Political question: Courts may adopt rational pragmatism than hard law – Prof Abotsi

“What it needs is the definitive response to determining what is a political question. For the issue is going to come up again and again.”

Is allowance instantly strangers applauded

The Dean of the UPSA Law School, Prof Ernest Kofi Abotsi has suggested to the nation’s courts especially the apex court resolve the issue of political questions by adopting rational pragmatism than hard law.

The above, he believes, will help to strike a balance between upholding the rule of law and maintaining the relationship between the courts and other organs of the state.

“The Framers of our constitution long recognized the limits of the constitutional texts when they inserted the spirit of the constitution as an integral part of the text. There will always be twilight zones between the branches of Government.

And those twilight zones will reflect questions in the penumbral areas of the law. Arguably, questions over which co-ordinate branches may reserve internal autonomy over certain questions affecting their operations over which the judiciary cannot make overriding pronouncements may have to be resolved by recourse to rational pragmatism than hard law perhaps.”

Delivering his speech on Tuesday, May 31, 2022, as the keynote speaker of the maiden Speaker’s Seminal Lecture on the theme; Parliament, its Business and the Supreme Court in perspective” Prof Abotsi further called on the courts to develop settled criteria on the parameters of its application of the political question doctrine and a clarification of the two-step approach indicated by the Supreme Court in the case, Abdulai v Attorney General.

“It is relevant for the court to go into an objective mode by itemizing what clearly constitutes a political question so that there is clarity so that contestations and post decisional arguments that often follow courts decision in these cases shall be minimized.

“What it needs is the definitive response to determining what is a political question. For the issue is going to come up again and again.”

He added that leaving the matter to shifting legal evolution as currently being witnessed, is problematic and could jeopardize inter-institutional cooperation.

Prof Abotsi emphasized that the case, Abdulai v Attorney General was correctly decided by the Supreme Court to the extent that the court reserves the right to determine whether a given object is well-founded.

Additionally, he noted that demarcating the boundaries of the courts relative to the political question doctrine is necessary to dispelling suspicions surrounding its hegemony over the co-ordinate institutions of the realm.