2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
JUSAG brought an original constitutional action against the Attorney-General, the National Pensions Regulatory Authority, and the Fair Wages and Salaries Commission, seeking declarations that all persons serving in the Judiciary should be under CAP 30, that SSNIT application to some Judicial Service staff was unconstitutional and discriminatory, and that Act 766 sections ending CAP 30 and placing judges on contributory schemes were unconstitutional. The Supreme Court, per Dotse JSC, held that Article 127(4)s persons serving in the Judiciary refers to those exercising judicial power (Justices, Judges, and Magistrates), not administrative Judicial Service staff. The Court rejected discrimination claims regarding CAP 30 for bench officers, but held FWSC cannot set Judicial Officers conditions and that any application of Act 766 to vary protected pensions is unconstitutional. Reliefs I, II, III, and IV were refused; V (in part), VI, VII, and IX were granted; VIII was granted in part, and the Attorney-General was directed to ensure constitutional compliance within three months.
JUDGMENT
MAJORITY OPINION
DOTSE JSC:
CAPACITY OF PLAINTIFF AND RELIEFS CLAIMED
The plaintiff has instituted the instant action as a corporate citizen of Ghana pursuant to article 2 (1) of the Constitution 1992 for the benefit of its members, whose pension rights guaranteed by the Constitution 1992, are allegedly being infringed upon by the Defendants.
Additionally, the plaintiff states that, in so far as some of the reliefs it seeks against the defendants, go beyond the immediate confines of its members, (who are to a large extent the non-bench members of the Judicial Service) the plaintiff should be deemed to have commenced the action as a matter of public interest also pursuant to article 2 (1) of the Constitution 1992.
In that respect, the plaintiff is deemed to be seeking to enforce the pension rights of the Judges of the Superior Court of Judicature and also of the lower court, who by the nature of their profession cannot pursue their own grievances through the court’s system whilst still in active public service. This then explains the basis of the reliefs which the plaintiff claims against the defendants which are as follows:-
i. Declaration that upon a true and proper construction of article 127 (4) and (5) of the 1992 Constitution, all persons serving in the Judiciary were entitled to be placed on CAP. 30 pension scheme upon the coming into force of the 1992 Constitution.
ii. Declaration that the practice of placing or continuing to place some of the persons serving in the Judiciary on or under the SSNIT pension scheme after the coming into force of the 1992 Constitution was wrongful and violates article 127 (4) of the 1992 Constitution.
iii. Declaration that the practice of placing or continuing to place Judicial Officers falling under Article 161 (b) and (c) of the 1992 Constitution on the SSNIT pension scheme, whiles leaving the Judicial Officers on the bench, namely Judges and Magistrates under article 161 (a) of the 1992 Constitution, on CAP. 30 pension scheme was discriminatory, contrary to article 17 (2) of the 1992 Constitution.
iv. Declaration that all persons serving in the Judicial Service were and are entitled to have their gratuity and pension entitlements computed or re-computed under CAP. 30 pension scheme and paid the difference of sums due and owing them between the two schemes, if any, together with interest, including a refund of all SSNIT contributions deducted from their salaries with effect from 1992.
v. Declaratio