The Judicial Service Staff Association (JUSAG) has invoked the original jurisdiction of the Supreme Court (SC), for the court to declare as unconstitutional certain sections of the National Pensions Act, 2008 (Act 766) (NPA), as well as intended actions of the National Pensions Regulatory Authority (NPRA).
It is also seeking a declaration that certain actions of the Fair Wages and Salaries Commission (FWSC) in relation to the conditions of service of their members are unconstitutional.
Joined in the action is the Attorney-General (AG).
JUSAG, a registered trade union, holds the collective bargaining certificate for about 6,000 members serving in the Judicial Service, other than judges.
It is also a registered body corporate limited by guarantee under the Company’s Act, 1963.
In its statement of case, JUSAG said it had initiated the action as a “concerned corporate citizen of Ghana,” as defined under Article 2 (1) of the 1992 Constitution” and on behalf of its members who were “victims” of the unconstitutional acts or conduct by the defendants.
It said the reliefs it sought could also impact on the pension rights of justices of the Superior Courts, as well as judges of the lower Bench who, although not members of JUSAG, could not “ventilate their own grievances through the court service while in active service”.
It said JUSAG had, therefore, taken it upon itself as a matter of public interest to enforce the rights of those judges.
Reliefs It is seeking to invoke the Supreme Court’s power to declare as “unconstitutional, wrongful and illegal and, consequently, null and void” certain acts or intended acts, conducts and omissions by the defendants that are inconsistent with the rights conferred to them by the 1992 Constitution in relation to their terms and conditions of service.
Specifically, it wants a declaration that upon a true and proper construction of Article 127 (4) and (5) of the 1992 Constitution, all persons serving in the Judicial Service are entitled to be placed on the CAP 30 pension scheme upon the coming into force of the 1992 Constitution and that the practice of placing some of the persons serving in the Judiciary under the SSNIT Pension Scheme after the coming into force of the Constitution violates Article 127 (4).
Article 127 (4) states: “The administrative expenses of the Judiciary, including salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the Judiciary shall be charged to the Consolidated Fund,” while 127 (5) states: “The salaries, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of a Superior Court or any judicial officer or other person exercising judicial power shall not be varied to his disadvantage.”
JUSAG also wants a declaration that placing judicial officers falling under Article 162 (b) and (c) of the 1992 Constitution on the SSNIT Pension Scheme, while leaving judicial officers on the Bench, namely, judges and magistrates under Article 162 (a) of the Constitution on the CAP 30 pension scheme, is discriminatory and contrary to Article 17 (2) of the 1992 Constitution.
It seeks a declaration that all persons serving in the Judicial Service are entitled to have their gratuity and pension entitlements computed or re-computed under the CAP 30 pension scheme and any differences owing to them paid, together with interest, as well as a refund of all SSNIT contributions deducted from their salaries since 1992.
Other reliefs being sought are for a declaration that Section 213 (1) of the NPA that sought to bring an end to the operation of the CAP 30 pension scheme and compulsorily place judges of the Superior Courts and judicial officers under a contributory pension scheme under the NPA violated Article 127 (4) and (5) of the 1992 Constitution.
It said sections 213 (1) and 220 of the NPA 2008 were inconsistent with Article 2 of the 1992 Constitution and wanted a declaration that they were null and void to the extent of the inconsistency.
It said upon a true and proper construction of Article 149 of the 1992 Constitution, judicial officers falling under Article 161 were not amenable to the Single Spine Salary Grade Structure (SSSGS) administered by the FWSC.
It added that the continued placement of its members on the SSSGS, after migrating judges and magistrates, was discriminatory and contrary to Article 17 (2) of the Constitution and violated their rights.
It is, therefore, seeking an order to direct the FWSC to ensure the restoration of its affected members to their previous positions.
Issues The CAP 30 pension scheme is operated under the Pensions Ordinance, No 42 Chapter 30 of 1950 for pensionable public servants in the civil and public services who were in service before January 1, 1972. public servants exempted from participating in the SSNIT pension scheme, are the Judiciary, the legal service, the Police, Fire, Prison and Immigration services, as well as the Bureau of National Investigations and the Research Unit of the Ministry of Foreign Affairs.
The Chairman of the Interim Management Committee of JUSAG, Mr Francis Brakwa, with other executive members of JUSAG — Atsu Kornyoh and George Taylor — confirmed the initiation of the suit to ensure that the Constitution was upheld by all public institutions in the country.
Officials of the FWSC were reticent with information about the suit but grudgingly confirmed receipt of the writ.
Information gathered by the Daily Graphic showed that the NPRA, with the FWSC, was preparing its responses to the writ served on it, in collaboration with the A-G.
Employment and labour experts say that the case will be a seminal one, as it will either derail or help the cause of getting all public servants, including judges and Article 71 office holders, onto the SSSGS.
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