Deputy Attorney-General and Minister for Justice, Dr Justice Srem-Sai, has challenged the Ghana Bar Association’s (GBA) position on proceedings during the legal vacation, arguing that the authority to determine whether a case proceeds rests with the bench and not lawyers.
According to the Deputy Attorney-General, legal vacation does not mean that the courts shut down. Rather, court operations are significantly reduced, with some judges authorised to work during the period.
He explained that a Vacation Judge could handle both interlocutory and substantive proceedings in cases assigned to his or her own court.
However, where the judge is handling cases belonging to another court whose substantive judge is on vacation, the Vacation Judge is limited to interlocutory proceedings.
Dr Srem-Sai said the distinction was necessary because only the substantive judge, rather than a holding or replacement judge, could ultimately determine a case.
He therefore disputed the GBA’s assertion that trials are never conducted during legal vacations.
“Vacation Judges take proceedings on the substance of the case and do conduct trials during the legal vacation,” he said.
He argued that the arrangement was designed to prevent cases in a judge’s docket from suffering disproportionate delays merely because the judge had served as a Vacation Judge.
According to him, when a Vacation Judge subsequently takes his or her own vacation during the regular term, another judge can handle interlocutory matters in the Vacation Judge’s cases, while substantive proceedings await the judge’s return.
Dr Srem-Sai also took issue with the GBA’s assertion that counsel’s willingness or availability to appear during the legal vacation was the overriding consideration in determining whether a matter proceeded.
He said the administration and control of court proceedings fundamentally belonged to judges.
“A lawyer’s primary duty is, in fact, to his client – not to the client of another lawyer,” he said, arguing that allowing lawyers to determine how proceedings should be conducted could result in decisions being made primarily in the interests of their own clients.
He said the courts and judges existed precisely to balance the competing interests of parties and ensure the proper administration of justice.
The Deputy Attorney-General said the Chief Justice, as administrative head of the Judiciary, had the authority to determine which judges would sit during the legal vacation.
He explained that such authority was exercised through warrants authorising judges to sit during the vacation.
A Vacation Judge, he said, could consequently hear cases in his or her own court as well as interlocutory matters from courts whose substantive judges were on vacation.
Despite his disagreement with the GBA’s position, Dr Srem-Sai acknowledged the demanding nature of legal practice and the need for lawyers to have adequate rest.
He said the legal vacation could provide lawyers with an opportunity to take a break from the physical and mental demands of their profession.
However, he argued that requests for accommodation during the vacation should be made to the judge handling the matter rather than being treated as an automatic entitlement.
He said judges routinely considered requests from lawyers to reduce or postpone work during the vacation on a case-by-case basis.
“The Judge will, in turn, consider the plea and, in the interest of justice, either grant the request (either wholly or in part) or refuse it altogether,” he stated.
