We Must All Support, Uphold, Protect and Defend Judicial Independence in Liberia: Judicial Independence for Everyone – NOT for Judges!
- Judge’s charge delivered on May 13, 2019, for the May 2019 term of court.
During the early days of America’s (USA’s) existence Federal Supreme Court Justices along with Federal District Courts Judges were originally the ones who periodically travelled around the country to hold and preside over court sessions, called circuit-riding.1 The justices “were well aware of the tension between different states that arose out of their different colonial origins and ongoing disputes over territorial boundaries.”2 The founding fathers of America, I believe, ardently desired a strong union of the different states – the United States of America. Therefore, during the formal opening of court the Justice included in his CHARGE “civics lessons” making appeals to patriotism, honor and duty, and explaining “the role of the federal government and the concept of federalism”3 to the American People.
This JUDGE’S CHARGE is intended as civics lessons making appeals to patriotism, honor and duty to our country. We must support, uphold, protect and defend our Constitution with particular reference to judicial independence vis-à-vis security of judges’ tenure as contemplated by the Constitution. This is our civic duty.
“The curse of bad governance” in Liberia has been attributed to the April 12, 1980 coup d’état. Also, it has been said that weakness in the justice institution, of which judges are an integral part, was one of the key factors that caused the Liberian civil war and crises “that have haunted this country over the past decades.”4 Bad governance – the lack of judicial independence and the resultant weakness in the justice institution – was an evil the framers of the 1986 Constitution sought to cure when they provided therein, Article 72(a & b) thereof, safeguard to protect judicial independence – the security of compensation and tenure of judges. No such safeguard was provided under the past 1847 Constitution.
Because of the curse of bad governance and our bitter past and in order to guard against the recurrence of same our Constitution mandates all of us public officials – legislators, officials of the Executive and the judiciary who are trustees of the people, the beneficiaries – to solemnly swear to support, uphold, protect and defend the Constitution and laws of the Republic of Liberia,5 upon assuming office. And one of such constitutional provisions public officials are mandated and required to support, uphold, protect and defend is Article 72(a & b) of our Constitution. Article 72(a & b) which guarantees the security of judges’ compensation and tenure and judicial independence are not mutually exclusive – they are connected.
I have therefore chosen to speak on the topic: We Must All Support, Uphold, Protect and Defend Judicial Independence in Liberia: Judicial Independence for Everyone – Not For Judges! The principle of judicial independence, specifically as it relates to security of judges’ tenure under Article 72(b) of the Constitution, a complement and supplement of judicial independence, will be highlighted in this CHARGE.
First, what is meant by judicial independence? A renowned jurist defines judicial independence as “the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private.”6 Judicial independence is not intended for the personal benefit or protection of judges per se as some people erroneously believe. Adherence to the principle of judicial independence benefits everyone. The Supreme Court of South Carolina has held that: “Judicial independence is not for the protection of judges, although it is often thought of in that context today. The principle of judicial independence is designed to protect the system of justice and the rule of law, and maintain public confidence in the court[s]. With judicial independence the winners are everyone.”7 [Emphasis mine].
Judicial independence is very important in a democracy because it allows judges to decide cases fairly and impartially based on the law and the relevant facts of the case, regardless of the parties’ social, religious, political or economic statuses; thereby enabling judges to impartially and fairly discharge their constitutional duties of administering justice to all – to do justice, in the words of Lord Brougham, “between man and man”, and according to Lord Clarke, “between citizen and citizen and between citizen and the state”. Security of tenure of judges as protected under Article 72(b) of the Constitution and judicial independence are related and go together, because judges are assured that they can freely decide cases impartially and fairly without fear that their job will be assailed by the Legislature and/or the Executive for political reason or because the Legislature and Executive dislikes the judges’ decisions and judgments.
Prior to the April 12, 1980 coup and the coming into force of our current Constitution in 1986, judges could be removed by the President on the address of two thirds of the Legislature8 under the 1847 Constitution. And indeed judges were removed at the pleasure of the President, and for political reasons. The removal of judges for political reasons under the 1847 Constitution was bad governance as this conflicted with the principle of judicial independence.
