A Commentary on the Meaning

A COMMENTARY ON THE MEANING

OF THE CONSTITUTION OF THE REPUBLIC OF LIBERIA

David C. Williams

Jallah A. Barbu

April 1, 2009

DEDICATION

For the People of Liberia

TABLE OF CONTENTS

ACKNOWLEDGEMENTS INTRODUCTION PART I: THE TRIPARTITE SYSTEM OF GOVERNMENT CHAPTER ONE: THE GENERAL NATURE OF THE SEPARATION OF POWERS SUBPART I(A): THE JUDICIAL BRANCH CHAPTER TWO: THE JUDICIAL POWER OF THE JUDICIAL BRANCH CH. TWO(a): The POWER TO DECIDE CASES CH. TWO(b): THE POWER TO ENFORCE JUDICIAL MANDATES Ch. Two(b)(1): Presidential Immunity from Court Process Ch. Two(b)(2): The Exclusive Power of the Executive to Enforce the Law Ch. Two(b)(3): The Differences Between the Two Rationales for the Court’s Inability to Order the President to Enforce Its Mandates CH. TWO(c): THE EXCLUSION OF OTHER BRANCHES FROM JUDICIAL FUNCTIONS Ch. Two(c)(1): The Exclusion of the Other Branches from Deciding Cases Ch. Two(c)(1)(i): The Exclusion of the Legislature from Deciding Cases Ch. Two(c)(1)(ii): The Exclusion of the Executive from Deciding Cases Ch. Two(c)(1)(iii): The Limited Power of Executive Agencies to Decide Cases Ch. Two(c)(2): Prohibition on Attempts by the Other Branches to Interfere with the Supreme Court CH. TWO(d): THE POWER TO INTERPRET STATUTES Ch. Two(d)(1): The Power to Determine the Intent of the Legislature But Not to Legislate Ch. Two(d)(2): Prohibition on Interpreting Statutes According to the Court’s Own Policy Views

Ch. Two(d)(3): The Importance of the Words of the Statute in Determining Legislative Intent Ch. Two(d)(3)(i): Words Alone Ch. Two(d)(3)(ii): More than Words if the Statute is Ambiguous Ch. Two(d)(3)(iii): The Spirit Over the Letter CH. TWO(e): THE POWER OF JUDICIAL REVIEW Ch. Two(e)(1): Originalist Interpretation Ch. Two(e)(2): The Final Authority of the Supreme Court Ch. Two(e)(3): The Duty of the Supreme Court to Effectuate the Constitution Ch. Two(e)(4): The Judicial Review Power of Other Judicial Officers CHAPTER THREE: THE ADMINISTRATIVE POWER OF THE SUPREME COURT CH. THREE(a): THE POWER TO MAKE RULES OF PRACTICE AND PROCEDURE CH. THREE(b): THE SUPREME COURT’S POWER TO SUPERVISE AND DISCIPLINE JUDGES CH. THREE(c): THE CHIEF JUSTICE’S GENERAL ADMINISTRATIVE POWER CH. THREE(d): THE SUPREME COURT’S CONSTITUTIONAL CONTEMPT POWER CH. THREE(e): THE SUPREME COURT’S INHERENT POWER TO SUPERVISE LAWYERS AND THE PRACTICE OF LAW CHAPTER FOUR: JUDICIAL INDEPENDENCE AND IMMUNITY CH. FOUR(a): JUDICIAL IMMUNITY FOR DECIDING CASES CH. FOUR(b): TENURE DURING GOOD BEHAVIOR CH. FOUR(c): DISCIPLINE SHORT OF IMPEACHMENT CH. FOUR(d): GUARANTEED REMUNERATION CH. FOUR(e): JUDICIAL INDEPENDENCE AND THE ACCRA COMPREHENSIVE PEACE ACCORD CHAPTER SIX: THE ORIGINAL AND APPELLATE JURISDICTION OF THE SUPREME COURT CH. SIX(a): REASONS FOR THE DIVISION OF JURISDICTION CH. SIX(b): LIMITS ON THE SUPREME COURT’S ORIGINAL JURISDICTION

Ch. Six(b)(1): Implicit Limits on the Supreme Court’s Original Jurisdiction Ch. Six(b)(2): Original Jurisdiction To Issue Contempt Citations to Defend the Judiciary Ch. Six(b)(3): Anomalous Precedent CH. SIX(c): LEGISLATIVE ALTERATIONS OF THE CONSTITUTIONAL DIVISION OF THE SUPREME COURT’S JURISDICTION Ch. Six(c)(1): Prohibition on Legislative Reduction of the Supreme Court’s Original Jurisdiction Ch. Six(c)(2): Prohibition on Legislative Increases to the Supreme Court’s Original Jurisdiction Ch. Six(c)(3): Prohibition on Legislative Exceptions to the Supreme Court’s Appellate Jurisdiction CHAPTER SEVEN: JUSTICIABILITY CH. SEVEN(a): THE CASE REQUIREMENT Ch. Seven(a)(1): The Requirement of Standing Ch. Six(a)(1)(i): The Requirement of Tangible Injury Ch. Six(a)(1)(ii): The Requirement of a Legal Interest Ch. Seven(a)(2): Advisory Opinions CH. SEVEN(b): POLITICAL QUESTIONS Ch. Seven(b)(1): The Requirement of Judicial Standards Ch. Seven(b)(2): Textual Commitment to Another Branch SUBPART I(B): THE EXECUTIVE BRANCH CHAPTER EIGHT: THE POWERS OF THE EXECUTIVE BRANCH CH. EIGHT(a): CONCENTRATION OF THE EXECUTIVE POWER IN THE PRESIDENT CH. EIGHT(b): THE POWER AND THE DUTY TO ENFORCE THE LAW CH. EIGHT(c): THE EXCLUSION OF THE OTHER BRANCHES FROM EXECUTIVE FUNCTIONS Ch. Eight(c)(1): The Exclusion of the Other Branches from Law Enforcement Ch. Eight(c)(2): Prohibition on Attempts by Other Branches to Interfere with the Executive Branch’s Enforcement of the Law CH. EIGHT(d): THE PRESIDENT’S EXCLUSIVE POWER TO GRANT CLEMENCY

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CH. EIGHT(e): THE PRESIDENT’S INHERENT DISCRETIONARY POWERS CH. EIGHT(f): THE PRESIDENT’S INHERENT POWER TO KEEP THE REPUBLIC SAFE CH. EIGHT(g): THE COMMANDER-IN-CHIEF POWER CH. EIGHT(h): THE PRESIDENT’S APPOINTMENT POWER CH. EIGHT(i): THE PRESIDENT’S LEGISLATIVE POWERS CH. EIGHT(j): THE PRESIDENT’S FOREIGN AFFAIRS POWER CH. EIGHT(k): THE PRESIDENT’S BUDGETARY POWERS CHAPTER NINE: EXECUTIVE IMMUNITY SUBPART I(C): THE LEGISLATIVE BRANCH CHAPTER TEN: THE POWERS OF THE LEGISLATIVE BRANCH CH. TEN(a): THE POWER TO MAKE LAW CH. TEN(b): THE PERMISSIBLE SUBJECT MATTERS OF LEGISLATION CH. TEN(c): THE EXCLUSION OF THE OTHER BRANCHES FROM LEGISLATING CH. TEN(d): THE LEGISLATURE’S POWER TO CREATE AND LIMIT LEGAL LIABILITIES Ch. Ten(d)(1): Sovereign Immunity Ch. Ten(d)(2): Due Course of Law Ch. Ten(d)(2)(i): LaFondiaria Insurance Cos. Ch. Ten(d)(2)(ii): Quelo CH. TEN(e): THE LEGISLATURE’S GENERAL POWER OF INTERNAL ADMINISTRATION CH. TEN(f): THE LEGISLATURE’S IMPEACHMENT POWERS CHAPTER ELEVEN: LEGISLATIVE IMMUNITY PART TWO: INDIVIDUAL RIGHTS CHAPTER TWELVE: THE STRUCTURE OF RIGHTS CH. TWELVE(a): VERTICAL AND HORIZONTAL RIGHTS: WHO IS RESTRICTED Ch. Twelve(a)(1): The Difference Between Vertical and Horizontal Rights Ch. Twelve(a)(2): Liberian Vertical Rights Ch. Twelve(a)(3): Liberian Horizontal Rights

Ch. Twelve(a)(3)(i): Due Process Rights Against Employers Ch. Twelve(a)(3)(ii): Other Rights Against Employers CH. TWELVE(b): LIMITS ON RIGHTS CH. TWELVE(c): SELF-EXECUTING AND NON-SELF-EXECUTING RIGHTS SUBPART II(A): CIVIL AND POLITICAL RIGHTS CHAPTER THIRTEEN: RELIGIOUS LIBERTY CH. THIRTEEN(a): THE FREE EXERCISE OF RELIGION CH. THIRTEEN(b): THE PROHIBITION ON ESTABLISHING A RELIGION Ch. Thirteen(b)(1): The Prohibition on Religious Discrimination Ch. Thirteen(b)(2): Religious Tests Ch. Thirteen(b)(3): Special Advantages for Religious Groups Ch. Thirteen(b)(4): The Prohibition on Interference with the Internal Matters of Religious Groups CHAPTER FOURTEEN: FREEDOM OF EXPRESSION CH. FOURTEEN(a): THE FREEDOM OF THE PRESS CH. FOURTEEN(b): ACADEMIC AND LIBRARY FREEDOMS CH. FOURTEEN(c): THE RIGHT TO CRITICIZE THE GOVERNMENT CH. FOURTEEN(d): LIMITS ON THE RIGHT OF FREE EXPRESSION Ch. Fourteen(d)(1): Limits on Free Expression Permitted by the Text of the Constitution Chapter Fourteen(d)(2): Prior Restraints Ch. Fourteen(d)(3): Abusive Speech Ch. Fourteen(d)(3)(i): The General Definition of Abusive Speech Ch. Fourteen(d)(3)(ii): Criticism of the Judiciary Ch. Fourteen(d)(3)(ii)(a): Criticism of Particular Cases Ch. Fourteen(d)(3)(ii)(b): General Criticisms of the Liberian Judiciary CHAPTER FIFTEEN: THE RIGHT TO ASSEMBLE, INSTRUCT REPRESENTATIVES, AND PETITION THE GOVERNMENT CH. FIFTEEN(a): PETITIONING A FOREIGN GOVERNMENT CH. FIFTEEN(b): LIMITS ON THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES

CHAPTER SIXTEEN: THE RIGHTS OF POLITICAL PARTIES CH. SIXTEEN(a): THE REQUIREMENT OF MULTI-PARTY DEMOCRACY CH. SIXTEEN(b): REQUIREMENTS TO BECOME A POLITICAL PARTY CH. SIXTEEN(c): PROCEDURES FOR REGISTRATION AS A POLITICAL PARTY CH. SIXTEEN(d): FUNCTIONS RESERVED EXCLUSIVELY TO POLITICAL PARTIES CH. SIXTEEN(e): THE RIGHTS OF COALITION PARTIES CHAPTER SEVENTEEN: EQUALITY RIGHTS CH. SEVENTEEN(a): DISCRIMINATION BASED ON ETHNICITY, RACE, SEX, CREED, PLACE OF ORIGIN, OR POLITICAL OPINION CH. SEVENTEEN(b): DISCRIMINATION BASED ON ALIENAGE CH. SEVENTEEN(c): DISCRMINATION BASED ON OTHER CLASSIFICATIONS CH. SEVENTEEN(d): ARBITRARY TREATMENT OF INDIVIDUALS SUBPART II(B): ECONOMIC RIGHTS CHAPTER EIGHTEEN: PROPERTY RIGHTS CH. EIGHTEEN(a): THE RIGHTS AND RIGHT-HOLDERS PROTECTED CH. EIGHTEEN(b): THE PROPERTY RIGHT OF ALIENS Ch. Eighteen(b)(1): Prohibition on Foreign Ownership of Real Property Ch. Eighteen(b)(2): Foreign Leases CH. EIGHTEEN(c): MARRIED PERSONS’ PROPERTY RIGHTS CH. EIGHTEEN(d): PROCEDURAL PROTECTIONS FOR PROPERTY RIGHTS CH. EIGHTEEN(e): THE RIGHT AGAINST EXPROPRIATION CHAPTER NINETEEN: THE OBLIGATION OF CONTRACTS CH. NINETEEN(a): REASONS FOR PROTECTING THE OBLIGATION OF CONTRACT CH. NINETEEN(b): PROTECTION FOR CURRENT CONTRACTUAL OBLIGATIONS BUT NOT THE RIGHT TO CONTRACT CH. NINETEEN(c): SCOPE OF THE CONTRACT CLAUSE Ch. Nineteen(c)(1): Which Contractual Obligations Are Protected Ch. Nineteen(c)(1)(ii): Government Contracts and Private Contracts

Ch. Nineteen(c)(1)(ii): Lawful Contracts Ch. Nineteen (c)(2): Who Is Forbidden to Impair Contracts CHAPTER TWENTY: LIBERIANIZATION SUBPART II(C): RIGHTS IN THE LEGAL PROCESS CHAPTER TWENTY-ONE: THE RIGHT OF APPEAL CH. TWENTY-ONE(a): REFUSALS TO ALLOW AN APPEAL CH. TWENTY-ONE(b): LEGISLATIVE REGULATION OF THE RIGHT OF APPEAL CH. TWENTY-ONE(c): SUSPENSION OF THE JUDGMENT DURING APPEAL CH. TWENTY-ONE(d): EXTRA-STATUTORY CONDITIONS ON AN APPEAL CHAPTER TWENTY-TWO: THE RIGHT TO A JURY IN CIVIL TRIALS CHAPTER TWENTY-THREE: DUE PROCESS OF LAW CH. TWENTY-THREE(a): WOLO V. WOLO CH. TWENTY-THREE(b): APPLICABILITY OF THE DUE PROCESS CLAUSE Ch. Twenty-Three(b)(1): Who Has Due Process Rights Ch. Twenty-Three(b)(2): Which Actions Must Conform to Due Process CH. TWENTY-THREE(c): NOTICE CH. TWENTY-THREE(d): OPPORTUNITY TO APPEAR AND BE HEARD CH. TWENTY-THREE(e): A COMPETENT TRIBUNAL CH. TWENTY-THREE(f): JURISDICTION OVER THE PARTY SUBPART II(D): CRIMINAL PROCESS RIGHTS CHAPTER TWENTY-FOUR: THE RIGHT TO A SPEEDY, PUBLIC, AND IMPARTIAL TRIAL BY A JURY OF THE VICINITY CH. TWENTY-FOUR(a): WAIVER CH. TWENTY-FOUR(b): APPLICATION ONLY TO TRIALS FOR CAPITAL OR INFAMOUS CRIMES CH. TWENTY-FOUR(c): THE REQUIREMENT OF A SPEEDY TRIAL Ch. Twenty-Four(c)(1): The Definition of Speedy Ch. Twenty-Four(c)(2): Application at All Stages Ch. Twenty-Four(c)(3): Who Holds the Right to a Speedy Trial

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CH. TWENTY-FOUR(d): THE REQUIREMENT OF A PUBLIC TRIAL CHAPTER TWENTY-FOUR(e): THE REQUIREMENT OF IMPARTIALITY Ch. Twenty-Four(e)(1): Incorporation of Other Provisions Into the Requirement of Impartiality Ch. Twenty-Four(e)(2): Incorporation of the Requirements of the Criminal Procedure Law into the Requirement of Impartiality Ch. Twenty-Four(e)(3): Miscellaneous Requirements of Impartiality Ch. Twenty-Four(e)(4): Remedies for Violations of the Requirement of Impartiality CH. TWENTY-FOUR(f): RIGHT TO TRIAL BY A JURY OF THE VICINITY Ch. Twenty-Four(f)(1): The Determination of Facts Ch. Twenty-Four(f)(2): A Jury of the Vicinity Ch. Twenty-Four(f)(3): Waiver of the Right to Trial By a Jury of the Vicinity Ch. Twenty-Four(f)(4): Who Holds the Right to Trial By Jury of the Vicinity CHAPTER TWENTY-FIVE: RIGHTS TO MAKE A DEFENSE CH. TWENTY-FIVE(a): THE RIGHT TO BE FURNISHED WITH THE CHARGE CH. TWENTY-FIVE(b): THE RIGHT TO CONFRONT WITNESSES AND EVIDENCE CH. TWENTY-FIVE(c): THE RIGHT TO PRESENT WITNESSES AND EVIDENCE AND THE RIGHT TO COMPULSORY PROCESS Ch. Twenty-Five(c)(1): The Defendant’s Right to Summon Witnesses Ch. Twenty-Five(c)(2): Limits on the Right to Summon Witnesses Ch. Twenty-Five(c)(2)(i): The Defendant’s Responsibilities Ch. Twenty-Five(c)(2)(ii): Relevant and Material Witnesses Ch. Twenty-Five(c)(2)(iii): Immune, Disqualified, or Exempt Witnesses CHAPTER TWENTY-SIX: CAPITAL CASES CHAPTER TWENTY-SEVEN: CRIMINAL RETROACTIVITY CHAPTER TWENTY-EIGHT: THE PRESUMPTION OF INNOCENCE CH. TWENTY-EIGHT(a): THE MEANING OF THE REASONABLE DOUBT STANDARD

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CH. TWENTY-EIGHT(b): EVIDENTIARY REQUIREMENTS CHAPTER TWENTY-NINE: THE RIGHT AGAINST SELF-INCRIMINATION CH. TWENTY-NINE(a): REASONS FOR THE RIGHT AGAINST SELF- INCRIMINATION CH. TWENTY-NINE(b): SCOPE OF THE RIGHT AGAINST SELF- INCRIMINATION Ch. Twenty-Nine(b)(1): Which Testimony May Be Withheld Ch. Twenty-Nine(b)(2): Whose Testimony May Be Withheld CH. TWENTY-NINE(c): EXTRA-JUDICIAL CONFESSIONS Ch. Twenty-Nine(c)(1): The Inadmissibility of Involuntary Confessions Ch. Twenty-Nine(c)(2): Who Determines Whether a Confession is Voluntary Ch. Twenty-Nine(c)(3): Torture Ch. Twenty-Nine(c)(4): Proving Duress in Closed-Door Investigations Ch. Twenty-Nine(c)(5): The Warning Requirement Ch. Twenty-Nine(c)(6): Confessions in the Absence of Counsel CH. TWENTY-NINE(d): THE RIGHT TO REFUSE TO FURNISH EVIDENCE Ch. Twenty-Nine(d)(1): Prohibition on Inferences of Guilt Ch. Twenty-Nine(d)(2): The Right Against Self-Incrimination When the Defendant Chooses to Testify CHAPTER THIRTY: THE RIGHT TO BAIL CH. THIRTY(a): THE GUARANTEE OF BAIL Ch. Thirty(a)(1): Capital or Grave Offenses Ch. Thirty(a)(1)(i): “When the proof is evident or the presumption great.” Ch. Thirty(a)(1)(ii): Discretionary Bail for Those Charged with Capital or Grave Offenses. Ch. Thirty(a)(2): Bail During the Appeal Process CH. THIRTY(b): EXCESSIVE BAIL CHAPTER THIRTY-ONE: EXCESSIVE PUNISHMENTS CHAPTER THIRTY-TWO: DOUBLE JEOPARDY CH. THIRTY-TWO(a): REASONS FOR THE PROTECTION AGAINST DOUBLE JEOPARDY

CH. THIRTY-TWO(b): WHEN JEOPARDY ATTACHES CH. THIRTY-TWO(c): POSTPONING THE TRIAL FOR REASONS OF MANIFEST NECESSITY CH. THIRTY-TWO(d): ASSERTING AND WAIVING THE PROTECTION AGAINST DOUBLE JEOPARDY CHAPTER THIRTY-THREE: THE WARRANT REQUIREMENT CH. THIRTY-THREE(a): ARREST WARRANTS CH. THIRTY-THREE(b): SEARCH WARRANTS CHAPTER THIRTY-FOUR: HABEAS CORPUS CHAPTER THIRTY-FIVE: THE RIGHT TO COUNSEL CHAPTER THIRTY-FIVE(a): THE RIGHT OF INDIGENT DEFENDANTS TO COURT-APPOINTED COUNSEL CHAPTER THIRTY-FIVE(b): WHEN THE RIGHT TO COUNSEL ATTACHES PART THREE: THE GEOGRAPHICAL STRUCTURE OF THE STATE CHAPTER THIRTY-SIX: THE UNITARY BUT DECENTRALIZED STATE CH. THIRTY-SIX(a): A UNITARY STATE CH. THIRTY-SIX(b): DECENTRALIZATION Ch. Thirty-Six(b)(1): The Counties Ch. Thirty-Six(b)(2): Chiefs Chapter Thirty-Six(b)(3): Municipal Corporations

ACKNOWLEDGEMENTS

This Commentary is the work of many people over the course of several years. Three different institutions supported the work in different ways: Indiana

University Maurer School of Law, especially its Center for Constitutional

Democracy (CCD), the Louis Arthur Grimes School of Law at the University of

Liberia, and the United States Institute for Peace.

Amos Sawyer, former interim president of Liberia, current chair of the

Governance Reform Commission, and research scholar at the Indiana University

Workshop on Political Theory and Policy Development, initially proposed the idea of a commentary to personnel at the CCD. Doctor Sawyer also provided insight and inspiration throughout the project.

USIP supplied generous funding that made the work possible, through a grant to the CCD. The staff at USIP also shared their own research in Liberia and acted as a much-appreciated sounding board.

Dean Lauren Robel of the Indiana University Maurer School of Law provided unstinting support, both financial and spiritual. She travelled with CCD personnel on an early trip to Liberia, funded much of the early travel and incidental expenses, and forged a relationship with the Louis Arthur Grimes School of Law that sustained the production of the Commentary.

Virtually all of the research and writing was done at Indiana University. A

team of law students did much of the initial research and outlining. They include

Aster Allen-Brown, Matthew Carroll, Jason Clarke, Christal Coakley, Logan Davis,

Kathleen Field, Peter Giordano, Jonathan Henriques, Stephanie Lin, Anna

Obergfell, Sara O’Keefe, Laura Rogers, Onika Williams, and Rachael Yates.

Several students performed yeoman service, above and beyond the call of duty and

with no compensation. They include Garry Boyle IV, Jason Klein, Jeremiah

Williamson, Alison McCormick, and Jeffrey Block. In addition, a group of

Constitutional Law students at the Louis Arthur Grimes School of Law of the

University of Liberia helped to edit Chapters 1 to 3.

At the initiative of Dean Lauren Robel, Indiana University Maurer School of

Law created a Liberian Fellows Program under which two Liberians every year came to the law school to pursue graduate study, which would better prepare them to return to Liberia and teach at the Louis Arthur Grimes School of Law. The

Firestone Corporation provided financial assistance to these fellows, as did Dean

Robel. While at IU, three Liberian fellows participated in the production of this

Commentary: Betty Blamo, Chan Chan Paegar, and especially Jallah Barbu, who ultimately became a co-author. The law faculty of the UL Law School, headed by

Dean David Jallah selected and sent these fellows and supported and guided them through their stay.

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As part of its pro bono program, the law firm King & Spalding also undertook some research assistance. Associates and summer interns wrote briefs of some of the cases, which helped to speed the writing.

During the period of the writing of the commentary, Rita Eads was David

Williams’ Assistant. In that capacity, she provided wonderfully efficient administrative and word processing support. She also helped to organize the law student researchers, and more broadly, she kept the CCD running smoothly.

Most of the research consisted of work with the set of the Liberian Law

Reporters in the possession of the law library at the Indiana University Maurer

School of Law, but many Liberians gave help along the way. Philip Banks provided a set of those LLR volumes not yet in print, as well as recounting his experiences as member of the constitution drafting commission in the 1980s. Varney Sherman likewise provided copies of even more recent cases, as well as helping IU student researchers during their time in Liberia. Two Chief Justices of Liberia, Johnny

Lewis and Henry Cooper, provided guidance to the co-authors of this Commentary during their visits to Liberia. Chief Justice Lewis also donated two unpublished opinions of the Supreme Court of Liberia.

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INTRODUCTION

Liberia is the oldest constitutional republic in Africa. Uniquely, its Supreme

Court has for decades interpreted and pronounced the meaning of the Constitution

in written opinions, most of which have been gathered in the Liberian Law

Reporter. This Commentary offers a description of the meaning of the Constitution

of the Republic of Liberia, as propounded by the Supreme Court of Liberia, as of

2010. That project definition contains three foci that bear emphasis: it focuses on

the Supreme Court’s jurisprudence, rather than other possible sources of

constitutional meaning; it focuses on the present meaning of the Constitution,

rather than the past; and it focuses on describing what the Constitution in fact means, according to the Supreme Court, rather than on what it should perhaps mean. These three foci grow from the basic goal of the project: to offer a reliable guide to what the Constitution means in practice today for Liberian citizens, judges, and lawyers, as well as interested foreigners.

THE FIRST FOCUS: THE SUPREME COURT

As to the first focus, from early in the Republic’s history, the Supreme Court has claimed to be and has generally been regarded as the final and authoritative interpreter of the meaning of the Constitution. In other words, for practical purposes, the Constitution means what the Supreme Court says it means. The current Constitution unambiguously explains: “The Supreme Court shall be the

final arbiter of constitutional issues.” Article 66, 1986 Constitution of the Republic of Liberia.

Because it has the power to interpret the Constitution, the Supreme Court also has the power of judicial review: it can strike down the actions of other branches that it regards as unconstitutional. At times, the Court has refrained from issuing formal orders commanding the other branches to desist from unconstitutional actions. Even when the Court does not issue an order, however, it has always maintained that the other branches are constitutionally obliged to follow the Court’s guidance. For more on the power of judicial review, see Ch. Two(e) of this Commentary.

As a practical matter therefore, the Supreme Court’s decisions are the only authoritative guide to the meaning of the Constitution. In theory, other sources of meaning might be relevant: some might believe that the Constitution should mean what its Framers thought it to mean, or what natural law would mandate, or what the popular will would demand. The Supreme Court is free to consult those sources of meaning, and sometimes it chooses to do so. In practice, however, those other sources are relevant to the meaning of the Constitution only insofar as the Supreme

Court regards them as relevant. For more on the Supreme Court’s method of interpreting the Constitution, see Ch. Two(e)(1).

Similarly, in theory, the Court might misinterpret the Constitution, and commentators may disagree with the Court’s decisions. (But for limits on the right

to criticize the Court, see Ch. Fourteen(d)(3)(ii)). In fact, the Court’s own work product makes it absolutely clear that the Court has from time to time misinterpreted the Constitution. First, when the Court overrules precedent, either the earlier, overruled case or the later, overruling case must be wrong. Second, as this commentary will explain, sometimes different lines of precedent flatly contradict one another, even though neither may purport to overrule the other.

Because they are contradictory, one or the other must be wrong.

Therefore, the Supreme Court does not claim, nor could it claim, theoretical infallibility. It can and does claim, however, practical finality, unless and until it changes its own mind about the meaning of the Constitution. Though the

Constitution does not proclaim the Court always right, it does proclaim it authoritative. Though people may disagree with the Court, they must follow its edicts unless they can persuade it to change its interpretation.

Those who wish to know what the Constitution means in practice must therefore look to the Supreme Court’s work product. For those inside the court system, the Supreme Court’s jurisprudence is especially important. Lower courts are obliged to apply the Supreme Court’s opinions; lawyers are required to make arguments based on them; and ordinary citizens will prevail only if they can persuade courts that Supreme Court precedent favors them.

Even outside the court system, however, the Supreme Court’s interpretation of the Constitution governs. Officially, it sets limits on the powers of administrators

and law-makers; it governs relationships between the other two branches; and it

safeguards the rights of individuals against government and, to some extent,

against other individuals. Even those who wish to reform the Constitution must

first understand the Court’s jurisprudence: to know what, if anything, should be

changed, one must first know what it presently commands; and to know what it

presently commands, one must begin with cases.

The commentary therefore focuses on the Supreme Court’s jurisprudence

because, in practice, it controls the meaning of the Constitution. But the

commentary focuses on the Court’s work product for another reason as well:

because Supreme Court opinions are sometimes technical, complicated, and

numerous, they may be difficult for many people to understand. Even educated lay- people may find the legal language sometimes incomprehensible; and even lawyers may be unfamiliar with the whole spectrum of cases that the Court has decided under various provisions of the Constitution. In short, the commentary focuses on making Supreme Court precedent more accessible to more people.

The Supreme Court has not dedicated equal interpretive attention to every constitutional provision. The Court has developed very detailed interpretations of some provisions, such as the Due Process Clause. Other provisions, such as the prohibition on establishments of religion, the Court has interpreted in much less detail. Still others, such as the prohibition of debt peonage contained in Article 12, the Court has never interpreted at all. In short, the Supreme Court has not developed an exhaustive and comprehensive exegesis of the whole Constitution.

Because this Commentary describes the meaning of the Constitution only as

defined by the Court, it does not offer an exhaustive description of the meaning of

the whole Constitution either. Instead, the Commentary’s emphases track the

Court’s emphases: where the Court has authored many cases and developed

complicated doctrine, the Commentary’s analysis is expansive; where the Court has

said little, the commentary is brief; and where the Court has said nothing at all, the

Commentary is generally silent. The reader who is interested in the meaning of a provision that the Court has not interpreted can refer to the text of the Constitution itself, which is reproduced in the Appendices.

THE SECOND FOCUS: TODAY

This Commentary also focuses on the contemporary meaning of the

Constitution of the Republic of Liberia. The reason is that this commentary is

designed to serve as a guide to those who need to understand the current

constitutional rules governing Liberia. Those who desire a constitutional history of

Liberia may find one in other works. See, e.g., Charles Henry Huberich, The

Political and Legislative History of Liberia (1947).

Nevertheless, in order to understand the current meaning of the

Constitution, one must also understand the past, for several reasons. First, it is

important to discern discontinuity: to know the current meaning of the

constitution, one must know when an earlier rule has been abandoned, to know that

in fact it is no longer the law. For example, Liberia has had two constitutions: the

first was adopted in 1847, and the second in 1986, following a coup in 1980.

Although the second constitution carries over much of the earlier organic law, the two are not identical. On some subjects, the later Constitution clearly adopted a rule quite different from the 1847 Constitution, and this commentary seeks to make the differences clear. Additionally, the Court has sometimes overruled its own earlier interpretations of the same constitutional provision, and the commentary again seeks to track those changes.

Second, just as importantly, it is important to discern continuity. Even though the current Constitution changed some parts of the earlier constitution, much of the language is identical, and cases decided under the earlier constitution are still reliable guides to the new.

In some areas of doctrine, it can be difficult to determine the current meaning of the Constitution, to discern whether the law is continuous or discontinuous with the past. In general, one generally looks to the Court’s most recent pronouncement on a given issue, which should be the authoritative precedent. In some circumstances, however, this method may a less than wholly reliable guide.

First, sometimes the Court’s most recent precedent occurred at a time of political turbulence—as during the mid-1980s or the late 1990s—and it departs radically from well-settled law, often without even noting the earlier cases. It seems likely that such cases are fliers, not really the law of the land, but the Court has not yet had occasion to overrule them.

Second, sometimes the Court has developed contradictory lines of cases, interpreting the same provision in different ways. Neither line of cases seems to be a flier because both extend over time, but neither expressly overrules the other. In this circumstance, unless and until the Court resolves the discrepancy, it is very hard to know which line of precedent really governs.

Third, the new Constitution omits some provisions of the earlier Constitution but does not adopt a contradictory rule in its place. In other words, the 1986

Constitution is silent on the question, rather than expressly revoking the 1847

Constitution. In these circumstances, it is possible that the later Constitution implicitly incorporated the pre-existing law, so that all the cases decided under the now-missing provision are still binding. It is also possible, however, that in deleting the earlier provision, the Constitution implicitly rejected it.

In all of these circumstances, to consider the current meaning of the

Constitution, one must assess whether and in what ways past precedent continues to be relevant. Ergo, to understand the present, one must analyze the past.

Although in none of these three circumstances is the current meaning of the

Constitution entirely clear, this Commentary seeks to offer a reasoned analysis of the most likely current meaning, by reading the present in light of the past.

THE THIRD FOCUS: DESCRIPTION

Finally, this Commentary seeks to offer only a balanced description of the meaning of the Constitution as defined by the Court. The Commentary thus

attempts only to analyze the meaning of cases in their own terms. Although it may not be possible to be wholly objective in interpreting cases, this Commentary seeks to avoid normative assessment of the cases in two senses. First, the Commentary does not consider whether the cases conform to natural justice: even if the cases work unjust results, they are still the law of the land. In other words, the

Commentary proposes to discern what the cases mean, not whether they are good or bad in an abstract sense. This Commentary is a work of exegesis, not legal philosophy. Second, the Commentary does not consider whether the cases are accurate interpretations of the meaning of the Constitution: again, even if they seem to depart markedly from the language of the organic law, they still govern. In other words, the Commentary proposes to discern what the cases mean, not whether they are rightly decided.

Nonetheless, just as sometimes, to discern the present, one must consult the past, so sometimes to interpret the cases, one must assess them as well. First, when the precedent is contradictory, it seems likely, or so it is to be hoped, that the

Supreme Court will choose the strand that is better reasoned, more rooted in the

Constitution, and more congruent with widely shared ideas of natural justice. To know what the law is or is likely to be, therefore, one must consider what the law should be.

Second, when a case is internally contradictory, confused, illogical, or vague, it is not possible accurately to describe it without observing those qualities and thus assessing it. In other words, to make a case seem more coherent than it really is

would be to offer an inaccurate description. Thus, to describe the case one must sometimes prescriptively evaluate it.

Third, the very notion that precedent should not be contradictory is itself normative: it is better that the Supreme Court should be consistent so that people can confidently discern what the Constitution requires of them and so that the same rules apply to all. When this Commentary highlights contradictions in the precedent, it implicitly adopts this normative perspective: the reason for emphasizing contradiction is so that the Supreme Court may do something about it.

Fourth, in order to understand what the law descriptively requires, one must sometimes contrast it with something else. For example, to understand the idea that Liberia is unitary, one must contrast it with federalism. Similarly, to understand the idea that the Liberian Supreme Court protects some horizontal rights, one must contrast it with systems protecting only vertical rights. To describe the law, one must therefore assess its similarity or dissimilarity to the practice in other countries, though on this score it is not necessary to offer a normative evaluation of either.

As a final note, although the purpose of description is not reform as such, sometimes accurate description is necessary to make reform possible. In a constitutional republic, the people ultimately have the power to make and re-make the organic law of the land. If they do not like the current constitution, they can amend it or even substitute a wholly new one. Liberians have indeed often

amended their constitution, and in 1986 they revoked the original constitution for a newly drafted one. It is very likely that Liberians will continue to change their constitution. To know how they want to change their constitution, however, they must first know what it presently requires so as to evaluate the ways in which it departs from their ideals. To know what the Constitution presently requires, they must consult not only the text of the Constitution but also Supreme Court precedent. By describing the meaning of Supreme Court precedent, therefore, this

Commentary might lay the ground-work for reform by those who ultimately control the meaning of the Constitution, the Liberian people themselves.

PART I THE TRIPARTITE SYSTEM OF GOVERNMENT

Article I, Section 14th, 1847 Constitution of the Republic of Liberia

The power of this government shall be divided into three distinct departments: Legislative, Executive, and Judicial; and no person belonging to one of these departments, shall exercise, any of the powers belonging to either of the others. This section is not to be construed to include Justices of the Peace.

Article 3, 1986 Constitution of the Republic of Liberia

Liberia is a unitary sovereign state divided into counties for administrative purposes. The form of government is Republican with three separate coordinate branches: the Legislative, the Executive, and the 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.

CHAPTER ONE THE GENERAL NATURE OF THE SEPARATION OF POWERS

The Liberian Constitution has always provided that the government shall be

composed of three branches—the executive, the legislature, and the judiciary. Each

branch has a distinct role and the powers appropriate to carrying out that role: the

executive to lead the nation and enforce the law; the legislature to make the law;

and the judiciary to interpret the law and decide cases. The branches are separate

and independent, so that no branch may intrude on the proper sphere of any other,

and the Constitution specifically provides that no person holding office in one

branch may exercise the powers of, or hold office in, in another.

From earliest time, the Court has often and strongly asserted the general

tripartite nature of the Liberian government as part of the foundation of Liberia. In

1914, the Supreme Court referred to that “independence and separateness of the coordinate branches of the Government positively enjoined by the Constitution and which is the spirit and genius of this Democratic Institution.” In re Act of the

Legislature Approved January 20, 1914, 2 LLR 157, 158 (1914). In 1919, the Court declared: “The sovereign people of Liberia in their majesty set up and established by One Act, which is called the Constitution—the three great departments of

Government, which were called into being by the same instrument and at the same time and by the same method.” Karmo v. Morris, 2 LLR 317, 329 (1919). More recently, the Court explained: “Under our constitutional form of government, the

three coordinate branches came into being at the same time and for the same

purpose: to secure the existence of the body politic, to protect it, and to furnish the

individuals who compose it with the power of enjoying in safety and tranquility,

their natural rights, and the blessings of life. . . . The Legislature is only primus

inter pares with the other two; none can function without the other and still

maintain the objectives of the Constitution; nor, in this sense, is any weaker or

stronger than the others.” In re Cassell, 14 LLR 391, 403-04 (1961).

The Court has also held that the constitution’s specific prohibition on holding office in more than one branch demonstrates that the branches are very separate and distinct. Indeed, because of this provision, the branches of the Liberian government should be understood to be even more separate than those of the

American government. Thus, the Court explains: “If, with a constitution lacking

the unique and express inhibition in ours to which attention has been called, the

Supreme Court of the United States felt itself in duty bound to emphasize the

separateness and distinctness of the powers of the three co-ordinate branches of

that government, based upon logical inferences, how much more is not that duty

enjoined upon us since the provision in ours is express and not merely implied.”

Wolo v. Wolo, 5 LLR 423, 438 (1937). See also In re Cassell, 28 LLR 107, 124

(1979).

On the other hand, the Court has also explained that the branches can never

be entirely separate, and each branch sometimes exercises functions generally

reserved for another branch: “Although the rule concerning the absolute separation

of powers of government has been held to prevail without qualification, in practice the departments of government are not required to be kept entirely distinct without any connection with, or dependence on, each other, and each of the three departments normally exercises powers which are not strictly within its province.”

Ghoussalny v. Nelson, 20 LLR 591, 602 (1972) (quoting 16 C.J.S. Const. Law § 105).

As examples, the Court lists “the Chief Executive’s right to veto legislation, the

Senate’s right to confirm appointments of the Executive, the judiciary’s invalidating unconstitutional enactments, the impeachment powers of the Legislature, which is essentially a judicial function.” Ghoussalny, 20 LLR at 602.

The Court has often offered general descriptions of the functions of each branch. For example: “Hence the function of the Legislature to make laws; of the executive to enforce them; and of the Judiciary to hear and decide cases according to the facts and the law, and to interpret laws enacted by the Legislature.” In re

Cassell, 28 LLR at 125. Similarly: “Although case law stands on the same footing as statutes enacted by the Legislature, yet neither the Legislature nor the courts can enforce the laws they make. As said before, this is the function of the Executive branch of Government. But the Executive branch does not make the laws, for this function belongs to the Legislature. Nor does it interpret the laws passed by the

Legislature, because that would be usurping the functions of the Judiciary.” Branly v. Vamply, 22 LLR 337, 351 (1973).

During the decades of its existence, the Liberian Supreme Court has had many occasions to go beyond those general descriptions of the separation of power, to define the powers and limits of each branch in greater detail.

SUBPART I(A) THE JUDICIAL BRANCH

CHAPTER TWO THE JUDICIAL POWER OF THE JUDICIAL BRANCH

The Judiciary has two sorts of powers: the judicial power, which is the power to decide cases, and administrative power, which is the power to administer the judicial system and the practice of law. See In re Judicial Inquiry Commission’s

Report on Hon. Broderick, 40 LLR 263, 277 (2000).

CH. TWO(a) THE POWER TO DECIDE CASES

The judiciary’s core function is to interpret and apply the law in particular cases. Article 65 of the 1986 Constitution provides: “The Judicial Power of the

Republic shall be vested in a Supreme Court and such subordinate courts as the

Legislature shall from time to time establish.” As the Court early explained: “In the evolution of society a plan was reached providing for the choice of certain men to decide controversies, where the parties thereto were unable to agree.” In re Act of the Legislature Approved January 20, 1914, 2LLR 157, 163 (1914). Those men (and now women) are the judges: “[T]he judicial department is charged with the duty of interpreting the laws and adjudging rights and obligations thereunder.” Wesseh v.

Tubman, 28 LLR 3, 11 (1979).

CH. TWO(b) THE POWER TO ENFORCE JUDICIAL MANDATES

Although the Court may decide cases, it may not order the President to enforce its decisions, and it has only limited ability to order lesser executive officials to enforce them. The Court has offered two different reasons that it cannot order the President to enforce the law: first, the President is immune from court process; and second, law enforcement falls exclusively within the executive sphere.

Frequently, the Court interweaves these two reasons in a single opinion, but they are analytically distinguishable and have somewhat different implications.

Ch. Two(b)(1): Presidential Immunity from Court Process

The first reason that the Supreme Court cannot order the President to enforce the law is the President’s general immunity to service of process: the courts simply cannot take jurisdiction over the President or one acting at his orders. The

President serves functions vital to the well-being of the Republic, and he must therefore be free from court process to perform his duties.

Over time, the Court’s definition of the scope and the nature of this executive immunity have changed. Early in the twentieth century, Louis Arthur Grimes developed the doctrine, first when he was Attorney General, see Ghoussalny v.

Nelson, 20 LLR 591, 614 (1972) (quoting a memorandum written by then-Attorney

General Louis Arthur Grimes), and then later as Chief Justice, see Wiles v.

Simpson, 8 LLR 365 (1944) (opinion of Chief Justice Louis Arthur Grimes); Porte v.

Dennis, 9 LLR 213 (1947).

Chief Justice Grimes’ position on this question was complex. He carefully

limited the immunity from process enjoyed by subordinate executive officials: ““[I]t

is that only when acting as the agent of the President in a matter in which discretion is by the Constitution or by law lodged in the President and in him alone, is the Secretary of State or other cabinet officer not subject to the ordinary process of the courts.” Wiles, 8 LLR at 372. This holding limited the immunity of these lesser officers in two ways. First, these officials enjoyed immunity “only when acting as the agent of the President.” Second, and just as importantly, these officials enjoyed immunity only with respect to those matters over which the

President possessed discretion given to him by law, whether constitutional or statutory—“only when acting as the agent of the President in a matter in which discretion is by the Constitution or by law lodged in the President and in him alone.”

With respect to other matters, over which the President has no discretion, lesser executive officers enjoy no immunity, even when acting at the direct instructions of the President: “But in all other matters, especially in performing a duty specifically imposed upon the Secretary of State or upon other cabinet officials by the Constitution or by law, the Secretary is fully amenable to the ordinary process of the courts.” Id. at 372-73. Chief Justice Grimes repeated this point for emphasis later in the opinion: “[T]he Secretary of State is, and other members of

the Cabinet are, amenable to the courts in all matters in which they are not acting

solely as agents of the President and upon his discretion.” Id. at 377.

Chief Justice Grimes traced this doctrine to Chief Justice Marshall’s opinion in Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803). That case held that in areas of executive discretion, courts could not intervene: “[W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Wiles, 8 LLR at 370

(quoting Marbury v. Madison, 1 Cranch 137, 165-66 (1803)). On the other hand, an executive official “is amenable to the laws for his conduct” when “the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts.” Id.

Chief Justice Grimes’ holding on the immunity of lesser officials is thus very clear: they have it only in those areas over which the President has discretion. But

Chief Justice Grimes never specifically explained the extent of the President’s own immunity from process. Clearly, if his agent is immune for acts within the

President’s discretion, then the President, as principal, must also be immune. But the question remains whether the President enjoys immunity for those acts over which he has no discretion, acts which he is clearly commanded by law to do or not to do. Chief Justice Grimes’ writing contains hints that might lead one to either an affirmative or a negative answer. On the one hand, because the President’s agent is not immune for such acts, even when acting on instructions from the President,

then it would seem to follow that the President, as principal, could not be immune either. As the Court explains, to take jurisdiction over the agent is in effect to take jurisdiction over the principal: “[T]heir acts are his acts.” Wiles, 8 LLR at 370

(quoting Marbury v. Madison, 1 Cranch 137, 165-66, 2 L. Ed. 60 (1803)).

