quo remains the standard.

The law as it stands today, established judicial convention, and the settled practice of the Bar are unambiguous: this legal vacation in the superior courts is sacred, vacation courts normally attend to urgent interlocutory emergencies, and the participation of counsel during recess has always been consensual.

Yes, forward-looking administrative dialogues for reform are always welcome. The integrity of our legal system depends on predictable rules, uniformly applied. Until those frameworks are formally reformed, the status quo ought to be respected by the bench and bar alike.

You may want to read parts I, II and IV.

Click the links below to continue reading.

Part I

Part II

Part IV

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