The long gathering storm of legislative struggle burst to full life when on Tuesday, August 9, 2016 the majority members of the House of Representatives of Liberia move in a long convoy to the Capitol Building to commence the duel for the soul of our democracy. As the fleet of official vehicles snaked their way through Sinkor and crawled through the heavily barricaded power hill of Liberia at stake was the battle of the rule of law and good governance versus the personal drive to maintain power at all costs.
We had thought it was a mere struggle for the image of the legislature in view of the speaker’s indictment and refusal to recuse himself; we were met by a crowd of booing and jeering supporters of the speaker some of whom were ex-combatant generals, death squads leaders and men who for the past decade of peace had been good citizens now being goaded by the embattled speaker to return to old bad ways. In the Rotunda of the Capital, there was no peace; all public meeting places including the very sacred William R. Tolbert, Jr Joint Assembly Hall were locked denied to us; yet we were in majority.
Can or should a speaker who is indicted on multiple corruption charges and facing court trail which means he is an occupant of the criminal bench at the criminal court of Liberia at the same time hold the gavel and preside over the House of Representative, the third highest post in our land?
This is value issue, and the power to self-regulation also is the power to make value judgment as to what best represent that branch. The Majority members have since established Plenary and numbers soared to effective forty-one signatories to the Resolution calling for his recusal and rescue the but what is interesting is that Rep Tyler is running to the Supreme Court when he has lost the majority in the legislature. Can the high court compel the majority who are now the Plenary of the House as per the Constitution of Liberia, 1986, Article 33 which says the following: “A simple majority of each House shall constitute a quorum for the transaction of business…”? And if in the very unlikely event the high court seeks to meddle thus will it not breach the Doctrine of Separation of Powers which is spilled out in numerous opinions of the court like for example in the case In Re Hon Broderick, and others?
And why would the court opinion do away with the seminal statement in the historic case In Re the Constitutionality of Section 12.5 & 12.6 of the Judiciary Law, Approved May 10,1972, which the same court by unanimous decision ruled: “To permit one branch of government to interfere with another’s powers would be a serious infringement of the Constitutional Doctrine of Separation of Powers!”?
The House’s Constitutional Powers to Make its Own Rules Article 38 leaves no room for the Supreme Court to intervene in the operations of the rules of the House of Representatives as those rights to make its own rules like the right of the Judiciary and the Executive were born the same hour and inherent constitutional. In the event it chooses to do so, will it also question the powers of the President to summary dismiss citizens she appoints who have committed no crime or breach of peace? Would it hen allow the House as the rule making body to then make rules for it as to how it governs itself?
This brings us to the Political Question Doctrine which in the United States and older democracies, both presidential and parliamentary, wherein the courts refuse to decides a matter because it properly belongs to the decision-making authority of elected officials. And here too the Liberian courts must steer clear of all leadership disputes and changes within the legislature because they are ‘NON-JUSTICIABLE’. It is purely political and by the grant of the Constitution in its self-regulatory and leadership determination capacity the legislative branch has it powers directly from the constitution and since the powers to make laws resides elsewhere outside of the judiciary such a move would constitute an attempt by that branch to write the rules for our legislature – and by extension to amend the constitutional award of self regulation to the legislature.
One will counter with the Snowe Case. Yet on closer examination the court attempts to reverse the constitution powers of the house by a legal back door entrance through the route of due process clause. I do believe that one clause of the constitution cannot be used to amend another clause of the constitution because both were fathered the same day and are equal; what the judiciary can do and must do is to test any statute of the legislature by the constitutional barometer but to use one clause of the constitution to amend and regulator another constitution provision represents a self aggrandizement of power which is unconstitutional and contravenes the cardinal yardstick of democracy.
But the lesson of the Snowe case is that when the Supreme Court ignored the Non-Justiciable Rule and meddles into political question that is best settled by elected leaders, the resulting Snowe Ruling became an empty opinion: Speaker Snowe still resigned because the judgment was unenforceable.
And that is why in contemporary parliamentary democracy and in the matured presidential democracy when the Prime Minister and the Speaker loses the majority, they immediately exit the office without all of the ugliness we witness at the capitol in these days.
When one examines Article 66 which gives the powers of the judiciary the wording leaves no room for the supreme court t o sit on issues emanating from the working of the house. This provision says cases from “courts of records, court not of records, administrative agencies, autonomous agencies or any other authority” and it goes to add cases involving ambassadors, ministers, or cases in which a county is a party. In the entire Chapter VII there is no provision that the Supreme Court can rest on to investigate or sit on decisions or actions of the executive or the legislature in the exercise of their explicit and expressed constitutional powers or even general powers. Certainly the legislature cannot qualify under any of the above entities from which appellate cases goes to the Supreme Court.