Furthermore, as noted, Chief Justice Grimes relies heavily on American law, especially Marbury v. Madison, and today American courts routinely serve process on the President, as evidenced by the many cases bearing the name of an American

President. See, e.g., Clinton v. New York, 524 U.S. 417 (1998); Clinton v. Jones, 520

U.S. 681 (1997); United States v. Nixon, 418 U.S. 683 (1974). In American jurisprudence, the President is immune from process only when he is acting within his legally granted discretion, especially the political question doctrine.

On the other hand, Chief Justice Grimes also made clear that courts may never detain or imprison the President, even when he is not acting within his discretion. Thus: “If he should be imprisoned that would prevent the discharge of many official duties which the Constitution imposes on him. . . . Subjecting him to civil process might result in his being imprisoned and therefore he is not amenable to it.” Wiles v. Simpson, 8 LLR 365, 372 (1944) (quoting Watson, The Constitution of the United States 1023-24 (1910)). Furthermore, when Attorney General,

Counsellor Grimes advised the President: “The President is not responsible to the courts, civil, or criminal . . . . [T]he President cannot be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an

official inviolability.” Ghoussalny v. Nelson, 20 LLR 591, 614 (1972) (quoting

opinion of Attorney General Louis Arthur Grimes).

In short, Chief Justice Grimes’ view of executive immunity was complicated:

subordinate officers had immunity when acting on the directions of the President in

areas over which he possessed legal discretion, but not otherwise; the President

enjoyed immunity in areas over which he possessed discretion, and he may or may

not have enjoyed immunity for other areas.

By the 1970s, however, the Court’s view had changed and simplified: the

Court may never take jurisdiction over the President or one acting at his orders, regardless of whether the President possessed legal discretion in the matter at hand. See Ghoussalny v. Nelson, 20 LLR 591 (1972). In Ghoussalny, the President ordered a sheriff not to execute a Supreme Court mandate: “Fair [sic—presumably

“fare”] not at your peril.” Id. at 596. The Court forthrightly held that the President

had violated the Constitution: “We feel that it was wrong and unconstitutional for

the late President to have intervened in the manner he did to stop the execution of

the mandate of the Supreme Court and thus prevent the sheriff from performing a

duty mandatorily enjoined upon him by statute.” Id. at 611. But the Court could

not order the sheriff to enforce the mandate because that would, “in effect, be

issuing a writ of mandamus to the Chief Executive.” Id. at 613. Under the Liberian

Constitution, the Court simply cannot ever take jurisdiction over the President:

“Our writ of mandamus would not bring the Chief Executive under the jurisdiction

of the Court, nor could process lie against him for disobedience of our mandate.” Id.

at 614. For the Court to attempt to command the President “would simply be an exercise in futility.” Id. at 616.

The Ghoussalny Court made clear that the President’s immunity (and by implication that of his agent) extended even to those acts in which he had no discretion. Quoting a work on American constitutional law, which no longer accurately describes the law in the United States on this point, the Court held: “We have now to inquire whether the President, the chief executive of the nation, is, with reference to the performance of a purely ministerial act, . . . subject to compulsory judicial process. This question has several times been before the courts, and though not often directly passed upon, a negative answer has been uniformly indicated.” Id. at 614-15 (quoting Westel Woodbury Willoughby, The Constitutional

Law of the United States § 763 (1910)). The Court has reiterated this view more recently: “[T]he President or Head of State . . . is immune from court process” without limitation on the type of acts. Sartori v. Hon. Scott, 33 LLR 295, 304

(1985). Similarly, public officials are not subject to process “when acting as agents of the President,” again without limit on the type of acts. Id.

Today, Article 61 of the 1986 Constitution expressly provides for such executive immunity, thus codifying the doctrine of the Ghoussalny Court: “The

prosecution upon removal from office for the commission of any criminal act done

while President.”

In this respect, Liberian law is different from American law, under which the

Supreme Court routinely orders the President to execute its orders. The U.S.

President has immunity only against damage suits for acts done in his official

capacity as President. But Americans can sue the President in his personal

capacity before, during, or after his tenure in office, and even in his official capacity,

he is subject to a court injunction ordering him to desist from an illegal act. See

Nixon v. Fitzgerald, 457 U.S. 731 (1982). Perhaps most famously, the United States

Supreme Court unanimously ordered President Nixon to turn over tapes of

conversations between the President and his advisors about the infamous

Watergate affair. See Nixon v. United States, 418 U.S. 683 (1974). After a tremendous legal battle, President Nixon resigned, and the tapes were ultimately released.

But though the Liberian Supreme Court cannot compel the President, it can compel lesser executive officials: “It is only the President or Head of State of the nation that is immune from court process. . . . Unless a cabinet minister or an administrative official is carrying out a specific directive or instruction of the

President or Head of State, he is not immune from court process for any breach of his statutory duties which may infringe upon the rights and personal liberty of anyone under due process of law.” Sartori v. Hon. Scott, 33 LLR 295, 304 (1985).

See also Thomas v. Morgan, 25 LLR 37, 45 (1976). Indeed, the Court has strongly

emphasized that this rule is vital to the liberty of Liberians: “We cannot perceive how any law enforcement officer could think that anyone, except the President himself, could be ‘not subject to court process’ in Liberia. If we should concede that the Minister of Justice and other law enforcement officers are not subject to court process, what would happen to the liberties of the citizens should these officers decide to use their self-assumed immunities to satisfy personal vendettas?”

Thomas, 25 LLR at 45.

Ch. Two(b)(2): The Exclusive Power of the Executive to Enforce the Law

The Supreme Court has also offered a second and different reason for its holding that the courts cannot command the President to enforce its orders: law enforcement does not fall within the courts’ purview. As noted, under Liberia’s tripartite system of government, each branch has a different core function, and no branch may intrude on the core function of the other. Although the President is under obligation to enforce the law, including the courts’ mandates, no-one may order him to do so, because law enforcement is his core function and his alone.

Thus, the Court has held: “[T]he Supreme Court cannot compel the

Executive branch to enforce the Court’s judgments. . . . Consequently, whereas the courts may hear and determine litigation by rendition of judgments, it is not the duty of the courts to enforce those judgments; that duty belongs to the Executive

Department.” Branly v. Vamply, 22 LLR 337, 350 (1973). Similarly, the Court has explained that although the President may not constitutionally order a sheriff not to execute a court mandate, the Court may not constitutionally order the President

to execute the mandate. In either case, one branch would be intruding on the domain of the other: “In other words, the petitioner is asking us to do the very thing he is condemning, that is, to interfere with a directive of the Chief Executive because he interfered with a mandate of this Court.” Ghoussalny v. Nelson, 20 LLR

591, 613 (1972). For the Court to issue such an order would disrupt the harmonious balance of powers prescribed by the Constitution: it would bring “the judiciary into conflict with the executive branch,” and it might cause “disruption in the smooth operation of Government.” Id.

The Court has nonetheless strongly cautioned the President that he or she should enforce court decisions, both because the Constitution demands it and bad consequences would follow if he or she does not: “[I]t is in the best interests of good government, and in obedience to the spirit of the Constitution, that legislative enactments, as well as court judgments, be executed and enforced by the Executive department. . . . As [the other two] branches must fulfill the requirements of their designated constitutional duties if orderly government is to continue to function, to that same extent must the laws enacted by the Legislature and the judgments of the court be implemented to serve the ends of good and stable government.” Branly,

22 LLR at 352. The President is therefore constitutionally obliged to enforce the

Court’s judgments, but if he or she does not, the Court is constitutionally forbidden from ordering him. Constitutional government in Liberia thus depends on the willing participation of all three branches, each voluntarily performing its designated role.

Ch. Two(b)(3): The Differences Between the Two Rationales for the Court’s Inability to Order the President to Enforce Its Mandates

Thus, the Supreme Court has offered two legal reasons for its inability to order the Executive to enforce the law: on the one hand, the President has legal immunity from service of process, as do his immediate agents; on the other hand, courts do not have the power to enforce the law or to order it to be enforced, because law enforcement is an executive prerogative. These two explanations do not, however, lead to identical conclusions. The first relies on the personal immunity of the President, which may be extended to those acting at his behest; it does not, however, forbid the courts from ordering other executive officials to enforce the law.

The second explanation, by contrast, relies on the institutional inability of the courts to enforce the law or to order it enforced; logically, the courts would then lack the ability to order even those not acting at the direct instructions of the President.

In other words the second explanation would lead to a general judicial incapacity, applicable to all executive officials. By contrast, in the presidential immunity cases, the Court has clearly held that in fact, the Court may order all executive officials to enforce the law except the President or his immediate agents.

In short, then, these two threads of doctrine would appear to be in some tension, and the Court will perhaps have occasion to consider their relationship. Because the practice has been for courts to order lesser officials to enforce the law, the Court will likely adopt the first explanation and reject the second.

CH. TWO(c) THE EXCLUSION OF OTHER BRANCHES FROM JUDICIAL FUNCTIONS

The Constitution forbids the other branches to perform judicial functions. In order for the courts to decide cases fairly, they must be independent and immune to influence from the other branches or indeed from any powerful person. As the

Court explains: “The essential element of such plan was that the men so set aside, must be free and that they must be above every outside influence whether sought to be exercised by king or people; that they must decide all matters coming before them without fear, favor, or affection.” In re Act of the Legislature Approved

January 20, 1914, 2 LLR 157, 163 (1914).

The Supreme Court has accordingly held that the other branches may not decide cases, nor may they interfere with the Court’s own decision-making process—though, again, the Court will not order them to desist if they do so. “It follows then that no department of the government but the courts, can exercise judicial functions except as it may be otherwise provided in the Constitution, as each branch set up in the Constitution is independent as well as coordinate.” In re

Cassell, 28 LLR 107, 124 (1979). See also In re the Act of the Legislature of Liberia,

January 20, 1914, 2 LLR 157 (1914); Jitco, Inc. v. Hon. Sesay, 36 LLR 695, 701

(1990).

Ch. Two(c)(1): The Exclusion of the Other Branches from Deciding Cases

Only the Judiciary may decide cases. In a series of well-known cases, the

Court has sternly directed that neither the Legislature nor the Executive may intrude on its territory.

Ch. Two(c)(1)(i): The Exclusion of the Legislature from Deciding Cases

The Legislature, on the one hand, must confine itself to making general rules, not deciding particular cases. Wolo v. Wolo, 5 LLR 423 (1937), the seminal precedent for this principle, is one of the most famous cases in Liberian history.

Although technically a due process case, the decision derives its holding from separation of powers concerns. The case concerned a legislative divorce: the

Legislature passed an Act granting P. Gbe Wolo a divorce from his wife Juah Weeks

Wolo. The Supreme Court ruled that the legislative divorce violated due process because the Legislature gave her no opportunity to appear and be heard as to why her marriage should not be dissolved under the existing divorce laws. See id. at

429. But the Court then went further, ruling that the legislature may make rules that govern divorces but may not apply those rules in specific disputes. Thus, the

Court explained: “When it comes to determining what shall constitute a valid marriage, the age when, or other capabilities of the parties to enter into the contract, we are of the opinion that that is purely a legislative function in which ours, the judicial branch of government, may not interfere. So too, determining what shall constitute legitimate grounds for divorce, when and by what tribunal same shall be tried, etc.” Id. at 438. But only courts may apply those rules to particular cases: “But as to whether the tribunal empowered to divest either of the

parties of vested rights shall be a judicial tribunal,” the Court instructed that “no department of government can exercise judicial functions but the court itself.” Id. at 439.

Ch. Two(c)(1)(ii): The Exclusion of the Executive from Deciding Cases

Similarly, the Executive must generally confine itself to enforcing the law, not deciding cases. Again, the Court announced this principle is a series of famous opinions analyzing the hinterland regulations. The Legislature had sought to give the President jurisdiction to try criminal cases in the hinterland, in some cases with no right of appeal to the judicial branch. The Court held that the legislature could not give the Executive the power to perform purely judicial functions in the hinterland or indeed anywhere else in Liberia: “It is utterly inadmissible that the

Legislature can confer judicial power upon any, but the courts; and whenever it is attempted to transcend the limitations fixed by the Constitution, as the statute under construction contemplates, such statute must be declared as being not only voidable—but, void ab initio—because of its conflict with the Constitution.” Karmo v. Morris, 2 LLR 317, 330-31 (1919). The Court had to insist on this holding several times, because the executive branch ignored the opinion and continued to decide cases in the hinterland. See Boyah v. Horace, 2 LLR 265 (1916); Manney v. Money,

2 LLR 618 (1927); Posum v. Pardee, 4 LLR 299 (1935). Indeed, the decision “was not implemented till 1964 . . . when the Act to establish four new counties in the hinterland was passed into law.” Branly v. Vamply, 22 LLR 337, 351 (1973). As already explained, although the President was under a constitutional duty to heed

the Court’s decisions, the Court did not and does not have the power to order him so

to do.

In the hinterland cases, the Court made clear that criminal trials fell within

the purely judicial power. Thus, the Executive may not arrest, take bail, imprison,

or hold a person in contempt, because all those actions are part of the judicial

function of deciding cases. See Karmo, 2 LLR at 333. But in those cases, the Court

did not further detail or define those functions which belong in the judicial sphere.

Instead, the Court developed such a definition in its cases dealing with agency

decision-making.

Ch. Two(c)(1)(iii): The Limited Power of Executive Agencies to Decide Cases

Executive agencies do decide cases, exercising judicial and quasi-judicial

powers, but only with legislative authorization and subject to judicial review. By its

terms, the 1986 Constitution clearly contemplates that agencies might play a role in

deciding cases, as Article 65 specifies: “Nothing in this article shall prohibit

administrative consideration of the justiciable matter prior to review by a court of

competent jurisdiction.” It is thus clear that agencies may give “administrative

consideration” to a case, but the language is not specific as to what “administrative

consideration” means. In particular, the language does not specify which particular

functions or operations agencies may perform. For this reason, it has fallen to the

Court more clearly to demarcate the constitutional role of agencies in the

consideration of legal proceedings.

First, if the Legislature has specifically authorized them, agencies may make

provisional decisions and issue provisional orders, pending judicial review, with

respect to those matters committed to them by statute. “Generally, agencies acting

under the [Administrative Procedure] Act perform functions similar to a tribunal,

and the hearing or presiding officer cannot perform any duties inconsistent with his

duties and responsibilities as a hearing officer.” Thomas v. Ministry of Justice, 26

LLR 129, 133 (1977). See also Branly v. Vamply, 22 LLR 337 (1973).

Indeed, if a statute commits a matter to administrative decision, the courts

must wait until the agency decides before taking jurisdiction: “[I]n matters over

which a government agency has been expressly given original jurisdiction, a court is

prohibited from exercising original jurisdiction.” Liberia Produce Marketing Corp.

v. Nat’l Seamen’s Port & General Workers’ Union of Liberia, 33 LLR 132, 144 (1985)

(quoting Vamply of Liberia v. Kandakai, 22 LLR 241 (1973)). In other words, parties must exhaust their administrative remedies before coming to Court. For example, when two different groups claim to be the legitimate leaders of a union, they may not come to court to demand to receive union dues until the Ministry of

Labour has made its own decision: “”[T]he Ministry of Labour being the proper executive department created for the administration of the country’s labour affairs, should have been allowed to settle the question of the Union’s leadership.” Id. at

141. The Court has specifically recognized that administrative agencies thus perform judicial and quasi-judicial functions, so much so that a writ of prohibition will lie against them, just as it would against a lower court, when the agency is

“acting without jurisdiction or in excess of its jurisdiction.” Kruah v. Weah, March

Term 2004, 125, 131. See also Monrovia Breweries, Inc. v. Hon. Karpeh, 37 LLR

288, 301 (1993).

Second, agencies may make such provisional decisions only if authorized by

legislation. For example, the Court determined that the if the Commissioner of

Insurance lacks “the statutory authority to adjudicate cases involving damages for

personal injury arising out of motor vehicle accidents,” then the Constitution forbids

him from making such decisions: “[I]t is highly ultra vires for an agency or

department of the Executive Branch of the Government (i.e. the Ministry of

Transport) to perform a judicial function not allotted to it by law. Chapter One,

article 3, of the Constitution of Liberia, which came into full force and effect on

January 6, 1986, is clear on this matter.” Rogers v. Universal Insurance Co., 40

LLR 609, 614 (2001).

Third, administrative agencies may never make final legal determinations in particular cases; their orders are always subject to judicial review. Article 65 allows

“administrative consideration of a justiciable matter” but further specifies that such consideration may occur only “prior to review by a court of competent jurisdiction,” not as a final judgment. Thus, parties may always “except to any adverse ruling of the Ministry and seek judicial review of the administrative decision.” Nat’l

Seamen’s Port & General Workers’ Union of Liberia, 33 LLR 132, 144 (1985). The

Court has explained that the Legislature is constitutionally obliged to provide for judicial review of agency decisions: “We hold that . . . it was the constitutional duty

of the Legislature to have passed this statute, giving to the courts jurisdiction over such administrative matters when the circumstances warranted.” Branly v.

Vamply, 22 LLR 337, 341 (1973).

The courts will set aside agency determinations only when they are contrary to the law: “This Court says that in the instance where it cannot be shown that the act of an administrative agency is in violation of the constitution and statute, we will not set aside the action of the administrative agency.” Liberia Institute of

Certified Public Accountants of Liberia v. Ministry of Finance, 38 LLR 657, 671

(1998). Legislation may vest discretion in an agency over certain matters, and in such cases, the courts’ review will be quite limited: “The court will not substitute its discretion or judgment for that of the administrative agency, but will determine the lawfulness of its action.” Id. at 672. When the Executive possesses discretion, the matter is by definition non-judicial, because the courts’ task is only to apply the law, not to make policy judgments. Accordingly, the court must confine its review to the question of legality.

Fourth, until and unless appealed, an administrative order has the force of law and binds those against whom it is directed. Thus, the Court explains that whenever a taxpayer decides no longer to pursue her claim, the most recent decision in the process will govern: “The taxpayer is bound by the final determination of such hearing whether it ends at the administrative hearing level, or in the Tax

Court, or in the Supreme Court.” Monrovia Breweries, Inc. v. Hon. Karpeh, 37 LLR

288, 301 (1993).

Fifth, the Legislature may not give agencies power to entertain criminal

prosecutions, to imprison or to impose criminal fines, because criminal matters lie

exclusively within the judiciary’s province: “[O]fficials of the Executive branch of

government [are] incompetent to judge the petitioner guilty of, and impose a fine

for, committing a criminal offense. These are judicial functions and no department

of the government can exercise judicial functions but the Judiciary itself.” Ayad v.

Dennis, 23 LLR 165, 178 (1974). The Ministry of Justice may preliminarily investigate crimes but may not try them because to do so would combine the offices of prosecutor and judge: “The Ministry of Justice is not another tribunal and, while it may hold preliminary examinations on its own, it cannot determine any criminal matter. . . . The Ministry is the prosecuting arm of the government and represents the Republic in criminal actions, and in its attempt to conduct hearings it must be careful not to act as prosecutor and judge, for the functions of the two positions are incompatible.” Thomas v. Ministry of Justice, 26 LLR 129, 133 (1977).

Nor may the Minister arrest or imprison, “[f]or, to commit to jail can only be done legally by commitment, and the issuance of a commitment is exclusively a judicial function which cannot legally be assumed by anyone outside the judicial branch of government.” Trawally v. Hon. Scott, 33 LLR 200, 207 (1985). Indeed, even when acting “by the directive of the Head of State,” the Minister of Justice has no power to commit a person to jail except “in cases of treason or when the security of the state is at stake.” Id. at 201. Finally, the Legislature may not delegate to agencies the power to try crimes: “[A] crime . . . cannot be tried by the officials of

the Ministry of Commerce, regardless of whether they were, or were not, acting

under the Administrative Procedure Act.” Ayad, 23 LLR at 181-82.

Sixth, the Legislature may not give executive agencies the power to

determine title because of the special status of property under the Liberian

constitution. Thus, the Court rebuked the security forces for evicting a property-

holder: “[T]he military and police officers being agents of the executive branch of

government lacked jurisdiction to preside over and decide title to property whether

real or personal. The determination of property rights lie [sic—presumably “lies”]

within the domain of the judicial branch of government.” Jitco, Inc. v. Hon. Sesay,

36 LLR 695, 700 (1990). Even if the President requests the Minister of Justice to

evict a person from “disputed premises, the Minister should have at once informed

the Chief Executive that his Ministry could not dispossess a person of his property and place another in possession of said property, as this could only be done by a writ

of possession, the issuance of which is a judicial function.” Trawally v. Hon. Scott,

33 LLR 200, 200, 206 (1985).

On the other hand, at least one case holds that if the President decides to

determine title to a tract of land, the Court will not intervene. In Crusoe-Marsh v.

Morgan-Bedell, the Court had earlier ruled that the contested property belonged to

Crusoe-Marsh, but some time later, Morgan-Bedell reoccupied the land. Morgan-

Bedell referred the matter to the President, and when Crusoe-Marsh came before

the Supreme Court, the Court refused to take jurisdiction over the case: “[S]ince

jurisdiction is not conferred by consent of parties, but rather by law, and the

Constitution provides that the one branch of Government shall not interfere with

the functions of another, this matter having already been referred to the President

of Liberia before the submission was made to this Court, we are of the opinion that

the submission is void of legal consideration.” 20 LLR 334, 338 (1971). This

conclusion is presumably an application of the doctrine, discussed above, that the

Court will not order the President to enforce its decisions.

Seventh, the Justice Ministry has been delegated no judicial authority by

statute, and so whenever he or she performs judicial functions, he or she is

intruding on the sphere of the courts. The Court has explained that the office of the

Minister of Justice does “not have judicial power and function to hear and

determine civil actions.” Sartori v. Hon. Scott, 33 LLR 295, 305 (1985). Therefore,

the Minister may not decide title to real property or arrest and imprison persons,

see id. at 304-5, and by so doing, he or she can be adjudged guilty of contempt for

intruding on the judicial sphere, see id. at 308. This restriction is important

because Liberians often register complaints with the Justice Ministry, which is

allowed to investigate but not to grant relief.

Ch. Two(c)(2): Prohibition on Attempts by the Other Branches to Interfere with the Supreme Court

The other branches may not interfere with the Supreme Court’s decision making. During judicial proceedings, the other branches must allow the Court to conduct its business without interference. Members of the Executive Branch, including mayors, may be held in contempt for disrupting court proceedings, because by so doing, the official in effect arrogates the judicial power to himself:

“By the use of force, violence, torture, and duress, with the intent, either express or

implied, to halt or stay court proceedings in a matter, reverse, or obtain other

actions or inaction from judicial officers, the contemnor assumes and exercises

unlawful judicial power, authority, and control reserved by the Constitution and statute to the judiciary.” In re Contempt Proceedings Against Hon. Flomo, 40 LLR

575, 583-84 (2001). Similarly, the Ministry of Justice may not constitutionally attempt “to officially interview one of the parties in connection with a civil matter pending before the Supreme Court.” Nyepon v. Reeves, 21 LLR 406, 409 (1973).

Even certain communications and requests may constitute interference: mayors may not, for example, ask a court to advise “of the nature of the case” and to

“suspend enforcement” of a decision, on the grounds that “it is said to involve public land owned by the City Government.” Pearce v. Flomo, 26 LLR 299, 306-07 (1977).

In re Toe and Johnson, 39 LLR 802 (1999), addressed perhaps the most shocking attempt by members of the Executive Branch to interfere with judicial proceedings. Members of the Ministry of National Security kidnapped and brutally tortured an Associate Magistrate, demanding that he sign an order releasing a person then in prison. The Supreme Court described the acts as unique in Liberian

history: “There is no [prior] instance where hands have been violently laid upon the

person or body of a judicial officer, or for such judicial officer to suffer torture and

detention as the means of compelling him to reverse his judicial act or decision.” Id.

at 810. The conduct of the National Ministry Security not only constituted ordinary

crimes, for which they were indicted in a separate proceeding, see id. at 812; they

also constituted contempt of court as a drastic intrusion on the sphere of the judiciary: “The acts of torture, brutality, and detention by the contemnors, in their capacity as officials of the Executive Branch of Government and [sic—presumably

“are”] clear signs that they will tolerate no resistance from the judiciary or its officers, whenever they decide to interfere in judicial matters or exercise judicial powers and authority, in violation of the constitutional doctrine of separation of powers.” Id. at 811-12.

After judicial proceedings have concluded, the other branches may not interfere with the execution of judgments. The Court has held that neither the legislature nor the executive may constitutionally review final decisions of the

Supreme Court: “Reviewing judgments of the Supreme Court, or any court for that matter, as a basis of determining their legality or enforceability does not fall within the purview of the Executive or Legislative branches of government.” In re Cassell,

28 LLR 107, 125 (1979). If an earlier constitutional precedent was wrongly decided, only the Supreme Court can hold it so: “[I]f its judgment is clearly unconstitutional or it becomes ineffective by change of law or legal process, it may be so declared or reversed only by a subsequent Supreme Court judgment after hearing an actual controversy.” Liberian Bank for Development & Investment v. Holder, 29 LLR 310,

315 (1981).

In accord, once the Court has finally decided a case, the Chief Justice may not, on the President’s petition, reopen and over-rule it: “The acts of the Chief

Justice clearly contradicted the principles of judicial neutrality and impartiality.

The judiciary should not be and is no agency for any branch of government.”

Liberian Bank for Development & Investment v. Holder, 29 LLR at 317. Similarly, when the Chief Justice has ordered the Republic to pay costs to a sheriff, it is contempt for the Attorney General to refuse on the grounds that the Chief Justice was legally in error: “[T]he Attorney General . . . questioned the authority upon which the judgment was given, and assumed the power and authority to review the same.” Proceedings Upon a Writ of Habeas Corpus Issued by the Chief Justice,

Republic of Liberia, 1 LLR 190, 191-2 (1885). In short, “[j]udgments, within the powers vested in the courts by constitutional provisions may not lawfully be revised, overturned, or refused faith and credit by the executive department of government.”

Ghoussalny v. Nelson, 20 LLR 591, 607 (1972) (quoting 16 C.J.S. Const. Law § 171).

The Court has also strongly warned private persons not to encourage the other branches to interfere in the Court’s decision-making processes. Many

Liberians have asked the President to help them in a court case, but the Supreme

Court has strongly condemned such efforts. Thus, a lawyer may be subject to contempt for suggesting that the president should consult a lawyer to help him decide whether a Supreme Court decision had been rightly decided, so that he would know whether to enforce it. See In re Cassell, 28 LLR at 129. Similarly, a lawyer may be permanently disbarred for “asking the President to intervene with respect to a judgment of the Supreme Court in a civil case.” In re Acolatse, 26 LLR

456, 461 (1977). (In a criminal case, lawyers may ask the President to pardon their clients, see id. at 472, but even pardon does not constitute a review of the court’s

decision for legal correctness, as it is given by reason of mercy, not law). See also In re McFarland, 34 LLR 439, 454 (1987); In re Dennis-Webb & Dennis, 27 LLR 355,

357 (1978); In re George & Findley, 26 LLR 435 (1978).

Such behavior represents “an attempt to bring the two branches of government into direct conflict and to violate the Constitution of the country and to undermine and impair the administration of justice.” In re Acolatse, 26 LLR at 471-

72. Conflict between the branches is profoundly threatening because, as already shown, no branch may order another branch to perform its duties, so that good government depends on voluntary cooperation among the branches: “When the three branches of our government cease to work together in harmony, chaos and disorder will replace law and order, and the supremacy of the law will disappear and the orderly government of which we now feel so proud and stand ready to defend at any cost will be the subject only of a historic past.” Id. at 474. For the same reason, no-one may ask members of the legislature to intervene in a judicial proceeding. See Jawhary v. Hon. Jones, 38 LLR 584, 595-96 (1998).

CH. TWO(d) THE POWER TO INTERPRET STATUTES

In Liberia’s separation of powers, the fundamental job of the courts is to interpret and apply the law in particular cases, and the legislature may not take that task upon itself. Correlatively, the fundamental job of the legislature is to make the laws, and the courts may not take that task upon themselves. In short, in

Liberia, courts may not make law. At its simplest, this restriction prevents courts from actually drafting, announcing, and promulgating the statutes that they think best for Liberia. More subtly, it also requires the courts to stick to the intent of the legislature when interpreting statutes. If the court were to depart from the legislative intent, it would in effect be substituting a statute of its own making for the statute that the legislature actually made.

Ch. Two(d)(1): The Power to Determine the Intent of the Legislature But Not to Legislate

When interpreting statutes, courts may not legislate and must only determine the intent of the legislature. In all constitutional systems with separation of powers, courts have no formal legislative power as such; they may neither adopt statutes nor modify the language of existing statutes. In many such systems, however, the proper technique for interpreting statutes is commonly regarded as a question of good practice, rather than a constitutional command, so that different jurists take different views. For example, some judges believe that courts should consult only the plain language of the statute; others believe that legislative history, policy goals, and equity should influence a court’s interpretation.

In Liberia, by contrast, the Constitution not only mandates that courts have no legislative power; it also mandates that the courts must stick to the intent of the legislature in interpreting statutes. In the foundational precedent Koffah v.

Republic, 13 LLR 232 (1958), the Court explained: “In keeping with the

Constitution, the powers of this Government are divided into three separate and distinct departments; and no one belonging to any one of these departments shall

exercise any of the powers belonging to any of the others. Thus, the power to

legislate law is purely and solely the Legislature’s, and neither of the two other

sister branches can assume that power without infringing the constitutional powers

of the Legislature. . . . In interpreting statutes, this Court is only empowered to

pass upon the specific wording of a statute and place a legal interpretation upon the

text. Our power to construe and interpret does not extend to adding words or

phrases to the text of a statute. That power belongs solely to the Legislature. It is

their constitutional right to amend statutes, and not this Court’s. We can only

interpret what has been legislated.” Koffah, 13 LLR at 244.

This constitutional rule, that courts must only determine the intent of the

legislature in interpreting statutes, applies every time that a court interprets a

statute. As a result, this rule has frequent application, and the court has had

occasion to invoke it in a number of cases. See, e.g., Kennedy v. Goodridge, 33 LLR

398, 404 (1985) (“This Court has also held that a judicial construction of our

statutes is constitutionally restricted to a determination of the legislative intent, as

stated in the statutes themselves”); Kasaykro Corp. v. Hon. Stewart, 30 LLR 164,

173 (1982) (“Judicial construction of Liberian statutes is constitutionally restricted to determination of legislative intent as stated by the statutes themselves”); Browne

v. Republic of Liberia, 22 LLR 121, 127 (1973) (“To declare what the law is, or has

been, is a judicial power; to declare what the law shall be is legislative. It is the

duty of the courts to construe statutes for the purpose of determining whether a

particular act done or omitted falls within the intended inhibition or commandment

of such statute”) (quoting 50 Am. Jur. Statutes § 219) (internal quotation marks omitted); Ammons v. Barclay, 18 LLR 212, 217 (1968) (“[T]his Court is not given the authority or right under the organic law of Liberia to enact laws. Rather, in our field as dispensers of justice, we are called upon to interpret the law. . .”); Roberts v.

Roberts, 7 LLR 358, 367 (1942) (“The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the legislature”) (quoting 25 R.C.L. § 218 at 963-64 (1919)).

Ch. Two(d)(2): Prohibition on Interpreting Statutes According to the Court’s Own Policy Views

The wisdom and equity of statutes are questions for the legislature and should not influence the courts’ interpretation of statutes. It is the legislature’s responsibility to adopt good statutes--laws that are not unwise, unjust, inequitable, oppressive, or otherwise substantively objectionable. If the legislature fails in this task, the only remedy is to persuade the legislature to adopt better statutes.

Litigants may not ask the courts to void statutes on the ground that they are unwise or oppressive, nor may courts seek to “improve” statutes by interpreting them in a way other than the legislature intended—even if the court’s preferred interpretation might yield statutes wiser or juster than those intended by the legislature itself.

In the foundational precedent Harris v. Harris & Williams, 9 LLR 344 (1947), the lower court found for the ex-wife in a maintenance suit, and a statute provided that the judgment would go into effect during the pendency of the appeal. As a

result, the husband would have to pay maintenance while he awaited the outcome

of the appeal. Because he found this rule inequitable, he refused to perfect his

appeal and instead brought a writ of certiorari before the Court, asking the Court to

invalidate the rule. The Court sternly rejected this invitation: “It may therefore be

clearly seen that to remedy defects in a law is not one of the functions of the writ of

certiorari. On that score the Court has ever and anon enunciated the principle that

courts are not concerned with whether or not legislation is wise or unwise,

oppressive or democratic; it is the especial function of the courts to interpret the

law. Any legislation considered pernicious, unwise, or oppressive may be remedied

only by the people who, where the legislators refuse to change the law, may change their representatives in the legislature from time to time until such repugnant legislation is repealed. We are therefore of the opinion that the ground given, the injustice and inequity of the law of maintenance extant on our statute books, is not within the province of the Court to pass upon, however the individual minds of its personnel may feel about it.” Harris, 9 LLR at 349.

The Court has read the Harris rule to have two components. First, most

simply, the Court may not void statutes simply because the justices personally

believe that the statute is substantively objectionable in some way. For example,

the Court explained: “Courts are not at liberty to declare statutes invalid although

they may be harsh, unfair, or may afford an opportunity for abuse in the manner of

application, may create hardships or inconvenience, or may be oppressive,

mischievous in their effects, burdensome on the people, and of doubtful propriety.”

Liberia Water & Sewer Corp. v. Kollie, 37 LLR 239, 244 (1993). Courts may strike

down statutes only when they are actually unconstitutional, not when they are

merely unwise or unfair. See Woewiyu v. Int’l Trust Co. of Liberia, 38 LLR 568, 580

(1998); Liberia Water & Sewer Corp., 37 LLR at 244; Kasaykro, 30 LLR at 173.

Management of BAO v. Mulbah, 36 LLR 404 (1989), offers an especially good

example of this rule because the Court refused to invalidate a law that it plainly

thought unfair. At issue was a statute allowing employers to terminate salaried

employees with only four weeks notice and hourly employees with only two weeks

notice, “without assigning any cause or ground for the termination.” Id. at 409. The

Court recognized that this statute was harsh: “We are quite aware of the fact that

section 1508(3) of the Labor Practices Law seems harsh and arbitrary and may be

subject to abuse by unscrupulous employers.” But, citing Harris, the Court

explained that it could not invalidate a law merely because it was a bad law.

Management of BAO, 36 LLR at 410.

The Court is so committed to this principle that it even applied it during the

period of military government, asserting that the wisdom and equity of decrees are

matters for the military government, not the courts: “Courts of justice in any political institution do not enact laws; nor do they have the right to say what laws should have been enacted. They are only to interpret the laws enacted by the

Legislature. In the absence of a constitution, and in a military government such as ours, until civilian rule is reestablished, decrees and existing laws not repealed by any decree, are the bases of the court’s interpretation of the laws for the

administration of justice.” Al-Boley v. Proposed Unity Party, 33 LLR 309, 312

(1985).

Second, more subtly, the Court must interpret statutes according to the true legislative intent, even if the justices personally believe that the statute so construed is substantively objectionable in some way. In other words, the Court may not give to a statute a meaning that might be substantively better (in the

Court’s view) than the one that the legislature actually intended. The Court explained: “To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret. The fact that the true construction of a statute may generate harsh consequences cannot be the basis for influencing the courts in administering the law. The responsibility for the justice or wisdom of legislation rests with the Legislature.” Kasaykro Corp., 30 LLR at 173 (citing 25

R.C.L. Statutes §§ 216-18). See also Liberia Water & Sewer Corp., 37 LLR at 245;

Koffah, 13 LLR at 246; Roberts, 7 LLR at 367 (all citing the same source to the

same effect).

Ch. Two(d)(3): The Importance of the Words of the Statute in Determining Legislative Intent

To determine the intent of the legislature, the courts should look primarily,

though perhaps not only, to the words of the statute. The Liberian Supreme Court

has thus spoken with one voice on this point: the courts may not change the

meaning of a statute away from the legislative intent so as to render the statute

better in the court’s view. To do so would be to substitute the court’s own legislative

judgment for the legislature’s.

The courts’ task is therefore to discern the legislative intent, but to perform

that task, the courts must know how to discern legislative intent. On this point,

unlike the previous, the Liberian Supreme Court has expressed at least three

different views. The disagreement centers on the proper relationship between the

letter (the literal words) and spirit (the broad legislative goals) in statutory

interpretation. All Liberian Supreme Courts have agreed that interpretation must

begin with the literal words of the statute, but they have disagreed on whether

interpretation must end there as well. The first view is that courts may look only to

the words of the statute; the second view is that when but only when the statute is

ambiguous, the court may look to the spirit of the law to help them choose the best

interpretation; the third view is that even when the statute is unambiguous, the

courts may ignore the literal words of the statute when they would give rise to

manifestly unjust results, because the legislature could not have desired such

results. On occasion, the Supreme Court has advanced more than one of these

views in the same case.

Ch. Two(d)(3)(i): Words Alone

For the first view, George v. Republic of Liberia, 14 LLR 158 (1960), is the

foundational case. In oft-quoted language, Justice Pierre explained: “This Court has no authority to extrapolate the intent of the Legislature beyond the specific wording of a statute. This limitation is all the more mandatory where the statute in question specifies the only manner in which an act is to be performed. Our law does not give us authority either to add to or take from what the Legislature has

commanded, unless the said command breaches provisions of the Constitution; and in such case the constitutional issue must be raised squarely.” George, 14 LLR at

159.

In other words, to discern the intent of the Legislature, the courts may look only to the face of the statute, not to some underlying intent not immediately apparent in the words. The court may not “take from what the Legislature has commanded,” i.e. even if the words of the statute would work hardship in a particular case, the court may not make an exception on the grounds that the legislature wanted one, or at least would have wanted one if they had anticipated such a case. Similarly, the courts may not “add to . . . what the Legislature has commanded,” i.e. the courts may not apply the statute to cases other than those specified in the words, even if the justices think that the legislature might have so desired.

In short, the Court may not try to identify the real legislative purpose of a statute, apart from the one discernible in the words themselves, and then

“extrapolate” that intent so as to narrow or broaden the reach of the statute as specified in its text. As the Court explained, “It is the judicial function to apply statutes on the basis of what the legislature has written, not what the legislature might have written.” GOOSCROP v. Nat’l Port Authority, 37 LLR 505, 526 (1994).

As a hypothetical example: suppose that the legislature proclaims, “There shall be no automobiles in the park.” The Court believes that the real purpose of the law was to control noise in the park, and so it thinks that the legislature really

wished to ban not only cars but also trucks. But to extend the law from a ban on cars to a ban on trucks would be to “add to” the reach of the statute’s words, in contradiction to George. On the other hand, the Court also believes that the legislature did not really mean to ban an exhibit of antique cars, because they make no noise when sitting still, on display. But to make an exception for such exhibits would be to “take from” the reach of the statute’s words, in contradiction to George.

As a real world example: in Lamco J.V. Operating Co. v. Doe-Kpar, 32 LLR

458 (1984), the Court considered a statute that, by its terms, required appellants to post appeals bonds as a condition for making the appeal. The appellant, Lamco, failed to post such a bond. It argued that the statute should be interpreted flexibly, in line with its purpose rather than the literal words. In the appellant’s view, the purpose of the bond requirement was merely to “indemnify the appellee from all costs or injury arising from the appeal.” Id. at 460. But Lamco should not be required to post a bond because, “being a concession operating in Liberia, at any crisis management can indemnify all costs whenever judgment is rendered against her in any eventuality.” Id. The Court sternly rejected this invitation to look beyond the words to the alleged purpose of the statute: “Neither the Supreme

Court, nor any lawyer for that matter, has any authority to extrapolate the intent of the Legislature beyond the specific wording of the statute.” Id. at 462. Indeed, the

Court rebuked appellant’s counsel for even making such an argument: “The language of this appeal statute being so unequivocally mandatory and elementarily

clear, one wonders whether the counsel for the appellant . . . ever thought about a lawyer’s duty to his client.” Id. at 461-62.

The George rule is very well established, as it has been frequently cited by the Supreme Court over the years. See, e.g., Firestone Plantations Co. v. Wilson, 34

LLR 385, 390-91 (1987); Wilson v. Firestone Plantations Co., 34 LLR 134, 156-57

(1986); Ganta Sawmill v. Hon. Tulay, 31 LLR 358, 363-64 (1983); Cooper v. Hon.

Bailey, 31 LLR 366, 370-71 (1983); Kasaykro, 30 LLR at 172-73.

Indeed, even before it handed down the George opinion, the Court had laid its foundation in earlier cases: “[W]hilst some might contend that it is within the province of this Court to ascertain the intention of the Legislature in passing a statute, we are of the opinion that this Court’s power of interpreting said intentions must be confined to what is written in the statute.” Koffah, 13 LLR at 244. At a still earlier point, the Court took the same position: Courts “cannot read into a statute something that is not within the manifest intention of the legislature as gathered from the statute itself.” Roberts, 7 LLR at 367 (citing 25 R.C.L. Statutes §

218, at 963-64 (1919)). In all these instances, the Court’s command is inveterate: to interpret statutes, court may look at the words alone.

Ch. Two(d)(3)(ii): More than Words if the Statute is Ambiguous

In its own terms, the George court itself held that courts may never go beyond the words of the statute, without exception; the words alone provide meaning for the law, without exception. Some later courts, however, have used a more flexible rule: when the words of the statute are plain and unambiguous, the

court may not look beyond the words of the statute; but if the words are ambiguous,

the courts may not simply apply the words as written, because the words will bear

more than one meaning. To choose the best meaning, the courts must look beyond

the words to the underlying intent of the legislature.

Thus, Koffah held that when the statute is ambiguous, the court should pick

the interpretation that best coheres with the underlying legislative intent: “[W]here

an ambiguity exists . . . then, and only then, are the courts permitted to look beyond

the words of the particular statute to discover the legislative intent.” Koffah, 13

LLR at 246 (citing 25 R.C.L. Statutes §§ 216-18, at 960-64). (On this score, Koffah appears to be internally inconsistent, because as already noted, it also holds that the courts may never look beyond the words to the intent). In a different case, the

Court held that when the statute is ambiguous, the court should look to the underlying intent, and if no particular intent is discernible, the courts should look to the general policy positions of the legislature: “[W]here the language of the statute is of doubtful meaning, . . . the duty devolves upon the court of ascertaining the meaning. If the intention of the legislature cannot be discovered, it is the duty of the court to give the statute a reasonable construction, consistent with general principles of law. . . . For the purpose of determining the meaning, although not the validity, of a statute, recourse may be had to considerations of public policy, and, to the established policy of the legislature as disclosed by a general course of legislation.” Republic of Liberia v. Kenneh, 33 LLR 114, 119-20 (1985) (citing 36

Cyc. 1110-11).

Finally, on yet a third occasion, the Court has held that when a statute is ambiguous, the courts should give it the interpretation most consistent with the nature of Liberian institutions, because the legislature probably intended such an interpretation: “In construing the terms of a statute bestowing powers on an administrative agency, which statute is open to different possible construction, the courts must select and apply the one best comports with the genius of our institutions and is therefore most likely to have been the construction intended by the law-making power.” GOSSCROP, 37 LLR at 526 (citing 1 Am. Jur. 2d Admin.

Law § 37, at 839-40).

Ch. Two(d)(3)(iii): The Spirit Over the Letter

Finally, the Liberian Supreme Court has sometimes held that when the court can discern the underlying intent of the legislature, it should follow the intent, even to the extent of ignoring the actual words of the statute when those words seem to conflict with the intent. Some of these cases are venerable with age. Thus, in 1934, the Court explained: “Every statute, it has been said, should be expounded, not according to the letter, but according to the meaning; for he who considers merely the letter of an instrument goes but skin deep into its meaning. Qui haerit in litera haerit in cortice. Whenever the legislative intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction may seem contrary to the letter of a statute.” Yancy v. Republic of Liberia, 4 LLR 204, 214-15 (1934). See Brownell v. Brownell, 5 LLR 76, 79 (1936)

(quoting the same language from Yancy).

Frequently, the Court has invoked this rule when the literal words of the statute would work absurd or unjust results in a particular case. In such a situation, according to the Court, the legislature could not have intended such consequences, regardless of what it might actually have written. As a result, the courts should ignore the literal words and refuse to apply the statute as written.

When the courts ignore the letter of the law in preference to the spirit, they are actually best effectuating the intent of the legislature. Thus, in 1938, the Court explained: “[S]tatutes have to be construed according to the intent and spirit rather than according to the mere letter. . . . ‘Especially is this applicable where the literal meaning is absurd, or, if given effect, would work injustice, or where the provision was inserted through inadvertence. Words may accordingly be rejected and others substituted, even though the effect is to make portions of the statute entirely inoperative.’” Massaquoi v. David, 6 LLR 320, 322 (1938) (quoting 36 Cyc. 1108-11).

Similarly, in 1945, the Court held: “It will always be presumed that the legislature intended exceptions to its language which would avoid injustice, oppression or an absurd consequence. The reason of the law, in such cases, should prevail over the letter. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular case.”

