Constitutional judgments deserve careful reading, not instant conclusions

Dear Editor,
The Supreme Court’s recent judgment concerning former Auditor General Modou Ceesay has generated intense debate across Gambian media, legal circles, civil society and social media.

Like many Gambians, I have followed the public reaction with great interest.

One concern, however, stands out. Much of the commentary appears to have reached firm conclusions before many commentators (including myself) have had the opportunity to study the full judgment.

Constitutional decisions of this significance deserve careful reading rather than emotional or political oversimplification.

The real constitutional debate is not whether the five supreme court justices wrote separate opinions. Separate concurring or dissenting opinions are perfectly normal in common law jurisdictions and are a hallmark of judicial independence, not judicial confusion.

The more important legal questions are these:

Was the dismissal of the Auditor General unconstitutional? The Court answered yes.

Was reinstatement the only legally permissible remedy? The Court answered no.

Can reasonable constitutional lawyers disagree with that remedy? Absolutely.

That is precisely how constitutional jurisprudence develops as there’s room to criticize the remedy. Equally, there is room to argue that reinstatement should have been ordered; legitimate legal arguments.

What should be avoided is the assumption that every constitutional violation automatically requires the same remedy.

Indeed, one question deserving closer examination is whether reinstatement was specifically sought and argued as part of the relief before the Court, and, if so, how the justices addressed that request? Such answers are found in the judgment itself, not in social media commentary.

One misconception dominating the public debate is the belief that once the Supreme Court unanimously found the dismissal unconstitutional, reinstatement had to follow automatically. That is not how constitutional adjudication generally operates in common law jurisdictions.

Constitutional courts routinely distinguish between liability (whether a constitutional right has been violated) and remedy (how that violation should be corrected). The latter often requires judges to balance constitutional principles with institutional realities, practical consequences and public interest.

Comparative constitutional jurisprudence illustrates this point.

In Collins v Yellen, the United States Supreme Court held that statutory restrictions on removing the head of a federal agency were unconstitutional. Yet the Court declined to invalidate every action taken by that official, holding that an unconstitutional removal provision does not automatically nullify all subsequent executive actions. Instead, the Court required proof that the unconstitutional provision caused actual harm before granting broader relief.

The principle is straightforward: a constitutional violation does not necessarily dictate a single mandatory remedy.

South Africa provides another instructive example.

In Fose v Minister of Safety and Security, the Constitutional Court explained that constitutional remedies must be “just and equitable,” protecting constitutional rights while also considering justice, practicality and the public interest.

Likewise, in Economic Freedom Fighters v Speaker of the National Assembly, the Court crafted remedies suited to the constitutional circumstances before it rather than mechanically restoring the previous status quo.

Canada has taken a similar approach.

In Schachter v Canada, the Supreme Court held that remedies should depend on constitutional purpose and institutional consequences. Courts may declare legislation or executive action invalid while limiting or modifying the immediate practical effect of that declaration where justice requires.

The United Kingdom’s Supreme Court also demonstrated judicial flexibility in R (Miller) v The Prime Minister, where it declared the Prime Minister’s advice to prorogue Parliament unlawful while carefully fashioning an appropriate constitutional remedy based on the circumstances before it.

Across the Commonwealth, including jurisdictions that continue to rely on decisions of the Judicial Committee of the Privy Council, constitutional courts possess broad discretion in fashioning relief. Declarations, damages, injunctions, reinstatement or the refusal of reinstatement may all be appropriate depending on the facts of each case.

There is no universal common law rule requiring reinstatement every time an unconstitutional dismissal is established.

Another misunderstanding is the suggestion that differing judicial opinions somehow weaken a Supreme Court judgment. Nothing could be further from the truth.

Many of the most significant constitutional decisions in the United States, including Brown v Board of Education, Roe v Wade, Dobbs v Jackson Women’s Health Organization and Bush v Gore, included concurring or dissenting opinions.

The same is true in the United Kingdom, Canada, South Africa, India, Nigeria and Ghana.

Separate opinions are evidence that judges independently apply their legal reasoning to the issues before them. They enrich constitutional law by exposing different legal approaches, and history shows that today’s dissent can become tomorrow’s majority view.

The Gambia is no exception, as our constitutional democracy matures, robust judicial reasoning and principled disagreement should be welcomed rather than misunderstood or targeted misinformation.

Whether one agrees or disagrees with the remedy ordered in this case, the debate should remain grounded in constitutional principles, legal reasoning and the full text of the judgment, not political passions or selective interpretations.

A mature democracy is strengthened when its citizens critically engage with judicial decisions. It is weakened when complex constitutional questions are reduced to slogans or social media propaganda.

The Supreme Court has spoken, and the legal community will continue to analyse its reasoning. That is not a sign of constitutional weakness but precisely how constitutional law evolves in every mature common law democracy. Gambia: not the exception!

Ya Haddy Ceesay
Fourth-year law student,
Florida, USA