I believe that when the framers of the 1986 Constitution were drafting it they had in mind: 1. that the curse of bad governance including lack of judicial independence in Liberia gave rise to the April 12, 1980 coup d’état; 2. That the Judiciary is, in the words of President George Washington, “the chief-Pillar upon which our national government must rest”9, and that the rule of law and the administration of impartial justice, in the words of Justice Thomas McCants Stewart, “is the cornerstone of a nation.”10 The framers of the Constitution therefore provided therein, Article 72(b) thereof, as follows:
“The Chief Justice and Associate Justices of the Supreme Court and Judges of subordinate courts of record shall retire at the age of seventy… [Emphasis mine].
Judges’ 70-year retirement age security tenure, therefore, cannot legally be shortened by the Legislature and/or the Executive, except as expressly provided for by Article 71 of the Constitution. Article 71 clearly enumerates six (6) legal grounds upon which the Legislature can impeach and remove a judge. They are: 1. proved misconduct, 2. Gross breach of duty, 3. Inability to perform the office of the judgeship, 4. Conviction for treason, 5. Conviction for bribery, or 6. Conviction for any infamous crime, such as terrorism, hijacking, armed robbery, murder, and rape.
The first two grounds, misconduct and breach of duty, have historically been those commonly employed to impeachment and remove judges in Liberia. I shall therefore explain in reverse order what are meant by the principles of judicial misconduct and judicial duty.
1. Judicial duty.
The word “duty” is synonymous to “responsibility” – that which one is morally or legally required to do. Thus, the duties or responsibilities of judges – judicial duties – are those prescribed in the constitution and statute. “A judicial duty, within the meaning of the Constitution, is such a duty as legitimately pertains to judicial officers [justices and judges]. By this designation is meant the judiciary in the true sense of the term.”11 The judicial duties of Justices of the Supreme Court and Judges of courts of record are those enumerated in the Constitution and the Judiciary Law.
Generally, Article 65 of the Constitution vests judicial power in the Justices of the Supreme Court and Judges of courts of record to decide cases. Specifically, Article 66 of the Constitution assigns to the Supreme Court Justices to decide cases involving constitutional issues emanating from any governmental agency or other authority. Also, the Constitution through Article 29 thereof, authorized the Legislature to enact Title 17 Judiciary Law, Vol. 4, Liberian Code of Laws Revised. Section 2.8 of that Act empowers the Justice presiding in Chambers of the Supreme Court of Liberia to issue writ of prohibition, among other remedial and extraordinary writs, on any individual including the Government of Liberia.
On the other hand, the law assigns to circuit judges the duty and power to decide criminal, civil and admiralty cases12 with the incidental duty to issue writs on defendants or party respondents. It is also the duty under our law for circuit judges to issue writs of injunction,13 among others. Duties of other judges and the corresponding power to issue writs on individuals, including the Government, are set forth in our Judiciary Law.
2. Judicial misconduct.
Judicial misconduct is committed when a judge acts in ways considered unethical or otherwise violative of the judge’s duty of impartiality. Examples are using the judge’s office to obtain special treatment for friends or relations; accepting bribes, gifts or other personal favors connected to the judge’s office; having ex parte communication with party litigant or counsel on one side; and the judge’s violation of mandatory prohibitions, like engaging in the practice of law.14
Judicial misconduct in this jurisdiction, like others such as the UK and the USA, “leads only seldom to a formal investigation”15 by a judicial inquiry body. In Liberia, that body is the Judicial Inquiry Commission, under Canon 40, Judicial Canons of the Republic of Liberia, promulgated pursuant to Article 75 of the Constitution. In the event a justice of the Supreme Court or a judge is found guilty for violation of our judicial canons the punishment exacted, under Judicial Canon 29, ranges from “fine, suspension, impeachment and/or prosecution in a court of law according to the gravity of the violation.”
Further, the offenses of misconduct and breach of duty are covered under our Penal Law. An official, like a judge, who knowingly subjects another to unlawful arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or denies, or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, is guilty of a first degree misdemeanor.16
The exercise of judicial duties, like issuing writs of prohibition, summons and arrests, and the deciding of cases by Justices of the Supreme Court and Judges as mandated by the Constitution and statute, does not violate any of the elements of judicial misconduct and judicial duty.
The administration of justice and the rule of law must be seen from an institutional perspective, distinct from the private persons of Justices and Judges. “The judicial power [the issuance of writs of prohibition, summons and arrest, for example; and deciding of cases] is vested in courts, not judicial officers. Judicial officers only can exercise judicial powers or functions. The judicial function meant by the constitution are such only as courts and judges exercise.”17
The principle that judges cannot be punished for their decisions, judgments and judicial acts is one of universal international norm. The Montreal Universal Declaration on the Independence of Justice (1983), section 1.16 thereof, of which Liberia is a party, exempts judges from liability for judicial acts done in their official capacity. But more importantly, Article 73 of our Constitution prohibits justices and judges from being “summoned, arrested, detained, prosecuted or tried civilly or criminally by or at any instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace.”