Buchanan v. Arrivets, 9 LLR 15, 21 (1945) (quoting Pelhom v. Witherspoon, 8 LLR

296, 304 (1944)). The Court has affirmed this view more recently as well: “[A]s a general rule where the Legislature has made no exception to the positive terms of a statute, the presumption is that it intended to make none, and the court will not introduce an exception by construction except where the necessity is imperious and where absurd or manifestly unjust consequences would otherwise result.” Kennedy,

33 LLR at 404-05 (emphasis added). See also Kenneh, 33 LLR at 119-20 (“[T]he spirit or reason of the law will prevail over its letter. Especially is this rule applicable where the literal meaning is absurd; or, if given effect, would work injustice, or where the provision was inserted through inadvertence. Words may accordingly be rejected and other substituted, even though the effect is to make portions of the statute entirely inoperative”).

This third view flatly contradicts the first view, the George rule. George sternly instructed courts to apply the statutes as written, even if the results were harsh, and never to look behind the words to the alleged intent of the legislature.

This third view, by contrast, sternly instructs courts always to look first to the intent of the legislature and to ignore the words of the statute when they contradict the intent, especially when the words would produce harsh results. Despite the contradiction, the Court has never formally overruled either line of cases, and so it has never definitively settled on one particular approach.

As noted earlier, in some systems, such a contradiction might not be troubling because the proper interpretive technique is viewed merely as an issue of

good practice, so that different jurists may appropriately take different views. In

Liberia, by contrast, the Supreme Court has held that the proper interpretive

technique is actually a constitutional issue: the constitution itself mandates that

courts should interpret statutes in a particular way. But on different occasions, the

Court has held that the constitution mandates different and actually contradictory

techniques, so that courts are at present subject to inconsistent commands when

interpreting statutes.

CH. TWO(e) THE POWER OF JUDICIAL REVIEW

The Supreme Court’s power of judicial review is a specific instance of the judicial power of the judiciary, but it is important and unique. In Liberia, the

Constitution is the supreme law of the land; therefore, any governmental act contrary to the constitution “is void ab initio, because of its repugnancy to the

Constitution.” In re Act of the Legislature Approved January 20, 1914, 2LLR 157,

162 (1914). The Court has explained: “[A]n unconstitutional law is no law. It confers no rights; it imposes no duty; it affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed.” In re

Hon. Bailey, 36 LLR 803, 815 (1990) (citing Norton v. Shelby County, 118 U.S. 426

(1886)). This principle is called constitutional supremacy, and it lies at the foundation of Liberian government. The Court announced the principle at least as

early as 1893. See Farrow v. Decorsey, 1 LLR 243, 244 (1893). See also Harmon v.

Republic of Liberia, 2 LLR 480, 482-83 (1924).

Ch. Two(e)(1): Originalist Interpretation

The Court has held that the Constitution must be interpreted in an originalist manner, i.e. it should be understood as the framers originally would have understood it. The Court explains: “The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and the people adopting it. The intent must be gathered from both the letter and spirit of the document; the rule being that a written constitution is to be interpreted in the same spirit in which it was produced. The court should put itself as nearly as possible in the position to the men who framed the instrument.”

Liberia Institute of Certified Public Accountants of Liberia v. Ministry of Finance,

38 LLR 657, 667 (1998) (quoting 16 Am. Jur. 2d Constitutional Law §§ 64-65, at

239-41)). In the United States, different justices adhere to different styles of interpretation. Some are originalists, such as Justice Antonin Scalia. See, e.g.,

District of Columbia v. Heller, 554 U.S. __ (2008). Others, however, believe that the meaning of the Constitution should evolve so as to reflect changes in the fundamental commitments of American law. See, e.g., Lawrence v. Texas, 539 U.S.

558 (2003).

Ch. Two(e)(2): The Final Authority of the Supreme Court

The Court has further held that it, the Supreme Court, has the final power to decide the meaning of the constitution, to judge whether particular government acts

are consistent with the constitution, and to strike them down if they are not. The

Court explained, “But it is equally obvious that to decide such points it was

necessary that one of the three great powers of Government should be invested with

that function. While the Constitution does not in express terms confer that power

upon the courts, yet from the very nature of such questions they fall under judicial

observation and we contend are a proper subject for adjudication by the highest

tribunal of the country.” In re Act of the Legislature Approved January 20, 1914,

2LLR 157, 162 (1914). The Constitution is the supreme law of the land, and the

heart of the judicial role is to determine the meaning of the law. Quoting Chief

Justice Marshall’s opinion in Marbury v. Madison, from Watson on the Const., p.

1182, the Court held: “It is emphatically the province and duty of the judicial

department to say what the law is.” Id. at 162-63.

The 1847 Constitution did not specify who had the ultimate authority to

decide constitutional meaning, but Article 66 of the 1986 Constitution is unambiguous: “The Supreme Court shall be the final arbiter of constitutional issues.” In exercising this power, the Court takes precedence even over the other two branches. If the Court views a statute as unconstitutional, then it is void, even if the legislature thinks it constitutional. This power of judicial review does not intrude on legislative immunity, which under Article 42 of the Constitution, guarantees only that legislators shall not be arrested, detained, or prosecuted “as a result of the opinion expressed or votes cast in the exercise of legislative functions.”

Republic of Liberia v. Leadership of the Liberian Nat’l Bar Ass’n of the Republic of

Liberia, 40 LLR 635, 649 (2001). When the Court exercises judicial review, it

declares a statute void; it arrests, detains, or prosecutes no-one. Id. at 650-51.

Ch. Two(e)(3): The Duty of the Supreme Court to Effectuate the Constitution The power of judicial review also carries with it a duty: the Supreme Court

must “give effect to the existing constitution and to obey all constitutional

provisions irrespective of their opinion as to the wisdom of such provision. . . . [This

duty] cannot be decline[d] and must be performed in accordance with the deliberate

judgment of the tribunal or court before which the validity of the judgment is drawn

into question.” Management of BAO v. Mulbah, 35 LLR 584, 594 (1988).

Furthermore, this duty requires the Court to decide constitution questions even in

the face of a “suggestion that action might be taken by political agencies in

disregard of the judgment of the judicial tribunal.” Id. at 594.

Implicit in this duty is the further duty to overrule erroneous earlier constitutional decisions: “[A]n opinion or decision of this Court must be declared invalid if there is a clear incompatibility between it and the constitution even though very serious consequences are involved in such declaration.” Id. at 595.

Indeed, the Court has a duty to inspect its earlier constitutional decisions to ensure that they were correctly decided: “[T]he Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time, and where compelling reasons present themselves to cause the courts to refuse to follow erroneous precedents; otherwise, its mistakes in interpreting the

Constitution become extremely difficult to alleviate and needlessly so.” United

States Trading Co. v. United States Trading Co. Redundant Workers of Monrovia,

34 LLR 533, 548 (1988).

Nevertheless, the Court will declare a statute unconstitutional only when

necessary: “Unless a particular provision of law is violative of the basic law, the

Constitution, and this issue is timely and squarely raised at the proper forum, this

Court will always be loath . . . to declare a law unconstitutional.” Cooper v.

Republic, 19 LLR 269, 280 (1969). The Court “should never declare a statute void,

unless its invalidity is, in [the Court’s] judgment, beyond reasonable doubt.” Keyor

v. Borbor, 17 LLR 465, 469 (1966) (quoting 11 Am. Jur. Const. Law § 91). See also

Farhat v. Gemayel & Hon. Reeves, 34 LLR 24, 37 (1986); Bryant v. Republic of

Liberia, 6 LLR 128 (1937).

For that reason, if a statute will bear more than one interpretation, the Court should ascribe to the statute that interpretation, if any, that will render the statute constitutional: “[I]t is the duty of this Court to adopt a construction of the statute that will bring it into harmony with the constitution if its language will permit.”

Management of BAO v. Mulbah, 35 LLR 584, 596 (1988).

The Court has further noted that in America, courts will not decide constitutional questions if they can decide the case on a different, non-constitutional ground: “The court will not pass upon a constitutional question although properly presented by the records, if there is also present some other ground upon which the case may be disposed of.” Liberian Bank for Development & Investment v. Holder,

29 LLR 310, 314 (1981). The Court has sometimes endorsed this view: “Among the

restraints upon the power of the judiciary to declare laws unconstitutional [is] . . . .

that the decision of the constitutional points must really be necessary to the

disposition of the case.” Morris v. Reeves, 27 LLR 334, 337 (1978) (quoting Justice

Barclay’s separate opinion in Fazzah v. Nat’l Economy Committee, 8 LLR 85, 105

(1943)). See also Re Notice From the President of the Removal of Associate Justice

McCants-Stewart, 2 LLR 175, 182 (1915). But the Court has also cautioned that in

Liberia, “[t]his view is not strictly adhered to in our jurisdiction.” Liberian Bank for

Development & Investment v. Holder, 29 LLR 310, 314 (1981). Although Liberian legal culture grew out of Anglo-American law, it has developed its own direction on this point and others. Id.

The Court has also held that it will undertake judicial review only if the case before it meets certain procedural conditions: “Among these are requirements that the question must be raised by a party really interested; that the litigation must be genuine and not collusive; that the issue must be squarely and fairly raised.”

Morris v. Reeves, 27 LLR 334, 337 (1978) (quoting Justice Barclay’s separate opinion in Fazzah v. Nat’l Economy Committee, 8 LLR 85, 105 (1943)). In addition, the Court will not pass on the constitutionality of a statute unless the petition clearly avers why the statute is unconstitutional: “[W]here a petition merely states that an act is unconstitutional and prays for it to be declared so, said petition, because it is vague, does not put the constitutional question in issue.” Monrovia

Breweries, Inc. v. Hon. Karpeh, 37 LLR 288, 301 (1993) (quoting Fazzah v. Nat’l

Economic Committee, 8 LLR 85 (1943)). Further, the Supreme Court will not

decide a constitutional argument first raised before the Supreme Court itself,

because to do so would involve taking original jurisdiction over the issue and thus

exceeding the limits on the Court’s original jurisdiction set by the Constitution

itself. See Morris v. Reeves, 27 LLR 334, 338 (1978).

On the other hand, the Supreme Court will act on its own initiative to strike

down a statute that threatens the Court itself. Twice, the Court has held

unconstitutional statutes limiting its inherent contempt power. See In re Sections

12.5 & 12.6 of the Judiciary Law, approved May 10, 1972, 24 LLR 37 (1975); In re

Act of the Legislature Approved January 20, 1914, 2LLR 157, 166 (1914). The

second time, the Court explained: “It is true that the constitutional issue has not

been raised in any court or by a party; but there is legal precedent for the procedure

being followed because of the nature of the section under consideration and the

erosive effect its implementation could have on the Judiciary, especially the

Supreme Court, of this Republic.” In re Sections 12.5 & 12.6 of the Judiciary Act,

24 LLR at 42.

Ch. Two(e)(4): The Judicial Review Power of Other Judicial Officers

The Court has held that certain judicial officers, other than the Court itself, may not decide constitutional issues, not even provisionally pending review by the

Supreme Court. Thus, a justice of the peace may not decide a constitutional question; he or she should preserve it “for appellate review, and in the final analysis it should be the responsibility of the Supreme Court of the Republic of Liberia, sitting en banc, to declare unconstitutional an Act of the Legislature of Liberia.”

Keyor v. Borbor, 17 LLR 465, 468-69 (1966). Even a Chambers Justice should reserve constitutional questions for the Court en banc. See Keyor, 17 LLR at 471;

Fazzah v. Nat’l Economy Committee, 8 LLR 85, 88 (1943).

But the Court’s view on whether lower courts may provisionally decide constitutional issues seems to have changed over time. It has always been clear that lower courts may decline to decide constitutional issues; in such cases they must resolve the factual issues, but they refrain from interpreting and applying the constitution to the facts, reserving those questions for the Supreme Court. See In re

Petition of Benjamin Cox, 36 LLR 837, 849-50 (1990). But the question remains whether the lower court may choose to decide the constitutional issue before appeal.

Early on, the Court ruled that lower courts generally should not decide constitutional questions: “[O]rdinarily, laws should not be pronounced unconstitutional save by the highest court of the land, and with a full bench of the judges, and then with the greatest possible caution and reluctance.” Morris v.

Reeves, 27 LLR 334, 337 (1978) (quoting Justice Barclay’s separate opinion in

Fazzah v. Nat’l Economy Committee, 8 LLR 85, 105 (1943)). But more recently, the

Court has said that lower courts may do so: “[W]e must state here that whilst the

Constitution of Liberia makes this Honorable Court the final arbiter of constitutional issues, it does not prohibit courts of records clothed with relevant authority from passing upon constitutional issues raised before them. Indeed, the use of the word ‘final’ clearly infers that the matter must first have been heard by a lower court. . . . It was therefore the prerogative of the trial court judge to pass

upon the constitutional issue raised.” In re Petition of Benjamin Cox, 36 LLR at

850 (1990). See also Gonsahn v. Vinton, 37 LLR 47, 56-57 (1992).

CHAPTER THREE THE ADMINISTRATIVE POWER OF THE SUPREME COURT

CH. THREE(a) THE POWER TO MAKE RULES OF PRACTICE AND PROCEDURE

The Supreme Court has the power to make rules of practice and procedure for

the justice system. Article 75 of the 1986 Constitution provides that the Court shall

“make rules of court for the purpose of regulating the practice, procedure, and

manner by which cases shall be commenced and heard before it and all other

subordinate courts.” Even before the adoption of the 1986 Constitution, the Court

consistently ruled that it had the general power to make such rules.

Included in this power is the right to adopt practices and procedures for itself

and the lower courts. In other words, the Court has the power not only to decide

cases but also to adopt rules for the conduct of cases: “The rules and practice of the

Court are the law of the Court. This is a legal maxim. Every court is the guardian

of its own records and master of its own practice,” Harmon v. Republic, 4 LLR 195,

196-97 (1934) (citing Roberts v. Roberts, 1 LLR 107, 109 (1878)). Thus, the Court has held that it has the power to adopt rules defining the requirements for completion of appeal: “Inherent in the court is the power to make rules for its own governance, . . . and such rules of court have the same compulsory effect as statutes,” Cooper v. C.V.A.O. Ali Lakis & Sons, 20 LLR 397, 401 (1971). It has

further held that the Court has the power to adopt rules, both for itself, and the lower courts, to specify when a lawyer’s absence at a court date may be excused:

“The rules of the courts of Liberia were approved by this Court, and they thus became, to all intents and purposes, law governing those courts. The Supreme

Court itself is without authority to violate them,” Howard v. Dunbar, 14 LLR 515,

519 (1961). Similarly, it has held that the Court has power to decide whether a notice of appeal may be withdrawn once filed: “The Supreme Court has an inherent duty to protect the practice of law and the procedure of our courts.” Chelley v.

Republic of Liberia, 39 LLR 735, 740 (1999) (quoting Union Maritime et

Commerciale Corp. v. Dennis & American Marine Supply, Inc., 25 LLR 267 (1976)).

See also Doe v. Mitchell, 34 LLR 210 (1986) (Supreme Court has power to make rule that lower court must first dispose of issues of law before arriving at final ruling).

In short, the Court has been very clear that it can adopt rules for its own practices and procedures. It has been less clear as to what role, if any, the

Legislature has in formulating such rules. At times, the Court has held that the

Legislature may never over-ride the Court’s own rules. For example, in an early case, the Court considered a statute creating a committee comprised of the Supreme

Court and all the circuit judges to develop “a full set of rules governing the practice of the Circuit Courts” and to bring those rules before the Legislature for approval or disapproval. The Court held that the Legislature had the power to authorize the

Supreme Court to develop rules of practice “although the Supreme Court . . . has power independent of any express act authorizing it, to formulate such Rules of

Practice for the subordinate courts.” In re Act of the Legislature Approved January

20, 1914, 2LLR 157, 162 (1914). But in the statute, the Legislature also tried to give itself the power to approve or disapprove the rules developed by the committee, and that attempt intruded on the power of the Court: “The Act . . . reserves to the

Legislature the power to revise, amend, abrogate or totally annul an Act of the court properly performed within its constitutional province and scope. This we hold the

Legislature can not do without transcending its constitutional limitation.” Id.

At other times, however, the Court has held that although the Court has power to make its own rules, that power is ultimately subject to legislative oversight. Thus, the Court explained that “[i]n the exercise of that duty [to make rules], we shall not condone any practice which shall not square with . . . the statute laws of Liberia.” Chelley v. Republic of Liberia, 39 LLR 735, 740 (1999) (quoting

Union Maritime et Commerciale Corp. v. Dennis & American Marine Supply, In., 25

LLR 267 (1976)). And at still other times, within the same case, the Court seems to take both views, however in tension they might be with each other. Thus, in Cooper v. C.V.A.O. Ali Liki & Sons, the Court first explained that the Court has power to make rules, “so long as such rules do not contravene the statutory or the basic law of the land,” 20 LLR 397, 401 (1971); in other words, the Court may conform its own rules to the legislature’s edicts. But in the next sentence, citing In re Act of the

Legislature Approved January 20, 1914, 2LLR 157, 162 (1914), the Court held by contrast that it “is the inherent and constitutional duty of the Supreme Court to

solely make the rules which regulate and govern practice in the courts of Liberia.”

20 LLR at 402 (emphasis added).

Article 75 of the 1986 Constitution itself specifies that the rules of court

“shall not contravene any statutory provisions or any provisions of this

Constitution,” so it might mark a change: before that time, the Court had power to make its own rules without supervision by the legislature, but after that date, the

Legislature had a final oversight power. The precedent does not comment on such a change, and indeed later cases freely cite earlier cases on this point, so it is not clear whether the Court takes the view that there was in fact a change in 1986. A recent case, In re Hon. Broderick, 40 LLR 263 (2000), is ambiguous on this point. On the one hand, it holds that it “is within the prerogative of the judiciary to submit administrative rules, regulations, standards, guidelines, and/or procedures to the

Legislature for enactment.” Id. at 282. In other words, the Court may submit administrative rules to the Legislature, which may then enact them. But the

Broderick case does not explain what would happen if the Legislature chooses to reject the Court’s proposed rules and instead impose different ones. Some of its language hints that in such a case, the Court has power to use its own rules rather than the legislature’s: “The Supreme Court has the inherent power and authority to establish administrative standards and rules, etc. and all officials and employees who are amenable to the judiciary shall be expected to be guided by such administrative rules, standards, etc.” Id.

In any event, the Supreme Court has also made clear that the Legislature

has the power to prescribe the statute of limitations on a cause of action, and

parties may not agree to a different period of limitations in a contract because such a clause would preempt the role of the legislature. See Super Cold Svc. v. Liberian

American Insurance Corp., 40 LLR 189, 197 (2000). This holding could be based on

the view that a statute of limitations is part of the underlying substantive cause of

action, which the Legislature may prescribe, rather than judicial practices and

procedures, which fall within the Court’s sphere. Or it could be based on the view

that a statute of limitations is a judicial practice and procedure, but the Legislature

has the power to formulate such practices and procedures.

CH. THREE(b) THE SUPREME COURT’S POWER TO SUPERVISE AND DISCIPLINE JUDGES

Article 71 of the 1986 Constitution specifies that the Legislature shall have

the power to impeach judges: “The Chief Justice and Associate Justices of the

Supreme Court and the judges of subordinate courts of record . . . may be removed

upon impeachment and conviction by the Legislature based on proved misconduct,

gross breach of duty, inability to perform the functions of their office, or conviction

in a court of law for treason, bribery or other infamous crimes.”

Short of impeachment, the Constitution does not in so many words specify

who has the power to supervise and discipline judges, but the Court has held that it

is “included in the inherent administrative power and authority of the Judicial

Branch of the Government.” In re Judicial Inquiry Commission’s Report on Hon.

Broderick, 40 LLR 263, 281 (2000). That power includes the power and indeed the

“constitutional duty” to investigate and to suspend a judge when “the behavior of judicial officials and other employees tend to bring the judiciary into disrepute, impair its image and integrity, and erode the public trust and confidence in this branch of the government.” Id. at 280. Concomitantly, the Supreme Court also has the power to establish canons for judicial behavior, according to which the Court may later judge the behavior of lower court judges. See id. at 281.

Finally, the Court has a constitutionally guaranteed contempt power, as explained in a later section of this chapter, and it may use this power to discipline a lower court judge for refusing to obey the Court’s mandate. See In re Hon. Bailey,

36 LLR 803, 811-18 (1990). In addition, in disciplining lower courts, the Supreme

Court may impose the fine it thinks appropriate; it is not limited by the constitutional ban on excessive fines and bail, which “was never intended to apply to the Supreme Court in the exercise of both its constitutional and inherent powers and authority, as an appellate court, to regulate subordinate courts and to ensure compliance with its orders and mandates by subordinate courts.” Id. at 825.

The Court takes very seriously the failure of lower courts to obey its orders.

In the Bailey case, the Court held: “Because of the ineptitude of the probate judge in the conduct of this case, his arbitrariness, insolence, defiance, arrogance, recalcitrance, incorrigibility, disrespectfulness, and unbridle [sic—presumably

“unbridled”] audacity in challenging the lawful mandate and authority of this

Court, obviously criticizing its judgment thus offering this Court that open or

intentional insult, the reproachful contemptuous act, which excited and justified

resentment and indignity to the Court, his immaturity and unripeness in the

science and knowledge of the law exhibited from time to time in the court below,

concomitant with impertinence, imprudence [sic—presumably “impudence”] and

insolent behavior as aforesaid towards citizens and courtiers in the presence of the

Court in this particular case, he was reasonably amerced in a fine of eight hundred

dollars ($800.00) by this Court to be paid in the treasury of the Republic as specified

in the judgment of this Court.” Id. at 806-07.

The power to supervise and discipline judges is exclusive to the judiciary.

The Legislature may not give authority to the Executive to suspend judges. See

Sancea v. Republic of Liberia, 3 LLR 347. The Court has categorically rejected the idea “that the power as to whether or not to investigate a judge and subsequently determine whether or not to institute impeachment proceedings is vested in the

Executive Branch of Government.” In re Judicial Inquiry Commission’s Report on

Hon. Broderick, 40 LLR 263, 278-79 (2000). That idea would allow “interference by the Executive Branch in the affairs of the judiciary, which would be a violation of the constitutional provision on the separation of powers.” Id. at 279. Instead, it is the Supreme Court that “has the authority to recommend impeachment proceedings against sitting judges and to suspend such judges from office pending the outcome of the impeachment proceedings.” Id. at 281.

CH. THREE(c) THE CHIEF JUSTICE’S GENERAL ADMINISTRATIVE POWER

By statute, the Chief Justice currently has general administrative power over the judicial branch. As the Court explains, the New Judiciary Law recognizes the

Chief Justice as “administrative head of the judiciary,” responsible for “the general supervision thereof.” That general supervision includes “assignment of judges, financial and administrative support and the management and general supervision of all personnel of the judiciary.” In re Judicial Inquiry Commission’s Report on

Hon. Broderick, 40 LLR 263, 278 (2000).

The Court has held that at least some of this general administrative power is reserved to the Court by the constitution itself, such that statutes may never derogate from it. As already shown, at a minimum, the Court has administrative power to supervise and discipline judges. On at least one occasion, the Court has also held that it has a broader administrative power, constitutionally protected against interference, though it has not detailed the exact parameters of that power:

“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.” Id. at 281-82. If the power is constitutionally protected, then the New Judiciary Law gives to the

Court only that which it already had. If so, the statute is a product not of legislative grace but of constitutional fiat.

CH. THREE(d) THE SUPREME COURT’S CONSTITUTIONAL CONTEMPT POWER

In order to carry out judicial business, the Court must be able to issue orders

to force compliance with its decisions, especially contempt citations under certain

circumstances. For that reason, the contempt power is constitutionally inherent in

the Court. As early as 1913, the Court explained: “The power to punish for

contempt, as well as to determine whether a contempt has been committed, is

inherent in all constitutional courts.” In re Moore, 2 LLR 97, 98-99 (1913). Since

that time, the precedent has been consistent and unbroken. See, e.g., In re Cassell,

14 LLR 391, 425 (1961); Karpeh-Buchanan v. Buchanan-Ratazzi, 15 LLR 510, 514

(1964); Branly v. Vamply, 22 LLR 337 (1973); In re Doe, 23 LLR 38, 41 (1974); In re

Suspension of Cllrs Garlawolu et al., 34 LLR 471, 478 (1987); In re Hon. Bailey, 36

LLR 803, 820 (1990); In re Contempt Proceedings Against Hon. Flomo, 40 LLR 575,

593 (2001).

Most frequently the Court issues a contempt citation against a single person for committing an act that disrupted the judicial process. Sometimes, however, when the threat is broad, the Court issues broad orders. Thus, when the lawyers of

Liberia boycotted the courts, the Supreme Court perceived a danger to the whole judicial system: “[W]e say and proclaim that this Court, as head of the Judicial

Branch of the government, has the constitutional and inherent power, responsibility, and obligation to preserve and protect the Judiciary as a fully

functioning third branch of the Liberian Government. . . . It is the view of this

Court that the prolonged boycott of the courts by the Liberian National Bar

Association has so paralyzed the administration of justice as to make the judiciary

nonfunctional.” In re Contempt Proceedings Against Cllr Blidi, 40 LLR 718, 725

(2001). Accordingly, the Court ordered all lawyers to return to work, on pain of

being held in contempt. See id. at 726-727.

Because the contempt power is constitutionally granted, the legislature may not interfere with it. Again, the Court articulated this principle at least as early as

1913: the contempt power “cannot be limited by statute.” In re Moore, 2 LLR at 99.

For that reason, the Court has the power to define contempt and to determine whether contempt has occurred: “This Court has declared in many opinions not only its inherent power to punish for contempt but also what constitutes contempt of Court. This Court has held that the power to determine whether a contempt has

been committed, and to punish for it, is inherent in a constitutional court, and such

power cannot be limited by statute.” In re Doe, 23 LLR at 41-42. See also In re The

Grand Coalition of Political Parties, 34 LLR 262, 267 (1986). Furthermore, the

Court may exercise these powers without interference from anyone. See In re

Suspension of Cllrs Garlawolu et al., 34 LLR at 478; Alpha v. Tucker, 15 LLR 561,

566 (1964). Even if the legislature has adopted a contempt statute for the Court,

the justices may simply ignore it and use their own rules instead: “We do not have

to examine the statute to discover whether or not respondent has committed a

contempt of this court, and the claim that he should not be punished because he was

not guilty of a statutory contempt falls to the ground.” In re Moore, 2 LLR at 99.

Finally, even “government officials who disobey this Honorable Court’s orders are subject to punishment for contempt to no less degree than are other citizens.” In re

Contempt Proceedings Against Hon. Gardiner, 40 LLR 170, 177 (2000).

Presumably, however, this rule does not extend to the President or those acting at the behest of the President.

In the exercise of its power to define contempt, the Court has explained that it “in a general sense may be said to be a disregard of, or disobedience to, a court, or a judge acting in his judicial capacity, by conduct or language in or out of its or his presence, which disturbs or tends to disturb the administration of justice, or impairs or tends to impair the respect due the court or judge.” In re Moore, 2 LLR at 98.

Contempts are of two classes: “(1) Criminal, i.e., instituted for the purpose of vindicating the dignity of the court, and (2) Civil, i.e., instituted by private individuals for the purpose of protecting their rights.” In re Doe, 23 LLR at 42.

Only the Supreme Court, however, possesses this constitutionally protected contempt power, because only the Supreme Court is a constitutional court, created by the basic law rather than by statute. Lower courts are all statutory courts, created by the will of the legislature, so that the legislature can also limit their powers: “It should be borne in mind that there is a radical difference between a constitutional and a statutory court. This court is established by direct constitutional provision, and the Legislature is limited in its right to make laws concerning it. But the Legislature has full power over the statutory courts, as they

are its creatures, the exercise of such power being reviewable by this court as to its constitutionality.” In re Moore, 2 LLR at 98. See also In re Sections 12.5 & 12.6 of the Judiciary Law, 24 LLR 37 (1975).

The language of the 1986 Constitution gave the Legislature the power to regulate the Court’s contempt power in one way—by setting the penalties for contempt. Article 74 provides: “In all matters of contempt of court, whether in the

Supreme Court or in other courts, the penalties to be imposed shall be fixed by the

Legislature and shall conform to the provisions on Fundamental Rights laid down in this Constitution.” If the legislature can specify penalties, at least to that extent it can limit the Court’s contempt power, even though the Court is a constitutional court. On at least one occasion since 1986, the Court has recognized that the

Legislature may now fix penalties for contempt, even for the Supreme Court, see In re Hon. Bailey, 36 LLR 803, 820 (1990), while still holding broadly that the

Legislature may not generally limit the Court’s contempt power, see id. at 820-21.

In short, under the Constitution, the Court has the power to determine what constitutes contempt, but the Legislature has the power to set penalties.

In addition, under some circumstances, the Supreme Court has original jurisdiction—i.e. it can take jurisdiction over the case even before it has been heard by a lower court—over egregious acts of contempt that gravely threaten the functioning of the judicial branch as a whole. The Court has held that it has original jurisdiction “over all alleged acts of contempt, which violate the constitutional principle of separation of powers and which tend to undermine and

render the authority and power of the Judicial Branch of Government impotent and

useless, and thereby jeopardize the existence and function of a democratic

government.” In re Contempt Proceeding Against Hon. Toe & Johnson, 39 LLR 802,

812 (1999). In a different case, the Court elaborated: acts which are “void of violence” and “do not render impotent the constitutional judicial authority” of “the entire judiciary” fall under “the jurisdiction of the lower courts.” In re Contempt

Proceedings Against Hon. Flomo, 40 LLR 575, 583 (2001). But “[v]iolence, force, torture, etc. used by a contemnor in the commission of contemptuous acts which

instill fear and intimidation and which have the effect of paralyzing and rendering

the court and judicial officials and staff unable to perform their duties, require the

attention of the Supreme Court of Liberia.” Id. Such violent acts, though they may

be directed at only one court, are an attack on the authority of the whole judiciary;

they “transcend contempt of a particular court and rise to the threshold of contempt

of the Judiciary.” Id. The Supreme Court will take original jurisdiction over such

acts, without waiting, because the Court “has the inherent constitutional duty to

protect the sanctity and dignity of the judicial power and authority of the

Judiciary.” Id. at 585.

The language of the Constitution itself does not specifically provide that the

Supreme Court shall have original jurisdiction over egregious contempt toward the judicial system; Article 66 prescribes only that the Court shall have original jurisdiction over “cases involving ambassadors, ministers, or cases in which a county is a party.” And the Court has on occasion specifically held that the Court

may take original jurisdiction only in such cases because “[u]nder our Constitution,

the original jurisdiction of the Supreme Court is very narrow and restricted.” King v. Jarnveneh, Oct. Term 2004, 15, 21. But even though the Constitution does not expressly give the Court original jurisdiction over egregious contempt, the Court’s constitutional role as head of the judiciary inherently gives it original jurisdiction in such cases, so as to protect the functioning of the court system. Thus, original jurisdiction over egregious contempt presumably comes not from Article 66, which specifies the particular instances of the Court’s original jurisdiction but from Article

66, which assigns the judicial power to the Supreme Court and/or Article 75, which

gives administrative power to the Court.

CH. THREE(e) THE SUPREME COURT’S INHERENT POWER TO SUPERVISE LAWYERS AND THE PRACTICE OF LAW

The Supreme Court has the inherent power to supervise lawyers and the

practice of law. Article 75 of the 1986 Constitution provides that the Supreme

Court shall “prescribe such code of conduct for lawyers appearing before it and all

other subordinate courts as may be necessary to facilitate the proper discharge of

the court’s functions.” This code must not “contravene any statutory provisions or

any provisions of this Constitution.” By its terms, this provision gives the Court

power to prescribe a code of conduct for lawyers appearing before it and lower

courts, not for lawyers performing other work such as advising clients.

Even before the adoption of this constitution, however, the Court had held

that it possessed such a power. The Supreme Court has the power to suspend lawyers from the practice of law for contempt, in order to maintain the majesty of the Court, and it has the power to reinstate them. See In re Coleman, 11 LLR 433,

440 (1954). The power to hold lawyers in contempt “is an inherent power of the

Supreme Court of Liberia, and cannot be questioned by any international organization or foreign state.” In re Suspension of Cllrs Garlawolu et al., 34 LLR

471, 478 (1987) (quoting In re Cassell, 14 LLR 391 (1961)). This power belongs exclusively to the Supreme Court: “The supervisory power over all lawyers is accordingly vested in only the Justices of the Supreme Court of the Republic of

Liberia and not in the judges of subordinate courts nor in justices of the peace, or city magistrates.” Massaquoi v. Worrell, 3 LLR 331, 334 (1932). Accordingly, a judge of the Circuit Court “has no power to disbar or suspend a lawyer or withdraw his license.” Id. at 333. In addition, the Supreme Court has the power to order boycotting lawyers to return to work because the Court has “the constitutional and inherent power, responsibility, and obligation to preserve and protect the Judiciary as a fully functioning third branch of the Liberian Government.” In re Contempt

Proceedings Against Cllr Blidi, 40 LLR 718, 725 (2001).

CHAPTER FOUR JUDICIAL INDEPENDENCE AND IMMUNITY

In order to decide cases according to the law, the courts must be answerable only to the law, not to powerful persons. In other words, the courts must be structurally independent from other branches and immune to retaliation for their decisions. As the Court explains, “[t]he essential element of such plan was that the men so set aside, must be free and that they must be above every outside influence whether sought to be exercised by king or people; that they must decide all matters coming before them without fear, favor, or affection.” In re Act of the Legislature

Approved January 20, 1914, 2 LLR 157, 163 (1914).

CH. FOUR(a) JUDICIAL IMMUNITY FOR DECIDING CASES The Constitution seeks to create and protect judicial independence in several ways. First, and perhaps most significantly, it provides that judges may never be punished for the way that they decide cases. This protection is very broad: “No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the 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. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statements made or acts done shall be admissible

into evidence against them at any trial or proceeding.” 1986 Const. of the Republic of Liberia art. 73.

As a result, neither the Executive nor the Legislature may seek to retaliate against judges for their judicial decisions. Article 73 immunizes judges for judicial opinions, statements, and acts; it extends that immunity both to the court room and chambers; it protects judges against both civil suits and criminal prosecutions; and it commands that no judicial statements or acts may be admissible “in any trial or proceeding” against a judge. The phrase “other proceeding” presumably includes impeachments, so the Legislature may not impeach a judge for his judicial decisions.

The Court has made clear, however, that lower court judges may be held in contempt for “disobedience and total disregard” for the Court’s own instructions in a case. Hon. Mathies v. Liberia Trading & Development Bank, 39 LLR 665, 676

(1999). The protection against punishment for judicial decisions thus does not immunize judges from ordinary judicial discipline: “This court warns all judges not to abuse the constitutional immunity for judges as provided for in Articles 71 & 73 of the 1986 Constitution. The intention of the framers of the Constitution is to safeguard and ensure independence of the judiciary by protecting the right of each judge or judicial officer to perform acts and render decisions, rulings and judgments according to the Constitution and laws, his/her conscience and the fear of God. The intention of the framers of the Constitution is premised on the expectation that all judges would not only be knowledgeable and skilled in the law, but also have

respect for the law.” Id. at 677. In other words, the only reason to punish a judge for a judicial decision is that he or she knowingly made a decision contrary to law, because the purpose of judicial independence is to allow courts to decide cases according to law. The political branches may not punish judges for deciding contrary to law, because those branches are not charged with saying what the law is. Only the Court may definitively determine that a lower court has deliberately abused his or her judicial immunity by departing from the rules laid down.

CH. FOUR(b) TENURE DURING GOOD BEHAVIOR

The second protection for judicial independence is that although the

President appoints the Justices and judges of lower courts, see Article 54(c), 1986

Constitution of the Republic of Liberia, thereafter they “shall hold office during good behavior,” see 1986 Const. of the Republic of Liberia art. 71. Once confirmed, judges may leave office in only three ways. First, they may choose to resign.

Second, they “shall be retired at the age of seventy; provided, however, that a justice or judge who has attained that age may continue in office for as long as may be necessary to enable him to render judgment or perform any other judicial duty in regard to proceedings entertained by him before he attained that age.” Id. at art.

72(b). This provision represents a change from the 1847 Constitution, which specified no retirement age. As a result, judges held their tenure for life, as do

Article III federal judges in the United States. Nevertheless, even after the 1986

Constitution was adopted, the Supreme Court still maintained that judges have life

tenure: “Judges are appointed to serve indefinitely as long as life permits and as

long as they preserve the integrity of the offices by good and descent [sic—

presumably ‘decent’] behavior. These are the extraordinary rights and protection

assured all judges.” Int’l Trust Co. of Liberia v. Cooper-Hayes, 38 LLR 215, 219-220

(1995).. The Cooper-Hayes Court presumably overlooked the change in the 1986

Constitution, and the Court today would presumably rule that judges hold tenure until the age of seventy.

The third way that judges may be removed is by impeachment through the normal process: “The Chief Justice and the Associate Justices of the Supreme Court and the judges of subordinate courts of record . . . may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.” 1986 Const. of the

Republic of Liberia art. 71. The House of Representatives has sole power to prepare bills of impeachment, and the Senate has sole power to try impeachment cases, with conviction only upon a two-thirds vote of the Senators. See id. at art. 43.

The Constitution does not further define “proved misconduct” or the other grounds for impeachment, but presumably judges may not be impeached for deciding cases according to law in a way that displeases the other branches.

Traditionally, the Court held that the Legislature had the sole power to determine whether particular acts were impeachable, so that the question was in effect non-

justiciable. See In re Cassell, 14 LLR 391, 411-12 (1961). More recently, however,

the Court has indicated that it has the power to review all actions by the other branches, even such internal matters as the deposition of the Speaker of the House.

See Snowe v. Members of the House of Representatives (29 Jan. 2007). It is therefore possible that at some future date, the Court will undertake to define more precisely which acts are impeachable.

In order to protect judicial independence, the Constitution makes impeachment difficult. It requires that both Houses support an impeachment—the

House in preparing the bill, the Senate in trying the case—as well as a two-thirds vote in the Senate for conviction. In other words, judges will be secure in their tenure so long as more than one-third of the Senators are resolved to protect the rule of law and to resist executive efforts to interfere with the courts.

Some have maintained that one-third of the Senators have not always been willing to stand against the President in such a way, and that judges have therefore been impeached for improper, political reasons. For example, in 1914, the Senate removed Associate Justice McCants-Stewart from office. See Re Notice from the

President of the Removal of Associate Justice McCants-Stewart, 2 LLR 175, 176-77

(1915). He maintained that he had been removed to make room for someone else who had been promised the Vice-Presidency but was given a seat on the Court instead: “[as a] result of a plan agreed upon by certain political leaders to provide a place on our bench for Hon. Amos Witherspoon so as to satisfy a political promise to make him Vice-President of the nation, which said promise said leaders abandoned

because of the subsequent decision to make another person the beneficiary of their influence in connection with the Vice-Presidency.” Id. at 177. Amos Witherspoon himself voted as a Senator to remove Justice McCants-Stewart. Id. at 178. Justice

McCants-Stewart asked the Court to void the impeachment, but the Court (which at that point included Associate Justice Amos Witherspoon) refused the request on procedural grounds: “The document, which is unsupported by affidavit is brought under no specific form of remedy prescribed by the statute law of Liberia, nor any form of remedy clearly defined and recognized by the common law.” Id. at 180.

More recently in 1961, in an academic paper presented at a conference in

Ghana, former-Attorney General C. Abayomi Cassell maintained that the Liberian judiciary was weak because it was dependent on the other branches, see In re

Cassell, 14 LLR 391, 400 (1961), and that judges had been removed for improper reasons, see id. at 411. The Supreme Court cited Counsellor Cassell for contempt and disbarred him. The Court categorically insisted that Liberian judges were apolitical: “[U]nlike in some countries, judges in Liberia do not come to their offices to satisfy any political demand or contingency.” Id. Some judges had left office but only for wholly proper reasons: “There have been instances when they have resigned, have been retired on pensions for illness or infirmity, or have been removed by the Legislature for conduct unbecoming their exalted positions.” Id.

The Court further found that in fact, Liberian judges were independent: “There is no reason why a judge in Liberia should feel called upon either to allow himself to be influenced by anyone, or to feel insecure in his tenure, in view of the

constitutional safeguards surrounding his appointment and continuance in office.”

Id. at 414.

Neither the Legislature nor the President may remove judges through any procedure except impeachment, with all its burdensome requirements. Thus, when the Legislature passed a statute allowing the President to remove judges with a joint resolution by the Legislature, the Court responded: “The above law is a flagrant violation of the organic law of the Republic, as the Constitution never intended that judges of the several courts of the Republic should be removed from office by any other method than that which has been provided by the Constitution itself.” Sancea v. Republic of Liberia, 3 LLR 347, 350 (1932).

CH. FOUR(c) DISCIPLINE SHORT OF IMPEACHMENT

The third protection for judicial independence is that only the Supreme Court

may impose discipline short of impeachment on lower courts. See, e.g., In re

Judicial Inquiry Commission’s Report on Hon. Broderick, 40 LLR 263 (2000). In

other words, the judiciary disciplines itself, without interference from the other

branches. As early as 1932, the Court struck down a statute allowing the President

to suspend judges on his own motion. See Sancea v. Republic of Liberia, 3 LLR 347,

351 (1932). For further development of this area of the law, consult the section on

the Judiciary’s administrative power.

CH. FOUR(d) GUARANTEED REMUNERATION

The fourth protection for judicial independence is that judges’ remuneration may not be reduced during their time in office. Article 72(a) provides: “The Justices of the Supreme Court and all other judges shall receive such salaries, allowances and benefits as shall be established by law. Such salaries shall be subject to taxes as defined by law, provided that they shall not otherwise be diminished. Allowances and benefits paid to Justices of the Supreme Court and judges of subordinate courts may by law be increased but may not be diminished except under a national program enacted by the Legislature; nor shall such allowances and benefits be subject to taxation.” As a result, the political branches may not punish judges for their decisions by cutting their salaries, allowances, or benefits.

CH. FOUR(e) JUDICIAL INDEPENDENCE AND THE ACCRA COMPREHENSIVE PEACE ACCORD

In an important recent case, the Supreme Court strongly underlined the importance of judicial independence and its own resolution to protect it. See In re the Constitutionality of the Suspension of the Powers of the Judiciary and the

Removal of Judicial Officials by the Executive and Legislative Branches as contained in Article XXVII, The Judiciary and Article XXXV Special Provisions,

1(a), 1(b), 1(c), of the Comprehensive Peace Agreement between the Government of

Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the

Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, 18

August, 2003. To bring an end to the civil war that convulsed Liberia at the end of the twentieth century, the contending parties met in Accra and signed a peace accord that created an in interim government, the National Transitional

Government of Liberia. That government would hold power and govern Liberia according to the terms of the agreement itself, not according to the Constitution, until January 2006, at which time a newly elected government would be inaugurated and the Constitution would come back into full force. Article XXXV of the Accord stipulated that “an extra-constitutional arrangement” was necessary to settle the war, and so “the provisions of the present Constitution of the Republic of

Liberia . . . which relate to the establishment, composition and powers of the

Executive, the Legislative, and Judicial Branches of the Government, are hereby suspended.” Id. at 2 (quoting the Accra Comprehensive Peace Accord).

The Peace Accord removed the sitting Justices from office and substituted new ones appointed by the National Transitional Government. Article XXVII first provided for the Court’s dissolution: “Immediately upon the installation of the

National Transitional Government of Liberia, all members of the Supreme Court of

Liberia i.e. the Chief Justice and all its Associate Justices shall be deemed to have resigned.” Id. at 1 (quoting the Accra Comprehensive Peace Accord). It then created new procedures for appointing a new court: “[A]ll new Judicial appointments shall be made by the Chairman of the National Transitional

Government of Liberia and approved by the National Transitional Legislative

Assembly. Nominations for such Judicial appointments shall be based on a shortlist of candidates for each position recommended by the National Bar

Association, including the female Lawyers.” Id. at 2.

The Court found the Peace Accord to be unconstitutional for two reasons.

First, in agreeing to the Accord, the Executive had invaded the sphere of the

Judiciary. No representative of the Judicial branch had been present at the conference because the conference was political and the Court is an apolitical body.

