Permissible Positive Discrimination in a Just Society: A Social Pact of Equals

Abstract

In a democratic society, members are conceived as equals. The status of equality arises from the assumption that those who create a just society do so as equal rational beings demanding equal respect, equal economic claims, equal opportunity, and tolerance in that society.

Legislators are confronted with enigmatic practical difficulties when navigating the world of equality, where competing interests are not only between individuals but also those of the very society they’ve created. This complexity is not due to an implicit conceptual contradiction in the primordial meaning of equality, which is mainly individualistic, but to the communal context to which the primordial understanding of equality must be subjected.

The principle of minimal positive discrimination is necessary for a purposeful and efficient application of the primordial theory of equality in a communal context. This principle narrows the primordial equality theory with a communal gate.

The principle of minimal positive discrimination is an interpretive theory that suggests that non-discriminatory human rights laws built on the primordial meaning of equality permit derogation and limitation to the extent that the derogation is necessary and minimal and inures to an inevitable public gain that otherwise cannot accrue without that derogation.

The principle of minimal positive discrimination is applied to assess the permissibility of an amendment to the Road Traffic Regulation 2012 (L.I 2180), which allows some political actors to drive without speed limits. The assessment shows that the amendment is unconstitutional and impermissible.

Human Rights and the Primordial Meaning of Equality

From a social contractarian standpoint, human society is not a random collection of individuals but a deliberate creation of human intention. This concept, whether viewed empirically or hypothetically, is a cornerstone of many philosophical and legal theories. This is evident in the works of Thomas Hobbes[1] and John Locke[2], as well as more modern accounts of social organisation, in particular, Rawls’s theory of justice[3]. This assumption is taken as axiomatic and a necessary pre-text for the primordial meaning of equality.

Before the creation of society, no accepted social standard for moral evaluation existed. All persons are equal in their pursuit of subsistence, preservation, and moral sanctity. This conception of equality is termed herein as the primordial meaning of equality.

Humans in this setting are equal not because an accepted rule confers their equality or because their essence of equality is measured by any rule; instead, the sense of equality stems from the non-existence of a rule to establish inequality. This lack of a rule makes everyone’s claim genuine, valid, acceptable, and undeniable. It is a morally relativistic world with atomistic humans.

This notion of equality applies pre-society. In society, atomistic human equals permit two elements to limit the applicability of the primordial idea of equality. That new element is public interest.

Public interest limits the primordial idea of equality in that society recognises the need to achieve identifiable public goals. Given that society acts through agents and individuals, it accords these individuals specific differential treatments, which seemingly offends the primordial meaning of equality. The next chapter presents a principle of minimal positive discrimination that reconciles the seeming conflict between equality as an atomistic concept and public interest.

The principle of minimal positive discrimination

The principle of minimal positive discrimination is an interpretive theory that suggests that non-discriminatory human rights laws built on the primordial meaning of equality permit derogation and limitation to the extent that the derogation is necessary and minimal and inures to an inevitable public gain that otherwise cannot accrue without that derogation.

This principle is not entirely novel because it accords with, adopts and applies established principles for interpreting human rights law. The principle incorporates two doctrines (rules) for interpreting human rights legislation.

The first is the rule of proportionality, and the second is the rule of inevitability.

The rule of proportionality means that the legality of a limitation to any human rights is justified by the balance between the objectives of the restriction and the means of achieving those objectives. In that, where there are various means of achieving the objective for which a human right is to be restricted, the option that offers the most minor restriction should be adopted.

The rule of inevitability is not so popular in human rights literature. The author introduces it as a second layer for assessing the justifiability of a limitation or restriction on the freedom of equality or the right against discrimination. Whereas the principle of proportionality is applied broadly to all human rights, the author introduces the rule of certainty only for the freedom of equality and the right against discrimination.

The rule of inevitability means that the legality of a limitation to the freedom of equality or the right against discrimination is justified only if the restriction is inevitably necessary to achieve the competing public interest. This means that where a public interest is achievable without a limitation on the freedom of equality, the restriction becomes necessarily illegal.

