Legislative tyranny?

There are particles of dust in the air, amidst fears of an emerging Legislative tyranny here following recent decision by members of the House of Representatives to summon President Ellen Johnson Sirleaf to show cause why she should not be held in Legislative contempt.

The action by members of the Legislature to summon the President comes days after they instructed the newly appointed Minister of Education, George Werner, to publicly denounce speculations that there were plans to close schools on June 30 and suspend the promotion of all students for the academy year.

Instead, Werner called a press conference two days later to pronounce the closing of schools by July 31, as part of measures, he insists, are intended to revamp the educational system.

Many had argued over time that members of the Legislature have continued to overlap their legislative functions and most time arrogating to themselves the roles of the Executive.

Members of the 53rd Liberian Legislature have repeatedly summoned members of the Executive Branch of government giving them instructions and sometimes humiliating them in public glare.

This repeated action has raised question of the doctrine of separation of power, with many viewing the action of the legislators as either overstepping functions or performing the functions of the Executive.

Does the Legislators have the right to instruct a member of the Executive Branch of Government?
Article 3 of the 1986 Constitution states: “Liberia is a unitary sovereign state divided into counties for administrative purposes. The form of government is Republican with three separate, but coordinate branches: the legislative, the Executive and Judiciary. Consistent with the principles of separation of powers and checks and balances, no person holding office in one of these branches shall hold office in or exercise any of the powers assigned to either of the other two branches except as otherwise provided in this Constitution; and no person holding office in one of the said branches shall serve on any autonomous public agency.”

In the Judicial Inquiry on Logan Broderick [2000] LRSC 28; 40 LLR 263 (2000) (21 December 2000), the Supreme Court in its ruling said among other things that “The power of whether or not to investigate a judge and subsequently determine whether or not to institute impeachment proceedings is an administrative determination which rests squarely with the administrative authority of the judiciary and is not vested in the Executive Branch of the Government.”

Broderick was a Judicial Circuit Court Judge serving in Sinoe County whose dismissal was apparently ordered by the President at the time. But the Judge had argued his case that he was serving under the Judicial Branch and all judges, clerks, and ministerial officers of the courts fall under the administration of the Judicial Branch of the Government.

In that ruling, the court also stated that the administrative authority to suspend a judicial official from office rests in the Judicial Branch of the Government.

It said the constitutional principle of separation of powers does not and cannot authorize one branch of the government to establish internal administrative rules, guidelines, standards, and procedures for another branch in the exercise by the patter of its authority to make or take administrative decisions and actions.”

Separation of powers is a doctrine that is often believed to rest at the foundation of the U.S Constitution. It holds that liberty is best preserved if the three functions of government—legislation, law enforcement, and adjudication—are in different hands.

American Philosopher, Baron de Montesquieu in his book- The Spirit of the Laws (1748), states that “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers.”

Another American philosopher , James Madison, in his Federalist No. 47 (1788), commenting on Montesquieu’s views and seeking to reconcile them with the Constitution’s provisions, states that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed [sic], or elective, may justly be pronounced the very definition of tyranny.”

President Ellen Johnson Sirleaf has been summoned and is due to appear before the members of the House of Representatives on Thursday, days before two of her cabinet- Education Minister George Werner and Information Minister Lewis Brown, go before that body.

The move is questionable and if not laughable to invite the Chief Executive days before her subordinates.

However, the question as to whether members of the House of Representatives have the power to, in the first place summon the President remains to be seen.

Article 61 of the Liberian Constitution states: “The President shall be immune from any suits, actions or proceedings, judicial or otherwise, and from arrest, detention or other actions on account of any act done by him, while President of Liberia, pursuant to any provision of this Constitution or any other laws of the Republic. The President shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while President.”

One political commentator argues: The point to be noted regarding the Legislators’ latest move to “summon” the President is that they are embarrassingly depicting the National Legislature as being averse to the basic principles of Democracy, rule of law and the separation of powers.

The political pundit insists that he has difficulty identifying the basis for the so-called Legislative “summon” upon the President.

“How can Members of the Lower House summon the President for properly notifying that body relative to an action they took that she genuinely believes was ultra vires?” he queried.

“What is disrespectful about the President’s communication to Members of the House of Representatives? Is it not true that under the doctrine of separation of powers, the legislature cannot give direct instruction to agents of the Executive and vice-versa?” he continues.

He contends: “In honest, the action by the House of Representatives to indiscriminately invite members of the Executive for all kinds of hearings trivializes the functions of the Legislature; and is tantamount to legislative tyranny that shows no respect for the Law ( the 1986 Constitution of the Republic of Liberia).”

But the question remains as fears mounts whether the country is witnessing an emergence of Legislative tyranny, something that should now be addressed by all and sundry.

By Othello B. Garblah