See id. at 11. Nevertheless, the Court held that “when it became clear to the

Liberian Government delegation that the Judiciary had become an agenda item, the appropriate authority of the Judiciary should have been formally informed.” Id. As a result, the Judiciary played no part in crafting the agreement. In effect, the

Executive had agreed to the destruction of the Judiciary, but the Executive has no power thus to intrude into the work of a co-equal and independent branch: “The framers of the Constitution never intended that the exercise of constitutional executive power, as head of government, would include interference with the powers, functions and tenure of the officials of the Judicial Branch, not to mention the extent of signing an agreement that would suspend the constitutional powers, character, nature, safeguards and guarantees granted to this institution and its officials.” Id. at 14. In short, “[i]f the Executive and/or Legislative Branches decide to self-destruct, these two Branches lack the authority to include the Judiciary, we repeat, even in a period of hostilities.” Id. at 16.

But the problem with the Peace Accord was not merely that the Executive

could not speak for the Judiciary. The deeper problem was that no-one, not even

the Judiciary itself, has constitutional power to alter the terms of judicial tenure

except by formal amendment. Article 71 provides that the Justices shall hold office

during good behavior and may be removed only by impeachment. But Article XXVII

removed the sitting Justices by fiat, not through impeachment and with no showing of bad behavior: “Removing a judicial official, without cause and outside of the

Constitutional Procedure by parties including a Government of Liberia delegation,

entering into an Agreement is not only unjust and improper, but it is illegal and

unconstitutional.” Id. at 15. No-one, not even the Judiciary itself, may intrude on

judicial independence as provided for in the Constitution: “In the mind of this

Court, the truth is that no judicial official, not even the Chief Justice, who is the

official spokes person [sic—presumably “spokesperson”] of the Supreme Court and

the Administrative Head of the Judiciary, or an Associate Justice, has the authority

to suspend the Constitution and Statute laws of Liberia, especially those relevant

provisions that guarantee the protection of powers, jurisdiction, functions and the

independence of the Judiciary and its officials.” Id. at 14.

CHAPTER SIX THE ORIGINAL AND APPELLATE JURISDICTION OF THE SUPREME COURT

Article IV, section 2nd, 1847 Constitution of the Republic of Liberia

The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, or other public ministers and consuls, and those to which a County shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Legislature shall from time to time make.

Article 66, 1986 Constitution of the Republic of Liberia

The Supreme Court shall be the final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a county is a party. In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.

CH. SIX(a) REASONS FOR THE DIVISION OF JURISDICTION

From the beginning of the Republic, the Constitution has granted the

Supreme Court two kinds of jurisdiction: original (meaning that the Supreme Court

can hear the case before any other courts has heard it) and appellate (meaning that

the Court can hear the case only on review, after a lower court has heard and

decided it. In particular, the Supreme Court has original jurisdiction over cases

“involving ambassadors, ministers, or cases in which a county is a party.” In all

other cases, the Supreme Court has only appellate jurisdiction. The provision

closely follows an analogous provision in the United States Constitution, which

gives the American Supreme Court original jurisdiction over “Cases affecting

Ambassadors, other public Ministers and Consuls, and those in which a State shall

be a Party.” United States Const. art. III sec. 2. In all others, the Court has

appellate jurisdiction.

In both cases, the apparent rationale for giving the Supreme Court original jurisdiction over certain cases is that those cases are politically sensitive and might cause disruption. Therefore, the Court has original jurisdiction so as to settle the matter quickly, finally, and with the highest degree of professionalism. Cases affecting ambassadors and other foreign representatives clearly touch on the foreign relations of the Republic, an area of high public significance and potential turbulence. In the United States, cases to which a state was a party were also initially politically charged, because the states were powerful and independent minded. Because Liberia is not a federal system, the counties are not as powerful or independent, so cases to which they are a party may not be as politically charged.

Nevertheless, any case in which a county is involved is likely to have significant effects, and presumably for that reason, the Constitution ensures that the Supreme

Court can take original jurisdiction over such cases.

In one case, the Court offered different reasons for the Supreme Court’s

original jurisdiction over cases to which a county is a party. First, in a case “arising

between two counties . . . each of the counties involved is interested in the case.”

See Republic of Liberia v. Grand Coalition, 34 LLR 70, 80 (1986). In other words, if one of the county courts hears the case, the judge will inevitably be biased toward his own county government. By contrast, the Supreme Court serves the whole country and so will not be biased. In addition, in a case between two counties, neither county can enforce its judgment in the other, “because the judgment of the hearing county is not so effective outside its territorial limits.” Id. The Supreme

Court therefore has original jurisdiction in a case between two counties because it alone can enforce its judgment in both counties.

But this explanation for the Court’s original jurisdiction may be of limited precedential authority. As explained in the last subsection of this section, the case departs markedly from precedent on other points, and it occurred at a turbulent moment in Liberian history. In addition, on this point, the reasoning seems to depart from the text of the Constitution and the Court’s pronouncements in other cases. First, the Constitution gives the Court original jurisdiction not only in cases between two counties but also in cases to which “a county is a party,” i.e., a case between a county and some other party within the county. In such a case, the court would have no difficulty enforcing its judgment. For that reason, the reason for the

Court’s original jurisdiction over cases to which a county is a party cannot be the inability of a county court to enforce its order in another county. As to the risk of bias, Liberian judges are answerable to the law and to the Supreme Court, not to the county government. In a case between a county government and one of the

citizens of the county, the courts are sworn to do impartial justice, and they have no

structural conflict of interest. For that reason, the general reason for the Court’s

original jurisdiction over cases to which a county is a party cannot be the risk that

county courts will be prejudiced in favor of county government over their own

neighbors.

CH. SIX(b) LIMITS ON THE SUPREME COURT’S ORIGINAL JURISDICTION

The Supreme Court may not add to its original jurisdiction specified in

Article 66. “The constitutional limitation upon the exercise of jurisdiction by the

Supreme Court is not discretionary. On the contrary it is definite and mandatory.”

Cooper v. Cooper, 12 LLR 412, 416 (1957). The Constitution gives the Supreme

Court original jurisdiction only over cases involving ambassadors or ministers, or to

which a state is a party. The Court may not take to itself original jurisdiction over

any other matters: “The Supreme Court cannot take original jurisdiction over any

issue except those stated in the Constitution.” Massaquoi v. Massaquoi, 35 LLR

508, 511 (1988). This rule has several implications.

Ch. Six(b)(1): Implicit Limits on the Supreme Court’s Original Jurisdiction

First, aside from cases involving ambassadors or ministers or to which a state is a party, the Supreme Court may decide only those issues which were raised in the lower court. Because those issues were already raised, the Court may appropriately

review them as part of its appellate jurisdiction. But if the Court were to entertain

an issue first raised on appeal, it would in effect be the first court to pass on the

issue. In other words, it would be asserting original jurisdiction over the issue and

thus attempting to broaden its original jurisdiction beyond those cases specified in

Article 66. Thus, the Court has explained: “The Supreme Court has original

jurisdiction only in those cases, and over those issues, specifically named in the

Constitution; in all others we exercise appellate jurisdiction. Therefore questions

and issues not raised on trial in an inferior court could not be regarded as appellate

matters when raised here for the first time unless such issues fall within the

category of those over which the Constitution gives us original jurisdiction.” Cooper

v. Republic of Liberia, 13 LLR 528, 534 (1960).

The Court has explained the basis of this rule in a number of cases. For

example, “the appellate jurisdiction of this Court is limited to issues of fact and law

which have been previously presented to and decided by the lower courts.” Bryant

v. Harmon, 12 LLR 405, 410 (1957). For that reason, the Court cannot “consider

and decide an issue of fact or law which was not raised and passed upon by the

lower court, without violating the Constitution of Liberia.” Id. at 409-10. Similarly, the Court has instructed that it cannot “pass on [an] issue being brought into the case for the first time on appeal, without assuming original jurisdiction over the

issue.” Stubblefield v. Nassah, 25 LLR 152, 160 (1976). But to do so would violate

the Constitution: “The Supreme Court cannot take original jurisdiction over any

issues, except those specifically mentioned in the Constitution.” Id. See also

Pennoh v. Brown, 15 LLR 237, 240 (1963); Fllood v. Alpha, 15 LLR 331 (1963).

Second, the Supreme Court may review only cases actually decided by the lower court; if the lower court failed to reach a decision, then the Supreme Court would be deciding the case for the first time and thus expanding its original jurisdiction. The Court has explained: “[W]here the trial court has not rendered any ruling on the issues, the most that the Supreme Court can do is to remand the case and instruct the court what to do, but that principle of law does not authorize the Supreme Court to assume original jurisdiction and pass on the issues itself.”

Baaklini v. Hon. Henries, 39 LLR 303, 313 (1999). For example, in Wright v.

Wright, the Court had reversed a lower court judgment and remanded it with instructions to take additional evidence. The court then took testimony and directly forwarded it on to the Court without actually passing judgment. The Court explained that lower courts are obliged to render judgment, not merely to gather facts: “As the case now stands the judgment . . . has been reversed; no other judgment has been given, and were we to assume jurisdiction now we would be compelled to give an original judgment instead of reversing an original judgment, which constitutionally we cannot do.” 5 LLR 288, 290 (1936).

Third, except in cases involving ambassadors or ministers or to which a state is a party, the Supreme Court may not take evidence or make findings of facts.

Such tasks are functions of a court of first instance; in appellate cases, the Court may only review the lower court’s findings of facts based on the evidence before that

court. See In re Petition of Benjamin Cox, 37 LLR 837, 849-50 (1990). In short,

“[t]he Supreme Court generally sits in an appellate position and does not take

cognizance of matters not of an appellate nature.” Baaklini v. Hon. Henries, 39

LLR 303, 312 (1999). Thus, “[t]he Supreme Court cannot take and pass upon evidence.” Id. For example, in Management of Salala Rubber Corp. v. Garlawolu, the appellant filed a bill of information before the Supreme Court, alleging that appellee’s had improperly tampered with court records below and that he should therefore be held in contempt. See 39 LLR 92, 96-97 (1998). The Court held that it could not entertain the bill because to pass on it would require the Court to determine whether the tampering had in fact occurred: “[T]his allegation contained

in the bill of information filed by appellant’s counsel is a factual issue which

requires a determination by the trial court. As such, this Court has no original

jurisdiction to probe into such irregularities allegedly committed by officers of the

trial court.” Id. at 97.

Fourth, in exercising its appellate jurisdiction in a particular case, the

Supreme Court cannot entertain actions other than the appeal itself to deal with

the case below. Such other actions are independent of the appeal, and to act on

them would be to assert original jurisdiction over them. Thus, when an appeal is

pending before the Court, a party to the appeal may not bring a separate bill of

information before the Court, asking it to send a mandate to the lower court to

resume jurisdiction so that the party could introduce new evidence. See Massaquoi

v. Massaquoi, 35 LLR 508 (1988). Because the bill of information is not part of the

appeal, if the Supreme Court were to receive the bill, it would in effect be taking

original jurisdiction over the facts and issues contained therein: “The Supreme

Court cannot take original jurisdiction over any issue except those stated in the

Constitution. The rendition of a judgment without jurisdiction is a usurpation of

power and makes the judgment itself coram non judice and ipso facto void.” Id. at

511. Similarly, when a case is pending on appeal, the Court has held that it may not entertain a petition for relief requesting the Court to stay the proceedings below. See Cooper v. Cooper, 12 LLR 412, 416-17 (1957). Relatedly, when a bill of information is pending before the Court, it may not receive other petitions related to the same subject matter unless the other petitions are ancillary to the bill of information itself. See Lartey v. Kiazolu-Wahab, 35 LLR 737, 740-41 (1988). The

Court has explained that an ancillary petition is one that is “a natural consequence of another action already before us.” Id. at 741.

Fifth, the Supreme Court has no constitutional power to hear an appeal unless the “appellant complies with the statutes controlling appeals” to perfect that appeal. Mensah v. Wilson, 34 LLR 100, 108 (1986). If the appeal is not perfected, then the appeal does not exist at law; if the appeal does not exist at law, then if the

Court nonetheless took jurisdiction, it would in effect be asserting original jurisdiction over the case; and if the Court took original jurisdiction over the case, it would be expanding its constitutionally prescribed original jurisdiction. As the

Court explains, “The role of the Supreme Court in our democracy is appellate as provided by statute, except in those cases provided by the Constitution over which

the Court has original jurisdiction.” Id. Because the Constitution itself thus forbids

the Court from taking jurisdiction unless the appellant has complied with the

statutory requirements, “statute [sic—presumably “statutes”] controlling appeal

cases must be strictly construed.” Id.

Finally, the Supreme Court may not entertain applications to interpret and construe its earlier rulings. For the Court to offer such an interpretation would require it to take original jurisdiction over the application and hence to broaden its original jurisdiction beyond the limits specified by the Constitution: “The application in point, the subject of this opinion, is neither one over which this Court is empowered to exercise original jurisdiction, nor is it a case that has come on appeal from any of the courts of award within the Republic.” Richardson v.

Gabbidon, 16 LLR 282, 287 (1965).

Ch. Six(b)(2): Original Jurisdiction To Issue Contempt Citations to Defend the Judiciary The Supreme Court has, however held that it also has inherent original jurisdiction over “all alleged acts of contempt, which violate the constitutional principle of separation of powers and which tend to undermine and render the authority and power of the Judicial Branch of Government impotent and useless, and thereby jeopardize the existence and function of a democratic government.” In re Contempt Proceeding Against Hon. Toe & Johnson, 39 LLR 802, 812 (1999).

Although the Constitution does not specifically grant this type of original jurisdiction to the Court, the Court believes that it is inherent in the Court’s role as head of the Judicial branch of Government: the Court “has the inherent

constitutional duty to protect the sanctity and dignity of the judicial power and

authority of the Judiciary.” In re Contempt Proceedings Against Hon. Flomo, 40

LLR 575, 585 (2001). Technically speaking, then, the Supreme Court does have

some original jurisdiction beyond those cases listed in Article 66, although the

Court frequently says that it does not. But because the Court’s original jurisdiction

over contempt cases is inherent in its constitutional role, it is still true that the

Supreme Court can assume no more original jurisdiction than the Constitution as a

whole gives it.

Ch. Six(b)(3): Anomalous Precedent

In only one case has the Court departed from the rule that it may not expand

its original jurisdiction. In Republic of Liberia v. Grand Coalition, the Court

entertained a petition for a writ of prohibition to restrain the Grand Coalition, an

association of political parties, from conducting a mass rally. Following the normal

practice, the petition went first to the Chambers Justice, who referred it to the

Court en banc because it raised constitutional questions. See Republic of Liberia v.

Grand Coalition, 34 LLR 70, 72 (1986). As will be explained in the next section, the

Court has long held that it may take jurisdiction over a remedial writ after the

Justice in Chambers has ruled on it. In other words, it is entirely constitutional for

the Court to entertain writs of prohibition in this way.

But the case presented a different issue: normally, a writ of prohibition would

not lie in a case such as Republic of Liberia v. Grand Coalition. The Court itself

recognized that a writ of prohibition would not lie against the Grand Coalition

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because it was neither “an inferior court of justice, a quasi administrative court, nor a public agency or officer.” Id. at 80. Instead, the Grand Coalition was “an unlawful agreement,” id. at 78, “a non-legal entity,” id. at 79, and a “stranger in this jurisdiction,” id. at 80. In short, the Grand Coalition did “not fall among those placed under the jurisdictional purview of the Supreme Court.” Id. In other words, no statute and no constitutional provision vested the Supreme Court with original jurisdiction in the instant case.

Nevertheless, the Court took original jurisdiction over the Grand Coalition.

The Court held that the Constitution is actually silent on whether the Court may take additional original jurisdiction beyond that specified in Article 66; the provision insists that the Supreme Court must have original jurisdiction over at least the type of cases listed, but it does not in so many words provide that the

Court may not take more. In other words, the Constitution sets a floor but not a ceiling, a lower limit but not an upper one. When the Constitution is silent, according to this case, the Court may take jurisdiction where the interests of the state demand: “[T]he silence of the Constitution on persons and matters just propping [sic—presumably ‘popping’] up into our society [i.e. the Grand Coalition, which the Court considered a threat to the state] can in no way serve as a deterrence on the Supreme Court from exercising original jurisdiction when no inferior court is competent so to do, and when the exigency of the issue begs its attention.” Id. To the same point: “Because the Constitution is silent on the issue of whether the Supreme Court has original jurisdiction over a body as the Grand

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Coalition does not mean that such body or group is not answerable in prohibition

proceedings when the necessity arises.” Id. at 83.

The Court justified expanding its original jurisdiction by maintaining that it

was necessary for the security of the state. The Justice Ministry had prohibited the

rally. If the really want ahead anyway, the police would need to intervene, and a

“confused atmosphere” might result. Then, “[t]his atmosphere would create an

initial crack in our national structure, a crack which could instantly develop into a

valley.” Id. The Supreme Court needed to take original jurisdiction, rather than

leaving the matter to the lower courts, because “no subordinate court can

adequately handle the situation. A writ of injunction issued by a lower court, the

circuit court, affects only the people of the county where the court has jurisdiction.”

Id. Thus, the Court will not allow legal technicalities to prevent it from protecting

the Republic as it sees fit, because “under all circumstances, in all places and at all

times, the interest of the Republic of Liberia comes first, the autonomy being the

greatest law.” Id. at 80.

The Court closed by promising that the Court “will continue [to exercise original jurisdiction] under similar circumstances.” Id. at 84. In fact, however,

Republic of Liberia v. Grand Coalition is of dubious precedential authority. Its

reasoning would allow a steady increase in the Court’s original jurisdiction

whenever the Court thinks necessary for the good of the state. That approach flatly

contradicts the great weight of Liberian precedent, which stringently maintains

that the Court’s original jurisdiction is strictly limited. The case cites no precedent

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for its central holding, and the Court has not subsequently relied on it. Finally, it occurred at a very turbulent moment in Liberian history, and it is well known that sometimes strenuous times make for unreliable precedent.

CH. SIX(c) LEGISLATIVE ALTERATIONS OF THE CONSTITUTIONAL DIVISION OF THE SUPREME COURT’S JURISDICTION

The Legislature may not alter the division of jurisdiction specified in Article

66. The Article itself declares: “The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.” The Court has interpreted this prohibition to include several components.

Ch. Six(c)(1): Prohibition on Legislative Reduction of the Supreme Court’s Original Jurisdiction

The Legislature may not reduce the Supreme Court’s original jurisdiction.

Article 66 mandatorily commands that the Court shall have original jurisdiction over cases involving ambassadors, ministers, and to which a county is a party. For that reason, the Legislature may not take from the Court original jurisdiction over all or any such cases. Similarly, the Legislature may not take from the Court its inherent original jurisdiction over contempts that threaten the judiciary: “In no instance is there any regulation of this Court’s original jurisdiction. As a matter of law the original jurisdiction of the Supreme Court is independent of legislative

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action. The Legislature can neither subtract from nor add to it.” In re Sections 12.5

& 12.6 of the Judiciary Law, 24 LLR 37, 44 (1975) (emphasis supplied).

Ch. Six(c)(2): Prohibition on Legislative Increases to the Supreme Court’s Original Jurisdiction

The Court has generally declared that the legislature may not increase the

Supreme Court’s original jurisdiction, but the precedent is not entirely consistent on

this point. Some cases do state that the Legislature may increase the Supreme

Court’s original jurisdiction, at least in some ways and under some circumstances.

But the weight of the precedent holds that the Constitution sets not only a floor but

also a ceiling on the Court’s original jurisdiction.

On many occasions, the Court has held without equivocation that the

Legislature may not increase the original jurisdiction of the Supreme Court. Thus:

“As a matter of law the original jurisdiction of the Supreme Court is independent of

legislative action. The Legislature can neither subtract from nor add to it.” In re

Sections 12.5 & 12.6 of the Judiciary Law, 1972, 24 LLR 37, 44 (1975) (emphasis supplied). Similarly, “[i]t is common knowledge in our jurisdiction that the general jurisdiction of the Supreme Court is appellate in nature and that its original jurisdiction is very limited.” Kamara v. Kindi, 39 LLR 102, 113 (1998). Therefore, as a matter of statutory interpretation, when a “statute gives the court the power to entertain an independent action [such as motions for relief from judgment], that certainly refers to and can only refer to a ‘trial’ court and not an appellate court.”

Id.

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On occasion, the Court has contrarily intimated that the Legislature may increase the Supreme Court’s original jurisdiction, but the intimations have never been without ambiguity. Thus, in Cooper v. Cooper, the Court first explained that the Legislature may not add to the Court’s original jurisdiction: “[N]ot even may legislation be properly enacted which would be in conflict with the provision of the

Constitution fixing the limited jurisdiction of this Court.” 12 LLR 412, 416 (1957).

But then, in the same general discussion, the Court suggested that the Legislature could increase the Court’s jurisdiction: “[T]he Constitution has in very definite terms limited and confined the jurisdiction of our highest Court to appellate matters, or those which affect ambassadors, public ministers, consuls or counties; and only in such other instances, or under such regulations, as the Legislature might from time to time designate by enactment. Up to now there is no enactment which gives the Supreme Court of Liberia more jurisdiction than conferred in article IV, section 2 of the Constitution.” Id. at 417 (emphasis supplied). Similarly, in Gray v.

Ware, the Supreme Court held that the Act of November 30, 1928 did not give the

Court original jurisdiction over disbarment proceedings, see 6 LLR 61, 63-64 (1937), but the Court at least implied that if the statute had done so, the Court could have taken original jurisdiction.

This tension in the Court’s jurisprudence, regarding the Legislature’s power to increase the Court’s original jurisdiction, is at its greatest in the Court’s analysis of its jurisdiction over remedial writs. Two contradictory lines of doctrine have grown up: one holds that the Legislature may give the Court original jurisdiction

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over the writs; the other, that it may not. The practice in Liberia has been that parties may apply to Justices in Chambers for remedial writs, and if unhappy with the decision of the Justice in Chambers, they may take the matter before the

Supreme Court en banc. With rare exceptions, discussed below, statutory law has always prescribed this practice, and the Court has univocally declared it constitutional. But the Court has offered two quite different explanations for its constitutionality.

First, the Court has sometimes held that the Legislature may give the Court original jurisdiction over remedial writs, even though such jurisdiction is not part of the original jurisdiction specified by the Constitution itself. Thus, the Court explained: “Our own statute law confers original jurisdiction over quo warranto proceeding in the Supreme Court and to no other court.” Williams v. Smith, 30 LLR

633, 650 (1983). The Court then summarized the practice of bringing such writs before the Chambers Justice with appeal to the Court en banc and concluded: “In view of this statutory provision, it is clear that in our jurisdiction the statute confers original jurisdiction on the Supreme Court to entertain quo warranto proceeding and to no other court.” Id. Even though such a grant increased the Court’s original jurisdiction, the “statute as cited herein above is held as being constitutional.” Id.

The reason is that in common law jurisdictions, it is common for high courts to have original jurisdiction over such writs: “[C]ourts of last resort, in addition to the appellate jurisdiction that they exercise, are generally given original jurisdiction to issue certain remedial writs, and these usually include quo warranto. Such a grant

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in the state constitution has been held to confer original jurisdiction of the

information in the nature of quo warranto and of the statutory civil action that is

substituted for it.” Id. at 649 (quoting 65 Am. Jur. 2d Quo Warranto § 127). In other words, the Court has read the Liberian constitution in line with other constitutions in common law jurisdictions.

The Court has more than once announced this rule, that the Legislature may give the Court original jurisdiction over remedial writs. For example, although the

Court may not take original jurisdiction over a disbarment proceeding, it may take original jurisdiction over a petition to instruct the Liberian Bar Association to entertain a disbarment proceeding: “[T]he said petition is therefore in the nature of an application for a remedial process which falls squarely within the jurisdiction and proper functions of this Court, and this Court only, to grant.” Gray v. Ware, 6

LLR 61, 64 (1937). Similarly, the Court explained that it has “original jurisdiction over cases in which counties, ambassadors, or public ministers and consuls are parties” and “appellate jurisdiction over all other cases, except those arising out of any one of the five remedial writs, in which latter cases a written petition duly verified must have been filed in the office of the clerk of the Supreme Court, for attention by the Justice in chambers.” Edgar Mitchell & Sons Distillery v. Nelson,

22 LLR 67, 73-74 (1973) (emphasis supplied). In this holding, the Court explains that is has only appellate jurisdiction over “all other cases”, but its jurisdiction over remedial writs is an exception to this rule, because parties may directly petition the

Justice in Chambers.

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By contrast, on other occasions, the Court has continued to insist that the

Legislature may not increase its original jurisdiction. In this line of precedent, the

Court explains that the Legislature has not actually tried by statute to give the

Supreme Court as such original jurisdiction over the remedial writs. Instead, the

Legislature has given the Justice in Chambers original jurisdiction over the writs,

and for this purpose, the Justice in Chambers is understood to be a different

juridical body from the Court itself. In effect, the Justice functions as a lower court.

When the Supreme Court en banc then takes jurisdiction over appeals from the

decision of the Justice in Chambers, it is acting as an appellate court and assuming

only appellate jurisdiction. Thus: “The Supreme Court does not have original

jurisdiction over petitions for remedial writs, but when the Justice in Chambers has

acted aforesaid, definitely the Supreme Court does have jurisdiction. From the act

of the Justice in Chambers, enumerated supra, an appeal could be announced to the

full bench.” Sipo Logging Int’l v. Hon. Kpomakpor, 34 LLR 809, 816 (1988).

The Court has most clearly advanced this holding when the Legislature has tried to allow parties to bring motions for remedial writs directly before the Court en banc, bypassing the Chambers Justice altogether. Thus, at one point, the

Judiciary Law provided that while the Court was in session, only the Court en banc could entertain remedial writs; if a Chambers Justice heard a motion for such a writ, he would be “guilty of a misdemeanor . . . and subject to suspension from office by the President.” Liberian Air Taxi, Inc. v. Meissner, 18 LLR 40, 46 (1967). The

Court phrased the legal question presented by the law: “[D]oes section 502 fall

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within the prescribed prerogatives of the Legislature as granted by the

Constitution, or is this ostensibly an endeavor to increase the areas in which this

Court is to have original jurisdiction by legislative enactment?” Id. at 47. The

Court then decided that it was the latter: “The Constitution is specifically declarative of the cases in which this Court has original jurisdiction, and the

Legislature may not add to this group.” Id. at 50.

More recently, the Court has reiterated this view that it may not entertain remedial writs until they have been passed on by the Chambers Justice. Thus, when a writ of prohibition is pending before a Chambers Justice, the parties may not bring a bill of information before the whole Court: “The most that could be done by this Bench is to order the parties to proceed to the Chambers Justice for the determination of the prohibition proceedings. Anything to the contrary is tantamount to the Supreme Court assuming original jurisdiction in prohibition proceedings.” King v. Jarnveneh, Oct. Term 2004, 15, 21. It would thus be unconstitutional for the Court to take original jurisdiction over remedial writs, and it would correlatively be unconstitutional for the Legislature to try to give it.

These two contrary lines of doctrine concur that the current practice in

Liberia is constitutional, but for quite different reasons. The first line holds that the Legislature has given the Court original jurisdiction over the remedial writs, and the Constitution allows it do so. The second line holds that the Legislature has given original jurisdiction over the writs to the Chambers Justice and only appellate jurisdiction to the whole Court, and the Constitution forbids it to give original

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jurisdiction to the whole Court as such. But although the two lines both support the

current practice, they would not concur on the constitutionality of some other

practices. For example, as noted, the second line of doctrine would not allow the

Legislature to give parties the right to bring writs directly before the whole Court—

because then the Court would be taking original jurisdiction over such writs. But

the first line would clearly uphold such a statute because according to this line, the

Legislature may constitutionally grant the Court original jurisdiction over the

remedial writs. The two lines of doctrine also differ in another, perhaps more fundamental way: the second line of doctrine advances an absolute rule that the

Legislature may never expand the original jurisdiction given to the Supreme Court by the Constitution; the first line has created on exception to that rule, and where on exception has been created, it is easier to create more.

Ch. Six(c)(3): Prohibition on Legislative Exceptions to the Supreme Court’s Appellate Jurisdiction

The Legislature may not make exceptions to the Supreme Court’s appellate jurisdiction. Although the Supreme Court has not yet had occasion to expound this rule, the language of the 1986 Constitution seems to be quite clear. Indeed, on this point, the language of the 1986 Constitution is very different from the language of the 1847 Constitution, so presumably the constitution drafters intended to change the rule.

The 1847 Constitution authorized the Legislature to regulate and make exceptions to the Court’s appellate jurisdiction: “In all other cases the Supreme

Court shall have appellate jurisdiction, both as to law and fact, with such

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exceptions, and under such regulations as the Legislature shall from time to time make.” 1847 Const. of the Republic of Liberia art. IV, sec. 2nd. The Supreme Court explained that its appellate jurisdiction was conferred by the Constitution itself, not by statute, but it was “conferred with such exceptions and under such regulations as

[the Legislature] shall make.” In re Sections 12.5 & 12.6 of the Judiciary Law, 24

LLR 37, 44 (1975) (quoting Ex parte McCardle, 7 Wall 506 (1869)). The Court further stressed that the Constitution allowed the Legislature to make exceptions for whatever reasons seemed good to it: “We are not at liberty to inquire into the motive of the Legislature. We can only examine into its power under the

Constitution; and the power to make exceptions to the appellate jurisdiction of this

Court is given by express words.” Id. (quoting Ex parte McCardle, 7 Wall 506

(1869)).

By contrast, after granting the Court the power of judicial review and then specifying its original and appellate jurisdiction, Article 66 of the 1986 Constitution provides: “The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.” (emphasis supplied). This prohibition on exceptions refers to all three of the Court’s powers listed earlier in the Article: the Legislature may not limit the Court’s power of judicial review to certain subjects, as noted in the chapter on the Judiciary; it may not reduce the Court’s original jurisdiction, as noted earlier in this section; and it may not make exceptions to the Court’s appellate jurisdiction. The last item represents a clear change from the 1847 Constitution, but the language is very

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clear: the Legislature may not create any exceptions as would deprive the Court of

“any of the powers granted herein.” (emphasis supplied). The Article itself defines the Court’s appellate jurisdiction as covering “all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact.” In short, under the 1986

Constitution, the Legislature may not remove any case from the Court’s oversight.

As head of the Judicial Branch, the Court has the jurisdiction to review any case working its way through the system.

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CHAPTER SEVEN JUSTICIABILITY

Some matters are not justiciable, meaning that the Constitution forbids the

Liberian courts from ruling on them. In particular, two sorts of disputes are non-

justiciable: those that do not present a “case,” and those that do present a “political

question.” Each of these categories has a technical legal definition.

CH. SEVEN(a) THE CASE REQUIREMENT

Courts may rule only on cases. Article 66 provides that the Supreme Court shall have original jurisdiction over “cases involving ambassadors, ministers, or cases in which a county is a party” and appellate jurisdiction in “all [other] cases

whether emanating from courts of record, courts not of record, administrative

agencies, autonomous agencies or any other authority.” 1986 Const. of the Republic

of Liberia art. 66 (emphasis supplied). In other words, the jurisdiction of the

Supreme Court reaches only cases. Moreover, because the Supreme Court has

appellate jurisdiction only over cases, it follows that the lower courts have original

jurisdiction only over cases.

In both Liberian and American jurisprudence, the word “case” is a term of

art, with a well developed legal meaning. The U.S. Supreme Court explained that

cases must be real disputes between interested parties: “The real value of the

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judicial pronouncement—what makes it a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion—is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff.” Hewitt v.

Helmes, 482 U.S. 755, 761 (1987).

In other words, the courts may not propound the law in the abstract; they may declare the law only in the course of deciding controversies between parties with adversarial interests that will be affected by the outcome. Thus, the Liberian

Supreme Court has held: “This Court does not interpret statutes or rules of court in the absence of contested cases or disputes.” Picasso Cafeteria & Spanish Gallery v.

Mano Insurance Corp., 38 LLR 297, 304 (1996). Again: “An actual case or controversy must be presented. There must be adverse parties with adverse legal interests.” In re Petition of Benjamin J. Cox, 36 LLR 837, 845 (1990) (quoting

Moore’s Federal Practice § 57.18(2)). When courts have a concrete dispute before them, they are better able to decide points of law because they will be informed by the adversarial arguments of parties with a stake in the result. As the Court has explained, the standing requirement “is intended to preclude frivolous litigation from our courts, treat the courts with seriousness, and allow only those with meaningful intent to appear before them.” Al-Boley v. Sluuwar, 33 LLR 309, 315

(1985).

Ch. Seven(a)(1): The Requirement of Standing

A case is a dispute between parties with standing. Only persons with standing may be parties to a case. To have standing, a party must show that he,

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she, or it has a concrete interest in the outcome of the case. Thus, the Court has explained: “The concept of ‘’standing’ is utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court. The requirement of standing is satisfied if it can be said that the plaintiff has a legally protectable and tangible interest at stake in the litigation.” Al-Boley &

Sluwar v. Proposed Unity Party, 33 LLR 309, 316 (1985). If the party has no interest at stake in the litigation, then no genuine case exists, because the court’s decision will not change the party’s situation, regardless of how the court decides.

Very commonly, the Court has decided standing issues when a plaintiff challenges a law as unconstitutional; the Court has consistently held that the plaintiff must show not only that the law is invalid but also that the law affects his interests. See

Ctr. for Law & Human Rights Education v. Monrovia City Corp., 39 LLR 32, 39

(1998); Gonsahn v. Vinton, 37 LLR 47, 58 (1992); In re Petition of Benjamin J. Cox,

36 LLR 837, 845 (1990).

Ch. Seven(a)(1)(i): The Requirement of Tangible Injury

In order to assert standing, a party must demonstrate an interest with two particular characteristics. First, for standing, the interest must be “tangible,” not merely an abstract desire to see that the law is enforced. For that reason, to challenge a law as unconstitutional, plaintiffs must show “that they have sustained, or are in immediate danger of sustaining, some direct injury as a result of its enforcement.” In re: Petition of Benjamin J. Cox, 36 LLR 837, 845 (1990) (quoting

16 Am. Jur. 2d Constitutional Law § 120). In addition, parties may seek judicial

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protection only “against actual interference” with their interests, because “a

hypothetical threat is not enough.” Id. Similarly, the party must show an interest

that is different from and more particular than the general interest of the public in

seeing justice done: it is not enough to show “merely that they suffer in some

indefinite way in common with people generally.” Id. Thus, an organization has

standing to assert only the concrete interests of its members; it has no standing to

assert n abstract interest in promoting certain policies: “A mere ‘interest’ in a

problem [i.e. a policy desire rather than a tangible interest], no matter how

qualified the organization is in evaluating the problem, is not sufficient by itself to

render an organization adversely affected or aggrieved for the purpose of giving it

standing to obtain judicial review.” Ctr. for Law & Human Rights Education v.

Monrovia City Corp., 39 LLR 32, 39 (1998) (quoting Am. Jur. 2d Constitutional Law

§ 192).

For example, in The Center for Law and Human Rights Education, the

Supreme Court carefully distinguished between two different groups of plaintiffs

seeking to challenge a city ordinance that closed the city markets on Sunday. First,

the Court held that a group of petty traders had standing to sue because the

ordinance would affect their quite tangible interest in getting their living. The

Court held that by its terms, the ordinance would not actually restrict these

traders, because it did not actually apply to “petty neighborhood selling.” 39 LLR at

37. Nevertheless, the traders averred that the City intended to enforce the law

against them, and because the City did not contest this averment, the Court held

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that the City had admitted the point. Therefore, the Court held that the threat to the traders was real and not merely hypothetical: “[C]o-petitioners have standing to feel threatened and that their interest will be prejudiced.” Id. at 38.

By contrast, the Court denied standing to the Center for Law and Human

Rights Education because it could assert only an abstract interest. The Center’s petition asserted: “The Center has an interest in ensuring that the rights and fundamental liberties of all Liberians are respected, and in this regard, it engages in and implements programs geared towards conscientizing [sic] and creating an awareness of the rights and fundamental liberties of the people of Liberia, and the means to identify, assert, and demand the protection of these rights.” Id. at 38.

The Court held that this general interest in seeing the law enforced did not constitute “personal injury suffered by the said co-petitioner and its members.” Id. at 39.

The Court also granted standing to a third group of plaintiffs, a set of grass roots Muslim organizations, but the exact basis for the Court’s treatment of them is less clear. Some of the members of these groups were marketers and so they suffered from the same sort of injury as the pretty traders of the first group. But the Muslim groups also asserted that the ordinance injured them because it was “an effective domination or preference for Christianity over Islam in violation of the

Constitution, which prohibits the state religion or the domination of one religion over the other.” Id. at 40. The Court decided to allow the groups to assert the

“fundamental rights of freedom of religion and the maintenance of a secular state or

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Republic on behalf of its membership who are of another religion (Islam) and have

organized on the basis of that religion.” Id.

The Court considered that this permission was extraordinary in that it

violated the “usual rule denying standing to rise another’s rights.” Id. The Court

nonetheless decided to allow the groups standing because it will depart from the

ordinary rule in “unique circumstances,” especially “where fundamental rights

would otherwise be denied.” Id. But the organizations were not actually seeking to

raise the rights of others; rather, as they were nothing more than the aggregations

of their own member, they sought merely to act as their collective representatives.

Indeed, the Court recognized this argument on the preceding page and conceded that organizations generally had standing to act in this way: “A group or organization can also have standing as the representative of its members, provided that it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit.” Id. at 39 (quoting 16 Am. Jur. 2d Constitutional

Law § 192).

In other words, the determinative issue is not whether the organizations could assert their members’ rights; rather, it was whether the members themselves had standing. The Court determined that the members of the Muslim organizations had an interest sufficient to provide standing to insist that Liberia be a secular state. But as already noted, the Court simultaneously held that the members of the

Center for Law and Human Development did not have an interest sufficient to provide standing to insist on the same. The Court does not explain the reasons for

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this differential treatment. Presumably, all Liberians share an abstract interest in holding the Republic true to the constitutional mandate. But without saying so in so many words, the Court may have decided that the Muslim groups had a more tangible interest than did the Center for Law and Human Rights. If Liberia became a Christian polity, the Liberian state and society might become more hostile to

Islam than it would to human rights proponents.

Ch. Six(a)(1)(ii): The Requirement of a Legal Interest

Second, to assert standing, the party must show that the interest is legally protected. If the interest is not legally protected, then the party has no stake in the outcome of the litigation, because the court can protect an interest only insofar as the law so provides. Thus, the Court has explained that a party has standing only

“if it can be said that the plaintiff has a legally protectable . . . interest at stake in the litigation.” Al-Boley & Sluwar v. Proposed Unity Party, 33 LLR 309, 316 (1985).

Similarly, the Court has held: “It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statue complained of and one who attacks a statute on the ground that it deprives him of his constitutional right has the burden of proving that his rights have been invaded by the actual or threatened application of the challenged law.” In re

Petition of Benjamin J. Cox, 36 LLR 837, 845 (1990) (quoting 16 Am. Jur. 2d

Constitutional Law § 120). See also Gonsahn v. Vinton, 37 LLR 47, 58 (1992).

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For example, in Al-Boley v. Proposed Unity Party, two citizens sought to prevent the probate and registration of the Proposed Unity Party on the grounds that the party had obtained its registration roll through fraud. The Court held that the citizens lacked standing to sue. The Elections Law of 1983 “provides that objections to the continuance of names on the registration roll can only be done by resort to SECOM [the Special Elections Commission] by registered voters,” but the objectors “have even failed to even aver that they are registered voters.” 33 LLR at

317. In other words, by law, voter fraud on the registration rolls works an injury only to registered voters. Although the Proposed Unity Party may have committed fraud, and although such fraud may cause a general injury to all Liberian voters, the objectors had failed even to plead facts sufficient to conclude that their interest was protected by law: “Such relevant and material notice not having being [sic— presumably “been”] afforded the court and respondent as to objectors’ present interest . . . the objections filed by the objectors as genuine as they might be, are bound to be fizzled out of court.” Id.

As another example, in In re Petition of Benjamin J. Cox, the petitioner was an American citizen who had graduated from the Louis Arthur Grimes School of

Law and wished to enter the Liberian Bar. See 36 LLR 837, 839-40 (1990). A

Liberian law provided that only Liberians could enter the Bar, so petitioner wished to challenge the law as unconstitutional. But petitioner had not applied to the

Chief Justice or to the courts of record for admission to the Bar, so no judicial officer had worked him a harm of any kind. See id. at 847. Instead, he wished to

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challenge the decision of the Dean of the School of Law not to pass his name along to the Chief Justice of Liberia for admission to the Bar along with all the other graduates. Id. at 846-47. But the Court held that the Dean was under no legal obligation to pass anyone’s name along. As a result, although the Dean’s refusal may have injured petitioner, it was not a legally cognizable injury: “The Dean was therefore within his right, using his discretion and having no legal prohibition in the exercise thereof, to refuse to submit the name of the petitioner to the Chief

Justice for consideration for admission to the Bar.” Id. at 847.

In order to determine whether a party has standing, a court must sometimes

make findings of fact to ascertain the nature of the party’s actual interest in the

matter. If the party does not have such an interest, the court has no jurisdiction,

but the court must take jurisdiction long enough to determine whether it has

jurisdiction. As long as a party has averred facts sufficient to support standing, the

court must allow him to prove those facts. Because this determination involves the

taking of evidence, only lower courts may perform it; except in the areas of its

original jurisdiction, the Supreme Court functions only as an appellate court and so

may not take evidence. For example, in Gohnsan v. Vinton, petitioners argued that it was unconstitutional for the National Bank of Liberia to issue new “Liberty” bank notes and to declare null and void the older “J.J.” notes. Petitioners claimed to have standing because they “traded with the ‘J.J.’ five dollar note or the ‘Liberty’ five dollar note which have been refused acceptance by the NPFL and the INPFL.” 37

LLR at 57. The Supreme Court concluded that the petitioners thereby raised

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“factual issues which must be substantiated by concrete evidence.” Id. at 58. The

petitioners had brought their case to the Supreme Court without first going through

a lower court, and so at this stage they could not prove standing because the

Supreme Court cannot take evidence. Thus, it “follows then that the petitioners

must prove by evidence in a forum other than the Supreme Court, that is, a

subordinate court such as the Civil Law Court, Sixth Judicial Circuit, that they

have standing to institute and maintain this action.” Id. at 59.

Ch. Six(a)(2): Advisory Opinions

Except under exceptional circumstances, courts may not issue advisory opinions. Because a case requires a party with standing, in general the courts may not issue opinions except in the context of a genuine dispute between parties. In other words, like the American courts, Liberian courts may not generally hand down advisory opinions, i.e., decisions clarifying or announcing the meaning of the law in the abstract, outside the context of a concrete dispute. See Muskrat v.

United States, 219 U.S. 346 (1911). Thus, in general, Liberian courts may not sua

sponte declare a law unconstitutional. Picasso Cafeteria & Spanish Gallery v. Mano

Insurance Co. provides a good example. Pursuant to the ordinary practice, a Justice

of the Supreme Court had certified five cases for rehearing, but then the Court en

banc issued Judicial Order Number 1, which re-interpreted the Court’s rules to

require that only the full Court could certify cases for re-hearing. On the basis of

that re-interpretation, the Order further commanded that the five cases would not

be re-heard. 38 LLR 297, 301-03 (1996). A slightly later Court held, however, that

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Judicial Order Number 1 was invalid because it was issued on the Court’s own

motion, see id. at 301, and not at the request of a party in interest: “This order was

issued without a hearing and without the complaint of any party.” Id. at 303. For

that reason, it had the quality of an advisory opinion: “This Court does not

interpret statutes or rules of court in the absence of contested cases or disputes.”

Id. at 304.

In Liberia, however, unlike the United States, there is an important exception to this ban on advisory opinions: when the Court deems that an act of the

Legislature or the Executive threatens judicial independence, the Court may declare the law unconstitutional so as to defend the Judicial Branch. Thus, on two occasions widely separated by years, the Court has struck down statutes that sought to constrain the Court’s constitutionally protected contempt power. See In

Re Sections 12.5 & 12.6 of the Judiciary Law, 24 LLR 37 (1975); In Re Act of the

Legislature of Liberia approved January 20, 1914, 2 LLR 157 (1914). The Court explained: “It is true that the constitutional issue has not been raised in any court

or by a party; but there is legal precedent for the procedure being followed because

of the nature of the section under consideration and the erosive effect its

implementation could have on the Judiciary, especially the Supreme Court, of this

Republic.” In Re Sections 12.5 & 12.6 of the Judiciary Law, 24 LLR at 42.

Similarly, on its own motion, the Court declared that the Accra

Comprehensive Peace Accord was unconstitutional insofar as it dissolved the sitting

court: “The Supreme Court is under a duty to ensure that the constitutional grants

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of powers, guarantees, safeguards and protections for the independence of the

Supreme Court and the entire Judiciary are not interfered with or infringed upon by the Executive or Legislative Branches, organization or whomsoever, whether or not there is a pending matter.” In Re Suspension of the Powers of the Judiciary & the Removal of Judicial Officials, 18 Aug. 2003, at 7.

