The Collaborating Political Parties (CPP) was on Thursday dealt another electoral blow as the highest court denied its request for a writ of mandamus against the National Elections Commission (NEC), the Legislative and Executive Branches of Government for a delayed election.
The Supreme Court in its ruling said mandamus is not intended to correct late performance of an official duty.
The CPP case concerns the failure of the Legislature to abide by Article 37 of the Liberian Constitution to notify NEC of two vacancies in the Legislature within constitutional time of 30 days after the deaths on 20 June 2020 of Sinoe Rep. J. Nagbe Sloh and on 8 July 2020 of Montserrado Rep. Munah Pennoh Youngblood and caused by – elections to be held.
In a unanimous ruling handed down by the Supreme Court of five justices Thursday, 29 October, it said mandamus will not lie against the NEC because the commission had set the by – elections time within 90 days after receiving notification from the presiding officer of the House of Representatives as mandated by the Constitution.
“Wherefore and in view of the foregoing, the alternative writ of mandamus is squashed and the preemptory writ is denied,” the Supreme Court says.
Secondly, the Supreme Court also refuses to issue a mandamus against the Legislature because the presiding officer of the House of Representatives had already notified the NEC of the vacancies in the House of Representatives occasioned by the death on 20 June 2020 of Sinoe Rep. J. NagbeSloh and the death on 8 July 2020 of Montserrado Rep. Munah Pennoh Youngblood before the CPP filed the petition for mandamus.
“[As] such, there was no duty left to be performed since the extraordinary writ of mandamus is not intended to correct the late performance of an official duty,” the Supreme Court rules.
When a court issues a writ of mandamus, it compels someone, a lower court or a government agency to execute a duty that they are legally obligated to complete, to uphold the law or to correct an abuse of discretion.
However, the Supreme Court rules that as to the Executive branch, there is no showing of any dereliction or non – performance of any official duty to warrant the issuance of the writ of mandamus.
While entertaining lawyers’ arguments earlier on Monday, 19 October in the Banquet Hall of the Supreme Court, Chief Justice Francis S. Korkpor, Sr., viewed the election matter as a tricky situation, asking the CPP lawyer if he didn’t think this opened another wave for the court to say for example, expand the office of mandamus because this case is unprecedented.
“On the one hand I agree with you that if you had come before the expiration of the time, you will say but the people still got their time to do what they call, you cannot. Mandamus only takes place after you know, they have failed to perform. So it’s a tricky situation,” Chief Justice Korkpor said.
“Here we are, you filed a mandamus to compel the Legislature to do an act in 30 days when in effect it cannot be done because the 30 days [have] expired,” he said.
In its request submitted before the Supreme Court against the NEC and the government at large, the CPP had asked whether Article 37 of the Constitution imposes a legal duty on the Legislature and the NEC.
This provision cited requires that in the event of vacancy within the Legislature caused by death, resignation, expulsion or otherwise, the presiding officer shall within 30 days notify the NEC, and the NEC shall not later than 90 days thereafter, cause a by – election to be held.
The CPP also asked if it is the contemplation of the Constitution that by – election to fill vacancies created in the Legislature be conducted within a maximum period of 120 days.
Thirdly, the CPP wanted an answer if the NEC and the Legislature were in compliance with their legal duty by setting 8 December 2020 as the date for the two by – elections caused by the deaths of Sinoe Rep. J. Nagbe Sloh and on 8 July 2020 of Montserrado Rep. Munah Pennoh Youngblood.
The CPP also wanted the court to determine whether mandamus can lie on the Legislature and the NEC if they did not comply with their legal duties; and whether their failure to set the by – election date within the constitutional time frame offends democratic values.
“So I’m sitting down here thinking of it because all other cases of mandamus that we dealt with in this court so far, you filed to compel when the time is still there to compel. But in this particular case … the time to compel to perform has already passed,” he continued.
The lawyer representing the CPP Cllr. Benedict Sannoh agreed with the Chief Justice that “it’s a tricky situation,” but urged the Supreme Court to make a determination that even if mandamus is not granted, the opinion of the Supreme Court must address issues of the violation especially in light of the litany of violation so that there cannot be a recurrence.
Cllr. Sannoh, a former Justice Minister, stressed that it is important to make a declaration that because of the litany of violations of the Constitution, the Legislature must understand that Article 37 is mandatory and it’s a legal obligation that the Legislature must uphold.
He argued that the Legislature is no different from the Executive because they are all created from the Constitution.
He noted that mandamus have been issued against the executive and can lie against the executive and so therefore mandamus can also lie against the legislature, especially if the performance is a ministerial function, a legal duty.
Though the Supreme Court rules that mandamus will not lie, it however takes note that the delays in the conduct of by – elections to fill vacancies in the Legislature negatively impact and undermine the exercise of the right of the people to representation in the governance of the country.
The high court indicates that this right is enshrined in the Constitution of Liberia, noting that institutions of government are therefore obliged to strictly adhere to timeliness set by the Constitution and other laws for the conduct of by – elections.
In the ruling, the Supreme Court indicates that [in line with] its constitutional power of judicial review, it has jurisdiction in all cases whether emanating from courts of records, courts of non – records, administrative agencies, autonomous agencies or any other authority both as to law and fact.
The court notes that the Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of Liberia any of the powers granted to it by the Constitution.
“That consistent with the foregoing, this Court has jurisdiction to hear and determine these mandamus proceedings against the Legislative and the Executive Branches of Government,” the court rules.
Further, the court indicates that in exercising its jurisdiction, the Supreme Court or its Justice sitting in Chambers may cite, command, summon, mandate, order or instruct party litigants to do or refrain from doing any act, including the issuance of the alternative writ of mandamus directed to the Legislature and the Executive Branches.
By Winston W. Parley-Edited by Othello B. Garblah