Does a justice or judge commit treason, felony, misdemeanor, misconduct, gross breach of duty, or breach of the peace for issuing writs of prohibition, summons, arrest, forwarding cases to the full bench of the Supreme Court because same raise constitutional issues, and deciding and rendering decisions and judgments in cases brought before the courts – all of which are judicial duties?
When Justices and judges issue writs like prohibition, summons and arrests, they are performing their job description under the Constitution and statute. On the other hand, when they fail to perform their judicial duties they commit an offence of nonfeasance or abuse of office punishable under section 12.70 (a and b) of the Penal Law.18 And gross neglect of judicial duties can lead to impeachment and removal of a judge, and not the reverse.
IMPEACHMENT PROCEEDING NOT A POLITICAL QUESTION, IT’S A LEGAL ONE
Let me dispel the erroneous proposition held by some people that impeachment proceeding is a political question in this jurisdiction. Historically, it used to be a political question in Liberia because under the past 1847 Constitution, judges were removed by the President on joint address of 2/3 of the Legislature. This was bad governance, the reason given for the 1980 coup; for, the removal of judges for political reason conflicted with the principle of judicial independence. This conflict was resolved by the framers of our present 1986 Constitution. “Every constitution [like the Liberian Constitution] has to be a product of history. Even when it comes straight from the draftsman’s pen; it is a product of the manner which the country concerned emerged as an independent state; of the conflicts which played on it.”19 The framers of the 1986 Constitution depoliticize the impeachment of judges in order to safeguard judicial independence by providing in Article 71 thereof the legal bases for the impeachment and removal of judges; while in Article 43 of the Constitution the framers set the procedural “due process of law” standard for the impeachment and removal of judges; and Article 73 of the Constitution prohibits any person or authority from summoning, arresting, detaining, prosecuting civilly or criminally judges for their judicial opinions, statements, and acts done in the course of trials in open court or in chambers.
Unfortunately, some Representatives and Senators of the National Legislature attempted to impeach and remove three Justices of the Supreme Court of Liberia because of their majority electoral case opinion allowing Mr. Harrison Karnwea and others to participate in the 2017 Presidential and Representatives Elections. Recently Associate Kabina Ja’Neh was impeached and removed from office on March 29, 2019 because, as Chambers Justice, he granted a writ of prohibition and forwarded same along with a prior petition of a similar nature to the full bench of the Supreme Court because both petitions raised constitutional issues. The Government was a party Respondent in the two petitions for the writs of prohibition. The attempt to impeach and remove the three justices and the Justice Ja’Neh impeachment and removal scenarios are reminiscent of the pre-1980 coup era when judges were removed for political reasons. Indeed, many people including sundry legislators themselves condemned these two scenarios as unconstitutional and politically motivated.
Yes, the attempt to impeach three of the Supreme Court’s Justices is moot and the impeachment and removal of Mr. Justice Ja’Neh is fait accompli; yet, as a judge who is a stakeholder regarding the removal of judges and who, pursuant to Article 70 of the Constitution and the SCHEDULE thereof, solemnly swore to support, uphold, protect and defend the Constitution, particularly Articles 43, 72(b) and 73, all of which are aimed at safeguarding judicial independence, and for reasons given in this CHARGE, I have decided to mention the attempted impeachment of the three justices and the Justice Ja’Neh scenario, and to proffer recommendations in order to avoid the recurrence of any attempt to unconstitutionally impeach and remove judges. I therefore make the following three recommendations to the National Legislature:
1. Preliminary investigation or hearing by House of Representatives before determining whether or not to draw a bill of impeachment. This procedure will put the House in the position, after preliminary investigation, to determine whether or not there is probable cause or reason to believe that an impeachable offense was committed. This is what is meant by due process of law – “hearing”- as envisaged by Article 43 of the Constitution.