When thus deciding issues in the absence of a case, the Court has no parties, no contending counselors, and adversarial arguments to assist its thinking. To help to remedy that absence, the Court has adopted a special procedure when deciding advisory opinions: it has invited members of the Bar to offer comments and arguments. See In Re Suspension of the Powers of the Judiciary & the

Removal of Judicial Officials, at 2-4; In Re Sections 12.5 & 12.6 of the Judiciary

Law, 24 LLR at 39.

CH. SEVEN(b) POLITICAL QUESTIONS

Courts may not decide political questions. The Supreme Court has explained that some issues properly lie with the political branches, not with the courts, because of their underlying nature. The phrase “political question” is a term of art referring to such non-justiciable issues. The normal English usage of the phrase refers to questions that are about politics or that are political in nature. In legal

English, the phrase means something different. “Political” refers not to the content of the question, i.e., being about politics, but to the identity of the appropriate

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decision-maker, i.e. the political branches. Under this doctrine, in other words, a

question is political strictly the law commits it to the Executive or the Legislature,

not because it is concerned with the stuff of politics. Some questions about politics may nonetheless be appropriate for judicial decision, and some questions not about politics may rest wholly with the political branches.

In the United States, the Court has identified two sorts of political questions: those where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Baker v. Carr, 369 U.S. 186 (1962).

Similarly, the Supreme Court of Liberia has held that an issue is a political question when it lacks judicial standards for resolution or when it is textually committed to a different branch.

Ch. Seven(b)(1): The Requirement of Judicial Standards

The Court may not decide issues that lack judicial standards. This category of political questions refers to those issues that judges cannot decide because they involve questions beyond judicial competence. As a result, their decision requires political judgment and will. For example, the United States Supreme Court has held that only the political branches may decide how long a constitutional amendment may be left pending before the states. See Coleman v. Miller, 307 U.S.

433 (1939). The plurality opinion explained that setting a time limit would require

“an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence

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receivable in a court of justice and as to which it would be an extravagant extension

of judicial authority to assert judicial notice.” Id. at 452.

The Liberian Supreme Court explained the nature of such political questions

in Massaquoi v. Republic, 3 LLR 411 (1933). The Court held: “There is a vital

difference between justiciable matters and matters political. Courts of law are

instituted for the purpose of deciding only such questions as are susceptible of

determination by the application of well recognized rules of law or equity. Political

questions cannot, however, be determined by courts of law because there are no

principles of either law or equity by which they can be decided. The only rule

applicable to . . . such questions is the rule of conciliation or compromise.” Id. at

416.

Massaquoi may be the first reference to the political questions doctrine in the

Supreme Court’s recorded history. Its formulation of the rule is still authoritative.

But on application, it uses the phrase to mean something quite different from what it means today. Massaquoi involved a trial for embezzlement; in his argument to the jury, the prosecutor claimed that the prisoner and the defense counsellors were political agitators for the rights of aborigines. These statements were impermissible for a number of reasons. They were irrelevant to the defendant’s guilt or innocence, and they were likely prejudicial. In addition, the Supreme Court held that “a judgment . . . which is shown to be influenced by the bare statement of a lawyer for either party to the court, on matters which are not in evidence, nor intended to be proved, is against the organic law of the land and void.” Id.

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But the Court went further: it held that the judgment was invalid because

the prosecutor asked the jury to base its verdict on a political question. As the

Court explained, “[a]ny verdict based upon non-justiciable matters is therefore

illegal, and the appellate court shall remand the cause to be tried de novo.” Id.

This usage of the phrase is different from the modern usage. For the Massaquoi

Court, a political question is present whenever a jury might have been influenced by

political considerations. In such a case, the world of the law and the world of

politics have been impermissibly co-mingled: “[W]hen a court of law embarks on such turbulent seas, it immediately loses its office as a judicial tribunal and abdicates its forum where pettifogging politicians resort to ventilate their little minds.” Id. But as noted in the introduction to this section, the political question doctrine does not refer to matters that are political in nature; instead, it refers to decisions that cannot be made by judicially discoverable and manageable standards.

When the prosecutor accused the defendant and his lawyers, he intruded politics into the courtroom, but it is not clear that he asked the jurors to decide a political question of any kind. His accusation may have been designed to prejudice their minds, but they were being asked only to judge the guilt or innocence of the defendant—an entirely appropriate task—not to decide an issue without judicial standards.

Ch. Seven(b)(2): Textual Commitment to Another Branch

The Court may not decide questions that are textually committed to another branch. Although the Constitution proclaims that the Court is the final arbiter of

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all constitutional issues, the Court has interpreted the Constitution to mean that some decisions rest wholly with another branch. The Constitution contains very few, if any, provisions that explicitly commit an issue to the political branches and remove it entirely from the judicial sphere. Instead, the Court has found that the idea of separation of powers itself implicitly requires that some issues are so central to the Executive and Legislative roles that the Court may not review them. Thus, the Court has held that only the Executive has power to determine diplomatic status, i.e., to decide who is an accredited representative of a foreign country and thus entitled to diplomatic immunity: “It is also universally held that ‘diplomatic status is a political question and a matter of states; the finding of the Secretary of

State must be accepted unquestioned. The courts of the United States are not alone in applying this rule. The decision of the executive department as to whether a person is a member of a foreign mission or of its personnel is conclusive upon the courts.” Bauchau v. United States, 40 LLR 58, 65 (2000) (quoting United States v.

Conlon, 88 Fed. Supp. 921 (1950)).

The Constitution does not specifically provide that courts may never determine diplomatic status. The Constitution gives the courts the power to decide cases, and determining diplomatic standing might be thought to be incidental to this power: when a claim of diplomatic immunity is raised, the courts would need to rule on it in order to decide the case. Nevertheless, the Court has held that the

Constitution implicitly reserves the question of diplomatic status to the Executive

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branch alone because in Liberia’s separation of powers, the conduct of foreign affairs falls within the sphere of the executive.

The Court has also held that the enforcement of the law, including statutes and court judgments, belongs entirely to the President. For that reason, although the Legislature has power to make law and the Court has the power to say what the law is, neither branch has power to order the President or one acting at the

President’s instructions to enforce the law. See, e.g., Ghoussalny v. Nelson, 20 LLR

591 (1972). On the other hand, the courts can order lesser executive officials not acting at the direct behest of the President to enforce the law. See Sartori v. Scott,

33 LLR 295 (1985).

The Court has never specifically held that the enforcement of law is a political question as such, but the Court’s reasoning suggests that conclusion. As noted in the chapter on the Judiciary, the Court has offered two reasons for the rule that it cannot order the President to enforce the law. First, the Court may not take jurisdiction over the President because he must always be free to perform his duties; Article 61 thus provides for presidential immunity from all types of suits.

Second, the Constitution gives to the executive, and to no-one else, the power to enforce the law; the President is under an obligation to enforce the law, but if he does not, no-one may legally order him to do so. See Branly v. Vamply, 22 LLR 337,

350 (1973). In other words, the Constitution textually commits law enforcement to the exclusive domain of the President, first by giving the President the power to enforce the law in Article 50 and then by immunizing him from suit in Article 61 for

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his failure to use that power. The enforcement of law would thus appear to be a

political question because it is textually committed to another branch.

The Constitution also commits certain tasks to the Legislature, and some of

these may involve political questions. Some of the tasks are internal to the

Legislature: Article 31 requires that the members take an oath before assuming

office; Article 32 requires the Legislature to assemble in regular session annually on

the second working Monday in January; Article 38 empowers the Legislature to

adopts its own rules of procedure, enforce order, and expel members; Article 44

gives the Legislature the power to issue contempt citations; Article 47 gives the

Senate the power to elect and remove a President Pro Tempore; and Article 48

gives the House the power to elect and remove a Speaker.

Because these tasks are internal to the Legislature, they might be regarded as political questions, implicitly committed entirely to the discretion of the

Legislative branch. Some Supreme Court opinions contain language suggesting that conclusion: “The constitutional principle of separation of powers does not and cannot authorize on [sic—presumably “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 re Hon. Broderick, 40 LLR 263, 281-82 (2000).

Recently, however, the Court has held that it has the power to review every

action taken by any part of the Liberian government. In Snowe v. Members of the

House of Representatives, the Speaker (or ex-Speaker) of the House claimed that

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the Legislature’s attempt to remove him from his post as Speaker was unconstitutional for failure to conform to due process. Respondents contended that the removal of a Speaker of the House was a political question, committed exclusively to the Legislature by the text of the Constitution. The Supreme Court rejected this argument. The Court explained that Article 66 gives it jurisdiction over all cases, “whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority.” (quoting

1986 Const. of the Republic of Liberia art. 66) (emphasis supplied by the Court).

The Court held that the phrase “any other authority” includes both the Legislative and Executive branches. For that reason, the Court held that it could review even the internal actions of those branches. The Court further held that the all government actions must conform to due process, so the Court has power to review them accordingly. Due Process requires, among other things, that the government actually prove its case, so the Court will review these government decisions to ensure that proof had been shown. For further discussion of the Snowe case, see the

Chapter on Legislatives Powers and Immunities.

The Snowe case might have far-reaching implications for the political question doctrine. If the Court may literally review every governmental action for conformity for due process, then it follows that the Constitution vests no government action wholly to another branch. In other words, this category of the political question doctrine—matters textually committed to another branch—is a null set. It remains to be seen how far the Supreme Court will extend the Snowe

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doctrine. The Court might, for example, conclude that the Executive must honor

due process when determining diplomatic immunity, and if it fails to do so, the

Court will correct it. It is even possible that the Court will review the President’s

decisions whether to enforce statutes and court mandates.

Finally, if the Court believes that it may review decisions wholly internal to

the Legislature, it seems even more appropriate to review matters that are only

partly internal to the Legislature and have significant effects for persons outside

the Legislature. Impeachment is perhaps the most significant example. Article 43

provides that the power to prepare bills of impeachment “is vested solely in the

House of Representatives,” and the power to try impeachments “is vested solely in

the Senate.” Because the text commits those powers “solely” to the Legislature, the

Court might decide that impeachment proceedings are political questions. The

United States Supreme Court has in fact held that impeachments in America are

non-justiciable. See Nixon v. United States, 506 U.S. 224 (1993). But the Liberian

constitution also requires that procedures for impeachment proceedings must “be in

conformity with the requirements of due process of law.” 1986 Const. of the

Republic of Liberia art. 43. Presumably, if the Court may review the internal decision to remove the House Speaker for due process, it may similarly review impeachment proceedings. For further explanation of impeachment proceedings, see the chapter on Legislative Powers and Immunities.

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SUBPART I(B): THE EXECUTIVE BRANCH

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CHAPTER EIGHT THE POWERS OF THE EXECUTIVE BRANCH

Article III, Section 1st, 1847 Constitution of the Republic of Liberia

The Supreme Executive Power shall be vested in a President who shall be elected by the people and shall hold office for a term of eight years. . . .

Article 50, 1986 Constitution of the Republic of Liberia

The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia. The president shall be elected by universal adult suffrage of registered voters in the Republic and shall hold office for a term of six years commencing at noon on the third working Monday in January of the year immediately following the elections. No person shall serve as President for more than two terms.

CH. EIGHT(a) CONCENTRATION OF THE EXECUTIVE POWER IN THE PRESIDENT

The executive power is concentrated exclusively in the President. The

Constitution grants all executive power to the President alone: “The legislative branch is composed of many members, while the judicial branch is a collective body.

… But it is wholly different with the executive branch. One man constitutes all there is of that, and upon him the Constitution has placed many great and important duties, and these duties are constant.” Wiles v. Simpson, 8 LLR 365, 371

(1944) (quoting Watson, The Constitution of the United States 1023-24 (1910). In

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other words, “the Liberian Constitution never contemplated or implied a ‘Collective

Presidency.’” Nat’l Patriotic Front of Liberia & the Concerned Citizens Movement of Gbanga v. Liberia Nat’l Transitional Government, 38 LLR 130, 143 (1995). As a result, all lesser executive officials have no constitutionally granted power of their own; they serve only as subordinate aids to the President: “It is the President of the nation alone who constitutes the Executive Branch of the government, and all cabinet ministers are only his advisors and administrative officials of the executive departments in the Executive Branch of the government.” Sartori v. Hon. Scott, 33

LLR 295, 304 (1985).

The Court has further explained that the cabinet is “’a council or advisory board’ to the President, “each member advising in the particular field of his appointment.” In re Cassell, 14 LLR 391, 421 (1961) (quoting Bouvier, Law

Dictionary Cabinet (Rawle’s 3rd Rev. 1914)). For that reason, with the exception of the Attorney General (now Justice Minister) all cabinet members must agree with the President or resign: “All other cabinet members must agree with policy of the administration or resign, if they are to maintain any semblance of honorable respectability.” Id. at 422. The Attorney General has greater freedom because of his or her expertise in the law, which stands independent of the President’s will:

“[O]f the members of the President’s cabinet, the Attorney General is the only one who might professionally or technically disagree in opinion with the President on any issue and be within the proper and legal performance of his duties.” Id.

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CH. EIGHT(b) THE POWER AND THE DUTY TO ENFORCE THE LAW

The Court has often explained that in the basic division of powers, the job of the executive is to enforce the law: “Although case law stands on the same footing as statutes enacted by the Legislature, yet neither the Legislature nor the courts can enforce the laws they make. As said before, this is the function of the Executive branch of Government.” Branly v. Vamply, 22 LLR 337, 351 (1973).

This power to enforce the law carries with it a duty to enforce the law made by the other branches. Article 53 of the 1986 Constitution of the Republic of Liberia provides that before entering upon the duties of his or her office, the President must

“take a solemn oath or affirmation to preserve, protect, and defend the Constitution and laws of the Republic.” The President must therefore enforce not only the

Constitution itself, but also statutes made by the Legislature and the common law made by the courts. In enforcing law made by a legislative body, the President must follow the will of that legislative body: “[T]he Executive has the constitutional duty to execute the law in accordance with the legislative purpose as expressed.”

Republic of Liberia v. Tolbert, 36 LLR 739, 759 (1990).

As will be developed below, sometimes the Executive possesses discretion given to him either by legislation or by the Constitution itself. But outside those areas of discretion reserved to him by the Constitution, the Legislature may impose

mandatory enforcement duties on the Executive branch: “But when the legislature

proceeds to impose on that officer other [i.e. non-discretionary] duties; when he is

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directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct, and cannot at his discretion sport away the vested rights of others.” Ghoussalny v. Nelson, 20 LLR 591, 609 (1972) (quoting

Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 50 (1803)). When courts apply laws in particular cases, the Executive is similarly under an obligation to enforce the mandates of the Court: It would be “wrong and unconstitutional for the late

President to have intervened . . . to stop the execution of [a] mandate of the

Supreme Court and thus prevent [a] sheriff from performing a duty mandatorily enjoined upon him by statute.” Ghoussalny, 20 LLR at 611. In short, “the

Executive enforces the laws and by the Constitution, it is its duty to take certain steps upon the happening of certain contingencies towards such enforcement in the manner prescribed therein. Wesseh v. Tubman, 28 LLR 3, 11 (1979).

Because the Executive is an “officer of the law”, he must follow its edicts. His will is subordinate to the law, not superior over it. In other words, in those areas not give to the President’s discretion by the Constitution, he must obey the rules made by others. On the other hand, although the President has no discretion whether to enforce the law, he or she does have discretion how to enforce the law:

“[I]t must not be forgotten that the oath to faithfully execute the office of President does not deprive the President of the right to exercise his discretion in the proper circumstances to determine what constitutes proper execution of all laws.”

Ghoussalny, 20 LLR at 611.

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One of the most important elements of the Executive power to enforce the law is the Justice Ministry’s power to investigate crimes: “We hold that the authority of the Ministry of Justice to hold investigations into complaints either from the

President of Liberia or from a private citizen as to a threatened criminal activity in the country has been recognized by all constitutional governments, and ours is no exception.” Wesseh v. Tubman, 28 LLR 3, 12 (1979). Indeed, the Court described the Ministry of Justice as “one of the most essential agencies of government to make meaningful and effective” the constitution’s goals. Id. But although the Minister of

Justice may investigate crimes, he or she may not arrest, imprison, impose a criminal fine, or try a person for a crime, because those are exclusively judicial functions. See Trawally v. Hon. Scott, 33 LLR 200, 207 (1985); Thomas v. Ministry of Justice, 26 LLR 129, 133 (1977); Ayad v. Dennis, 23 LLR 165, 178 (1974).

CH. EIGHT(c) THE EXCLUSION OF THE OTHER BRANCHES FROM EXECUTIVE FUNCTIONS

Ch. Eight(c)(1): The Exclusion of the Other Branches from Law Enforcement

Only the Executive may enforce the law. Neither the courts nor the legislature may directly “enforce the laws they make.” Branly v. Vamply, 22 LLR

337, 351 (1973). They must depend on the Executive, who is under a constitutional duty to honor the rule of law. Similarly, courts may not decide whether the

Executive should prosecute someone: “We hold that the decision regarding whether

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or not to prosecute an offense is a decision reserved to functionaries of the Executive

Branch of Government over which the judiciary has no authority whatsoever.” In re

Contempt Proceeding Against Hon. Toe & Johnson, 39 LLR 802, 813 (1999).

Ch. Eight(c)(2): Prohibition on Attempts by Other Branches to Interfere with the Executive Branch’s Enforcement of the Law

The other branches may not interfere with the Executive’s enforcement of the law. Although the President is under a constitutional obligation to enforce the law, neither the Legislature nor the courts may compel him to do so. The field of enforcement belongs to the Executive branch, and the other branches may not intrude thereon: “[T]he Supreme Court cannot compel the Executive branch to enforce the Court’s judgments. . . . Consequently, whereas the courts may hear and determine litigation by rendition of judgments, it is not the duty of the courts to enforce those judgments; that duty belongs to the Executive Department.” Branly v. Vamply, 22 LLR 337, 350 (1973). For that reason, the Court may not take jurisdiction over the President in an effort to force him to execute its mandate.

Ghoussalny, 20 LLR at 616. Article 61 of the 1986 Constitution now expressly provides for such immunity: “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.”

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Although the Court may not order the President to enforce a judgment, the

Court may order a lesser member of the Executive branch to do so: “It is only the

President or Head of State of the nation that is immune from court process. . . .

Unless a cabinet minister or an administrative official is carrying out a specific

directive or instruction of the President or Head of State, he is not immune from

court process for any breach of his statutory duties which may infringe upon the

rights and personal liberty of anyone under due process of law.” Sartori v. Hon.

Scott, 33 LLR 295, 304 (1985). As the Court explains, “[t]he weight of authority

holds that when a duty is imposed by statute upon one in the Executive branch of

Government, he is subject to court process and it is wrong for anyone to interfere

with the process of court in such a case.” Ghoussalny, 20 LLR at 607.

For a fuller exposition of this doctrine of executive immunity, see the analogous section in the chapter on Judicial Powers.

CH. EIGHT(d) THE PRESIDENT’S EXCLUSIVE POWER TO GRANT CLEMENCY

The President alone has the power to show clemency. Article 59 of the 1986

Constitution provides that the President has the power to grant mercy, at his own discretion, for those burdened by legal penalties: “The President may remit any public forfeitures and penalties, suspend any fines and sentences, grant reprieves and pardons, and restore civil rights after conviction for all public offenses, except

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impeachment.” This power to grant clemency is exclusive to the President: in him or her “alone is vested the authority, under the Constitution, to mitigate sentence[s] pronounced by the court in a criminal case.” Dennis v. Republic, 17 LLR 396, 399

(1966). Even when the Supreme Court finds the defendant sympathetic, the Court must apply the law as written; it possesses no power to grant mercy. Thus, “we are obligated to the administration of justice, and the power to grant mercy is delegated to the Chief Executive.” Bell v. Republic, 5 LLR 283, 287 (1936). For that reason,

“we cannot exceed the province of a court of justice or usurp the functions of the

President, in whom alone is vested the authority, under the Constitution, to mitigate sentence pronounced by the court in a criminal case.” Dennis, 17 LLR at

399. See also Ayad v. Dennis, 23 LLR 165, 179 (1974). If the Court finds a defendant particularly sympathetic, the most that it can do is to urge the President to show clemency. In Bell, for example, the Court petitioned: “[W]e most strongly join our appeal to his [i.e. the defendant’s own appeal] for such executive clemency as His Excellency, having all the facts before him, might feel that the appellant should in mercy receive.” 5 LLR at 287.

It should be noted that clemency is granted purely because the President feels that the defendant deserves mercy, not because the President feels that the defendant was not guilty. As noted in the chapter on the Judiciary, determining criminal guilt is a purely judicial function, and the President may not review final court judgments for legal correctness. The Court explains: “Once the courts have pronounced a defendant guilty, it is on the basis of this judicial determination, and

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not on defendant’s or his attorney’s belief of guilt, that the President exercises, if he so desires, his pardoning power.” In re Cassell, 28 LLR 107, 129 (1979).

CH. EIGHT(e) THE PRESIDENT’S INHERENT DISCRETIONARY POWERS

The President has inherent discretionary powers. Over and above his specific powers, the President has inherent power to do anything not specifically forbidden to him or her by law. The Court has explained that the President has many extraordinary duties, vital to the health and safety of the Republic: the Chief

Executive “is a great and necessary part of our government. . . . [U]pon him the

Constitution has placed many great and important duties, and these duties are constant.” Wiles v. Simpson, 8 LLR 365, 371 (1944) (quoting Watson, The

Constitution of the United States 1023-24 (1910)). Unlike the other branches, who

“sit in authority at stated intervals”, he is continually under obligation to the country: “There is no recess in the discharge of his official duties. . . . The

President is the only constant and continuing factor in the division of governmental power under our Constitution which is necessary to its existence.” Id. at 371-72.

Because the President serves such an important and constant role, the Court has found that the President has extensive inherent powers—i.e. powers not specifically enumerated in the Constitution itself. Thus, the Court has explained that the President has the power to do anything not specifically forbidden by law:

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“According to the constitutional principles, the President, in the exercise of his executive power and prerogatives, is authorized to perform any act that the needs of the nation demands, unless such action is forbidden by the Constitution and the laws of the Republic of Liberia.” Republic of Liberia v. Tolbert, 36 LLR 739, 759

(1990). In other words, the President has not only those specific powers enumerated in the Constitution but also inherent power to take such acts as he or she sees fit: “He has the power to act according to his discretion for the public good without prescription of law.” Id.

In other words, the President is presumed to have the power to do anything, and this presumption is rebutted only insofar as the Constitution or statutes specifically limit his or her power. In this respect, Liberian law is very different from American law, which permits the President only the specifically enumerated powers and rejects the idea of inherent power. In other words, the President is presumed to have the power to do nothing, and this presumption is rebutted only insofar as the Constitution or statutes specifically authorize him or her. Thus,

Justice Jackson famously wrote: “[T]he executive branch, like the Federal

Government as a whole, possesses only delegated powers . . . . [T]he president does not enjoy unmentioned powers. . . . The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by

George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.” Youngstown

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Sheet & Tube Co. v. Sawyer, 349 U.S. 579, 641 (1952) (concurring opinion of Justice

Jackson).

The President may exercise this inherent power, inter alia, by issuing executive orders: “In the exercise of the executive power vested in him by the

Constitution, the President may issue executive orders in the public interest, either to meet emergencies or to correct particular situations which cannot wait until the lengthy legislative process has run its course.” Ayad v. Dennis, 23 LLR 165, 171

(1974). An executive order is legally binding: it “has the effect of law, and all courts of Liberia are bound to take note of and give effect to it.” Id. However, the

President must refer each executive order to the Legislature for ratification, and

“[i]f the Legislature does not act upon the executive order after it has been referred to it, the order lapses a year after its issuance.” Id. Presumably, however, so long as the Legislature has not forbidden it, the President may simply renew the order after its lapse, because of the general rule that the President has the power to do all things not specifically prohibited by law. Thus, the President may issue an executive order capping the price of rice in order to ensure that Liberians will be able to afford basic nourishment. See id. at 171-72.

CH. EIGHT(f) THE PRESIDENT’S INHERENT POWER TO KEEP THE REPUBLIC SAFE

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The President has special powers to keep the Republic safe. In conditions of

emergency or danger to the Republic, the President has special powers that he or

she does not have under ordinary conditions. The Court has explained that the

“safety of the State is the highest and most important law, the Constitution

notwithstanding.” Thomas v. Morgan, 25 LLR 37, 50 (1976). The President has an important role when the safety of the state is threatened: “Thus it can be seen that the President’s discretion, to determine when an emergency exists with respect to his duty to protect the safety of the State, cannot usually be questioned.” Id. at 52.

To ensure the safety of the state, as already noted, the President may take all

actions not specifically forbidden by law, and he or she may issue executive orders,

pending legislative ratification. In addition, before the adoption of the 1986

Constitution, the Legislature could grant him quite broad powers. First, the

Legislature could not only itself suspend habeas corpus in the event of an “urgent

and pressing occasion,” id. at 49 (emphasis in original); it could also delegate that

power to the President. Id. at 50. Under such a delegation, the President possessed

full discretion to determine whether such an occasion had arisen. See id. at 50-51.

Second, the Legislature had the power to grant the President broad functions in criminal cases, functions usually reserved to the judicial branch. Thus, in 1975, the Legislature gave to the President the power not only to suspend habeas corpus but also to “arrest without warrant and detain without bail any person or persons found dealing in drugs or engaged in counterfeiting, or who had committed bank fraud” and “to set up a Special Commission to try such offenses summarily.”

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Thomas, 25 LLR at 39 (emphasis supplied). The Court upheld this delegation: “In

preserving the safety of the State in an emergency, [the President] is clothed will

full authority by any law given by the Legislature to set up agencies empowered to

hear and summarily determine matters vital to the safety of the State.” Id. at 52.

In other words, the President was empowered to act as both prosecutor and judge, and because he also suspended habeas corpus, the ordinary courts could not review the commission’s summary trials. The Court cautioned only that the emergency powers did not extend to those arrested before the Act came into operation. See id. at 41-42. In addition, the Court found it within the President’s power to take such emergency measures even when the threat was relatively mild: in the Thomas case, the emergency was not an invasion, civil war, or natural disaster, but only an increase in the ordinary crimes of counterfeiting and drug dealing.

In addition, even without specific legislative authorization, in “cases of treason or when the existence of the State is at risk,” the Minister of Justice could

“arrest and jail a person who is a suspect,” “in which case, the suspect is kept at the post stockade, not the central prison yard.” Trawally v. Hon. Scott, 33 LLR 200, 205

(1985). Presumably, however, the Minister did not have the power to try such cases without legislative authorization.

The 1986 Constitution adopted a special section on Emergency Powers with quite specific provisions on the procedures for beginning and ending a state of emergency and the legal alterations that may be imposed during one. The Court has not had an occasion to interpret these provisions at length, nor to explain how

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much of the preceding case law has survived into the present. It is, however, clear

from the language of the Constitution that some of the earlier rules have survived and some have not.

The President may still declare a state of emergency, and though he must consult legislative leaders, he still possesses full discretion in the matter: “The

President may, in consultation with the Speaker of the House of Representatives and the President Pro Tempore of the Senate, proclaim and declare the existence of a state of emergency in the Republic or any part thereof.” 1986 Const. of the

Republic of Liberia art. 86(a).

But although the President may declare an emergency in his full discretion,

he may not maintain it without the Legislature’s agreement. He must speedily

report: “The President shall, immediately upon the declaration of a state of

emergency, but not later than seven days thereafter, lay before the Legislature at

its regular session or at a specially convened session, the facts and circumstances

leading to such declaration.” Id. at art. 88. The state of emergency may then be

continued only if two-thirds of both houses of the Legislature ratify it: “The

Legislature shall within seventy-two hours, by joint resolution voted by two-thirds

of the membership of each house, decide whether the proclamation of a state of

emergency is justified or whether the measures taken thereunder are appropriate.

If the two-thirds vote is not obtained, the emergency automatically shall be

revoked.” Id. The Constitution instructs the President to abide by the decision of

the Legislature: “Where the Legislature shall deem it necessary to revoke the state

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or emergency . . . the President shall act accordingly and immediately carry out the decisions of the Legislature.”

The Constitution further stipulates that the President may announce a state of emergency only in response to certain drastic events. In particular, a state of emergency “may be declared only where there is a threat or outbreak of war or where there is civil unrest affecting the existence, security or well-being of the

Republic amounting to a clear and present danger.” Id. at art. 86(b). Presumably, in making his declaration, the President has full discretion to determine whether this condition has been met, i.e. whether the threat or outbreak of war or civil unrest exists in the country. But it is very clear that the Legislature can disagree and refuse to ratify the state of emergency by a two-thirds vote of both houses. In addition, the provision clearly contemplates that a state of emergency should not be declared under conditions similar to those in the Thomas case, i.e. a rise in ordinary criminality not amounting to war or civil unrest.

The 1986 Constitution also places limits on the powers that the President may assume during a state of emergency. In contradiction to the Thomas case, neither he nor the Legislature may suspend habeas corpus: “The writ of habeas corpus shall remain available and exercisable at all times and shall not be suspended on account of any state of emergency.” Id. at art. 87(b). In addition, the

President may not wholly “suspend or abrogate the Constitution,” nor may he

“dissolve the Legislature, or suspend or dismiss the judiciary.” Id. at art. 87(a).

Finally, he may not impose military rule: “All military power or authority shall at

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all times, however, be held in subordination to the civil authority and the

Constitution.” Id. at art. 85.

In short, there is an outside limit to the President’s emergency powers: he may not take the drastic steps of suspending the Constitution or dissolving the other branches. But the Constitution also makes clear that though the President may not wholly suspend the Constitution, he may suspend parts of it: “Acting pursuant thereto [i.e. to the declaration of a state of emergency], the President may suspend or affect certain rights, freedoms and guarantees contained in this

Constitution.” Id. at art. 86(a). In addition, he may take to himself powers beyond his normal constitutional powers: he may “exercise such other emergency powers as may be necessary and appropriate to take care of the emergency, subject, however, to the limitations contained in this Chapter.” Id. The Constitution does not specify which emergency powers the President may or may not assume; in line with the precedent discussed earlier, the Court will likely conclude that the President may in his discretion determine which powers he or she needs, and the Court will not question that determination. It is entirely possible therefore that the Court would uphold a scheme such as that in the Thomas case, by which the President creates commission summarily to try defendants. Unlike the Thomas case, however, those defendants would today have the right to bring habeas corpus proceedings in the ordinary court system to contest their incarceration.

Ultimately, however, the President may assume only those powers permitted him by the Legislature. Under Article 88, the Legislature has the power not only to

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revoke the state of emergency; it may also change the powers that the President took to himself in the initial declaration: “Where the Legislature shall deem it necessary to . . . modify the measures taken [under a state of emergency], the

President shall act accordingly and immediately carry out the decisions of the

Legislature.”

CH. EIGHT(g) THE COMMANDER-IN-CHIEF POWER

The President is the commander-in-chief. The President also has power as commander-in-chief to keep the Republic safe: “The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia.” 1986 Const. of the

Republic of Liberia art. 50. The text of the Constitution does not detail the nature and extent of this power, beyond noting that the President may order the Armed

Forces into “a state of combat readiness . . . before or after the declaration of a state of emergency.” Id. at art. 85. Similarly, no Liberian case has exposited the exact extent and nature of this power.

In a well-regarded opinion, Justice Jackson explained the analogous power of the American president. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 634 (1952) (Jackson, J., concurring). Justice Jackson, who had himself advised

President Franklin Delano Roosevelt before becoming a Supreme Court justice, first recognized that the exact extent of the power was uncertain: “[J]ust what authority

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goes with the name has plagued presidential advisers who would not waive or

narrow it by nonassertion, yet cannot say where it begins or ends.” Id. at 641. The

Commander-in-Chief clearly is charged with commanding the nation’s military in

wartime: “It undoubtedly puts the Nation's armed forces under presidential

command.” Id.

But just as clearly, the Constitution expressly gives to the Congress the

power to declare war in Article I, section 8: “Nothing in our Constitution is plainer

than that declaration of a war is entrusted only to Congress.” Id. at 642. The same

section also “expressly places in Congress power ‘to raise and support Armies’ and

‘to provide and maintain a Navy.’ (Emphasis supplied.) This certainly lays upon

Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation, and may determine in what manner and by what means they shall be spent for military and naval procurement.” Id. at 643. For that reason, the President could not seize the steel mills to keep them running during a labor dispute, even if they were necessary to support the war effort in Korea. If the steel mills were to be seized, it was Congress who should make the determination. In short, “[w]hile Congress cannot deprive the

President of the command of the army and navy, only Congress can provide him an army or navy to command.” Id. at 644.

The Liberian constitution similarly gives to the Legislature the power “to

provide for the common defense, to declare war and authorize the Executive to

conclude peace; to raise and support the Armed Forces of the Republic, and to make

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appropriations therefor [sic].” 1986 Const. of the Republic of Liberia art. 34(c).

Ergo, because it interprets analogous provisions in the American constitution,

Justice Jackson’s opinion on these points may be considered relevant authority in the Liberian courts. On the other hand, the American Constitution also has a provision without analogue in Liberia: Congress has constitutional power “[t]o make Rules for the Government and Regulation of the land and naval forces.” U.S.

Const. art. I sec. 8. As Justice Jackson observes, this section would allow the

Congress “to some unknown extent, [to] impinge upon even command functions,”

Youngstown, 343 U.S. at 644, or in other words, to intrude on the very core of the

Commander-in-Chief power. Because the Liberian Constitution contains no analogous provision, it is possible that the President has exclusive power to make rules for the day-to-day operations of the armed forces.

Justice Jackson’s opinion departs from the Liberian practice on another point as well: he insists that even during a dire emergency, the President’s power in domestic affairs cannot increase beyond their normal constitutional limits. Thus, he writes: “[T]he Constitution did not contemplate that the title Commander in

Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.” Id. at 643-44. In other words, “[h]is command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional

Republic whose law and policymaking branch is a representative Congress.” Id. at

645-46. Justice Jackson concludes: “No penance would ever expiate the sin against

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free government of holding that a President can escape control of executive powers

by law through assuming his military role.” Id. at 646.

In Liberia, by contrast, the Constitution provides that during an emergency,

the President may assume powers in the domestic sphere going beyond the norm.

As discussed in the section on the President’s extraordinary powers to keep the

Republic safe, the Constitution does place limits on the emergency powers: the

President may not suspend the Constitution, the Legislature, or the Judiciary, see

1986 Const. of the Republic of Liberia art. 87(a), and the Legislature has ultimate

authority to determine whether and for how long a state of emergency should be

declared and how far the President’s power should increase to deal with the

emergency, see id. at art. 88. Nevertheless, the President may assume powers

greater than during normal times: “the President may suspend or affect certain

rights, freedoms and guarantees contained in this Constitution and exercise such

other emergency powers as may be necessary and appropriate to take care of the

emergency.” Id. at art. 86. In addition, the President may assume these powers on

his own initiative for one week, pending legislative approval or disapproval. See id.

at art. 88. The Liberian constitution does not directly trace these emergency powers

to the President’s role as Commander-in-Chief, i.e., it does not indicate that he has these powers on account of that role. Nevertheless, the emergency powers and the

Commander-in-Chief powers are clearly connected: Article 85—the first section in

the chapter on Emergency Powers—provides that the President may order the

armed forces into a state of combat readiness before or during a state of emergency;

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and because Article 86 allows him to assume whatever powers may be necessary “to

take care of the emergency,” he may try to use the military to keep order.

CH. EIGHT(h) THE PRESIDENT’S APPOINTMENT POWER

The President has constitutionally guaranteed power to appoint many members of the government of the Republic of Liberia. With the consent of the

Senate, the President directly appoints the leaders of the judicial branch, the military, law enforcement, the foreign service, political subdivisions such as counties, and the cabinet itself. Thus, Article 54 provides: “The President shall nominate and, with the consent of the Senate, appoint and commission . . . cabinet ministers, deputy and assistant cabinet ministers . . . ambassadors, ministers, consuls . . . the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts . . . superintendents, other county officials, and officials of other political sub-divisions . . . members of the military from the rank of lieutenant or its equivalent and above; and . . . marshals, deputy marshals, and sheriffs.” In addition, the President has the power to appoint “Notaries Public and

Justices of the Peace” without reference to the Senate. 1986 Const. of the Republic of Liberia art. 55.

In addition, the President has broad powers to dismiss most of those whom he appoints. Article 56(a) provides that the President may dismiss all those listed

in Article 54, with the exception of judges: “All cabinet ministers, deputy and

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assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of

counties and other government officials, both military and civilian, appointed by the

President pursuant to this Constitution shall hold their offices at the pleasure of the

President.” Importantly, the President thus has full discretionary power to dismiss

not only high-ranking aides with political duties but also government employees

with professional or technical expertise such as military officers. The Constitution

gives only notaries public and justices of the peace greater job protection: they “may

be removed by the President [only] for cause.” Id. at art. 55. Finally, although

Paramount, Clan and Town Chiefs are elected by the voters in their localities, the

President may remove them, but only for “proved misconduct.” Id. at art. 56(b).

The Supreme Court has had only limited occasion to interpret these

provisions. The Court has, however, made clear that the President has full discretion in choosing appointees: “Appointments made by the President or the

Chief Executive are governed by his free choice and discretion which may not be controlled by the judiciary or a judicial officer.” Nat’l Patriotic Front of Liberia v.

Liberia Nat’l Transitional Government, 38 LLR 130, 145 (1995). Similarly, “[s]ince

we repose our trust and confidence in him, the President may, under his supreme

executive power appoint to the office of Superintendent, or any other executive office,

any citizen.” Bassa Brotherhood Indus. & Benefit Soc’y v. Hon. Dennis, 20 LLR

443, 446 (1971) (emphasis in original).

In addition, in the absence of conflicting legislation, the President may grant permission to his appointees to undertake work outside their official appointment.

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For example, the President may permit a County Superintendent to complete his

pending cases, even after he has assumed his executive responsibilities. See id. at

444-46. The President may also “condition the appointment on certain restrictions

or allowances, in his discretion.” Id. at 446. The Court also made clear, however,

that the Legislature could limit the President’s ability to grant such permissions

and place such restrictions. In Bassa Brotherhood, the Court observed that the

Legislature had “forbidden officials of Government, who are lawyers, from representing mercantile businesses,” id. at 446, and the Court cast no doubt on the constitutionality of the statute. Instead, the Court held that the statute did not apply to government officials who were simply concluding cases already begun before their appointment. See id. at 447.

The Court has further observed that the President has the power “to remove those nominated and appointed by him, the exception being members of the judiciary which includes Supreme Court Justices and judges of subordinate courts.”

Nat’l Patriotic Front of Liberia, 38 LLR at 145. The Court explained that although judges may be removed only through impeachment, the President has full discretion to remove others appointed by him: “The process of removing officials of government is generally entrusted to the official discretion of the person possessed with the power to appoint such officials.” Id. (citing 52 Am. Jur. 2d Mandamus §

284). Furthermore, the courts may not intrude on the President’s removal power:

“The Court has no power under Liberian Law to remove officials of government appointed by the President or the Executive.” Id.

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CH. EIGHT(i) THE PRESIDENT’S LEGISLATIVE POWERS

The President has limited legislative powers. As earlier noted, the Liberian

Constitution strictly separates the branches in general, but there are exceptions to that rule, by which one branch enters the domain normally reserved to another. In particular, the President in general has strictly executive powers, to enforce the law, not to make it. But the President does have three limited powers to participate in the legislative process. Although the Supreme Court of Liberia has not had occasion to interpret these provisions, the text of the Constitution gives specific guidance.

First, the President may and indeed must propose legislation to the

Legislature: “The President shall, on the fourth working Monday in January of each year, present the administration’s legislative program for the ensuing session.”

1986 Const. of the Republic of Liberia art. 58. Second, the President may and indeed must annually report to the Legislature: “The President . . . shall once a year report to the Legislature on the state of the Republic. In presenting the economic condition of the Republic the report shall cover expenditure as well as income.” Id.

The President may also veto legislation. This veto power is quite strong, stronger for example than the veto power of the American President. After a bill has passed both houses of the Legislature, it “shall . . . be laid before the President for his approval.” Id. at art. 35. Then, if he approves, “it shall become law.” But if

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he does not approve, “he shall return it, with his objections, to the House in which it originated.” After the bill has been returned, the Legislature may make the bill law only with a two-thirds vote of both houses: “This veto may be overridden by the repassage of such bill, resolution or item thereof by a vote of two-thirds of the members in each House, in which case it shall become law.” Typically, it is very difficult to muster a two-thirds vote of each house to override a veto.

Importantly, the President may veto the whole bill, but he may also veto only parts: “In so doing, the President may disapprove of the entire bill or resolution or any item or items thereof.” In other words, the President may allow the parts that he likes to become law, while voiding the parts that he does not like.

In effect, he has the power to amend law. By contrast, the American President has the power only to veto legislation in toto; if he wishes to veto particular items, he must veto the whole bill, sending it back to the Congress for further deliberation.

See Clinton v. New York, 524 U.S. 417 (1998).

Finally, the Legislature may delegate to executive agencies, which are always under the supervision of the President, the power to make rules and regulations to carry out the broad policy objectives set by the Legislature in the statute delegating the authority. As one early example: “The Collectors of Customs of this Republic are responsible officials of the revenue department of the Government. In this respect they are agents of the Government in the performance of such duties as appertain to their office, and are created by statute. . . . Under the Loan Agreement of 1911 and 1912, they are supervised in the performance of the duties of their office

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by a Customs Receivership to which they are subordinate officials who are invested with the power to institute rules and regulations for the collection and administration of the customs revenue which, if not repugnant to some statute, and duly approved by the Secretary of the Treasury, and duly promulgated, shall have the force of law.” Bowens v. Strong, 2 LLR 415, 418 (1923). This delegated authority is conferred by statute, rather than by the Constitution itself, so the

Legislature may retract if by subsequent statute.

CH. EIGHT(j) THE PRESIDENT’S FOREIGN AFFAIRS POWER

The President has power over foreign affairs. Article 57 of the 1986

Constitution of the Republic of Liberia provides: “The President shall have the power to conduct the foreign affairs of the Republic and in that connection he is empowered to conclude treaties, conventions and similar international agreements with the concurrence of a majority of each House of the Legislature.” The Supreme

Court has seldom had occasion to interpret the nature and extent of this power. It has held that the Executive Branch alone may determine the diplomatic status of foreigners, without interference by the courts: “The decision of the executive department as to whether a person is a member of a foreign mission or of its personnel is conclusive upon the courts.” Bauchau v. United States, 40 LLR 58, 65

(2000) (quoting United States v. Conlon, 88 Fed. Supp. 921 (1950)). Further, consistent with the rule that the President alone holds the executive power, the

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Court has explained that ambassadors “are indeed the personal representatives of

the President of the Republic of Liberia and therefore report to the President

through the Ministry of Foreign Affairs.” Id. at 66-67.

In the United States as well, the Supreme Court has not often discussed the

President’s power over foreign affairs. The most significant case holds that the

President’s power over foreign affairs is broader than his power over other subjects.

But the case still carefully observes that the President’s power is still an executive

power: the power to act in the world, to conduct and carry out the foreign policy of

the United States. At no point does the Court hold that the President has ultimate

authority to set foreign policy, a job that falls more naturally to Congress as the

nation’s lawmakers. Thus, the Court explains that the President is “the sole organ

of the federal government in its external relations, and its sole representative with

foreign nations.” United States v. Curtiss-Wright, 299 U.S. 304 (1936) (quoting later Chief Justice John Marshall speaking in the House of Representatives). The

President alone may act in the field of international relations: “[T]he President alone has the power to speak or listen as a representative of the nation.” For that reason, the President “alone negotiates” treaties, but ultimately he can conclude treaties only “with the advice and consent of the Senate.”

In short, Congress has the general power to set policy, which the President must follow. Of necessity, however, the President must have substantial freedom of action in two circumstances. First, when Congress has not spoken on a given issue of foreign policy, the President must be free to pursue the nation’s interests with

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foreign countries, as when he negotiates a treaty. Second, even when Congress has set policy, the President must have considerable discretion in determining how to carry it out: “[If] embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation [must] often accord to the President a degree of discretion and freedom from statutory restriction which would not be permissible were domestic affairs involved.”

By its terms, Article 57 of the Constitution of the Republic of Liberia seems to replicate the Curtiss-Wright rule. It does not give to the President the ultimate authority to formulate and adopt foreign policy. Instead, it gives to the President an essentially executive power: he is empowered “to conduct” (i.e. carry out) foreign affairs but not ultimately to determine foreign policy; he is authorized to “conclude treaties” only with the agreement of both houses of the Legislature. Article 34(g) specifically gives the Legislature the power “to regulate trade and commerce between Liberia and other nations.” In short, then the President is the nation’s sole actor or instrument beyond the boundaries of the Republic, but the Legislature still possesses the power to constrain the President’s discretion by creating broad policies and by deciding whether to ratify treaties.