 The difference between the rule of proportionality and inevitability is that the rule of proportionality permits the restriction of human rights if the least restriction can aid the achievement of a public goal more effectively than its non-restriction. However, the rule of inevitability does not permit a limitation of the freedom of equality merely because it better facilitates the achievement of a public goal more effectively than its non-restriction.

The rule of inevitability generally states that equality is the most important human right. Thus, it can only be restricted if it can be shown that a public good is unattainable unless a restriction is permitted.

The rule of inevitability is contained a second layer. This second layer helps resolve seeming conflict between two or more competing public interests if a restriction is permissible under the first layer. In some limited circumstances, a restriction on the freedom of equality may inevitably be necessary for achieving a public interest goal but that restriction may result in undermining another public interest goal. The issue is where some conflict results, which public interest must be sacrificed for the other, and how is that assessment to be done?

The second layer of the rule provides that where restricting the freedom of equality results in such a conflict, the public interest goal, which provides the highest form of utility, should be chosen.

The next chapter examines whether Article 17 of the 1992 Constitution, which creates the freedom of equality and the right against discrimination, adopts the principle of minimal positive discrimination.

Assessing Article 17 of the 1992 Constitution against the principle of minimal positive discrimination.

The 1992 Constitution is the apex norm in Ghana’s legal system, and Article 12(2) recognises the possibility of restrictions on human rights.

Article 12(2) provides:

 Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed, or gender, shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.

This has been reaffirmed in many cases decided by the Supreme Court of Ghana, including Professor Appiagyei Atua & 7 Others Vrs Attorney General[4]; Adjei Ampofo Vrs Attorney General & Accra Metropolitan Assembly[5]; Edusei Vrs Attorney General[6]

Under the 1992 Constitution, Article 17 creates the freedom of equality and right against discrimination.

Article 17 says:

                        (1) All persons shall be equal before the law

                        (2) A person shall not be discriminated against on grounds of gender,

                        race, colour, ethnic, origin, religion, creed or social or economic status.

   (3) For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective description by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.

It is worth noting that Article 17 shifts from the primordial meaning of equality. It does so by acknowledging that there is a general rule for measuring equality, which is subject to some restrictions and limitations.

This notion is further emphasised in the case of Nartey v. Gati[7] Date Bah JSC proposed a theory of positive discrimination that is permissible under the Constitution.

For our purpose, the following paragraphs from the case are relevant.

To our mind (the court’s mind), it is clear what Article 17 does not mean. It certainly does not mean that every person within the Ghanaian jurisdiction has or must have exactly the same rights as all other persons in the jurisdiction…Article 17(2) makes it clear that not all discrimination is unlawful. It proscribes discrimination based on certain grounds…. Accordingly, it is widely recognised that equality before the law requires equal treatment of those similarly placed, implying different treatment in respect of those with different characteristics |

The constitutional prescription in Article 17(1) that all persons shall be equal before the law should not, and does not, disable Parliament from enacting legislation that gives different rights to different classes of people, so long as the differentiation in rights bears a reasonable relationship to the legislative purpose that Parliament is seeking to achieve, and Parliament does not fall   foul of any of the grounds set out in Article 17(2).

Even though the author opines that the court’s opinion in Nartey v. Gati is problematically shaped within the 1992 Constitution’s constitutional structures, it agrees to the extent that the decision acknowledges the existence of restrictions on the right to equality.

It is the author’s view that Article 17 acknowledges the principle of minimal positive discrimination. It does so under Article 17(5).

            Article 17(5):

 Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Chapter.

Article 17(5) acknowledges the applicability of Article 12(2) as a limitation on the freedom of equality. This acknowledgement permits restricting the freedom of equality using the twin rules of proportionality and inevitability embedded in Article 12(2).

That is, under the Constitution, it is permissible for one to be discriminated against or treated unequally only if that discrimination is inevitably necessary for the attainment of an identifiable public interest and the form of discrimination adopted is the least severe limitation on the freedom of equality.