The House of Representatives and the Senate of Liberia powers to adopt its own rules and enforce order are therefore safe from Judicial – law making and should not be encroached upon in any fashion. What Tyler Seeks at the Supreme Court
As I listen to his own interviews and pronouncement of his camp, his core argument and prayer is for the Supreme Court to compel the Majority Member – by the Constitution the Plenary – to sit under his gavel when key decisions have been taken and communicated. He is praying the Justice in Chambers to issue a Writ of Prohibition to stay the working of the Plenary and and in essence he is asking the Supreme Court to make a historical intrusion into the legislative powers and assault the sacred Doctrine of Separation of Powers.
The Prohibition he seeks which has in recent times become a new tool of intrusion into legislative work by the Supreme Court is by academic definitions primarily a tool by which a superior court use to prevent an inferior court or tribunal from exceeding it jurisdiction or usurping its jurisdiction. In our own definition in our civil procedure law, it is described as a ‘special proceedings’ to obtain a writ ordering the respondent to refrain from further pursuing a judicial action or proceeding specified therein. As you can see the broad generalization of the word “respondent” is the foundation for the Supreme Court actions on the Legislature but as laws are not written in vacuum it is clear that it refers to the Article 66 categories wherein the Supreme Court has appellate jurisdiction because the definition and the constitutional provision provides the interpretative frame for the law.
In order words the veteran gavel holder of eight years is seeking the Supreme Court to investigate the decisions of the Plenary of the House given that Article 33 says that a simple majority constitutes quorum for the business and that recorded forty members in session is more that the simple majority of seventy-three member body.
And I definitely think that if the Supreme Court applies the designation ‘any other authority’ to the Plenary of the House then it is derogative of the Constitution pillar of separation of powers in Article 3 where the three branches were birth on the same hour and designated as ‘coordinate branches’.
Will those teary prayers move the highest court of law to question the work of the Article 33 quorum (Plenary) of the House of Representatives will present a new dimension to our democracy – a dangerous precedent to ignite inter-branch conflict and trounce of the sacred laws of this land, which I do not think to see.
Why The Supreme Court Must Not Act The Doctrine of Separation of Powers and the Political Question Doctrine both combine powerfully to protect the working of the legislature in modern democracy. The elected members of the legislature, acting for and on the behalf of the people in representative function, exercises the true reification of the ancient philosophy of rule of the people , by the people and for the people.
Further Article 2 says: “This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic.”
And the combination of the words supreme and fundamental simply means that no other law can be used to amend the constitution which view is finely captured by the same Supreme Court in the case In Re Hon Broderick(40 LLR 263), 2000 when it says: “The constitutional principle of separation of powers does not and cannot authorize one branch of government to establish internal administrative rules, guidelines, standards and procedures for another branch in the exercise by the latter of its authority to make or take administrative decisions and actions.”
In the long and cherished history of the Supreme Court it has held true in its opinions to this principles as in the case in In Re the Constitutionality of Section 12.5 & 12.6 of the Judiciary Law, Approved May 10,1972,In Re Constitutionality of the Act of the Legislature of Liberia Approved January 20,1914 and many others, the court consistently upheld the doctrine but in recent times it is using the due process clause to employ a statutory provision to intrude into the workings of Article 33.
What is interesting is that in nearly all of the cases where the Supreme court has upheld the sacredness of the separation of powers doctrine it has been to assert its independence and equality with the other two branches but when it has to do with the same rights granted under the same constitution as relate to the other two branches, the Supreme Court changes as was done in the Snowe Case in 2007. And it has unrestrictedly used the Writ of Prohibition to even interfere with the Contempt Powers of the Legislature to the extent that in the view of the public the Supreme Court is now the super branch.
And I will freely opine here that the now new normal of using the Writ of Prohibition to infringe on the constitutional rights of the legislature is a corrosive assault on the sacred doctrine of separation of powers and undermines the executive and legislative branches in the discharge of their inherent constitutional rights. The day may soon come when a dismissed appointee may use the Snowe Case to appeal for unlawful dismissal and lack of due process by the President in the discharge of the her Article 56(a) powers.
Fundamentally, under the Doctrine of Political Question, a leadership issue in the legislature is a political question which the Supreme Court cannot and must not delve into; it should be shown to the door as a political question as courts in many democracies, including the United States have made a rule. Additionally, as relates to Articles 2 and 3 on separation of powers and Articles 33, 38 and 44 establishing the powers of the legislature, the actions of the Plenary of the House is way above and beyond the powers of the Supreme Court.
