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Introduction
The Ghana Legal System is replete with hackneyed and hallowed legal principles which supply the very life-blood of our system of justice. Among these principles are the rules of natural justice and contempt of court. Both principles are essential and necessary for the sustenance of a sound legal system. In fact, without these two legal principles, the administration of justice will be based on the personal whims of adjudicators and the courts will lack requisite power to enforce its decisions and preserve the sanctity of its proceedings and decisions. However, a strict adherence to these two legal principles seems to create a legal conundrum. In this discourse, I propose to give general explanation of these two principles and proceed to determine how each impacts on the other.
The power of court to punish for contempt
Although it has gained statutory footing in our legal system, the law of contempt is largely a common law principle. Articles 19(12) and 126(2) of the 1992 Constitution give the courts power to punish for contempt of themselves. Article 19(12) provides that, “Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed”. The phrase "punishing a person for contempt of itself” carries the connotation and necessary implication that a court can lawfully sit to hear contempt applications in which the contemptuous act was done in relation to the court itself. Article 126(2) states in part that, “The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves…”
From the foregoing, it is plain that a court or a judge has the power to punish a person for contempt of the court. The multi-dollar question is whether or not by sitting to hear applications involving contempt of itself the court is acting in breach of the second rule of natural justice namely, ‘no man should be a judge in his own case’. What happens if a judge feels personally scandalised, disrespected or disobeyed and he proceeds to hear the contemnor and commits him to prison? Is the judge acting as a judge in his own case? Before we attempt an answer, I beg leave to briefly discuss the rule of natural justice in question.
Natural justice: Nemo judex in causa sua
Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general phrase "duty to act fairly". Natural justice concerns itself with two rules namely, “nemo judex in causa sua” which is literally translated as “no man should be a judge in his own case” and “audi alteram partem” which is literally translated "hear the other side" or " “no man should be condemned unheard” ".
Of particular relevance to our present discussion is the rule “nemo judex in causa sua”. It is a cardinal principle which underpins our administration of justice, and indeed that of all the common law countries, that a person is not allowed to be a judge in his own cause. This is a principle of natural justice and it is so basic that its deliberate violation is now regarded as a misconduct which would render a judge or magistrate unfit to hold judicial office.
It is a principle of natural justice that no person can judge a case in which he has an interest, whether pecuniary or otherwise. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none, for it is said that “Justice must not only be done, but must be seen to be done". This is the precious quality of justice epitomised in the maxim nemo judex in causa sua. All students of our legal system are acquainted with this rule of natural justice. A monstrous breach of the rule is difficult to imagine! I think it is unreasonable.
The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system, and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968): “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased’.” Lord Esher also said that the participation of a disqualified person "certainly rendered the decision wholly void."
Lord Campbell stated the rule with much precision in Dimes v. Proprietors of the Grand Junction Canal and others (1852), 3 H. L. Cas. 993. He said:
“It is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.”
The import of this rule was vividly expressed by Lord Thankerton in Franklin v. Minister of Town and Country Planning, [1948] A. C. 87 when he said:
"I could wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are, commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate between two or more parties, he must come to his adjudication with an independent mind, without any inclination of bias towards one side or other in the dispute."
Basically, these are principles which are necessary for a just and fair decision making. These principles are often embedded in the rules of procedure which govern the judiciary. If there is any substantial departure from these principles of natural justice, the decision can be challenged and set aside through the judicial process.
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DISCLAIMER: The Views, Comments, Opinions, Contributions and Statements made by Readers and Contributors on this platform do not necessarily represent the views or policy of Multimedia Group Limited.
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