CH. EIGHT(k) THE PRESIDENT’S BUDGETARY POWERS

The President has extensive powers over the budget. The Supreme Court has not had occasion to explicate the President’s budgetary powers, but the text of the

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Constitution itself indicates that they are extensive. The President presents a budget to the Legislature as part of his or her general power to propose legislation:

“The President shall, on the fourth working Monday in January of each year, present the administration's legislative program for the ensuing session, and shall once a year report to the Legislature on the state of the Republic.” 1986 Const. of the Republic of Liberia art. 58. The Legislature may modify the President’s budget by adding or deleting items, but in practice this power is limited for several reasons.

First, the President typically has more information about government expenditure and income than the Legislature. Indeed, the Constitution specifically contemplates that the Legislature will receive its information about government finance largely from the President him- or herself: “In presenting the economic condition of the Republic the report shall cover expenditures as well as income.” Id. at art. 58.

Second, as noted in the section on the President’s veto power, the President has the power to veto not only the Legislature’s entire budget but also individual line items. He may thus accept the parts of the budget that he likes and reject the parts that he dislikes. To override an individual line item veto requires a two- thirds vote of all the members of each House—a very high hurdle and one that may be seldom met. Ergo, the final budget will largely reflect the President’s desires, rather than the Legislature’s

Finally, simply by virtue of the fact that the President initiates the budgetary process by proposing a comprehensive package, his or her proposal benefits from

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momentum. The Constitution nowhere specifically provides that the Legislature may not itself initiate the budget process, developing its own proposal instead of the

President’s. But the Liberian practices has always been the contrary, that the

President alone develops the initial budgetary proposal, and the practice has been so uniform that it may have achieved status of a constitutional rule in the minds of many.

In addition to proposing the budget before the fact, the President controls expenditure after the fact. Article 34(d)(ii) provides: “[N]o monies shall be drawn from the treasury except in consequence of appropriations made by legislative enactment and upon warrant of the President.” (emphasis supplied). In other words, even if money is already appropriated, it may be drawn from the Treasury only if the President grants his warrant. The Court has never had occasion to decide whether in theory the President is constitutionally required to give his warrant to spend appropriated monies. Nor has the Court decided whether in theory the President must give his warrant to spend appropriated monies for the purposes for which they were appropriated. (As a matter of historical record, the

President has commonly spent monies for purposes other than those for which they were appropriated). But as a practical matter, even if the President is constitutionally required to do so, neither the Court nor the Legislature can constitutionally force him to do so, as explained in the section on the President’s law enforcement power.

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Finally, although the President may thus be free in practice to spend money

as he likes, the Constitution still requires him to give a full and accurate report to the Legislature: “An annual statement and account of the receipt and expenditure of all public monies shall be submitted by the office of the President to the

Legislature and published once a year.” Id. at art. 34(d)(ii). With this information, though the Legislature may not require the President to conform to appropriations, it may at least determine whether he or she is so conforming.

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CHAPTER NINE EXECUTIVE IMMUNITY

Because the President has such extensive duties, the Constitution grants him extensive immunity for acts taken as President. Article 61 provides: “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.” 1986 Const. of the Republic of Liberia art. 61.

The Supreme Court has had occasion to interpret this immunity primarily with respect to the President’s obligation to enforce the law. As noted in the

Chapter on Judicial Power and Immunity, the Court has held that neither it nor the legislature may compel the President or one acting at the direct instructions of the

President to enforce a statute, regulation, court order, or any other legal rule. See, e.g., Ghoussalny v. Nelson, 20 LLR 591 (1972). Because the President’s duties are so important, the courts may not take jurisdiction over his person; if they could, they might conceivably detain and thus incapacitate him. Because it is critical to the well-being of the Republic that the President be free to act, the Constitution

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ensures that he will be immune from suit. Wiles v. Simpson, 8 LLR 365, 371-72

(1944) (quoting Watson, The Constitution of the United States 1023-24 (1910)).

But the immunity recognized by Article 61 does not merely ensure that the

President cannot be compelled to enforce the law. The provision immunizes the

President against all types of governmental actions that might be taken against him: all “suits, actions or proceedings, judicial or otherwise” as well as “arrest, detention or other actions.” Thus, the President is immune not only from court process but also from legislative subpoenas and penalties short of impeachment, as well as actions taken from within the Executive Branch itself.

Nonetheless, there are important limits to executive immunity. First, the

President has immunity only with respect to “any act done by him while President of Liberia.” He does not have immunity for acts done while he is not President, so he may be sued or prosecuted for acts done before or after his time in office in the same way as everyone else. With respect to acts done before his time as President, however, the Court will likely hold that the President cannot be subject to suit during his tenure in office, because such suits might again result in his detainment and incapacitation. Ergo, the President might enjoy temporary immunity until his time in office ends. In this respect, Liberian law is different from American law, which provides that the President can be sued, even while in office, for acts done before he assumed office. See Clinton v. Jones, 520 U.S. 681 (1998).

In addition, Article 61 limits presidential immunity to acts done “pursuant to any provision of this Constitution or any other laws of the Republic.” In other

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words, when the President does not act pursuant to law, then he is not immune.

Unfortunately, the Supreme Court has not had occasion to interpret the meaning of this provision, which could be read in more than one way. On the one hand, it could mean that the President is immune only when he is acting lawfully. But if so, the immunity provision provides him no more ultimate protection than he already had, because if he is acting lawfully, then he will presumably win the suit even without immunity. In addition, because the immunity attaches only to lawful acts, the

Court will need to take jurisdiction over the President to determine whether his acts were in fact lawful. In other words, the Court will need to hold a trial on the lawfulness of the President’s acts in order to determine whether the President is immune from such a trial.

As a result, a different interpretation seems more likely: the President is immune, not when he is acting lawfully, but when he is performing a task assigned him by law, whether he performs it in a lawful manner or not. The critical question thus is not whether the act is lawful but whether it falls within the scope of presidential responsibilities—whether it is the type of task that presidents perform as presidents. Thus, when he appoints persons to office, he is acting within his presidential responsibilities, and he will be immune, even if he performed a misdeed, such as taking a bribe, during their commission. Cf. Nixon v. Fitzgerald,

457 U.S. 731 (1982). But if the President should murder a relative during a family get-together for entirely personal reasons, Article 66 would not hold him immune.

Nevertheless, again, the President might enjoy temporary immunity for these acts,

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because the Court might be unwilling to serve process on him while he is actually

sitting as President.

Even for acts committed within the scope of his presidential duties, the

President may be prosecuted after he has been impeached: “The President shall not, however, be immune from prosecution upon removal from office for the

commission of any criminal act done while President.” 1986 Const. of the Republic

of Liberia art. 61. At an earlier date, the Court had interpreted the 1847

Constitution to provide that after he leaves office, the President may be prosecuted

for acts committed while President only (1) if he has been impeached and only (2)

for those acts that formed the basis of his impeachment. Thus: “[T]he offense for

which the party may be tried at law must be the same offense for which he was

impeached and no other. . . . [I]n order to give the court jurisdiction over the

President, he must first be impeached and convicted by the court of impeachment,

and if the offense is an indictable one, he may be further tried at law for such

offense; hence there are two things prerequisite to the judicial prosecution of a

President; viz., impeachment and conviction.” In re King, 3 LLR 337, 345-46 (1932)

(emphasis in original). Today, Article 61 appears to retain the first King condition: the President may be prosecuted only “upon removal from office,” presumably by impeachment because that is the only lawful way to remove a President from office.

But it appears to jettison the second King condition: the President may be prosecuted not just for those acts that led to his impeachment but “for the commission of any criminal act done while President.”

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On the other hand, apparently the President may not be civilly sued for

presidential acts, even after he leaves office. Article 61 gives specific permission to

prosecute the President after he leaves office; the Framers must therefore have

thought that without specific permission, the Constitution would have implicitly

prohibited prosecutions, given the long history of executive immunity. But the

article contains no similar permission for civil suits, and the Court will likely

therefore read that silence as an implicit ban.

The most important limit on executive immunity is that an abusive President

may be impeached. Article 43 provides that the House of Representatives has the

power to prepare bills of impeachment, and the Senate has the power to try all

impeachments, with conviction only upon a two-thirds vote of the Senators. See

1986 Const. of the Republic of Liberia art. 43. The President may be impeached only for “treason, bribery, and other felonies, violation of the Constitution or gross misconduct.” Id. at art. 62. The Court has never had occasion to interpret the exact meaning of these terms. Traditionally, the Court held that the Legislature had the sole power to determine whether particular acts were impeachable, so that the question was in effect non-justiciable. See In re Cassell, 14 LLR 391, 411-12 (1961).

More recently, however, the Court has indicated that it has the power to review all

actions by the other branches, even such internal matters as the deposition of the

Speaker of the House. See Snowe v. Members of the House of Representatives (29

Jan. 2007). It is therefore possible that at some future date, the Court will

undertake to define more precisely which acts are impeachable.

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SUBPART I(C): THE LEGISLATIVE BRANCH

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CHAPTER TEN THE POWERS OF THE LEGISLATIVE BRANCH

Article II, Section 1st, 1847 Constitution of the Republic of Liberia

The legislative power shall be vested in a Legislature of Liberia, and shall consist of two separate branches. A House of Representatives and a Senate, to be styled the Legislature of Liberia; each of which shall have a negative on the other, and the enacting style of their acts shall be, “It is enacted by the Senate and House of Representatives of the Republic of Liberia, in Legislature Assembled.”

Article 29, 1986 Constitution of the Republic of Liberia

The legislative power of the Republic shall be vested in the Legislature of Liberia which shall consist of two separate houses: A Senate and a House of Representatives, both of which must pass on all legislation. The enacting style shall be: “it is enacted by the Senate and House of Representatives of the Republic of Liberia in Legislature assembled.”

CH. TEN(a) THE POWER TO MAKE LAW

The Court has often explained that in the basic division of powers, the

Legislature’s central responsibility is to make the laws that will govern Liberia:

“The Legislature enacts the law and is commanded by the Constitution to enact them in a certain way,” Wesseh v. Tubman, 28 LLR 3, 11 (1979); “The same instrument [the Constitution] lodges the power to enact laws in the legislative branch of Government, and its enactments, when they pass into law by force of any one of the three processes mentioned in the Constitution, become the law of the

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land.” In re Act of the Legislature Approved January 20, 1914, 2 LLR 157, 162

(1914). Because this role is so important, the Court has sometimes said that the

Legislature is “primus inter pares”, or first among equals, though the Court is also

careful to stress that no branch is more powerful or significant than the other two.

See In re Cassell, 14 LLR 391, 404 (1961).

But despite the breadth of its power, the Legislature must not make laws

inconsistent with the Constitution, because the “Constitution is the supreme and

fundamental law of Liberia” and “[a]ny laws. . . found to be inconsistent with it

shall, to the extent of its inconsistency, be void and of no legal effect.” 1986 Const.

of the Republic of Liberia art. 2. If the Legislature does pass unconstitutional laws,

the Supreme Court will strike them down in an appropriate case, because the

“Supreme Court shall be final arbiter of constitutional issues.” Id. at art. 66.

In addition, the Legislature must confine itself to making law, its constitutionally prescribed role; it may not invade the province of the other two branches. With respect to the Executive, the Legislature may not enforce the law:

“Although case law stands on the same footing as statutes enacted by the

Legislature, yet neither the Legislature nor the courts can enforce the laws they make. As said before, this is the function of the Executive branch of Government.”

Branly v. Vamply, 22 LLR 337, 351 (1973). As developed more fully in the chapter on the Judicial Power, the harmonious balance of powers in Liberia depends on the voluntary co-operation between the branches; each is under a duty to perform its role, but no branch may compel any other branch to live up to that duty.

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With respect to the Judiciary, the Legislature may make only general rules; it may not make particular laws for particular cases, because doing so would intrude on the province of the judiciary, which is charged with deciding particular disputes according to the rules laid down. In Wolo v. Wolo, 5 LLR 423 (1937), Court considered a legislative divorce granting a complainant husband a divorce from his wife. In addition to violating due process (because it failed to give the defendant an opportunity to be heard before a competent tribunal, the Act also violated separation of powers, because the legislature may make rules that govern disputes but may not apply those rules in specific cases. Thus, the Court explained: “When it comes to determining what shall constitute a valid marriage, the age when, or other capabilities of the parties to enter into the contract, we are of the opinion that that is purely a legislative function in which ours, the judicial branch of the government, may not interfere. So too, determining what shall constitute legitimate grounds for divorce, when and by what tribunal same shall be tried, etc.”

Id. at 438. But only courts may apply those rules to particular cases: “But as to whether the tribunal empowered to divest either of the parties of vested rights shall be a judicial tribunal,” the Court instructed that “no department of government can exercise judicial functions but the court itself.” Id. at 439.

CH. TEN(b) THE PERMISSIBLE SUBJECT MATTERS OF LEGISLATION

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The Constitution gives the Legislature power to legislate on certain specific subjects, but the Legislature also possesses a general police power. In general, legislatures can possess two different kinds of powers. First, some legislatures have general background power to make such laws as they see fit to promote the general welfare. In such systems, the presumption is that the legislature has power except insofar as the Constitution has explicitly divested it of power, as for example, by providing that the legislature may not invade individual rights. Such power is often called the police power, and governments that possess it are often called general governments. By contrast, some legislatures possess power to make law only on those subjects specifically enumerated in the constitution; they have no background power. In such systems, the presumption is that the legislature has no power except insofar as the Constitution has explicitly granted it. Such powers are often called enumerated powers, and governments that possess them are often called limited governments.

In a country with only one legislature, the legislature typically has general powers, because it must be able to promote the public welfare in all its aspects. If the constitution created only one legislature and then gave it only limited powers, no governmental body would be able to make law on those subjects not specifically granted to the legislature. By contrast, federal systems often have legislatures with only enumerated powers, because such systems have both a federal legislature and state legislatures. Federal constitutions commonly grant only enumerated powers to one level—either the federal or the state—and then reserve all the remaining

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power to the other level. For example, in the United States, the Federal

Government is a government of enumerated powers: it may make law only on those subjects specifically delegated to it. See McCulloch v. Maryland, 17 U.S. 316 (1819).

By contrast, the states retain all those powers not delegated to the federal government. See Garcia v. SAMTA, 469 U.S. 528 (1985).

The 1847 Constitution contained no specific description of the extent of the legislative power. Since Liberia had only one legislature, presumably the Framers meant to give the Legislature general powers. The Supreme Court so interpreted the constitution, holding that the Legislature possessed the police power: “Our understanding of the term [police power] is that it is that power reserved to and inherent in the legislature by virtue of their representing the sovereign people, to make laws for the purpose of protecting the lives, limbs, health, comfort and quiet of all persons and the protection of their property, as well as to establish such rules and regulations for the conduct of all persons as may be conducive to the public interest.” Ghoussalny v. Nelson, 20 LLR 591, 612 (1972). In other words, the

Legislature possessed power to make law except insofar as the Constitution specifically forbade it: “In other words, it is the power inherent in the whole sovereign people of a nation and reserved to their legal representatives to make laws and regulations which are not repugnant to the constitution.” Id.

The 1986 Constitution of the Republic of Liberia grants specific enumerated powers to the Legislature but then also grants a broad background power. Thus,

Article 34 grants to the Legislature a long list of enumerated powers, including the

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power to “to create new counties and other political sub-divisions, and readjust existing county boundaries”; “to provide for the security of the Republic”; “to provide for the common defense, to declare war and authorize the Executive to conclude peace”; “to raise and support the Armed Forces of the Republic, and to make appropriations therefor”; “to make rules for the governance of the Armed Forces of the Republic”; “to levy taxes, duties, imposts, excise and other revenues, to borrow money, issue currency, mint coins, and to make appropriations for the fiscal governance of the Republic”; “to constitute courts inferior to the Supreme Court, including circuit courts, claims courts and such other courts with such prescribed jurisdictional powers as may be deemed necessary for the proper administration of justice throughout the Republic”; “to approve treaties, conventions and such other international agreements negotiated or signed on behalf of the Republic”; “to regulate trade and commerce between Liberia and other nations”; “to establish laws for citizenship, naturalization and residence”; “to enact the election laws”; “to establish various categories of criminal offenses and provide for the punishment thereof”; and “to enact laws providing pension scheme for various categories of government officials and employees in accordance with age and tenure of service.”

At the conclusion of this list, Article 34 then grants to the Legislature a much broader power “to make all other laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this

Constitution in the Government of the Republic, or in any department or officer thereof.” This provision does not explicitly give the Legislature a police power

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generally to make laws to promote the general welfare as it sees fit. The clause has

two parts. First, it gives to the Legislature the power to make all necessary and

proper laws to carry out the legislative powers already listed in Article 34. This

part does not give to the Legislature a general power; rather it allows the

Legislature only more fully to exercise the specific enumerated powers. The second

part grants the Legislature the power to make all necessary and proper laws for

carrying out “all other powers vested by this Constitution in the Government of the

Republic, or in any department thereof.” By its terms, even this language does not

explicitly give the Legislature a general power; it merely gives the lawmakers the

power to adopt rules for exercising “all other powers” given to the Government as a

whole. In other words, this second part gives the Legislature no additional power

beyond those granted by other parts of the Constitution.

Logically, the Legislature must have a general police power. It is the only

legislature in Liberia; if it may perform only those tasks enumerated in Article 34, then no-one may regulate large areas of Liberian life such as the internal economy, land titles, schooling, the health care system, intellectual property, communications, transportation, and many others. But this general power does not come from Article 34 on its own bottom, because that article gives only the authority to exercise other powers given to the Government; ergo, the police power must be found in those “other powers.” Those other powers include the Executive and Judicial powers themselves, so that the Legislature can make laws to help the

Judiciary and the Executive perform their own particular functions, such as laws

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regulating civil procedure or creating agencies. Again, however, the power to

support the other branches in their own roles is not the police power. In fact, the

Supreme Court has specifically held that only the Legislature possesses the police

power: “[A]ny exercise of police power by the executive must first of all have

legislative sanction, because police power does not automatically vest in the

executive.” Ghoussalny v. Nelson, 20 LLR 591, 612 (1972).

But the Constitution also includes some highly general provisions clearly

indicating that the Government can and indeed must promote the general welfare.

The Preamble describes the Constitution as “a framework of government for the

purpose of promoting unity, liberty, peace, stability, equality, justice and human

rights under the rule of law, with opportunities for political, social, moral, spiritual and cultural advancement of our society.” Chapter II lists “General Principles of

National Policy,” which “shall serve as guidelines in the formulation of legislative . .

. directives, policy-making and their execution.” 1986 Const. of the Republic of

Liberia art. 4. Those principles instruct the Government to strengthen national

unity, see art. 5(a), promote Liberian culture, see art. 5(b), eliminate sectionalism

and other corrupt practices, see art. 5(c), “provide equal access to educational

opportunities,” art. 6, “manage the national economy and the natural resources of

Liberia in such manner as shall ensure the maximum feasible participation of

Liberian citizens under conditions of equality as to advance the general welfare of

the Liberian people and the economic development of Liberia,” art. 7, and finally

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ensure equal employment opportunities and promote “safety, health and welfare facilities in employment,” art. 8.

In short, the Constitution imposes on the Legislature a broad and general duty to support the well-being of the Liberian people, even though that duty may not be justiciable in a court of law. But if the Legislature has such a duty, it must also possess the powers requisite to carry out the duty—in other words, the police power. Article 34 then gives the Legislature the power to make all laws that are necessary and proper for carrying out that police power.

CH. TEN(c) THE EXCLUSION OF THE OTHER BRANCHES FROM LEGISLATING

As noted, the power to make law is reserved to the Legislature alone; the other branches are assigned different tasks. For that reason, the other branches may not themselves legislate. The Supreme Court has observed: “The Legislature of the Republic of Liberia is vested with such authority [to enact, repeal, and amend laws]. This power conferred upon this branch of the Government by the organic law is not transferrable. (See Const. Lib., art. 2, Legislative Powers).” Bowens v.

Strong, 2 LLR 415, 420 (1923).

As already noted in the chapter on the Judiciary, the courts may not legislate. A long line of cases has firmly established that the courts must apply the law as written by the Legislature. They must interpret statutes according to the

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will of the legislature, not according to their own preferred values and outcomes.

Courts may not judge whether laws are good or bad, wise or unwise. In short, courts may not, in effect, legislate in statutory interpretation by making the statutes mean what the courts would like them to mean. Courts may ignore or override statutes only when they are actually unconstitutional.

The Executive may make rules that have the force of law in the short term, but the Legislature has the final word: it may always override the Executive’s rules by statute. In that sense, rules made by the Executive are not legislation, because they are subordinate to legislation passed by the Legislature. Instead, they are properly considered to be executive rulemaking. Thus, the Legislature may authorize executive agencies to make regulations, but those regulations may never contradict existing law. For example, the Legislature may grant to the executive the power “to institute rules and regulations for the collection and administration of the customs revenue,” and those regulations “shall have the force of law.” Bowens,

2 LLR at 418. Those regulations are valid, however, only “if not repugnant to some statute.” Id. If the Executive Branch makes regulations “repugnant to existing law,” then it is no longer engaged in executive rulemaking but actual legislation: “It is in the nature of legislation because it aims to amend or repeal what is the law in such cases.” Id. at 420. But only the Legislature “is vested with such authority”, which is “not transferrable.” Id. For that reason, where possible, delegations of rulemaking authority must be understood to grant the power to make only rules that are consistent with existing law: “The statute conferring this authority in no

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sense contemplates an invasion of the exclusive function reserved to the Legislature

to enact, repeal and amend laws; but on the contrary must be understood as

subordinate to, and dependent thereon.” Id. If the Legislature ever clearly and

unmistakably tried to grant power to the Executive to change the law, the Supreme

Court would be required to strike the grant down.

Similarly, even without legislative authorization, the President may issue

executive orders, but they lapse after one year unless the Legislature ratifies them.

Ayad v. Dennis, 23 LLR 165, 171 (1974). Further, the President may declare a state

of emergency and assume extraordinary powers, see Article 86(a), 1986 Constitution

of the Republic of Liberia, but the Legislature may revoke the declaration and may

restrict the extraordinary powers given to the President under it, see 1986 Const. of

the Republic of Liberia art. 88.

CH. TEN(d) THE LEGISLATURE’S POWER TO CREATE AND LIMIT LEGAL LIABILITIES

The Legislature has the power to create and limit legal liabilities. Because the Legislature has the power to make the law, it also has the general power to decide who may be sued by whom and for what reason. The Supreme Court has addressed this power in two sets of cases: the first concern sovereign immunity, and the second concern the due course of law.

Ch. Ten(d)(1): Sovereign Immunity

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Article I, Section 17th of the 1847 Constitution of the Republic of Liberia provided: “Suits may be brought against the Republic in such manner, and in such cases as the Legislature may, by law direct.” This provision empowers the

Legislature to permit suits against the Republic, but as importantly, it empowers the Legislature to prohibit suits against the Republic. In other words, this section allows the Republic to assert sovereign immunity, which the Legislature may but need not waive for particular sorts of suits. For example, in Republic of Liberia v.

Potter, the Court upheld the Republic’s contention that the Legislature had not waived sovereign immunity for ejectment actions. For that reason, the Court had no jurisdiction over such a claim. 13 LLR 48, 50-51 (1957).

By contrast, the new Constitution withdraws from the Republic the power to plead sovereign immunity. Article 26 provides: “Where any person or any association alleges that any of the rights granted under this Constitution or any legislation or directives are constitutionally contravened, that person or association may invoke the privilege and benefit of court direction, order or writ, including a judgment of unconstitutionality; and anyone injured by an act of the Government or any person under its authority, whether in property, contract, tort or otherwise, shall have the right to bring suit for appropriate redress. All such suits brought against the Government shall originate in a Claims Court; appeals from judgment of the Claims Court shall lie directly to the Supreme Court.” The portion of the first sentence before the semi-colon specifically provides that parties may sue the

Republic for acting in an unconstitutional way, and they may ask the Court to

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declare the government action unconstitutional. The portion of the first sentence

after the semi-colon broadly waives sovereign immunity: parties may sue for all

legal injuries done by any “act of the Government or any person under its

authority,” and they may assert causes of action arising in any field of law,

“whether in property, contract, tort or otherwise.”

The exact meaning of this waiver of sovereign immunity is complicated by the

Legislature’s power, discussed in the next section, to create and eliminate causes of

action. This power could conceivably allow the Legislature to evade the bar on

sovereign immunity. On the one hand, the Constitution commands that the

Republic may not prevent suits against itself by pleading sovereign immunity; on

the other hand, the Republic may in practice prevent suits against itself simply by

eliminating certain causes of action or by never creating them in the first place.

The second rule could conceivably swallow the first: if the Legislature has a

completely free hand to eliminate causes of action against itself, then it can in

effect—if not in theory—assert sovereign immunity.

The Liberian Court has striven to give all parts of the Constitution meaning

and to make all harmonious. It may therefore be assumed that the Court will seek

to reconcile these two provisions in such a way that the second does not render the

first a nullity. One possible reconciliation would hold that the Legislature does

have the power to create and eliminate causes of action, but it must do so in a general way without creating special exemptions for itself. Thus, the Legislature could decide to create a cause of action for wrongful death, but it must allow itself to

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be sued along with all other parties. Similarly, the Legislature could eliminate common law nuisance suits, but it may not eliminate such suits only when the

Republic is a defendant. In this reconciliation, sovereign immunity is defined functionally rather than formally: the Republic is understood to be asserting a functional sovereign immunity whenever it seeks to immunize itself against suits that would lie against other defendants; it does not matter whether formally the

Republic does so by pleading sovereign immunity or by eliminating causes of action.

Ch. Ten(d)(2): Due Course of Law

Article I, section 6 of the 1847 Constitution of the Republic of Liberia provided, in part: “Every person injured shall have remedy therefor, by due course of law.” The Supreme Court interpreted this provision in several different cases, and at least two of these cases are in tension with each other. The 1986

Constitution does not contain a directly analogous provision, and since 1986, the

Supreme Court has decided no cases under the due course of law doctrine. The idea of due course of law may therefore have become nugatory under the Liberian constitution. On the other hand, it is possible that the Court will hold that the idea survives as an unwritten norm of general Liberian constitutionality, perhaps as part of the due process clause.

But if the new constitution does carry over the due course of law requirement, its meaning is unclear, because the older cases do not agree on its meaning. Two cases in particular, decided eight years apart, interpret the provision in very different ways: LaFondiaria Insurance Cos. v. Heudakor & Heudakor, 22

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LLR 10 (1973), and Quelo v. Providence Concrete Works, 29 LLR 298 (1981). The

point of disagreement is the relative roles of the Legislature and the Court in

creating and limiting remedies for injuries.

Ch. Ten(d)(2)(i): LaFondiaria Insurance Companies

The first case, LaFondiaria Insurance Companies, held that the Legislature

had the power to determine, without interference from the Court, which injuries

should be remedied and how they should be remedied. At the time, the Legislature

had adopted a survival of causes of action statute. It provided that after a person

dies, any causes of action that he might have brought during life would pass to his

estate, so that his executor could sue to recover: “Basically the survival statute

authorizes the survival of the action which the decedent herself might have

maintained.” LaFondiaria Insurance Cos., 22 LLR at 18. By contrast, wrongful

death statutes allow third parties—not the decedent but those with a relationship

to the decedent—to sue in their own right for losses suffered by them as a result of

the death of the decedent. See id. at 19-21. Shortly before the LaFondiaria case,

the Legislature had adopted a wrongful death statute for negligent use of an

automobile, but it came into effect after the events that gave rise to the case. In

short then, at the relevant time, Liberia had a survival statute but not a wrongful

death statute.

In LaFondiaria, plaintiffs brought what was in essence a wrongful death claim: they wished to recover their losses from the death of their mother in an automobile accident. Thus, “plaintiffs are not seeking damages for a wrong done to

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the decedent, but for a wrong done to themselves as a result of the loss of decedent, and therefore the action is not one which comes under the survival statute. . . .

Hence, it is our opinion that this suit has all of the elements of a wrongful death action, a novelty in this jurisdiction.” Id. at 19. The trial court, however, concluded that the due course of law clause gave the plaintiffs a cause of action. The Supreme

Court rejected this view. Due course of law required only that insofar as the law recognized an injury and created a cause of action for it, the courts must grant a remedy after an appropriate procedure. Thus, due course of law meant that “for such wrongs as are recognized by the law of the land, the court shall be open and afford a remedy.” Id. at 22 (quoting 11 Am. Jur. Const. Law § 326). But the due course of law norm creates no new causes of action: “The provision does not create any new right, but is merely a declaration of a general fundamental principle.” Id.

Instead, the Legislature had the power to determine which injuries should be legally cognizable and how they should be remedied: “The form and extent of the remedy which every person shall have for injuries are necessarily subject to the legislative power,” id.; the provision “does not fix the rights conferred or the liabilities imposed,” id. at 23. The Court cautioned that judges must not seek to intrude on this legislative role: “While it is a primary duty of the courts to safeguard the declaration of a constitutional provision affording a remedy for all injuries, it is not meant thereby that a court can reach out and usurp powers which belong to the Legislature.” Id. at 22.

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In other words, the due course of law requirement was procedural rather

than substantive: the Legislature had power to create and limit substantive causes

of action, and the due course of law norm required only that the courts must be

procedurally available to hear them. The Court buttressed this holding by

observing that the due course of law norm could not be self-executing because it was

too vague: “[I]f the constitutional provision is so vague as not to admit to an

understanding of its intended scope, it cannot be self-executing.” Id. at 23.

Although it clearly did contemplate that all legally cognizable injuries must have some remedy, it did not specify how they should be remedied, leaving that task instead to the Legislature: “Not only does said section not mention any form of action for which a remedy may be had, but it does not supply the means by which the rights it grants may be protected and enjoyed and the duty which it imposes can be enforced. . . . Hence, the aid of the Legislature must have been intended.” Id.

But in the exercise of its power to create causes of action and specify remedies, the

Legislature has chosen not to make wrongful death actionable: “The Legislature, by virtue of this provision, has imposed certain liabilities for some injuries and wrongs, but wrongful death was not considered until recently, as mentioned earlier.” Id.

The Court concluded by observing that the common law had never made wrongful death actionable. Instead, in both the United Kingdom and the United

States, wrongful death had always been a creature of statute. See id. at 23-24.

Because the Legislature had not adopted such a statute, petitioners had suffered no legally cognizable harm. The Court did imply that although the Legislature had the

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power to create and limit causes of action, so did the courts through the medium of

the common law. If wrongful death had been a common law cause of action, then,

presumably the Court would have determined an appropriate remedy according to

the due course of law. Presumably, however, the Legislature had power to change

the common law, adding or eliminating particular causes of action.

Ch. Ten(d)(2)(ii): Quelo

Eight years later, the Supreme Court considered a very similar case but came

to the opposite conclusion through a very different process of reasoning. Presentte

Quelo’s dependents sued to recover for the losses that they had suffered as a result

of his death in an automobile accident. Unlike LaFondiaria, the Quelo Court

concludes that Liberian law had traditionally recognized wrongful death suits: “The

right of action for wrongful death is conferred on a dependent by both statutory and

the general common law of the land.” Quelo, 29 LLR at 304. With respect to the

common law, the Court held that wrongful death violated the dependents’ civil

rights, because “the right to live, to enjoy the love, comfort and support of another is

a civil right.” Id. at 303-04. The Court concluded that wrongful death was a tort because “[a]ny violation of the civil right of a person is a tort.” Id. at 303. In other words, on this score, the Quelo Court and the LaFondiaria Court disagree on whether the common law authorized wrongful death suits, but they do not apparently disagree on the meaning of the Constitution. As noted, LaFondiaria had implied that if the common law had allowed wrongful death suits, due course of law would have required the Court to find a remedy.

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But in the course of interpreting the statutory law, the two courts differed markedly on the meaning of the constitution. The statutory law nowhere specifically allowed such causes of action, but the Court held that it would read the

Private Wrongs Law to permit such suits, because otherwise the statute would be unconstitutional: “We hold that section 3.2 of the Private Wrongs Law does not deprive the dependents of their fundamental right to sue since to hold to the contrary as the dissenting opinion maintains, would negate the organic law, civil rights and the Decedents Estate Law.” Quelo, 29 LLR at 304. In other words, it would have been unconstitutional for the Legislature to refuse to recognize wrongful death suits. Apparently, the Court believed that it, rather than the Legislature, had the ultimate authority to decide who could sue whom for what.

In reaching this conclusion, the Court relied on a particular, unusual conception of the relationship between the Legislative and Judicial branches. The

Court explains that it is the “right of the judiciary alone to determine, declare, interpret, and construe what the ‘law of the land’ or what any law is.” Id. at 303.

The Liberian Supreme Court has frequently made this observation, but on other occasions, it means only that the Court has the power to interpret the meaning of the law. By contrast, the Quelo Court apparently means that the Court, rather than the Legislature, has the duty and the power to make law by creating causes of action. The Legislature may create causes of action only when the Court fails to do so: “Only when and where [the Court] fails its due responsibility bestowed upon it by law both inherent and written, may such law be enacted by the legislators. It is

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not, however, the province of the Legislature to say what the law of the land is and when rights under it should accrue at all times. Law may still be enacted giving or ensuring rights where remedies already exist.” Id. Apparently, the Court found this judicial power to create causes of action in the due course of law clause: “The right to sue for injuries is a general and constitutional right.” Id. In this interpretation, the clause not only guarantees a remedy for legally cognizable rights; it also gives the Court the power to decide which injuries are legally cognizable. Further, in direct contradiction to LaFondiaria, the Quelo Court held that this clause is self-executing: “It can be fully and effectively exercised with or without legislative enactment.” Id.

In short, the Constitution gives to the Court the principal responsibility for deciding which injuries should be cognizable at law; the Legislature has only a supplementary role to recognize legal injuries when the Court has somehow failed to do so. The Court, however, made clear that it would likely resent and reject any legislative insinuation that it had thus failed in its duty: “It has never been and it is not the modern and progressive idea of the law in both England and America, for the judiciary to be derelict in its duties so that another department of government may have to command it to act.” Id. The Court thus places two significant limits on the power of the Legislature. First, when the Court recognizes a cause of action, as for wrongful death, the Legislature may not thereafter withdraw such a cause.

Second, the Legislature may not even add causes of action unless the Court, in its own opinion, has been derelict. According to the Quelo Court, the Legislature has

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power only over causes of action against the Republic itself: “The only causes of

action that were reserved by law to and conferred on the Legislature were suits

against the Republic. ‘Suits may be brought against the Republic in such manner

and in such cases as the Legislature may by law direct’. Constitution of Liberia art.

I, § 17 (1847 ).” Id.

Quelo has not been over-ruled, so it is presumably still the governing rule.

Nonetheless, it seems to contradict some basic precepts of Liberian law. As in other common law countries, Liberian legislation is subordinate to the Constitution but super-ordinate over common law. In other words, the Legislature must conform its statutes to the Constitution but may change the common law at will. By contrast, the Quelo Court held that the common law is supreme over statutes. In the Court’s interpretation, it was not the Constitution that created a cause of action for wrongful death; it was the common law, which the legislature was powerless to change. That view would entail a marked shift in power to the judiciary. The Quelo

Court clearly believed that it should hold such power because of its intellectual and spiritual gifts: “With the same mental faculties generated by the love of justice with which the early common law judges were endowed in establishing judicial precedents for the peace and tranquility of their countries and peoples, we are equally blessed by the same Divine Being.” Id.

Traditionally, the due course of law clause has not been understood to give the Court such power. Instead, it has been taken to ensure only that where there is a legally cognizable injury, there must be a remedy. Except for constitutional

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violations, however, the Legislature has had the principal authority to decide which

injuries shall be legally cognizable. Because Quelo seems to be discordant with the

rest of Liberian law and because it was decided at a turbulent time in Liberian

history, its authority may be limited. Quelo may be void for another reason as well:

as noted at the beginning of this section, the new Constitution contains no due

course of law clause, so the Court may hold that all of the earlier due course of law

cases are now irrelevant.

CH. TEN(e) THE LEGISLATURE’S GENERAL POWER OF INTERNAL ADMINISTRATION

Article 38, 1986 Constitution of the Republic of Liberia

Each House shall adopt its own rules of procedure, enforce order, and with the concurrence of two thirds of the entire membership, may expel a member for cause. Each House shall establish its own committees and subcommittees; provided, however, that the committees on revenues and appropriations shall consist of one member from each County. All rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution.

The Legislature has a general power of internal administration. Article 38 of the Constitution gives the Legislature power to make such rules as are needed to structure its lawmaking processes. In general, neither the Court nor the Executive may interfere in such internal legislative matters: ““The constitutional principle of separation of powers does not and cannot authorize on [sic—presumably “one”]

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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 re Hon.

Broderick, 40 LLR 263, 281-82 (2000). But Article 38 also specifies that in using this power, the Legislature must conform to certain standards, especially due process. Until recently, it was not clear whether the Court viewed those limits as justiciable, i.e. whether the Court would exercise its power of judicial review to ensure that the Legislature meets those standards. But in Snowe v. Members of the

House of Representatives (29 Jan. 2007), the Court has made clear that it will do so, even though it means intruding into the Legislature’s internal workings.

The Snowe case interpreted Article 49, which provides that the House of

Representatives shall elect a Speaker, who may thereafter be removed for cause upon a two-thirds vote of the House: “The House of Representatives shall elect once every six years a Speaker who shall be the presiding officer of that body, a Deputy

Speaker, and such other officers as shall ensure the proper functioning of the

House. The Speaker, the Deputy Speaker and other officers so elected may be removed from office for cause by resolution of a two-thirds majority of the members of the House.” (Article 47 similarly provides that the Senate shall elect and may remove the President Pro Tempore). In January of 2007, the Legislature of Liberia split into two contending assemblies, each sitting at a different place and conducting business independent of the other. One faction, meeting at the Unity

Conference Center, adopted a resolution removing Edwin Snowe, who was sitting

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with the other faction, as Speaker of the House. Edwin Snowe then brought a writ

of prohibition before the Supreme Court, asking the Court to declare the resolution

null and void.

The Court did not decide which faction was in fact the legitimate Legislature.

Instead, the Court assumed for purposes of argument that the Unity Conference

Center was the legitimate Legislature. But the Court further held that the procedures used to remove Speaker Snowe were constitutionally insufficient. Thus, the principal question in the case was whether the Court would take jurisdiction over the internal procedures of another branch at all. The respondents strongly argued that it could not: “[T]he removal by Resolution of the former speaker represents a political question which is textually committed to the Legislative

Branch of Government and is therefore not a subject of judicial determination, as

provided for under the doctrine of political question.” The Court rejected this

argument. It explained that the Court had appellate jurisdiction over all cases,

“whether emanating from courts of record, courts not of record, administrative

agencies, autonomous agencies or any other authority.” (quoting 1986 Const. of the

Republic of Liberia art. 43) (emphasis supplied by the Court). Because the phrase

“any other authority” covers both the Legislative and Executive branches, the Court held that it could review even the internal actions of those branches.

The Court found that in removing Speaker Snowe, the Unity Conference

Center group had failed to conform to the constitutional requirements. Article 49 provides that the House may remove the Speaker only “for cause,” and the Court

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further held that in determining cause, the Legislature must act only with due

process. Article 49 does not itself specify that the Legislature must conform to due

process, but the Court held that Article 20(a), the general due process provision,

governed even the Legislature’s self-administration: “No person shall be deprived of

life, liberty, security of the person, property, privilege or any other right except as

the outcome of a hearing judgment consistent with the provisions laid down in this

Constitution and in accordance with due process of law.” The Court then quoted

extensively from Wolo v. Wolo, 5 LLR 423, 427-29 (1937), to explicate the meaning of due process. Because Wolo lays down the requirements for due process in general, broadly applicable to government proceedings against its citizens, the

Court is in effect saying that the Legislature’s internal procedures must conform to the same exacting due process standards as other government actions.

In particular, the Unity Conference Center group had failed to prove cause for removing Speaker Snowe. The group had cited him to appear, and he had refused to attend at the appointed time. Then, without further examination of the evidence, the group adopted its resolution. The Court found that “even where a defendant fails to appear, and a default judgment is prayed for, the plaintiff is under a duty to prove the facts constituting the claim.” But this the Unity

Conference Center group wholly failed to do: “[W]as a hearing had? Who testified against petitioner Snowe? Where are the testimonies of the witnesses? Where is the documentary evidence to buttress the allegations contained in the Resolution?

Where are the minutes of the proceedings evincing that an investigation was had?”

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(emphasis in the original). In short, “[w]e hold that the respondents did not prove

cause.” (emphasis in the original).

The implications of the Snowe case are far-reaching for relations between the branches. The Court held that all government actions, even those internal to other branches, must conform to due process, and that the Court will review those government actions to ensure conformity. Further, where the Constitution provides that actions may be taken only upon a factual showing, the Court will review the actions of other branches to determine whether they had sufficiently proved the facts. In effect, the Supreme Court will review the decisions of the other branches in the same way that it would review the decisions of lower courts. Indeed, the

Court makes this relationship express: it holds that in reviewing the decisions of other branches, it is acting within its “appellate jurisdiction,” just as it does when reviewing the decisions of lower courts.

Thus, Article 38 gives each House the power to “adopt its own rules of procedure, enforce order,” expel members, and “establish its own committees and sub-committees.” But although these are broad powers, they are not unlimited because “[a]ll rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution.” After Snowe, on a proper petition, the Court will presumably review the legislative rules to ensure conformity with due process.

Article 44 gives the Legislature the further power to hold in contempt those

“actions which obstruct the legislative functions or which obstruct or impede

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members or officers of the Legislature in the discharge of their legislative duties.”

The 1847 Constitution did not specifically give the Legislature the contempt power,

but the Court held that it was implicit in the Legislature’s power to adopt internal

procedures. See In re Sections 12.5 & 12.6 of the Judiciary Law, 24 LLR 37, 48

(1975). The Legislature may delegate its contempt power to the courts, so that

contemnors are prosecuted in the ordinary way upon recommendation of the

Legislative leaders. See id. at 47-49. But the Liberian Legislature, unlike the

United States Congress, has not so delegated and thus “though on rare occasions, persons have been summarily punished by the Legislature.” Id. at 48. The

Legislature may punish not only its own members but nonmembers as well. See id. at 47. Neither the Court nor the Executive may constitutionally curtail this power or limit its exercise: “We must stress that no one doubts that the Legislature has the power to limit or delegate its contempt power, but what is important here is that only the Legislature, and no other branch of our government, possesses the power to do so.” Id. at 49.

But the Legislative contempt power is limited in important ways. First, the

Supreme Court has noted that contempt of the Legislature shall lie only for those acts specified in Article 44. See Republic of Liberia v. Leadership of the Liberian

Nat’l Bar Ass’n, 40 LLR 635, 641 (2001). Moreover, Article 44 requires that contempt sanctions must be “reasonable” and “conform to the provisions on

Fundamental Rights laid down in the Constitution,” and they may be imposed only

“after a hearing consistent with due process of law.” In the past, the Court

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intimated that it would not review the Legislature’s exercise of the contempt power:

“There has been no instance of judicial interference with the Legislature’s contempt

power. . . . To permit one branch of government to interfere with another’s power

would be a serious infringement of the constitutional doctrine of separation of

powers.” In re Sections 12.5 & 12.6 of the Judiciary Law, 24 LLR 37, 48-49 (1975).

Nonetheless, after Snowe, the Court will presumably review individual legislative

contempt citations to ensure conformity with the standards imposed by Article 44.

CH. TEN(f) THE LEGISLATURE’S IMPEACHMENT POWERS

The Legislature has sole power to impeach members of the Government.

Article 43 gives to the Legislature the exclusive power to impeach members of the other branches. Thus, “[t]he power to prepare a bill of impeachment is vested solely in the House of Representatives, and the power to try all impeachments is vested solely in the Senate,” which may impeach only with the support of two-thirds of its members. Id. The Legislature has the ancillary power to “prescribe the procedure for impeachment proceedings,” but that procedure must “be in conformity with the requirements of due process of law.” Id. The Snowe case, discussed in the preceding section, broadly held that the Supreme Court would review even the internal procedures of another branch to ensure that they conform to constitutional norms. For that reason, it seems likely that the Court will review impeachment proceedings for conformity to due process.

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The Legislature clearly has no discretion over the penalties that it may impose: “Judgments in such cases shall not extend beyond removal from office and disqualification to hold public office in the Republic.” Id. The regular courts, however, may try the person impeached for any crime that he might have perpetrated in the course of his impeachable conduct: “[B]ut the party may be tried at law for the same offense.” 1986 Const. of the Republic of Liberia art. 43. Article

61 makes very clear that even the President may be prosecuted for acts done as

President: after declaring the absolute immunity of the President during his or her tenure in office, it provides, “The President shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while President.” Id. at art. 61.