And as examples from the American jurisdiction are acceptable to ours, from Chief Justice Marshall in the Marbury vs Madison Case in 1803 to this recent quotation below the American courts have held and maintained that the politically nonjusticiable issues belongs to the sole provinces of the Congress and the executive.
In 2008, exactly a year after the very strange Snowe Opinion in Liberia, the Justice Pogue of the United States Court of International Trade ruled in the Totes-Isotoner vs USA asserted the rule for the Judicial to respect the separation of powers in the United States when he ruled thus:
“The political question doctrine, recognizing our constitutional separation of powers principle, does exclude some disputes from judicial determination. Under this doctrine, a subject matter is not appropriate for judicial resolution where it is exclusively assigned to the political branches or where such branches are better-suited than the JUDICIAL BRANCH to determine the matter. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of CONGRESS or the confines of the EXECUTIVE BRANCH. The Judiciary is particularly ill suited to to make such decisions, as courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.”
But indeed if the Supreme Court decides to dump tons of her own opinions which uphold the separation of powers and political question doctrine as well as disregarding supporting opinions from the United States courts and move on to issue a prohibition and ultimately an opinion based on the Snowe case, she shall be presented with the challenge to compel the Plenary of the House to sit under the gavel of a indictee whose legitimacy has evaporated by the universal rules of the parliament. The Supreme Court would very critically be demanding that the Plenary proceeds unconstitutionally by refusing the pillar of Article 2,3, 33,and 38.
Such a prohibition and such a hearing shall have wide reaching implications for our democracy, a crisis would evolve.
The Looming Clash
In the Tyler saga the major clash looms, it has been discussed and analyzed in the academia and in legal corridors as of the day the Snowe Opinion was handed down. That crisis of the House of Representatives or the Senate deeming the actions of the Supreme Court as intrusive and the basis for action on the bench too is real and palpable.
The instant case of Rep Tyler who is fleeing to the court represent action of the House of Representative which relies on Article 38 which gives the legislature the right to ‘enforce order’ within its branch, which power is similar to the power granted the Supreme Court to make the Rules of Court in Liberia including the very Supreme Court , in Article 75; which same power to control the Executive Branch is granted the President in Article 56(a) to determine the tenure of her appointees who are even confirmed by the Senate. This concerns ‘value judgment’ and self-regulation as granted to all three branches; and as quoted by Justice Pogue of the United States, the Judiciary is very ‘underequipped’ to hear.
Considering also that the legislature is the only branch that can instigate the removal of most powerful person in our government, the president, and members of the judiciary branch through the impeachment process, the exercise of that power is not restricted to behaviors only, it covers official conducts. Into this frame could enter that aspect of opinions that violates the Constitution as the basis for the legislature to investigate whether the Judicial is properly executing its mandate.
This is the war that looms and the judiciary should carefully look that its power of judiciary review in Article 2 is restricted to, “The Supreme Court, pursuant to its power of judicial review , is empowered to declare any inconsistent laws unconstitutional”. This can never be expanded to review constitutional provisions that grant the other two branches exclusive provinces as stated earlier neither can this be construed to assume a role to judge how the other two branches go about in its self-regulation; the harm it brings is the legislature could say rule making is its role and there begin to make the rules for the judicial as well.
And this circular conflict should be aborted by refusing to consider the petition of speaker who has lost legitimacy in parliamentary practice and tradition. To delve into the political question again as in the Snowe Case will be a disservice to our democracy and will represent a power grab which brings more political clamor.
Respect for our Constitution is the Only Way Forward
The Supreme Court needs to, beginning with this case, return to the weight of opinions dating from early twentieth century by throwing through the judicial window the petition by Rep Tyler as it represents a political question and seek to undermine the self-regulation powers granted the legislature in Article 38.
Value judgment and leadership struggles are the exclusive province of the legislature worldwide and the Liberian Courts, especially the Supreme Court must now cease the intrusion into the discharge of constitutional powers. It routinely intrudes into the legislature exercise of contempt powers but is has ruled on two occasions that no branch must encroach on another branch’s inherent constitutional rights.
In the end, it is inarguable that the supreme court cannot under our constitution determine who leads the legislature; to do so would be to meddle and put aside the political question doctrine as well as to disregard Articles 2,3, 38,56(b) and 75 which give each branch its power to make rules and enforce order within its branch and lead us down to a constitutional crisis.
• The author is lawmaker in the House of Representatives of Liberia since 2006, a lawyer and a writer.