The Supreme Court ruling delivered today by His Lordship Gabriel Pwamang JSC, sitting as a Single Justice in the injunction application against the Chief Justice’s vacation court warrants, offers a fascinating window into public law jurisprudence. The court’s analysis correctly highlights the importance of public interest, statutory discretion, and the constitutional mandate under Article 19(1) for expeditious trial within a reasonable time.

However, when examined through the lens of courtroom mechanics and the settled conventions of the Bar, two critical observations at pages 9 and 10 of the ruling reveal a stark disconnect between theoretical legal principles and the practical realities of litigation practice. His Lordship’s independent mind and scholarship is celebrated at the Bar, and I did not have expectations that his decision would align with any opinion, however popular within the Bar, as I have earlier expressed on this subject.

Another title for this brief article would be: A Critique of the Ruling in Terms of Judicial Discretion, Operational Realities, and the Myth of Voluntary Vacation.

1. The "independent service provider" assumption (page 9)

In dismissing the argument that compelling lawyers to sit during recess infringes on their right to satisfactory working conditions and health under Article 24, the court observed:

"For the lawyers they are independent service providers in Court proceedings who are free to plan their leave at any time of the year. Being independent service providers, the responsibility for ensuring compliance with Article 24(1&(2) is in the hands of individual lawyers."

While it is legally accurate that a private legal practitioner is an independent contractor rather than a salaried employee governed by statutory labour leave (this may be the case for some lawyers though), suggesting that a trial lawyer has the freedom to simply "plan their leave at any time of the year" overlooks how judicial dockets function.

During the ten-month legal term, litigation lawyers do not possess the luxury or authority to dictate a court’s calendar. Hearing notices are issued, firm trial dates are fixed, and courts sit continuously across all tiers. A lawyer cannot unilaterally freeze a court’s docket in March, May, or November to proceed on personal leave.

The statutory long vacation under Order 79 Rule 4 of C.I. 47 exists precisely because it provides the only predictable institutional window during which the superior courts naturally pause. This structural lull allows practitioners to take necessary rest, attend local and international bar conferences, and restructure firm operations without placing their clients’ cases in jeopardy. Treating counsel as if they operate in a flexible open market where they can pause court proceedings at will does not fully reflect the non‑negotiable nature of court schedules during term time.

2. Acknowledging “the fact”, ignoring the compulsion (page 10)

Turning to the long-standing convention or practice of recess sittings, the court explicitly conceded a key factual reality on page 10:

"The fact that lawyers and accused persons involved in criminal proceedings in the High Court usually do not undertake hearings during legal vacation ought not to be the reason why an interlocutory injunction ought to be granted against the Chief Justice and stopping the expeditious hearings of cases..."

Here, the ruling rightly acknowledges what every active trial lawyer knows to be true: Criminal trials in the High Court are, by settled practice, not undertaken during the legal vacation. Yet, after admitting this factual baseline, the court declines to address the logical consequence of breaking that baseline - the element of real procedural compulsion.

If the established convention is that, in the superior courts, substantive trials pause during recess, issuing a directive or warrant requiring a part-heard criminal trial to proceed throughout August and September strips counsel of any voluntary choice. A lawyer faced with such an order is trapped in a difficult dilemma:

• If counsel appears, their statutory and conventional right to recess, rest, and professional planning is completely destroyed.

• If counsel declines to appear in order to observe the vacation, the client’s right to representation is compromised, or the client is coerced into self-representation during a critical trial phase.

Calling such attendance “voluntary” under the guise of being an independent service provider is difficult to sustain. By framing the Chief Justice’s warrants (those two warrants) solely as a mechanism to promote expeditious justice, the ruling does not fully engage with the fact that requiring full substantive trials through the recess represents a significant departure from the very “known practice” it acknowledged moments earlier.

In my respectful opinion, the argument by some that the accused may hire new counsel, or that the law firms handling these ORAL (and/or OSP) cases have many lawyers who may be delegated in the circumstances, does not take account of the constitutional imperative for the right of the accused to counsel “of choice”.

Conclusion: Reconciling public Interest with institutional wisdom

The administration of justice is undeniably served when cases are resolved expeditiously. However, expeditious justice must never be pursued at the expense of procedural fairness or the physical well-being of those who operate the system.

While the ruling firmly protects administrative discretion in public law, its underlying premises on pages 9 and 10 create an unworkable standard for practitioners. A fatigued Bench and Bar cannot maintain the high standards required for sound justice. Until administrative reforms formally adjust how vacation rosters are structured, respecting the long-established conventions of the legal vacation, and honouring the exercise of trial judges' discretion under Articles 23 and 296 to indulge counsel, remains the true safeguard of our legal architecture.

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