The next chapter assesses the permissibility of amendments caused to Regulation 54 of Road Traffic Regulations, 2012 (LI 2180[8]).

Unconstitutionality of the amendment to LI 2180

Before the amendment, the state of the law on speed limits created some unequal treatment. So, the assessment of the constitutionality will be two-horned. First, it shall be assessed whether the former state of law was constitutional and second, whether the amendment is constitutional.

The old law under regulation 166 of LI 2180 provides:

            Old Regulation 166:

The provisions of regulations 163, 164 and 165, which impose speed limits on motor vehicles, do not apply to a motor vehicle

                                    (a) when the motor vehicle is being used in the performance of official functions by the

                                    (i) Fire Service

                                    (ii) Ambulance

                                    (iii) Police

                                    (iv) Armed Forces

                                    (v) Prisons, and

                                    (vi) other recognized security agencies

The first issue is whether the law is discriminatory. Per the standard of Article 17(3), a law is deemed discriminatory if it affords another person(s) an advantage not granted to others by virtue of their occupation. In this case, the categories listed under regulation 166 are offered the advantage of driving without speed limits and exempted from criminal liability for exceeding speed limits by virtue of the occupation roles they perform. So, it is thus resolved that the law is seemingly discriminatory. The following assessment is whether discrimination is permitted within the meaning of the law.

To determine whether discrimination is permissible, one must assess whether the discrimination is exempted because it is in the public interest, as provided under Article 12(2).

Upon perusing the exceptions imposed by old regulation 166, it is inferable that the discriminatory regime is implemented for an identifiable public goal: to allow security institutions and law enforcement agencies to perform official functions that require urgency in their normal course of official functions.

Thus, there is an identifiable public interest: public emergency services that require some urgency and whose performance becomes unduly delayed if road speed limits apply.

What amounts to public interest is defined under Article 295 of the Constitution.

            Article 295:

Public Interest includes any right or advantage which enures or is intended to enure to the benefit generally of the whole of the people of Ghana.

This definition leaves the issue of what counts as a public interest to be decided on a case-to-case basis, based on whether that interest provides a utility that benefits the people of Ghana.

It appears to the author’s mind that for a thing to be deemed of public interest, it must come under either of the following categories of public interest.[9]:

1. Public Order: Ensuring peace and security for the purpose of eliminating crime[10].
2. Public Health: To deal with, prevent or address an outbreak of a disease or an imminent threat to life[11].
3. Public Safety: To prevent an imminent threat of harm that endangers the lives and welfare of the public[12].
4. Public Defence: To prevent armed attack or oppose armed attack.

Per this, it is without a doubt that emergency response in dealing with issues of crime, accident including fire accidents accrues a utility to the people of Ghana to the extent that it prevents the worsening of life-threatening situations, thus effectively saving lives.

Illustratively, in the case of ambulance service, wherein an ambulance conveys bodies involved in an accident whose lives are under imminent threat of death as each second passes, there is an identifiable public emergency, one of saving lives, for why speed limits generally applicable may be justifiably exempted.

Thus, an advantage or privilege that an ambulance driver enjoys in this circumstance becomes necessary to achieve the public goal of ensuring the effective and timely conveyance of injured and sick bodies for medical treatment.

But, does over-speeding (speeding above speed limits) not offend another public interest: preventing reckless driving, which potentially can occasion the loss of life?

Such that in attempting to satisfy the public interest goal of saving lives in emergencies by permitting overspeeding ambulances, a situation is created which may likely lead to the loss of lives through reckless driving occasioned by overspeeding. For this, the second layer of the rule of inevitability applies. Considering the utility of saving lives in emergency situations and the risk of possible harm occasioned by reckless driving, it is permissible that the social gain of saving lives in emergency situations weighs higher than the possible risk of harm occasioned through overspeeding.

Using the same analysis, the author believes that the old law is reasonably justified for all the other exemptions as it applies to the police, the army, the fire service and prisons.