The Constitution carefully specifies the conduct that would warrant impeachment. The President and Vice President may be impeached for “treason, bribery, and other felonies, violation of the Constitution or gross misconduct.” Id. at art. 62. Similarly, judges may be removed from office for “proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.” Id. at art. 71.

On at least one occasion, the Court has held that the Legislature alone interprets the meaning of these standards and alone determines whether they have been met in a particular case. Thus, observing that under the 1847 Constitution judges could not be removed during “good behavior,” the Court acknowledged that the meaning of the phrase might be somewhat elastic. See In re Cassell, 14 LLR

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391, 411-12 (1961). The Court held, however, that the framers of the Constitution deliberately “left its correct interpretation in the hands of the legislators, and until amendment of the particular provision, there is nothing that could be done about it.” Id. at 412. Anyone unhappy with that arrangement could not “conscientiously blame anyone other than the framers of the Constitution.” Id. On the other hand, the recent Snowe case, discussed in the preceding section, may signal a different view. In that case, the Court held that because the Speaker of the House may be removed only “for cause” by the terms of the Constitution, the Court would review removal proceedings to determine whether cause had actually been shown. Here, by analogy, where the Constitution requires that officials may be impeached only upon a showing of specified misconduct, it would appear to follow that the Court will review impeachments to determine whether the misconduct had actually been shown.

Article 62 specifically indicates that the Legislature may impeach the

President, Vice President, Chief Justice and Associate Justices of the Supreme

Court, and judge of subordinate courts of record. Thus, the power to remove members of the executive and judicial branches is actually vested in a different branch. In addition, each House of the Legislature has the power to “expel a member for cause” if two-thirds of the members concur, see 1986 Const. of the

Republic of Liberia art. 38, and presumably this power is exclusive, so that neither the Executive nor the Judiciary may expel a member of the Legislature. In short, the Legislature alone has the power to remove from office all the most powerful

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officials in the Government of the Republic. As noted in the chapter on the

Executive, however, the President has sole power to dismiss lower ranking officials

in the Executive department. See id. at arts. 54-56. Similarly, as explored in the

Chapter on the Judiciary, the Supreme Court has held that short of impeachment, it has the exclusive power to supervise and discipline judges. See In re Hon.

Broderick, 40 LLR 263 (2000).

In addition, the Court has held that the Court itself has a role to play in the impeachment of judges. Its general supervisory authority includes the power “to recommend impeachment proceedings against sitting judges and to suspend such judges from office pending the outcome of the impeachment proceedings.” Id. at

281. Because this power is exclusive to the Judiciary, the President may not investigate a judge so as to decide whether to recommend impeachment proceedings. See id. at 278-79. The Court has never specifically decided the question whether the Legislature has the power independently to investigate a judge in preparation for impeachment proceedings or may instead act only on the

Court’s recommendations. On the one hand, the Broderick Court broadly held that the “decision of whether to investigate a judge is an administrative determination which rests squarely with the administrative authority of the judiciary”—and therefore not with the authority of the Legislature. Id. at 280. On the other hand, it might be inferred the power of the House of Representatives to prepare bills of impeachment must carry with it the power to investigate so as to determine whether such a bill is warranted.

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CHAPTER ELEVEN LEGISLATIVE IMMUNITY

The Constitution protects the legislators in the performance of its duties so

that they can represent their constituents and legislate for the common good

without fear of retribution. Article 42 provides: “No member of the Senate or

House of Representatives shall be arrested, detained, prosecuted or tried as a result of opinions expressed or votes cast in the exercise of the functions of his office.

Members shall be privileged from arrest while attending, going to or returning from sessions of the Legislature, except for treason, felony or breach of the peace. All official acts done or performed and all statement[s] made in the Chambers of the

Legislature shall be privileged, and no Legislator shall be held accountable or

punished therefor.” 1986 Const. of the Republic of Liberia art. 42.

The provision protects several different sorts of legislative acts in several

different ways. The first sentence carefully stipulates that legislators may not be

subjected to criminal proceedings because of “opinions expressed or votes cast” in

the exercise of their office. As a result, legislators should be freer to speak their

minds and vote their consciences. The sentence immunizes all “opinions expressed,”

whether the legislative chamber or outside. Because the sentence protects against

prosecution, its chief concern is that the President might seek to punish a legislator

who disagrees with or criticizes him or her. The provision thus ensures the

independence of the legislature to conduct its own business, free from interference

by the Executive branch. On the other hand, this first sentence does not immunize

the legislators from civil suit by a private party for “opinions expressed or votes

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cast.” For example, a private person might be constitutionally allowed to sue a legislator for slander based on public remarks by the legislator.

The second sentence protects legislators from arrest when going to, attending, or returning from actual legislative sessions. The sentence contains an exception: legislators may be arrested for treason, felony, or breach of the peace.

Aside from that exception, the protection is absolute: legislators may never be arrested while participating in legislative sessions. The protection extended by this sentence is thus broader than that extended by the first sentence. The first sentence immunized only those opinions expressed and votes cast in the “exercise of the functions of [the legislator’s] office.” By contrast, the second sentence absolutely forbids arrest even if the legislator has in fact committed a crime wholly outside the functions of his office. As with the first sentence, the focus of the sentence is the arbitrary use of executive power: if the President could arrest legislators while they are actually in session, he could effectively suspend or dissolve the legislature. If the legislators had not actually committed crimes, they would hopefully be freed in due time. In the meantime, however, the President would have been governing alone, having dissolved a co-equal and independent branch. To forestall this possibility, the sentence prophylacticly provides that the President may never arrest legislators in session, even if they have committed crimes. Once the session is over, they may be tried. Again, this sentence provides no protection against a civil suit by a private person, so presumably a legislator could be served on his way to or from legislative session.

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The third sentence gives special protection to the legislators’ official acts and statements when they are actually in the Chambers of the Legislature. The first sentence and this third sentence are similar in protecting certain kinds of statements and actions. The first sentence, however, protects a broader class of statements but a narrower class of acts than the third sentence. The first sentence protects all opinions expressed whether inside or outside the chamber; the third sentence protects only those statements made in the chamber itself. Additionally, the second sentence protects all official acts done in the chamber, but the first sentence protects only votes cast. The protection offered by the third sentence is more extensive than the protection offered by the first, which immunizes legislators only from criminal proceedings. By contrast, the third sentence provides that all acts and statements made in the chamber shall be “privileged,” and the legislators may not be “held accountable or punished” for them. Clearly, this language would forbid criminal prosecution, as would the first sentence, but it could also be read to go further, to immunize the legislators even against civil suit. The stipulation that legislative words and actions are “privileged” could mean completely privileged, even against private suit, and the provision that legislators may not be “held accountable” could mean that they may never be held accountable in any way, not even through a civil cause of action.

Finally, legislative immunity does not prevent the Court from striking down statutes with its power of judicial review. Article 42 merely commands that the legislators may not be punished, prosecuted, or held personally accountable. But

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when the Court strikes down a statute, it merely voids the Legislature’s work product; it does not take jurisdiction over the legislators themselves at all. See

Republic of Liberia v. Leadership of the Liberian Nat’l Bar Ass’n, 40 LLR 635, 649-

51 (2001).

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PART TWO: INDIVIDUAL RIGHTS

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CHAPTER TWELVE THE STRUCTURE OF RIGHTS

The Liberian Constitution protects many different rights, and every right has

a different content. Nevertheless, three issues are relevant to every right protected

by the Constitution. First, rights protect individual freedoms against infringement

only by certain persons, and it is therefore important to identify exactly against

whom each right is protected. Second, rights generally have limits, and it is

therefore important to identify exactly when the Legislature may regulate each

right for the common good. Third, some rights are self-executing—i.e. they do not

depend on implementing legislation for their effectuation—and some rights are not.

CH. TWELVE(a) VERTICAL AND HORIZONTAL RIGHTS: WHO IS RESTRICTED

Ch. Twelve(a)(1): The Difference Between Vertical and Horizontal Rights

Some rights restrict only what the government may do: the Constitution forbids government to intrude on the protected liberty, but it is silent as to what private parties may do. Such rights are said to have only vertical application in that they apply only upwards, to protect the individual against higher authorities.

By contrast, other rights also restrict what private persons may do: the Constitution forbids not only government but also private persons from invading the protected liberty. Such rights are said to have horizontal application because they apply sideways, to protect individuals against the actions of other individuals.

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As an illustration, consider the right to free expression. In its vertical application, the right prevents the government from restricting free speech: the government could not, for example, ban all political speeches in public spaces. In a horizontal application, the right would prevent private persons from restricting the free speech rights of other private persons. The exact parameters of such an application are not entirely clear, but the right might, for example, require that private corporations allow their employees to give political speeches in the more public areas of the corporation’s buildings and property.

In the United States, the Supreme Court has held that the Constitution protects only vertical rights, not horizontal rights. In other words, the Constitution restricts only what government can do, not what private persons can do. See, e.g.,

Civil Rights Cases, 109 U.S. 3 (1883). The Supreme Court has developed this rule in the “state action” doctrine: because the Constitution protects rights only against the government, it is necessary to determine when exactly state action, as opposed to private action has imposed a restriction on a protected liberty. When the state restricts liberties through statute or official acts by government officers, state action clearly exists.

In addition, the Supreme Court has held that private action can sometimes constitute state action, and as a result, individuals have constitutional rights against such private action. First, when the government allows a private actor to perform a “government function,” then the private actor stands in for the government. For example, when a political party—though itself private—holds a

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primary election, its members have all the constitutional rights against it that they would have against the government itself. For that reason, political parties may not exclude members based on their race. See, e.g., Smith v. Allwright, 321 U.S. 649

(1944).

Second, when the government becomes sufficiently involved with the actions of a private entity or encourages such actions, then individuals have the same constitutional rights against those private actions as they would against the government itself. Thus, when the government leases space to a private restaurant, the restaurant’s decisions about whom to serve become state action; for that reason, the restaurant may not exclude patrons based on their race. See Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961). On the other hand, the mere fact that the government provides some benefits to a private actor does not mean that the actor automatically becomes a stand-in for the state. Rather, the state action doctrine will apply to private action only when the former becomes deeply enmeshed with the latter. The question is necessarily one of degree. See Moose

Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

Ch. Twelve(a)(2): Liberian Vertical Rights

The Liberian Supreme Court has never explained, in so many words, whether the Liberian Constitution follows the American practice on this question—i.e. whether the Liberian Constitution protects only vertical rights or else horizontal ones as well. Historically, the great bulk of the Court’s individual rights cases involved challenges to state action, so that the rights claimed were of vertical

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application. Indeed, the Court has sometimes expressly held that certain rights bind only the government. For example, the Contract Clause provides:

“Obligations of contract shall be guaranteed by the Republic and not laws shall be passed which might impair this right.” 1986 Const. of the Republic of Liberia art.

25. The Court has interpreted this provision to apply only to government action: the government may not itself impair contracts, but the clause does not apply to a private party that breaches a private contract. Ergo, the Clause gives the government no power to order private parties to perform their contractual duties:

“[C]ounsel for petitioner contended that the Government has the responsibility to guarantee all contracts and that the only thing that the Government was doing in these mandamus proceedings was ensuring that the private contracts between the lawyers and their clients are protected. However, our interpretation of the equal protection clause [sic—presumably “the Contract Clause”] of the Constitution is that it seeks to prevent the government from interfering with, frustrating or otherwise impairing private contracts. It is not intended that the government would insist that one party performs his performs his side of such contracts as they are private obligations. . .” Republic of Liberia v. Leadership of the Nat’l Bar Ass’n,

40 LLR 635, 655 (2001).

Ch. Twelve(a)(3): Liberian Horizontal Rights

On some occasions, however, the Court has recognized an individual rights claim against a private party, usually a large corporation; ergo, the rights in the

Liberian Constitution apparently have some horizontal application. Unfortunately,

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in these cases the Court did not comment on the fact that it was protecting

horizontal rights; indeed, it merely assumed that the right applied against the

corporation. As a result, the Court did not explain exactly when rights have

horizontal application.

Ch. Twelve(a)(3)(i): Due Process Rights Against Employers

Nonetheless, observationally, when the Court has found horizontal rights, it

is usually in the employment relationship: employees have horizontal rights

against employers. Most commonly, the Court has found that when a statute allows

an employer to discharge an employee only for cause, the Due Process clause

requires that the employer first conduct an investigation to establish the employee’s

culpability. For example, in Wilson v. Firestone Plantations Co., the Firestone

Company had dismissed an employee without notice, but the Labor Law provided

that employers could make such a dismissal only for “a serious breach of duty.” 34

LLR 134, 139 (1986). The company claimed that the employee had committed a

serious breach of duty: in his capacity as a Firestone employee, he had fraudulently

obtained airline tickets from a travel agent by representing that they were for

Firestone business. See id. at 137-38. The Court, however, ruled for the employee because Firestone had not proved this breach of duty before dismissal: the company

“made no effort to conduct an in-house investigation to establish appellant’s guilt or

innocence before dismissing him.” Id. at 142.

Most significantly, the Court held that not only the labor laws but also the

Constitution itself required Firestone to conduct such an inquiry. Indeed, the Court

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analogized Firestone’s decision to dismiss the employee to a criminal trial with all its safeguards for the accused. Thus, the burden of proof rests on the employer:

“[T]he onus of proving such charge or allegation still rested on co-appellee Firestone

Plantations Company. It is an established rule that the burden of proof rests on the party who alleges the existence of a fact and his failure to do so must operate in the favor of the accused.” Id. at 143. Furthermore, in conducting its investigation, the employer must conform to the same due process requirements as the government must in a criminal trial: “The establishment of the guilt of the accused presupposes that a fair and impartial trial or hearing has been conducted, whether judicial or administrative, which must conform to existing laws. Under our system of justice, no one can be deprived of life, liberty or property except by due process of law.” Id.

The Court then quoted extensively from Chief Justice Grimes’ foundational opinion in Wolo v. Wolo, 5 LLR 423, 428-29 (1937) to explain the requirements of due process. The Court concluded that Firestone had failed to meet these requirements:

“There is no showing that these fundamental principles were adhered to by co- appellee Firestone Plantations Company prior to appellant’s dismissal, nor was there established any evidence to prove that appellant’s dismissal falls within the scope and meaning of section 1508, subsection 2 of the Labor Practices Law

[allowing dismissal only for a serious breach of duty].” Id. at 144.

After the Wilson v. Firestone Plantations Company case, the Court has continued to rule that the Due Process Clause requires an employer to conduct an inquiry before dismissing an employee whenever a statute allows the dismissal only

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for cause. Thus, in 2004, the Supreme Court re-affirmed an early ruling that when an employee is dismissed for commission of a crime, the crime must first be proved:

“This Court opined in Bong Mines Company v. Ragland et al., 36 LLR 677 (1990),

Syl. 1, text at pages 685-86 that: ‘Termination of services of an employee for reason of the commission of a criminal offense, without establishing the guilt of the employee for that criminal offense, is an infringement on the constitutional rights of the employee.’” Liberia Opportunities Industrialization Ctr. (LOIC) v. Williams &

Williams, March Term 2004, 230, 235 (2004). Similarly, the Court held that when an employee is dismissed for breach of duty, the breach must be proved: “This

Court says however, if the Co-appellee was dismissed for gross breach of duty as stated in the letter of dismissal, it was incumbent upon the employer to prove that the employee was guilty of committing a gross breach of duty.” Id. at 236. The employer must therefore conduct an in-house investigation: “We hold, therefore, that an employee can only be dismissed for gross breach of duty provided his employer properly conducts an investigation at the place of his business, and in the presence of the employee so as to prove the employee’s guilt for the alleged gross breach of duty by the employee.” Id. at 236-37.

In at least one case, the Court went even further in demanding that the employer prove the employee’s misdeeds. In Liberia Electricity Corporation (LEC) v. Mongrue & the Board of General Appeals, 32 LLR 487 (1984), the Court ruled that before an employer may dismiss an employee for commission of a criminal offense, it is not enough that the employer conduct its own investigation; instead,

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the employer must actually go to court and prove the employee’s culpability there.

Thus, when an employer dismissed an employee for being unable to account for

missing funds that had been entrusted to him, the Court concluded that the

discharge was for commission of a criminal offense. As a result, the employer was

required to prove the crime in court before dismissing the employee: “Hence, there

was a need, and in fact a legal obligation in the light of all that had transpired, to

establish Mr. Mongrue’s guilt, by due process of law, as a condition for his

dismissal. In this respect, the guilt of no person in Liberia, except those who belong to the military and para-military, can be pronounced with legal certainty except

when done in a judicial forum. It was therefore the obligation of LEC [the

employer] to seek such pronouncement, and it was the right of Mr. Mongrue to

defend himself. This not having been done, the dismissal of the appellee was

without legality.” Id. at 494.

In all these cases, the Court analogizes the decision to dismiss an employee to

a criminal trial. The two proceedings are not the same: in the employment context,

the question is whether the employee will keep his job; in the trial context, the

question is whether the defendant will keep his liberty or indeed his life.

Traditionally, the Court has observed that criminal defendants are entitled to

extraordinary procedural protections because the stakes are so high: the accused is

at profound jeopardy. By contrast, when the issue is whether an employee is civilly

entitled to retain his job, the stakes are much lower. Nonetheless, the Court is

clearly convinced that the procedural protections for the employee and for the

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defendant must be at least roughly similar. Indeed, according to the Liberia

Electricity Corporation case, the protections must be identical when the employer seeks to discharge the employee for a crime: the offense must first be proved in court in the same way that it would have to be proved if the employee’s life and liberty were at stake.

The Court thus appears to be focused not on the potential consequences, which are quite different in the two proceedings, but on the question that both proceedings address, namely whether the defendant or the employee had committed misdeeds. Thus, in Wilson v. Firestone Plantations Co., the Court drew attention to the fact that the Labor Law allowed dismissal only when the employee was culpable. The Court quoted the relevant statutory provision: “[A]n employer may dismiss an employee engaged for an indefinite period without notice, subject to payment only of wages due, where it is shown that the employee has been guilty

(emphasis ours [i.e. the Supreme Court’s]) of a serious breach of duty.” Wilson, 34

LLR at 139 (quoting section 1508, subsection 5 of the Labor Practices Law of

Liberia). In other words, the Court has generally found horizontal rights in a particular legal context: whenever a statute allows an employer to take action against an employee only for misdeeds, the employer—even if a private party— must prove those misdeeds by constitutional due process. In effect, the statutory requirement that the employer show cause triggers the Due Process clause: the statute requires the showing, but the Due Process Clause dictates how the showing must be made.

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Ch. Twelve(a)(3)(ii): Other Rights Against Employers

In at least one case, however, the Court has found that employees have

horizontal rights against their employers even outside this particular context—in

other words, even when no statute requires the employer to prove misconduct before

dismissing an employee. A recent case, Dismissed Employees of the Inter-Con

Security System v. Doe, March Term 2004, 164 (2004), addressed another challenge

to a dismissal, but this time the statutes did not require that the employer show

cause. Fourteen employees had allegedly planned a demonstration against Inter-

Con’s unjust working conditions, and they had written to the American ambassador

to call his attention to their situation. See id. at 164-65. The employee began an

investigation, but then instead peremptorily dismissed the employees because the

relevant statute allowed dismissal without cause. See id. at 165-66. Nonetheless, the Supreme Court ruled that because the employer had dismissed the employees for their agitation about their working conditions, the employer had infringed on their right to peaceably assemble. The Court first quoted Article 17 of the 1986

Constitution, which protects the right to assembly, and then held: “We can see that the appellee violated the appellants’ constitutional rights to assemble peaceably and

consult on their common good. The appellants’ act was done without any violence or

disruption of appellee’s business. Should this Court then sit down and condone this

outright violation of appellants’ constitutional rights under the disguise of appellee

invoking section 1508(3) [which allowed dismissal without cause] of our Labour

Practices Law?” Id. at 168. In short, even when statutes leave employers free to

dismiss, employees still have the same constitutional rights against employers that

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they have against the government. As a result, employers may not dismiss

employees in retaliation for the exercise of those rights.

It is clear, therefore, that Liberians possess some horizontal rights against

some private parties in some circumstances. It is not clear, however, exactly which

constitutional rights they hold against which private parties and in which

circumstances. All of the cases in which the Court found a horizontal right shared

three features: the defendant was a large corporation; the plaintiffs were the

defendant’s employees; and the claim was that the defendant had violated the

plaintiffs’ constitutional rights in the way that it dismissed them. It seems likely,

therefore, that the Court will generally recognize horizontal rights in such a fact

situation. The Court has not explained whether it will find horizontal rights in

other situations as well. It is, for example, possible that because large corporations

sometimes hold quasi-governmental power, people generally have constitutional rights against them—not just their employees and not just with respect to dismissals from employment. In future terms, the Court may provide further illumination.

CH. TWELVE(b) LIMITS ON RIGHTS

The Liberian Supreme Court has traditionally held that all rights have limits. Each right protects a certain individual freedom, but when the exercise of that freedom too greatly damages the common good, the Court may hold that

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individual liberty must yield to the greater good. The Court has developed certain particular limits for certain particular rights: for example, the right against double jeopardy does not obtain in cases of manifest necessity. Similarly, the text of the

Constitution itself recognizes certain particular limits for certain particular rights: for example, the right against warrantless searches does not apply when the police witness a crime or are in hot pursuit. See 1986 Const. of the Republic of Liberia art.

21(b).

The Court has also, however, held that all rights have certain general limits, applicable across the board even for those rights with no limits peculiar to themselves. Thus, the Court explained: “Where the exercise of one’s civil right proves dangerous and pernicious to society the halting of it is not unconstitutional.

Therefore, when convening a mass political rally is found to be dangerous to others, it can be restrained in the interest of public order.” Republic of Liberia v. Grand

Coalition, 34 LLR 70, 79-80 (1986).

In a similar vein, in holding that the Legislature could specify procedures for an appeal without infringing the constitutional right to appeal, the Court explained more broadly that all rights have limits: “[I]t is said that freedom without restriction is anarchy, and control without limitation is tyranny. In other words, even though there are constitutional guarantees of basic freedom and rights, there are equal limitations and duties, and prescribed guidelines for the exercise of those freedoms and rights, and such guidelines or prescriptions are not ipso facto unconstitutional; for where one’s right ends is where another’s right begins and no

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one has a right or is free to violate the rights of another.” A.D.C. Airlines v.

Sannoh, 39 LLR 431, 443 (1999).

As another example, in holding that a person could be held in contempt for inappropriately criticizing the judicial system, the Court held that all rights must be balanced against the legitimate demands of society: “[W]hilst the courts protect the citizens against abuse of their rights, society has also to be protected against criminal acts and statutory violations. It would be unrealistic for anyone to contend that the individual right of a single citizen is more important and should be given greater consideration than the over-all protection which should be guaranteed to the rights of all citizens collectively. . . . The preservation of the body politic is as important as the protection of rights of individuals; and the courts or the judiciary must give serious attention to them both, if constituted authority is to be maintained and the rule of law given any meaning.” In re Cassell, 14 LLR 391, 406

(1961).

Because these limits are general, applying to all rights in all contexts, they are necessarily somewhat abstract. As a result, it may not always be easy to determine in advance when the assertion of a right approaches its limits. Nonetheless, the

Court has made clear that those limits exist, and the Court will adjudicate them on a case-by-case basis.

CH. TWELVE(c) SELF-EXECUTING AND NON-SELF-EXECUTING RIGHTS

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As the Court has explicated, “[c]onstitutional law categorizes rights under

two distinct headings: those which are self-executing and those which are not self- executing.” Vargas v. Hon. Reeves & Eid, 39 LLR 368, 376 (1998) (citing 16 Am.

Jur. 2d Const. Law §§ 139 & 140). Most constitutional rights are self-executing: even without implementing legislation, they constrain the government from invading the liberty of the individual. Thus: “Self-executing constitutional provision refers to those provisions which are immediately effective without the necessity of ancillary legislation.” Id. at 376-77. The Legislature may pass statutes to implement self-executing rights, but it need not because such rights take effect on their own. If the Legislature does pass implementing statutes, the goal must be to help effectuate the rights by providing a legal framework for their enforcement.

As long as such statutes do not infringe on the right by making its realization more difficult, the Court will find them constitutional.

Some rights, however, are not self-executing: in order for them to be effectuated at all, the Legislature must pass implementing legislation. In other words, without legislation, these rights have no binding legal force. Thus, the Court said of the right to a jury trial: “Respondent . . . argued that this right to trial by jury, like other provisions of the Constitution, is merely a declaration which is not self executing but requires enabling legislation to give it effect. We agree with this argument.” Id. at 376. Again: “Without such a statute, the [non-self-executing right] will remain abstract and a mere declaration or principle.” Id. at 377-78.

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As with self-executing rights, however, the implementing legislation must

support the right rather than burden it. Courts will scrutinize implementing

legislation to determine whether it “is in contravention of the constitutional

provision or within its contemplation.” Id. at 377. Such a statute must “give form,

shape and effect to the broad constitutional provision which is merely a general

guideline.” Id. When the Legislature passes constitutional implementing

legislation, individuals must comply with it in order to assert their rights: “We

hereby reiterate that the failure of any person to obey, comply with, and abide by

provisions of ancillary or enabling statutes which seek to give meaning to rights

guaranteed by the Constitution amounts to a waiver or forfeiture of said right, and

that a challenge to such statute will not be entertained simply because a person

feels or is affected by the application of such statute.” Id. at 380.

To be self-executing, a constitutional provision must contain a sufficiently

specific command that the courts can enforce it on its own bottom. Rights that do

not make such a specific command cannot be self-executing. Hence, they can be

enforced only after the Legislature has passed implementing legislation to fill in the

details. The Court has explained: “A constitutional provision is self-executing if it supplies sufficient rule by which right given may be enjoyed or duty imposed enforced; constitutional provision is not self-executing when it merely indicates principles without laying down rules giving them force of law.” Id. at 377 (citing

Black’s Law Dictionary 1360 (6th ed. 1990)). In other words, “[s]ince the

Constitution is the general framework for the declaration and protection of basic

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rights, it certainly cannot be so minutely detailed as to provide for or prescribe

every right or remedy or means of enjoyment or enforceability of rights, privileges

and duties. The Legislature therefore fills the vacuum by enacting laws to take care

of specific aspects for fulfilling constitutional provisions.” A.D.C. Airlines, 39 LLR

431, 443 (1999).

The Court has never exhaustively specified which particular rights are non- self-executing, but in Vargas v. Hon. Reeves & Eid, the Court compiled a partial list. Non-self-executing rights include, as noted the right to a jury trial, as well as

“the right to appeal from an adverse judgment, the right of free movement to include travel in and out of Liberia, the right to bail, the right to vote, the right to freedom of assembly and of association, [and] for that matter, to own, use, and enjoy property.” Vargas, 39 LLR at 379.

For each right, the Vargas Court also offered some examples of the sort of implementing legislation that would be permissible. The Court posed a series of rhetorical questions designed to illustrate the point that appropriate implementing legislation is necessary to realize each right and therefore cannot be ipso facto

unconstitutional. Regarding the right of appeal, the Court queried: “[I]is it

unconstitutional to require a party to first announce his appeal orally and then file

a bill of exceptions in ten days and appeal bond in sixty days and notice of

completion of appeal? Why doesn’t the appellant just announce his appeal and

appear in the Supreme Court Chambers to await the call of his case?” Id.

Regarding the right of free movement: “[I]s it unconstitutional for one to be

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required to obtain a passport or laissez-passer and thereafter an exit visa and be registered before leaving Liberia or for an alien to be required to comply with regulations of the Bureau of Immigration?” Id. Regarding the right to bail: “[I]s it unconstitutional for an accused to be required to tender a property valuation bond meeting certain requirements of the Ministry of Finance or of the statute as to sureties?” Id. Regarding the right to vote: “[I]s it unconstitutional for one to be required to register with the Elections Commission and to obtain a voter’s registration card and to vote in a particular precinct or district?” Id.

Finally, regarding the right to own property, the Court rhetorically queried:

“[I]s it unconstitutional where the statute requires that as evidence of title to real property one must have a deed and that the deed must be probated and registered within four months? As to personal property, is it unconstitutional for one to be required to register his vehicle and obtain a license plate and a driver’s license before plying the streets and to drive on a particular side of the street and at a certain speed?” Id.

The answer to every one of these rhetorical questions is that it would be constitutional for the Legislature to pass the referenced regulation, even though it would affect the exercise of the constitutional right at issue. Indeed, every one of the regulations is commonplace, familiar, and universally accepted. The Court’s point is thus that implementing legislation is in no sense aberrational or oppressive; if properly tailored, it is necessary for the genuine realization of individual rights.

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SUBPART II(A) CIVIL AND POLITICAL RIGHTS

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CHAPTER THIRTEEN RELIGIOUS LIBERTY

Article I, section 3rd, 1847 Constitution of the Republic of Liberia

All men have a natural and inalienable right to worship God according to the dictates of their own consciences, without obstruction or molestation from others: all persons demeaning themselves peaceably, and not obstructing others in their religious worship, are entitled to the protection of law, in the free exercise of their own religion; and no sect of Christians shall have exclusive privileges or preference, over any other sect; but all shall be alike tolerated: and no religious test whatever shall be required as a qualification for civil office, or the exercise of any civil right.

Article 14, 1986 Constitution of the Republic of Liberia

All persons shall be entitled to freedom of thought, conscience and religion and no person shall be hindered in the enjoyment thereof except as may be required by law to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. All persons who, in the practice of their religion, conduct themselves peaceably, not obstructing others and conforming to the standards set out herein, shall be entitled to the protection of the law. No religious denomination or sect shall have any exclusive privilege or preference over any other, but all shall be treated alike; and no religious tests shall be required for any civil or military office or for the exercise of any civil right. Consistent with the principle of separation of religion and state, the Republic shall establish no state religion.

In Liberia, religious liberty includes two different protections. First, the

state must respect the religious liberty of the individual; this command is commonly

called the free exercise principle. Second, the state must not prefer some religions

over others; this command is commonly called the anti-establishment principle.

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CH. THIRTEEN(a): THE FREE EXERCISE OF RELIGION

Both the 1847 Constitution and the 1986 Constitution specifically protect the freedom of individuals to practice their religion so long as they conduct themselves in good order. The Supreme Court has never interpreted the exact meaning of these provisions, so the text of the Constitution itself offers the only available guide.

The 1847 constitution protected two classes of religious activity. First, it seemed to give an absolute protection for the right to worship: “All men have a natural and inalienable right to worship according to the dictates of their consciences.” This right extended to all believers, not just Christians.

Furthermore, this phrase contains no language suggesting that the state may ever limit the freedom of worship for any reason; presumably, the framers imagined that worship alone posed no threat to public order, so they saw no reason to give the state the right to curtail it.

Second, the 1847 constitution also protected a broader class of activity— religious practice—but the protection is more limited: “[A]ll persons demeaning themselves peaceably, and not obstructing others in their religious worship, are entitled to the protection of the law, in the free exercise of their own religion.” The phrase “free exercise of their own religion” covers more activity than the simple right to worship; it refers to the whole range of religious practices, such as keeping the Sabbath holy or giving alms or sacrificing animals. On the other hand, the state is freer to control such practice: believers can claim protection only for peaceable behavior that does not obstruct the religious worship of others.

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The 1986 constitution also contains two separate commands for the protection of religious liberty, but both commands allow the state to regulate believers for appropriate reasons. First, the constitution forbids the state to hinder the “freedom of thought, conscience, and religion,” but it also allows the state to regulate that right so as to protect “public safety, order, health, or morals or the fundamental rights and freedoms of others.” Similarly, the constitution protect the

“practice of religion,” but only insofar as the believers “conduct themselves peaceably not obstructing others and conforming to the standards set out herein.”

The last phrase—the “standards set out herein”—presumably refers to the previous sentence, giving the state the power to regulate freedom of thought, conscience, and religion in the interests of public safety, order, health, and so forth.

In short, believers have the right to practice their religion but only as consistent with the state’s interest in protecting the public good. This rule would in practice allow the state to adopt fairly restrictive laws. For example, if the state generally bans the consumption of alcohol, because of its damaging effects, it could prohibit the consumption of sacramental wine by Catholics and others.

But the constitutional provision is not null: the state may regulate religious practice only for the public good, not because state officials happen to disapprove of some religion. If, for example, Christian officeholders dislike Islam, they may regulate only those Islamic practices (if any exist) that actually threaten the public good; they may not restrict Muslims simply for the sake of restricting Muslims. In other words, the state may apply normal neutral rules of conduct to all believers,

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but it may not discriminatorily target believers because of religious disagreement or disapproval. (The United States Supreme Court has interpreted the Free Exercise

Clause of the US constitution in the same way. See Employment Division v. Smith,

494 U.S. 872 (1990)). In that sense, this restriction is closely linked to the next: the state may not prefer one religion over another.

CH. THIRTEEN(b) THE PROHIBITION ON ESTABLISHING A RELIGION

Ch. Thirteen(b)(1): The Prohibition on Religious Discrimination

Both constitutions forbid certain sorts of religious discrimination, but the ban in the 1986 Constitution is broader than the ban in the 1847 Constitution. The first constitution prohibits only discrimination between different sorts of Christians:

“[N]o sect of Christians shall have exclusive privileges or preference, over any other sect; but all shall be alike tolerated.” For example, the state could not prefer

Baptists over Catholics. But the constitution would have allowed the state to prefer

Christianity in general over other religions, such as Islam and Animism.

Indeed, the Supreme Court has quite commonly incorporated Christian references into its holdings, suggesting that Christianity is part of the foundation for the Constitution and for the Republic itself. In effect, Christianity functioned as the state religion. For example, the Court explained that judges receive their capacity for legal reasoning and their love of justice from God: “With the same mental faculties generated by the love of justice with which the early common law

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judges were endowed in establishing judicial precedents for the peace and

tranquility of their countries and peoples, we are equally blessed by the same

Divine Being.” Quelo v. Providence Concrete Works, 29 LLR 298, 303 (1981).

Similarly, in deciding to remit a contempt citation against repentant lawyers, the

Court relied on theology: “As man is the apex of God’s creation, fashioned in the

image and likeness of his Creator, so is he endowed with certain superior faculties;

and he possesses the power of discernment which enables him to discriminate

between right and wrong, and to enjoy the privilege of selecting right and

abandoning wrong if he so elects.” In re Coleman & Brownell, 11 LLR 432, 433

(1954).

The 1986 constitution goes further, forbidding all religious discrimination:

“No religious denomination or sect shall have any exclusive privileges or preference over any other, but all shall be treated alike.” According to this language, the

Republic of Liberia may not prefer any religious group at all. For that reason, it

may no longer favor Christians over others. The provision also adds a new

stipulation: “Consistent with the principle of separation of religion and state, the

Republic shall establish no state religion.” As a result, Christianity may no longer

function as a state religion, and the Liberian state cannot be said to rest on

peculiarly Christian principles. The Supreme Court has explained: “[T]he Republic of Liberia is a secular state.” Ctr. for Law & Human Rights Education v. Monrovia

City Corp., 39 LLR 32, 47 (1998). It would also appear from this language that the

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Republic may not prefer religious people or institutions over irreligious people or institutions.

Nevertheless, even after the adoption of the 1986 Constitution, the Court has continued to refer to Christian texts and ideas in the course of deciding cases. For example, the Court has directly asserted that the Supreme Court acts at the direct command of God: “Our judgments are based upon sober reflections, and upon the commands of the deity. . . . we shall not be afraid of the face of man, for the judgment is God’s and the cause that is too hard for us, we shall carry it unto him and he shall hear us.” In re Hon. Bailey, 36 LLR 803, 810 (1990). Similarly, the

Court has cited scripture to support the idea that because of their brevity,

Constitutions cannot address every issue that might come up: “’And there are many other things that Jesus did; if every one of them were written down, I suppose that the world itself could not contain the books that would be written. Amen.’ Gospel of St. John, 21:25.” Republic of Liberia v. Grand Coalition, 34 LLR 70, 83 (1986).

The Court has not explained how, in a secular state, judges may turn to God or to scripture to guide their decisions.

The Court has even asserted that the origin of the law and constitution itself lies in the actions of the Christian God: “Our Father is in Heaven and here on earth we have the law. That is how He intended it when He told Moses to gather the

Israelites in front of Mount Sinai. There He met the people and amidst thunder and lightning called Moses up on the Mountain where He delivered the Ten

Commandments to him which he brought down to the people to be observed and

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obeyed and that disobedience of the Commandments was repugnant and offensive.

See the Holy Bible, Exodus Chapters 19 and 20. All the Constitutions and laws in the world are the outgrowth of these Commandments. Submission to the commands of the law is therefore not a new phenomenon.” In Re Grand Coalition of

Political Parties, 34 LLR 262, 268-69 (1986). The Court has not explained how a secular state could trace its foundation to the scriptural claims propounded by a particular religious tradition.

In operation, the anti-establishment principle has at least three manifestations: the state may not impose religious tests for public office or civil rights; the state may not intentionally give legal advantages to some groups over

others; and the state may not intrude into the decisions of religious institutions on

doctrinal issues.

Ch. Thirteen(b)(2): Religious Tests

The Republic may not impose religious tests. Both constitutions absolutely

forbid the state from imposing a religious test for office or the exercise of a civil

right. In other words, the state may not require that a person profess a particular

religious faith in order to qualify to hold office or exercise his civil rights. The ban

on religious tests is absolute: unlike the Free Exercise principle, the state’s interest

will never justify the use of religious tests. The ban on religious tests is also

universal: no religious tests are allowed. The state may not require that a person

belong to a particular Christian denomination; it may not require that he be a

Christian; it may not require that he profess some religion, as opposed to being an

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atheist; it may not require that he be an atheist, as opposed to a believer of some

sort. The only difference between the two constitutions is that the 1847 constitution

forbids religious tests for civil office, but the 1986 constitutions forbids religious

tests for both civil and military office.

Ch. Thirteen(b)(3): Special Advantages for Religious Groups

The broadest part of the anti-establishment principle is the rule that the state may favor no religion or religions over others. The Court has explicated the exact meaning of this rule in Ctr. for Law and Human Rights Education v.

Monrovia City Corp., 39 LLR 32 (1998). In this case, the Court considered the constitutionality of Monrovia City Ordinance No. 1, which ordered that the city market should be closed on Sunday so that the sanitary workers could clean up the city. The challengers averred that the city chose Sunday because it was the

Christian day of worship, so that Christians could go to church and the Sabbath would be kept holy. In practice, the ordinance clearly did favor marketers who worshipped on Sunday. They could stay open the other six days, then close on their

Sabbath. Those who worshipped on another day would still have to close for

Sunday and also for some or all of their own day of worship. De facto, then,

Sunday-worshippers received a practical commercial advantage.

The Court, however, did not consider whether the law in practice benefitted

Sunday-worshippers. Instead, the Court considered whether the City council was motivated by a desire to favor Sunday-worshippers. Implicitly, the Court has

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therefore held that the Constitution forbids only those laws motivated by a desire to

favor one group of believers, not all those laws that in practice favor a group.

The Court then turned to determining the intent of the city council. It began

by observing that the ordinance itself describes its own purpose: the city market would be closed so that city workers could clean the streets. Ctr. for Law & Human

Rights Development, 39 LLR at 44-45. The Court held that when a statute or ordinance professes a certain purpose, the Court will assume that the professed purpose is the actual purpose: “[T]he ordinance must be interpreted according to its terms without resort to other means of interpretation. The intention of the municipal legislative body is ascertained primarily from the language used in the ordinance. The courts will not impute to the legislators an intention inconsistent with the language used in an ordinance which is clear and concise and which is of only one interpretation. If such intention may be determined from the ordinance itself no other construction is necessary, and the court is not permitted to add to, or subtract from, the words used in the ordinance.” Id. at 45-46 (citing 62 C.J.S.

Municipal Corp. § 442).

The Court thus concluded that the point in the law was to allow for sanitation, not to preserve the Christian Sabbath. But the text of the statute explains only why the city felt the need to close the market (to clean), not why it chose Sunday for the closing. The city might very well have decided to close the market one day a week for non-religious reasons, but also decided to close it on

Sunday in particular for religious reasons. In fact, the challengers averred that the

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city adopted the ordinance in response to “calls made by Christian leaders for a ban on Sunday selling.” Id. at 46. Furthermore, although the ordinance had been unenforced for some time, in 1997 the Monrovia mayor announced that he would enforce it again, see id. at 36, explaining that “customarily Sundays are set aside for

Christians to go to their respective churches to worship.” Id. In other words, choosing Sunday for religious reasons would not in fact be inconsistent with the text of the statute, which explains only why the market must be closed one day a week.

Apparently, the Court did not believe that the face of the statute clearly explained the choice of Sunday, because the Court proceeded to consider evidence on that point outside of the ordinance’s text. It first conceded that the mayor’s

“utterances and almost simultaneous issuance of the release placing a ban on

Sunday selling does indeed give the impression that the motivation of the respondent is a religious preference for Christianity in violation of the constitution, thereby offending citizens of other faith [sic—presumably “faiths”].” Id. at 47. But the Court held that the mayor could not speak for the city council that adopted the ordinance. He may have been acting for religious reasons, but they were not: “The utterances of Mr. Maxwell Carter in 1997 is [sic—should be “are”] reprehensible, irresponsible, illegal, and unconstitutional; notwithstanding, we find that the spirit and intent of the City Council who promulgated City Ordinance #1 in 1975 was the protection of the public interest-public health and sanitation.” Id.

The Court did, however, opine that if all the mayors since the ordinance’s adoption had shared Mayor Maxwell’s views, the Court would have held the

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ordinance unconstitutional: “For this Court to declare the said ordinance unconstitutional, the utterances and acts of Mr. Carter, complained of herein, must have been constant and sustained by succeeding mayors since 1975, the date of enactment of the said City Ordinance #1.” Id. In other words, the Court held that the expressed opinions of mayors could provide clues about the intent of the city council, over and above the clues offered by the text of the ordinance itself. But

Mayor Carter came too long after the ordinance’s adoption, so his view had no evidentiary weight; the views of earlier mayors, closer to the adoption date, would have been far more probative. (The Court never considered a different argument: although the city council may not have adopted the ordinance to favor Christians, the mayor clearly decided to renew its enforcement for that reason, as the Court itself recognizes. If so, the ordinance itself might be constitutional but the enforcement decision unconstitutional).

The Court also rejected the claim that the reason for the choice of Sunday as a closing day was to keep the Christian Sabbath holy. In the Court’s view, the

“Christian Bible requires that on the Sabbath no activity or work shall be done.” Id.

But the ordinance closed only the city market: “[E]ven though it is Sunday, other business activities continue except that the various markets are closed to allow respondents to carry out cleaning and sanitation.” Id. at 48. (The Court never considered a different argument: the council’s motive for closing the market for one day may have been sanitation, rather than keeping the Sabbath holy, but its choice

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of Sunday in particular may be been motivated by a desire to keep the Sabbath

holy, in however partial a way).

Having rejected the idea that the council chose Sunday so as to favor

Christians, the Court explains that the council in fact chose Sunday because many

people rest on that day: “The prohibition on commercial and other activities

originally had the intent of upholding the Judea-Christian [sic] principle of keeping the Sabbath, but the Court sees that this has been secularized and the current interpretation is that the day is observed as recreational respite from a week of hard work.” Id. In other words, in the Court’s view, the council chose Sunday in particular because many people had already chosen Sunday as their secular day of rest, not because many Christians would thus be better able to attend church. The

Court offers no direct evidence that the council held the former motivation rather than the latter, but presumably the justices concluded that it was the most plausible interpretation, given the changes in Liberian society.

Ch. Thirteen(b)(4): The Prohibition on Interference with the Internal Matters of Religious Groups

Finally, the Supreme Court has firmly held that the state may not intervene into the internal business of religious institutions. It may not settle creedal disagreements or mandate religious practices. See Gibson v. Church of Christ

Mission in Liberia, 24 LLR 263 (1975). When a believer joins a religious society, he implicitly agrees to abide by its rules and norms and may not invoke the Court’s assistance to negate them.

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According to the Court, this restriction grows from the separation of church

and state: “It has been held that the civil courts are not concerned with mere

schisms stemming from disputations over matters of religious doctrine, not only because such questions are essentially ecclesiastical rather than judicial but also because of the separation of church and state.” Id. at 286 (quoting 66 Am. Jur. 2d

Religious Societies § 51). If the state could settle doctrinal disputes, the church

would become, in effect, the creature of the state—in other words, an established

church.