2. Enactment of procedural rules for the impeachment and removal of the President, Vice President, Justices of the Supreme Court, and Judges. The rules must contain, among others, the following rules in order for the law governing procedural due process of law trial will be met as close as possible:
a. After the Senators/jurors are sworn to try the case they must be kept together and charged by the presiding officer not to talk to anybody regarding the case until they render a verdict and are discharged.20 This will avoid the senators from being tempered with and contaminated whereby their verdict would be influenced by external force.
b. The serenity of the trial room or chambers must be preserved. Senators must be excused before temporarily leaving the room or chambers, and the trial discontinued until their return. Phones of the senators must be switched off, and no conversations among them while the trial is on. They may only speak when the time reaches for senators to examine a witness and they must not engage in arguing with a witness.
c. Before the senators retire to the room of deliberation to determine the guilt or innocence of the official being tried, the presiding officer must summarize the facts of the case to them and instruct them as to the relevant laws applicable to the facts of the case.21
d. After the senators arrived at a verdict – guilty or not guilty – each of them must be polled individually whereby the Secretary of the Senate will inquire from each of the senators whether or not the verdict is his or hers.22
3. The trial room or chamber must be styled like a courtroom. The trial room or chamber must be organized in a way the lawyers’ and witnesses’ sitting positions will face both the senators and presiding officer with whom they communicate.
Article 43 of the Constitution provides a procedural “due procedure of law” standard for impeachment trial. One of the essential elements of procedural due process of law is “hearing”. “Hearing” is equated to the natural law principle of audi alteram partem. It means that the other party, in this case the official on trial, must be heard because no “one should be condemned unheard.” Due process of law is “a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.”23
A presiding officer/Judge and senators/jurors, like anybody, process communications by auditory and visual means. Lawyers and witnesses communicate with the judge and jurors orally and physically. The nonverbal physical traits of communication like eye contact24, facial expressions, gestures and gesticulations are physical forms of communication that accompany and supplement verbal or oral communication. “Trial will be very boring for visually oriented jurors.”25 Physical communication like eye contact with the jurors, for example, draws jurors’ attention, combats jurors’ boredom “by listening with their eyes”26 and keeps them from engaging in self-help such as sleeping,27 using their phones or conversing among themselves while the trial is on.
As I have stated in this CHARGE, judicial independence is not for judges but for everyone. It is a means to an end. That end is judicial impartiality. Judicial impartiality insures public confidence in the courts in that people are assured that their cases will be decided fairly and impartially based on the law and the relevant facts devoid of external and/or internal influence. They will therefore utilize the courts to resolve their cases and grievances rather than resorting to self-help and private vengeance in settling their disputes. Judicial independence and impartiality and the rule of law foster peace and order in the society. Peace and order encourage economic investment because investors are sure that their investments are secure. The ultimate result is that the nation grows and prospers economically.
I therefore charge that we, officials and employees of government and trustees of the people, avoid flouting our Constitution and laws, particularly those provisions aimed at safeguarding judicial independence. Rather, we must support, uphold, protect and defend good governance – the Constitution and laws of the Republic of Liberia – as required of us by Article 97 of the Constitution.
Ours is “a government of law, not of men.”28 If we, particularly government officials, begin to flout our laws, we send the wrong signal to the ordinary people whom we govern and serve. “When a nation’s laws are flouted by the political leadership it is only a matter of time until the population shows the same disrespect for law and order.”29
I believe that we “all public officials and employees, whether elected or appointed, holding office of public trust” do not want to bequeath to our children, the youths and future generation the evil of bad governance, but rather the virtue of good governance – respect for our constitution and laws, the rule of law and judicial independence.
Finally, the question: Why am I here in Sinoe County, the 3rd Judicial Circuit, during this May 2019 Term of Court?
The main and foremost reason for which I have been assigned to preside over the 3rd Judicial Circuit of Sinoe County during the May 2019 Term of Court is to clear the trial docket because Rule 7 of the Circuit Court Rules As Revised mandates assigned circuit judges as follows: “Clearing the trial docket by the disposition of cases, shall be the foremost concern of the judge assigned to preside over the term.” I therefore charge all justice actors concerned with the administration of justice in this Court to work assiduously with us in clearing the trial docket as possible as we can.
With the power in me vested, I hereby formally declare the 3rd Judicial Circuit Court open for the May 2019 Term for the transaction of judicial business. AND IT IS HEREBY SO ORDERED.
GOD BLESS THIS HONORABLE COURT AND SAVE THE STATE! By his Honor George W. Smith, assigned circuit judge, 3rd judicial circuit, Sinoe County,