I shall now proceed to examine the new law.

New Regulation 166:

                                    The speed limits on a motor vehicle specified in these regulations do not apply:

                                    (a) a motor vehicle is being used in the performance of official functions by the

1. 1. 1. 1. 1. The Head of State
            2. The Vice President
            3. The speaker of parliament
            4. The Chief Justice
            5. Ministers of State
            6. Justices of the Supreme Court
            7. Members of Parliament

Are these additions to the old categories constitutionally permissible?

First, there appears to be no identifiable public interest for which speed limits should be exempted for these groups of persons.

It may be argued that providing any service for the public amounts to public interest. That definition is not only too loose, as all public servants providing public services will, by this definition, come under this exemption, but it is also an inaccurate connotation of public interest.

It may alternatively be argued that these classes of persons offer essential public services as they belong to what may be characterised as the three (3) arms of government. In fact, there is no basis for why the Chief Justice or Justices of the Supreme Court deserve different characterisation of their services from other judges of other superior courts or magistrates.

It is further argued that, though essential, legislative, judicial, or executive duty cannot be deemed as falling under any of the categories of public interest previously stated. That legislative, judicial or executive duty is not a service for public order, public health, public defence or public safety.

Also, it must be noted that, for those services contained under the old law, vehicular speed is essential in the performance of their duty. In that their work or service depends on the rate at which they can travel on the road.

Consider the case of the Police. Essential to their duty is a quick response to emergency crime situations, chasing criminals using vehicles, chasing motor offenders and more. That their services cannot be adequately performed without the need for extravehicular speed.

The same argument cannot be made regarding the performance of legislative, judicial, or executive duty. Like all public servants, they may also employ vehicular travel to assist them in reaching their place of work and business in a timely manner, and travelling at various speed limits can ensure this.

Thus, these categories fail to pass the rule of inevitability. They fail to pass the first layer of the rule to the extent that it cannot be demonstrated that the speed limit exemption is inevitably necessary for the performance of legislative, judicial, and executive functions.

Since it truncates on the first layer of the test, it is unnecessary to consider the second later in this context.

Conclusion

The author suggests that parliament immediately repeal the amendment as it offends the constitution. Further, Parliament should be less willing to restrict freedoms and rights to convenience public actors and politicians.

Convenience is desirable as a matter of policy but is not a permissible standard for restricting freedoms for making discriminatory laws & preferential treatments, in particular when the permission of such discriminatory and preferential treatments is not inevitably necessary for achieving public interest goals.

It is advised that a Judge of the Supreme Court, like litigants and lawyers, must join regular vehicular traffic in executing his or her judicial duties. If a lawyer is expected to be in court in time, so should it be expected of a judge and all others. Clerks, registrars and other workers in the judicial service are just as necessary in the process of delivering justice, and there is no basis for discriminatory treatment between a court clerk or registrar and a judge in the Supreme Court.

A judge who desires the convenience of less vehicular traffic is afforded the opportunity to patronise the service of police escort at his expense like all other public officers.

[1] Hobbes, Thomas, 1588-1679. (1968). Leviathan. Baltimore: Penguin Books

[2] Locke, John, 1632-1704. (1948). The second treatise of civil government and A letter concerning toleration. Oxford:B. Blackwell

[3] Rawls, John, 1921-2002 author. (1971). A theory of justice. Cambridge, Massachusetts :The Belknap Press of Harvard University Press

[4] JI/14/2022

[5] J1/4/2006

[6] [1997-98] 2 GLR 1

[7] J6/1/2010

[8] Hereinafter referred as LI 2180

[9] These categories of public interest are used under the Constitution under various articles. See Article 20(1), Article 21(4), Article 164

[10] https://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/rule-law/public-order

[11] See section 163 and schedule 7 of Public Health Act 2012(Act 851) on definition of public health risk.

[12] Brian A. Garner, Black’s Law Dictionary. St. Paul, MN: Thomson Reuters, 2014.p. 1351