On the other hand, the civil courts must take jurisdiction over ecclesiastical

disputes when necessary to “determine the civil or property rights of a religious

society or its members.” Gibson, 24 LLR at 279. Most frequently, such cases occur

when a religious society divides into contending factions, each of which claims title

to the church property. The Supreme Court has held that the true owner of the

property is that faction that is faithful to the doctrines and practices of the church.

The Court described two different ways to determine which faction is the faithful

one. First, if the church is hierarchical (i.e. a higher ecclesiastical body such as a

bishop or synod has authority over the disputatious congregation), then the civil

courts should let the higher ecclesiastical body decide: “[T]he rival factions may be

remitted to their remedy within the denomination if its form of government is such

as to permit an appeal to higher ecclesiastical authority.” Id. at 286 (quoting 66

Am. Jur. 2d Religious Societies § 51). Second, if the church is congregational, so

that no appeal within the church is possible, the court itself must decide which

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faction is faithful: “[T]he rule of the civil court in dealing with the property rights is to give effect to the will of that part of the organization acting in harmony with the ecclesiastical laws, usages, customs, and principles which were accepted among them before the dispute arose.” Id. at 287 (quoting 66 Am. Jur. 2d Religious

Societies § 51). At one point, the Court recognized that this rule may place the court in an awkward position, as a civil court attempting to decide contested matters of religious doctrine, see id. at 280, but the Court saw no other recourse.

The American rule is different. According to the Supreme Court, the US constitution forbids secular courts to decide property disputes on the basis of religious doctrine and practice. States may adopt any method for resolving such disputes so long as it involves no consideration of “doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.” Jones v. Wolf, 443 U.S. 595

(1979).

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CHAPTER FOURTEEN FREEDOM OF EXPRESSION

Article I, Section 15th, 1847 Constitution of the Republic of Liberia

The liberty of the press is essential to the security of freedom in a state; it ought not, therefore to be restrained in this Republic. The printing press shall be free to every person, who undertakes to examine the proceedings of the Legislature or any branch of government; and no law shall ever be made to restrain the rights thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

Article 15, 1986 Constitution of the Republic of Liberia a) Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted, or enjoined by government save during an emergency declared in accordance with this Constitution. b) The right encompasses the right to hold opinions without interference and the right to knowledge. It includes freedom of speech and of the press, academic freedom to receive and impart knowledge and information and the right of libraries to make such knowledge available. It includes non-interference with the use of the mail, telephone and telegraph. It likewise includes the right to remain silent. c) In pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries. d) Access to state owned media shall not be denied because of any disagreement with or dislike of the ideas expressed. Denial of such access may be challenged in a court of competent jurisdiction.

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e) This freedom may be limited only by judicial action in proceedings grounded in defamation or invasion of the rights of privacy and publicity or in the commercial aspect of expression in deception, false advertising and copyright infringement.

In most democracies, freedom of expression is regarded as one of the most

important and central rights. Both Liberian constitutions clearly attach great

importance to this right, as the constitutional language devoted to the right is both

lengthy and stringent. The Liberian Supreme Court has, however, decided

relatively few cases expositing the meaning of this provision, and all the decided

cases address the same question, namely whether the right of free expression bars a

court from citing someone for contempt for criticizing Liberian courts. Because of

this relative dearth of cases, some of the constitutional language remains un- interpreted, and its exact meaning is therefore difficult to discern.

Nonetheless, some general themes are apparent. Both constitutions contain a broad protection for the right of people to express themselves. The 1847

Constitution provides that the “free communication of thoughts and opinions is one of the invaluable rights of man, and every person may freely speak, write, and print, on any subject” and the 1986 Constitution similarly requires that “[e]very person shall have the right to freedom of expression.” Many constitutions contain only such a general protection, but the Liberian constitutions go further: they specify some of the details of how the right is to be put into practice.

CH. FOURTEEN(a) THE FREEDOM OF THE PRESS

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The Liberian Constitution stresses the freedom of the press. The 1847

Constitution provision begins by asserting that the “liberty of the press is essential to the security of freedom in a state,” and the 1986 Constitution provides that the right “includes freedom . . . of the press.” Because the constitution singles out the press for special mention, the press might enjoy special rights, perhaps especially to investigate the government’s actions. Nevertheless, no case has addressed this question, and, as will be shown below, some cases have held that the press has no more right to criticize the judiciary than any other person.

CH. FOURTEEN(b) ACADEMIC AND LIBRARY FREEDOMS

The Liberian Constitution stresses academic freedom and the freedom of libraries. The 1847 Constitution makes no specific reference to these freedoms, but the 1986 Constitution singled these freedoms out: the right includes “academic freedom to receive and impart knowledge and information and the right of libraries to make such knowledge available.” Again, no case has described the exact contours of these freedoms, but in other countries they include protection for the following sort of rights: professors may express political views and criticism of the government without fear of reprisal; libraries may include materials of which the government does not approve or with which the government disagrees.

The Liberian Constitution protects the access of ordinary people to some of the means of communication. The constitution not only gives individuals the right

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to express themselves; it also protects some practical ways that individuals can do so. The 1847 Constitution held that the “printing press shall be free to every person, who undertakes to examine the proceedings of the Legislature or any branch of government.” The 1986 Constitution contains no such provision, but it does protect other means of expression: the right includes “non-interference with the use of the mail, telephone and telegraph”; and “[a]ccess to state owned media shall not be denied because of any disagreement with or dislike of the ideas expressed.”

CH. FOURTEEN(c) THE RIGHT TO CRITICIZE THE GOVERNMENT

The Liberian Constitution gives special protection for the right to investigate and criticize the government, so as to hold it accountable. Clearly, one of the central purposes—perhaps the most important purpose—of the right to free expression is to allow the people to check the government. The constitutions plainly grow from a worry that governments might become corrupt in a variety of ways, that government officials may then attempt to conceal their wrong-doing, and that the right to free expression may then be vital in revealing the corruption. Even when governments are not corrupt, they may try to pursue their policy agendas without fully informing the people of the decisions taken or the reasons and evidence (or the lack thereof) for those decisions. Under those circumstances, too,

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the right to free expression may be critical in allowing people to investigate the

government and to publicize their findings.

As noted, the 1847 Constitution provides that the printing press shall always

be free “to every person, who undertakes to examine the proceedings of the

Legislature or any branch of government. This requirement is absolute and allows

no limitation: “[N]o law shall ever be made to restrain the rights thereof.” The 1847

Constitution further provides: “In prosecutions for the publication of papers,

investigating the official conduct of officers or men in a public capacity, or where the

matter published is proper for public information, the truth thereof may be given in

evidence.” In other words, when the government prosecutes a person for publishing

papers about government conduct (for example, incriminating memoranda or e- mails), the defendant may always plead that he sought only to reveal the truth. It is not clear whether the truth would be a complete defense, but it is clear that the government could not legally prevent the truth from being revealed in open court, so that all Liberians might know it.

Similarly, the 1986 Constitution provides: “In pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries.” On its face, this provision is absolute and extraordinary: the government may never limit the public right to be informed about the government.

Again, no cases have definitively interpreted the breadth of this provision, but it seems very broad. It might include the following type of protections: citizens may make freedom-of-information demands on their government, so that the government

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must open its files; no person may ever be prosecuted for seeking to inform the

electorate about government conduct; the government may not keep information

secret except when a court of law has examined the information and found that its

public revelation would jeopardize the nation’s security. It would even be possible

to read the provision to bar politicians from lying or shading the truth, because such

behavior certainly limits the public’s ability “to be informed about the government.

CH. FOURTEEN(d) LIMITS ON THE RIGHT OF FREE EXPRESSION

Ch. Fourteen(d)(1): Limits on Free Expression Permitted by the Text of the Constitution

By its terms, the Liberian Constitution allows only a very few limits on the right of free expression. Almost all rights must be limited under certain

circumstances because of the basic demands of ordered society. But for the right to

have any real effect, those limits must be few and specific. The Liberian

Constitution is, in fact, quite specific about the relatively few limits that may be

placed on the right to free expression. First, the right may be limited during a bona

fide state of emergency: “This right shall not be curtailed, restricted, or enjoined by

government save during an emergency declared in accordance with this

Constitution.” Second, in ordinary times, the right may be limited only in certain

legal contexts: “This freedom may be limited only by judicial action in proceedings

grounded in defamation or invasion of the rights of privacy and publicity or in the

commercial aspect of expression in deception, false advertising and copyright

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infringement.” In other words, the right to free expression does not include the right to defame someone, invade his privacy, tell lies in commerce or advertising, or infringe a copyright. But the constitution stresses that these are the only contexts in which the right to free expression may be limited.

Chapter Fourteen(d)(2): Prior Restraints

The Liberian Constitution forbids the imposition of prior restraints on free expression, but it also provides that people shall be responsible for the abuse of such right. The Constitution contains one implicit limit on the right to free expression— in a sense, a limit inherent in the right itself: people are responsible (and so presumably can be penalized) post facto for abuse of the right.

According to the Liberian Supreme Court, the government may not put prior restraints on speech; in other words, the government may not in advance prohibit someone from speaking. Citing Blackstone, the Court explained, “Liberty of the press . . . consists in laying no previous restraints upon publication.” In re New

Patriot Journal, 37 LLR 834, 840 (1995). And this “liberty of the press” refers not to some special right held only by professional journalists but rather to a general right to free expression: “Every freeman has an undoubted right to lay what sentiments he places before the public, to forbid this, is to destroy the freedom of the Press.” Id.

Elsewhere, the Court stresses again that ordinary people have the same right as the commercial press to publicize government misconduct: “The publishers of newspapers have the right, but no higher right than others, to bring to public notice the conduct of courts and parties. . .” In re Porte, 24 LLR 3, 14 (1975). The Porte

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Court summarizes neatly: “Paraphrased and reduced to the simplest terms this means a person has the right to say and to write anything he likes, but he must take the consequences for any hurt done to the rights of others, by such speech or writing.” Id. at 15-16.

As noted, the constitution does allow the government to limit the right of free expression in a few circumstances, so it might allow prior restraints under those circumstances. Most obviously, the government could perhaps impose prior restraints during a state of emergency. The constitution also allows the government to limit the right in judicial proceedings for defamation, false advertising, and the like, but is not entirely clear that this provision allows prior restraints. The provision might mean only that the right does not immunize a speaker against a post hoc legal suit: in other words, the speaker speaks but in an abusive way, so that he is afterwards held to account by legal action. In this interpretation, the provision does not allow prior restraints. Or, alternatively, the provision could mean that when a judge has a suit for defamation, false advertising, etc, before him or her, the judge may issue an injunction prohibiting the defendant from further speaking in such an abusive way. In this different interpretation, the provision would therefore allow a kind of prior restraint.

Ch. Fourteen(d)(3): Abusive Speech

Although the government may not restrain people from speaking before the fact, it may hold them responsible for abusive speech after the fact. Both constitutions clearly announce this rule. In the 1847 Constitution: “[E]very citizen

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may freely speak, write, and print, on any subject, being responsible for the abuse of

that liberty.” And in the 1986 Constitution: “Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof.” As already shown, the Liberian Supreme Court has also emphasized that speakers are responsible for abuse of the right.

If people know that they might be punished for abusing their speech rights, then presumably most will be more careful what they say: they will avoid truly abusive speech. But this rule—that people can be held responsible for abuse— potentially threatens the core right to free expression if the definition of abusive speech is unclear or over-broad. First, if the courts have not very clearly defined abusive speech, then people will not know what they may say and what not; as a result, they may err on the side of caution and refrain from the kind of robust, open dialogue that makes democracy real. Second, if the courts define abusive speech broadly, then the right to free expression will be correspondingly circumscribed. If in particular the courts hold that criticism of the government is abusive speech, then the core purpose of the right—the ability of the people to hold the government

accountable—will be severely damaged. For example, the government might argue

that any criticism of its policies is abusive; if that argument holds, there will be no democratic discussion of the policy options facing Liberia.

Ch. Fourteen(d)(3)(i): The General Definition of Abusive Speech

The Liberian Supreme Court has emphasized the importance of distinguishing clearly between abusive and acceptable speech: “While this

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provision guarantees free speech and press, it also imputes responsibility for any abuse of the privilege; therefore a line must be drawn between those speeches or writings which are protected by the privilege and those which constitute abuse of it.” In re Cassell, 28 LLR 107, 127 (1979). The Liberian Supreme Court has offered several formulas for determining which speech is abusive. First, the Court has explained that the “liberty of the press is the right to publish the truth with good motives, for justifiable ends, though reflecting on government, magistracy or individuals.” In Re Scott, 32 LLR 313, 328 (1984). See also In re New Patriot

Journal, 37 LLR 834, 842 (1995); In re Cassell, 14 LLR 391, 428 (1961) (quoting

People v. Crosswell, 1 Johns. (N.Y.) 337, 393-94 (1804)). Second, the Court has explained that the constitution does not protect speech that poses a “clear and present danger” to the functions of the state. See In re Porte, 24 LLR at 23; In re

Scott, 32 LLR at 327. And at least once, the Court held that abusive speech includes all speech that is “inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.” Porte, 24 LLR at 15 (quoting 11

Am. Jur. Constitutional Law § 321 (1937)). These standards are all very general, and it might sometimes be difficult to know exactly what sort of speech acts fall outside the constitution’s protection without a specific list.

The Liberian Constitution itself lists some specific examples of abusive speech: as already noted, the 1986 Constitution specifically lists defamation, invasion of privacy, commercial deception, false advertising, and copyright infringement. These are few and specific. Because the Constitution specifically

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provides that the right of expression may be limited in “only” these contexts, it might be possible to interpret the constitution as providing that abusive speech includes only those specific instances listed in this provision.

Ch. Fourteen(d)(3)(ii): Criticism of the Judiciary

In a long series of cases, however, the Supreme Court has held that improper public criticism of the Liberian judiciary also constitutes abusive speech and so may be punished through contempt citations. These cases are important both for their narrow holdings—that courts may punish public criticism of themselves—but also for their broader implication—that abusive speech includes some set of unspecified communications, beyond those listed in the Constitution itself.

The Supreme Court is careful to explain that the right of expression protects some criticism of the judiciary, but not all. It is therefore important carefully to attend to the exact language of the cases to determine where the line between protected and unprotected speech falls. Most of the cases follow a very similar pattern: a lawyer or journalist or litigant criticizes either a particular judge or a particular decision or the whole Liberian judiciary in a public setting outside of court; the judge then cites the speaker for constructive or indirect contempt, the speaker challenges the contempt citation as a violation of his or her speech rights; and then the Supreme Court holds that the citation does not violate the right of expression.

As the Court explains, the role of the contempt citation is to prevent persons from impeding the administration of justice in the judicial system. A citation for

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direct contempt applies to acts that take place in the presence of the court; a

citation for indirect contempt applies to those acts that take place outside the court

but nonetheless obstruct the operations of the court. See, e.g., In re Scott, 32 LLR

at 319-20. All of the decided cases involve citations for indirect contempt: someone

publicly (or in the second Cassell case, in audience with the President) criticizes the

court system or a particular court, invoking the protection of the constitution for

speech critical of the government. See In re New Patriot Journal, 37 LLR at 636

(newspaper publishes article critical of Chief Justice); In re Scott, 32 LLR at 316-17

(minister of justice condemns Liberian judicial system at press conference); In re

Cassell, 28 LLR 107, 110-11 (1979) (lawyer asks President to review court decision);

In re Porte, 24 LLR at 5-6 (litigant published an article containing court

proceedings and criticizing decision); In re Cassell, 14 LLR at 392-93 (former attorney general presents a paper of foreign conference criticizing the Liberian judiciary).

The Supreme Court has held repeatedly that to the contrary that the

Constitution allows contempt citations for criticizing the judiciary because the purpose of such citations is not to suppress speech but to ensure the effective operation of the judicial system, which is a constitutional interest of the highest order. The Court explains: “In striking a balance between this freedom [of speech] and the administration of justify [sic—presumably “justice”], the line is fixed at that point where that which is spoken or published is calculated to obstruct the functioning processes of the court.” In re Cassell, 28 LLR at 127. The Court

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expatiates on the importance of the smooth functioning of justice to the well-being of the Republic: “[T]he judiciary is the anchor which holds stabilized governments in balance; without it, vested interest might suffer, sacred rights might be violated, constituted authority might be challenged, and in fine, administrative chaos could result,” In re Scott, 32 LLR at 327; “We hold that the Supreme Court of Liberia has a responsibility to protect our political society generally; but particularly is it our responsibility and duty to uphold and protect the authority of the Court, and the judicial system,” In re Porte, 24 LLR at 22; “[T]he Supreme Court is an institution which every citizen and resident is bound to respect and honour because it is the custodian of our liberty; it is the last place of hope on earth for every resident of this country,” In re New Patriot Journal, 37 LLR at 841. Because the Court’s role is so important, “[l]iberty of the press is subordinate to the independence of the judiciary.

. .” In re Porte, 24 LLR at 14 (quoting 6 R.C.L. Contempt § 22 (1915)).

Ch. Fourteen(d)(3)(ii)(a): Criticism of Particular Cases

The Court has analyzed two different types of out-of-court remarks that obstruct the administration of justice: criticisms of particular cases that might influence the outcome, and general condemnations of the Liberian courts system that might bring the judiciary into disrepute. As to the former, the Court draws a very hard line between pending cases and decided cases. During the pendency of a case, no-one may make comments “having a tendency to influence the action of the tribunal before which the case is pending.” In re Porte, 24 LLR at 14. Such acts apparently include any sort of comment on the case, and such comments are

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forbidden even after the initial judgment, as long as the case remains on appeal: “It is well known that in our judicial system it is improper for anyone to comment on a decision given by a subordinate court, or to discuss any phase of it while it is still sub judice on appeal, that is, while the case is under or before a judge or court, or under judicial consideration. . .” In re Porte, 24 LLR at 17.

After a case has been finally adjudicated, by contrast, the Court has emphatically affirmed the right to criticize it as wrongly decided. “[N]o one has been held in contempt for disagreeing with this Court’s opinions. Indeed it is a constitutional right of a citizen to disagree and, if he cares to, express such disagreement, with a decision of the Court.” In re Cassell, 28 LLR at 128.

Similarly: “The publishers of newspapers have the right, but no higher right than others, to bring to public notice the conduct of courts and parties, after the decision has been made (emphasis supplied) and provided the publications are true and fair in spirit, for there is no law to restrain or punish the freest expression of the disapprobation that any person may entertain of what is done in or by the courts.”

In re Porte, 24 LLR at 14 (quoting 6 R.C.L. Contempt § 22 (1915)). This right to comment does not extend, however, to speech aimed at preventing the execution of the judgment, see In re Cassell, 28 LLR at 126, even a “suggestion that the Court’s decision be reviewed by someone [such as the President] to determine whether or not it was ‘unfounded in fact and in law.’” Id. at 128.

Ch. Fourteen(d)(3)(ii)(b): General Criticisms of the Liberian Judiciary

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As to the second type of comments—general condemnations of the Liberian judiciary—the Supreme Court has repeatedly and emphatically held that no one may utter words that belittle, insult, or degrade the judiciary or that would bring it into disrepute. Criticism of a particular case may be permitted but not general criticism of the court system. The Court’s warnings are very stern and so bear quoting at length. “Let it go forth to all to whom it may concern especially to the print and broadcasting journalists, who may rely on the constitutional provision of freedom of speech and of the press, to be careful not to look at the personalities of the individuals who compose the Supreme Court, . . . any act done by any individual or a group of individuals tending to degrade and ridicule the court or any of the

Justices thereof, affects the dignity and integrity of the Liberian Judiciary, both nationally and internationally. . . . [T]he Supreme Court will punish for contempt any destructive practice which reflects discreditably upon the Judicial branch of the government, or which belittles and embarrasses it in the performance of its duties, or which defies its authority.” In re New Patriot Journal, 37 LLR at 841-42. “While we subscribe to and respect freedom of the press, we wish to make it clear that any improper reporting by any newspaper which shows disrespect to this court or exposes the court to ridicule or disrepute, will be appropriately punished by the court.” In re Monrovia Daily News, 37 LLR 815, 817 (1995). “The fair comment rule referred to in argument before us does not apply where the publication referred to in argument before us does not apply where the publication regarded as contemptuous impugns the good name of the judicial system and suggests

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corruption, and reduces justice in Liberia to a mockery. . .” In re Porte, 24 LLR at

19.

The Court explains that such general criticism of the courts leads to several

destructive results. First, because it brings the judiciary into disrepute, it erodes

judicial authority and so “vested interest might suffer, sacred rights might be

violated, constituted authority might be challenged, and in fine, administrative

chaos could result.” In re Scott, 32 LLR at 327. Second, if the judiciary is perceived

as corrupt or incompetent, foreign businesses would be less likely to invest in the

Liberian economy, because they “must rely on the courts to protect their

investments.” Id. Third, foreign governments would be less likely to repatriate

Liberians to stand trial on criminal charges in Liberia, because those foreign governments might not believe that those repatriated would receive a fair trial. See id. at 328.

In short, the Supreme Court warns Liberians never to utter general criticisms of the judiciary. But there is always the possibility that from time to time, general criticism would be warranted, because the Liberian judiciary really was corrupt or incompetent or something similar. If so, the core of the right to free expression is to allow the people publicly to reveal such uncomfortable truths about their public servants. Clearly, in the decided cases, the Court felt that the criticism was unfair and inaccurate, so it did not have directly to address such a hypothetical set of facts. But the Court’s language does offer several insights into how the Court might decide such a case.

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First, sometimes, the Court seems to intimate that even if general criticism is warranted, it would still be forbidden because it would still bring the judiciary into disrepute: “Liberty of the press is subordinate to independence of the judiciary.” In re Porte, 24 LLR at 14 (quoting 6 R.C.L. Contempt § 22 (1915)).

Second, sometimes the Court suggests that general criticism will be permitted only if true, in the Court’s judgment, and based on demonstrable fact, rather than hearsay or opinion. In the Scott case, the Court condemned the

Minister of Justice for speaking without evidence: “In the face of all these inglorious charges against the Judiciary, we found, to our absolute surprise, that the Honorable Minister of Justice, Counsellor-At-Law and Dean of the Supreme

Court Bar, had based all his charges on hearsay and rumours, and upon his own whims and caprices. He did not rely on a single piece of evidence to substantiate his case.” In re Scott, 32 LLR at 322. The Court seems to suggest that if the minister had offered real evidence to support his accusations, he might have been within his rights. The Cassell Court is more direct: “All we ask of lawyers who would write of and concerning the judiciary and/or the courts, is that their reports be the truth, conscientiously and constructively presented.” In re Cassell, 14 LLR at 428.

Third, sometimes the Court suggests that general criticism will be permitted only if the intent of the speaker is constructive, to help the judiciary to reform itself rather than merely to belittle or demean. As earlier noted, the Court has held that in general, the right extends only to speech uttered with “good motives.” The Court will allow criticism if it is true and “constructively presented.” In re Cassell, 14

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LLR at 428. In the Scott case, the Court condemned the Minister of Justice for speaking out of improper motives: “Instead of blaming his Ministry for the poor preparation of cases, he rather singled out the Liberian Judiciary for a suitable scape-goat, to calumny and to belittle the Judicial System of Liberia.” In re Scott,

32 LLR at 322. Again, the Cassell Court did direct: “The Supreme Court of Liberia has, during all the years of its history, welcomed criticisms from Liberian lawyers concerning our judicial practices; but those criticisms have, in the majority of cases, been patriotic and constructive, and advanced for the purpose of bettering our judicial practices.” In re Cassell, 14 LLR at 422. In this context, the Court will regard general criticisms offered to a foreign audience as especially pernicious:

“[W]e question the patriotism and the professional good intentions of any Liberian lawyer who prefers to take our alleged faults into foreign countries and before international forums, and there paint the country and its institutions in the blackest hues, and attempt to drag her good name and honor through the filthiest slime of prejudiced and stilted half-truths.” Id. at 423.

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CHAPTER FIFTEEN THE RIGHT TO ASSEMBLE, INSTRUCT REPRESENTATIVES, AND PETITION THE GOVERNMENT

Article I, Section 5th, 1847 Constitution of the Republic of Liberia

The people have a right at all times, in an orderly and peaceable manner, to assemble and consult upon the common good; to instruct their representatives, and to petition the government, or any public functionaries for the redress of grievances.

Article 17, 1986 Constitution of the Republic of Liberia

All persons, at all times, in an orderly and peaceable manner, shall have the right to assemble and consult upon the common good, to instruct their representatives, to petition the government or other functionaries for the redress of grievances and to associate fully with others or refuse to associate in political parties, trade unions and other organizations.

Under the Liberian Constitution, the government is democratic and accountable to the people. The people choose the government through elections.

But the Constitution also gives the people the right to influence the government in other way. In particular, the people may peaceably assemble to discuss the common good. They may also instruct their representatives as to their wishes about government actions. Relatedly, when they feel wronged, they may petition the government for the redress of those grievances. Finally, they may associate in

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political parties and other organizations so as to combine their individual voices when speaking to or through the government. Notably, these rights are not limited to persons; they belong instead to “all persons” whether citizens or not. In Liberia, in other words, even non-citizens have some right to influence the government, presumably because they are subject to it even if they are not citizens.

CH. FIFTEEN(a) PETITIONING A FOREIGN GOVERNMENT

The Supreme Court has had only limited occasion to interpret these provisions. In two cases, somewhat separated in time, the Court has considered whether the right to assemble and petition includes the right to complain to a foreign government. The two cases reached seemingly opposed conclusions. In the first case, the Court concluded that it did not: “There is no law which authorizes a citizen who wants reforms in the institutions of the government of Liberia to resort to foreign countries or international forums to effect them. Since when have

Liberians become incapable of instituting reforms if and when they are needed?” In re Cassell, 14 LLR 391, 405 (1961). For that reason, the former Attorney General of

Liberia had no right to present a paper critical of the Liberian government at a conference in another country: “There are some who fail to understand the proper meaning of their right to exercise the constitutional privilege of orderly and peaceable assembly, and have embarked upon destructive criticism of measures of

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government instead of laying their grievances before their representatives as the

law requires.” Id. at 408.

In a later case, the Court held that the Constitution does protect the right of

Liberians to complain to a foreign government. Employees of Inter-Con Security

Systems had complained to the United States Ambassador that the company was mistreating them; Inter-Con then undertook an investigation of the employees and ultimately dismissed them. See Dismissed Employees of the Inter-Con Security

System v. Doe, March Term 2004, 164, 164-66 (2004). As noted in the Chapter on

the Structure of Rights, the Court assumed that even though Inter-Con was a private party, the Constitution applied horizontally to it, so that it could not restrict the employees’ right to assemble and consult. The Court then concluded that in punishing the employees for complaining to the American ambassador, the company violated their rights: “We can see that the appellee violated the appellants’

constitutional rights to assemble peaceably and consult on their common good. The

appellants’ act was done without any violence or disruption of appellee’s business. . .

. It is very glaring in the instant case that appellee dismissed appellants due to the

series of meeting [sic] allegedly held by appellants and the memorandum to the

American Ambassador, signed by the fourteen dismissed employees, which sought

to bring to his attention the alleged glaring injustices being suffered by the

employees of appellee.” Id. at 168.

The Cassell case and the Dismissed Employees case thus seem to contradict

each other: the former concluded that the right to assemble and petition protected

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the right to appeal only to the government of Liberia itself; the latter held that it protected the right to appeal to the American Ambassador and, presumably, other foreign governments as well. The Dismissed Employees case does not try to distinguish the Cassell case and indeed makes no reference to it at all, so the Court may not have been aware of the contradiction.

It might be possible to reconcile the two cases thus: the right to petition and assemble includes the right to complain to foreign governments about the conduct of private entities, as in the Dismissed Employees case, but not about the conduct of the Liberian government, as in the Cassell case. On the other hand, however sensible it might be, that distinction does not square with Cassell’s language, which seemed to hold that Liberians may never complain to foreign governments about events in the country: “Since when have Liberians become incapable of instituting reforms if and when they are needed?” In re Cassell, 14 LLR at 405. If citizens have complaints, the proper response was “laying their grievances before their representatives as the law requires.” Id. at 408. Nor does Article 17, by its terms, distinguish between complaining about the behavior of private corporations and the behavior of the government. In short, the two cases probably genuinely contradict each other, and the Supreme Court may wish to clarify this confusion.

CH. FIFTEEN(b) LIMITS ON THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES

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The Court has also stressed that individuals may not exercise their right to petition for redress of grievances in such a way as to imperil the common good.

Thus, when lawyers boycotted the court system in protest over the arrest of certain members of the National Bar Association, the Court ordered them back to work.

The Court explained that although the lawyers were exercising a constitutional right in boycotting, that right had limits: “While it is true that generally the refusal to work, as a concerted activity of any group of persons to express a grievance or to accomplish a legal and legitimate objective, is constitutionally protected by constitutional clauses on freedom of expression (1986 Constitution, art. 15) and freedom of association (1986 Constitution, art. 17), nevertheless it is clear that by virtue of the nature of certain professions or the adverse impact which a refusal to work by certain persons may have on the public good, members of such professions are prohibited from exercising such right; or, in the exercise of such right, limitations may be placed thereon for purposes of protecting and securing public order, safety, health, morals, etc. For example, it is not debatable that those who elect to serve in the military and the security forces have no right to refuse to work; for to refuse to work, regardless of the legitimacy of the objective of such concerted action, is inimical to public order.” In re Contempt Proceedings Against Cllr Blidi,

40 LLR 718, 722 (2001).

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CHAPTER SIXTEEN THE RIGHTS OF POLITICAL PARTIES

The 1847 Constitution contained no express protection for the rights of

political parties. By contrast, Articles 77 to 84 of the 1986 Constitution govern the

election process, and many of those provisions protect the rights of political parties.

The Supreme Court has had occasion to interpret some, though not all, of these provisions.

CH. SIXTEEN(a) THE REQUIREMENT OF MULTI-PARTY DEMOCRACY

Article 77(a) prohibits any government action that might make Liberia a one- party state: “Since the essence of democracy is free competition of ideas expressed by political parties and political groups as well as by individuals, parties may freely be established to advocate the political opinions of the people. Laws, regulations, decrees or measures which might have the effect of creating a one-party state shall be declared unconstitutional.” This provision clearly seeks to ensure that no party will ever again enjoy the dominance that the True Whig Party once possessed.

During that period, the Supreme Court emphatically defended the legitimacy of a one-party state: “It is believed by some that, in order for a country to be democratic in its government, there must necessarily be maintained, at all times, two or more political parties. This is untrue. . .” In re Cassell, 14 LLR 391, 407

(1961). Even in a one party system, the people could be “free to choose by ballot

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whom they would have to govern them,” see id., and hence the country could be democratic: “So, for any sensible person to contend that a two-party system is mandatorily necessary to the maintenance of democratic government is both absurd and untrue.” Id. at 407-08. Indeed, the Court maintains, a two party system is inadvisable in countries, such as Liberia, with limited financial resources and an under-educated citizenry. See id. A two party system is inappropriate for a poor country because two parties are expensive to maintain: “[T]here must . . . be economic independence to afford the convenience of two or more parties.” Id. at 407.

A two party system is inappropriate for an under-educated citizenry because the people cannot intelligently choose between the parties: “In order to make the practice intelligently reasonable, there must be average education of the majority of the population, whereby the citizens can understand the meaning of a political party . . .” Id.

If the people cannot intelligently choose between political parties, however, it is unclear how they could intelligently choose their representatives at all. In other words, the Cassell case seems to profess deep distrust of the ability of the Liberian citizenry to govern itself; instead, the justices seemed to believe that the party leaders should hold tight the reins of government. Article 77(a) constitutes a pointed rejection of this part of the Cassell case. It maintains that democracy must rest on “the political opinions of the people,” not just the leaders. To that end, the

“essence of democracy is free competition of ideas expressed by political parties and

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political groups” so that the people may choose between the ideas offered by these

parties and groups.

CH. SIXTEEN(b) REQUIREMENTS TO BECOME A POLITICAL PARTY

Article 79 provides that “no association by whatever name called shall

function as a political party” unless it meets a long list of requirements. First, the

association must “meet the minimum registration requirement laid down by the

election commission,” and it must actually “be registered with it.” 1986 Const. of the Republic of Liberia art. 79(a). The Election Commission may prescribe requirements, but Article 79(a) also sets a minimum that all parties must meet: each party must file a copy of its constitution with the Commission, provide a list of the names and addresses of its officers, and fulfill the other requirements of Article

79. See id.

Article 79(b) further requires that every political party must be “open to every citizen of Liberia, irrespective of sex, religion or ethnic background, except as otherwise provided in this Constitution.” Article 79(c) requires that the party keep its headquarters in the capital of the Republic. Article 79(d) mandates that parties may not be sectarian: their names, objectives, and symbols must be “religious connotations or divisive ethnic implications.” Finally, Article 79(e) provides that the party’s constitution must conform to the Liberian Constitution and “provide for

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the democratic election of officers and/or governing body at least once every six

years.”

Article 80 contains two final requirements for registration. First, Article

80(a) stipulates that the Commission shall deny registration to parties that “seek to

impair or abolish the free democratic society of Liberia.” Article 80(b) commands

that the Commission shall revoke the registration of parties that raise private

militias: “Parties or organization which retain, organize, train or equip any person or group of persons for the use or display of physical force or coercion in promoting any political objective or interest, or arouse reasonable apprehension that they are so organized, trained or equipped, shall be denied registration, or if registered, shall have their registration revoked.”

CH. SIXTEEN(c) PROCEDURES FOR REGISTRATION AS A POLITICAL PARTY

In short, the Constitution contains fairly detailed requirements for becoming a political party. It also specifies the procedures for interpreting and applying those requirements. Under the 1847 Constitution, the Court generally regarded the conduct of elections as a political question. As a result, the Court would never take jurisdiction over a case challenging the behavior of a political party during an election; instead, all such disputes belonged exclusively to the Legislature. Thus:

“In Coleman v. Beysolow, 12 LLR 234 (1955), when officers of one political party

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sought an injunction restraining officers of another political party from activities in connection with an election, this Court held that the courts had no jurisdiction over the conduct of elections or political matters and that the appropriate remedy was to submit the matter to the Legislature, comprised of those who are judges of election returns.” Ayad v. Dennis, 23 LLR 165, 179 (1974). Inferentially, then, under the old Constitution, the Court would never entertain the complaint of an association claiming the right to be recognized as a political party.

By contrast, the 1986 Constitution commands that only the Elections

Commission may, in the first instance, decide whether to register an association as a political party, and when the Commission denies registration, challenges may lie only to the Supreme Court. Article 79(a) thus provides: “A denial of registration or failure by the Elections Commission to register any applicant may be challenged by the applicant in the Supreme Court.” Although this procedure is specified in Article

79(a), the Court has made clear that it also applies to those registration requirements contained in Article 80: the Commission will determine whether the party meets the requirement, with appeal lying to the Supreme Court. See Kpolleh v. Randall, 34 LLR 252, 258 (1986). The same procedure also applies to decisions to revoke a party’s registration and to warn a party that its registration will be revoked unless it brings its conduct into conformity with the constitutional requirements. See id. at 257-59.

The Court has stressed that the Elections Commission has absolute discretion to interpret and apply the registration requirements, without

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interference by anyone: “The Elections Commission is clothed with the sole constitutional discretion to decide on what behavior or outlook constitutes a violation of Article 80(b) that would necessarily warrant justification for a revocation of a political party’s registration certificate.” Kpolleh, 34 LLR at 258. At the same time, the Court has recognized a decision by the Elections Commission to deny registration is justiciable: “It is noteworthy that making the decision for revocation, the Commission uses its absolute discretion even though we do not deny the right to challenge that discretion in our courts of law.” Id. at 259.

As noted, Article 79 specifically provides that when the Commission denies registration, the affected party may appeal to the Court; the provision does not specify, however, whether interested persons may challenge decisions of the

Commission to grant registration. For example, when the Commission registers an association that some voters believe to be dangerous, those voters may wish to challenge its registration. The Court has not had occasion to consider whether such an appeal may lie under the new Constitution.

During the reign of the People’s Redemption Council, however, the Court did rule that the Supreme Court could review decisions of the Elections Commission to grant registration. At the time, the People’s Redemption Council had issued a decree analogous to the current Constitution’s Article 79(a) in that it provided for judicial review of registration denials: “A denial of the registration of any political party . . . shall be appealable directly to the People’s Supreme Court.” Al-Boley &

Sluwar v. Proposed Unity Party, 33 LLR 309, 318 (1985) (quoting PRC Decree No.

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75, section 4(d), app. July 1983). Nonetheless, the Court held that the Court could review both registration denials and registration approvals: “[T]he Special

Elections Commission (SECOM) has the mammoth power of deciding to register or to refuse to register any political party or an independent candidate. In this regard the power of SECOM can only be questioned by the Supreme Court of Liberia and no other forum. Only the Supreme Court can review a decision of SECOM to register or not to register a proposed political party. Therefore, Objections [sic] to the registration of any such proposed political party are only properly cognizable before SECOM which alone has the power to determine such questions.” Id. at 319.

The precedential value of this case is unclear. On the one hand, it was decided during the tenure of the PRC, not during a normal constitutional period, so its direct authority is suspect. On the other hand, it offers an interpretation of an exactly analogous system, indeed the system on which the modern Constitution appears to be based, so it may have persuasive value on an argument by analogy.

CH. SIXTEEN(d) FUNCTIONS RESERVED EXCLUSIVELY TO POLITICAL PARTIES

The Supreme Court has held that under the Constitution, no association except a political party may perform the legal functions of a political party. Article

79 provides: “No association, by whatever name called, shall function as a political party” unless it is registered as one. This rule presumably applies mostly to

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running candidates for office, which is the core function of a political party. As a

result, no association other than registered parties may run candidates.

During the middle 1980s, however, at a time of great political turmoil, the

Court went much further. In a series of cases involving the Grand Coalition—an

association of three political parties formed to contest the rule of President Samuel

Doe and his party—the Court ruled that only political parties could hold mass rallies and encourage citizen action. No other association was allowed to play such a role.

First, the Court explained that political parties may hold public political

meetings: “Registered and therefore recognized political parties . . . are at liberty to

hold public meetings for discussion on matters of interest to them.” Republic of

Liberia v. Grand Coalition, 34 LLR 70, 77 (1986). Perhaps more significantly, the

Court also held that no association except political parties may hold such meetings.

Thus, the Court denied the right of the Grand Coalition—which the Court held was

not a political party—“to convene a mass political rally to which the youths,

concerned women, market women, workers and the citizenry are asked to attend

and in that meeting the head of the three political parties [that comprise the

coalition] expect to express appreciation and thanks to the people for their

support—and we may add, to ask for their relentless and continuous support until victory, which is theirs, is won.” Id. at 78. According to the Court, the convening of such a rally is “purely the function of a political party,” id., and therefore not one of the Grand Coalition’s proper activities: “If this is not a function of political party,

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what else, we ask, may it be? Plato, the Greek Philosopher once asked: ‘What is

there in a name?’ Yes, it is not the name that matters but what the person who

bears the name does.” Id.

Indeed, the Court held that an association functioning as a political party

without being registered as one is a non-legal entity; it may therefore not hold itself out to the public as a legal entity in seeking support. Thus, “the Grand Coalition, an unlawful agreement, conspiracy, and an association must not pose as a legal entity until it conforms to, and complies with the Constitution. Unless these two requirements are met with, this Court looks upon the Grand Coalition as a non- legal entity.” Id. at 78-79. See also In Re Grand Coalition, 34 LLR 262, 268 (1986).

Read broadly, the Grand Coalition cases would dramatically limit the

liberties of Liberian political associations. The cases did not hold merely that only

registered political parties may run candidates for office. Rather, the cases seem to

assert that no association except registered political parties may hold public rallies

to enlist support for its causes: civil society organizations, for example, could not

hold public meetings to demand that the government respect for human rights or

restrict corruption. Thus, the Court condemned the coalition for encouraging

citizens to take action outside of the normal election process: “The Grand Coalition

intended to convene a mass political rally to which the entire citizenry was invited

and advised to awake (from slumber) ‘for positive action’ in time of peace, and in the

absence of political campaigning. Does not this intended mass political rally touch

the sovereignty of the State and its prerogatives?” Grand Coalition, 34 LLR at 81.

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If, as these cases seem to imply, the sovereignty of the state is threatened

every time someone encourages citizens to take action, then presumably the

government could forbid everyone but registered political parties to hold rallies and

encourage citizen action. That conclusion, however, seems to contradict Article 17

of the 1986 Constitution, discussed in the last section, which specifically protects

the right to assemble to consult on the common good: “All persons, at all times, in

an orderly and peaceable manner, shall have the right to assemble and consult upon

the common good, to instruct their representatives, to petition the government or

other functionaries for the redress of grievances and to associate fully with others or

refuse to associate in political parties, trade unions and other organizations.”

As a result, the Grand Coalition cases may have limited precedential weight on this point. They were decided during a very turbulent time and under a regime that tended to tolerate little political disagreement. Although the Court holds that no-one but a party may hold a rally, its dicta suggest that its real concern was different: the justices seemed to fear that the particular rally at issue posed a threat to the stability of the Republic. Thus, in response to the claim that the coalition had a constitutional right to rally, the Court responded: “This is an amazing line of reasoning as there must be no obstacle placed in the way of people in exercising the civil right guaranteed by the Constitution, except that the exercise of such civil rights is not absolute as it must end where other people’s begins. . . .

Where the exercise of one’s civil right proves dangerous and pernicious to society the halting of it is not unconstitutional. Therefore, where convening a mass

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political rally is found to be dangerous to others, it can be restrained in the interest

of public order.” Grand Coalition, 34 LLR at 79-80.

The Court never explains exactly why the particular rally at issue was so

dangerous, but the opinion projects disastrous consequences if the rally should go

forward. Thus, the Court suggested that if the police tried to enforce the law during

the rally, such rioting might result as would tear the Republic apart: “[A]ny

attempt on the part of the police to abort the convening of the mass political rally

would result into a confused atmosphere. This atmosphere would create an initial

crack in our national structure, a crack which could instantly develop into a valley

and that will, in turn, expand into a canyon over which no man could jump.” Id. at

83. For that reason, the Court wanted to strangle the coalition’s rally in the crib:

“We must note here once and for all that the easiest and surest way to kill a snake is while it is yet in the egg. Allowing the egg to hatch is inviting a struggle which could end in a snake bite, a fatal result.” Id.

Historians may judge whether the Court’s empirical judgment--that the rally would have led to catastrophe—was correct. For legal purposes, it is sufficient to note that the Court seemed to throw the baby out with the bathwater: rather than holding that the particular rally could not go forward because of its likely particular consequences, the Court held much more broadly that no association other than a political party may ever hold a rally and ask for the support of the citizenry. That holding, handed down during fraught times, may have limited authority after reflection during more settled times.

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CH. SIXTEEN(e) THE RIGHTS OF COALITION PARTIES

In the Grand Coalition cases, the Court advanced a further holding: even when political parties are themselves registered, they may not band together to form a coalition that performs the functions of a political party. If the coalition itself functions as a party, then the coalition itself must be registered as one, with its own charter separate from the charters of its constituent organizations. Thus, the Court explained: “The Grand Coalition is . . . an agreement among the members of the Liberia Action Party, Liberia Unity Party, and the Liberia Unification Party, each party retaining its original identity for the purpose of bringing about concerted programs. It therefore may be likened unto the Holy Roman Empire and the

League of Nations of old . . . . Each member state retains its individual entity but they, put together, pursue concerted programs. They therefore have to operate on charters. This the Grand Coalition does not have.” Grand Coalition, 34 LLR at 78.

Again, read broadly, this holding would place severe restrictions on the freedoms of political parties. Though they may function as political parties separately, they may never do so together. If the function of a political party were only to run candidates, then this rule would forbid only fusion candidacies, where a single candidate runs as the nominee of several parties. But as seen, the Court has ruled that the function of a political party extends far beyond this narrow scope. As a result, even if they remain separate, parties may not hold joint rallies or develop

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joint agendas that they then present to the public. Again, this restriction seems to infringe the right of assembly protected by Article 17, and again, the Grand

Coalition cases may therefore be of limited precedential authority on this point.

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CHAPTER SEVENTEEN EQUALITY RIGHTS

Article I, Sec. 1st, 1847 Constitution of the Republic of Liberia

All men are born equally free and independent, and have certain natural, inherent and inalienable rights; among which, are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property and of pursuing and obtaining safety and happiness.

Article V, Sec. 12th, 1847 Constitution of the Republic of Liberia

No person shall be entitled to hold real estate in this Republic, unless he be a citizen of the same. Nevertheless this article shall not be construed to apply to Colonization, Missionary, Educational, or other benevolent institutions, so long as the property or estate is applied to its legitimate purposes.

Article V, Sec. 13th, 1847 Constitution of the Republic of Liberia

The great object of forming these Colonies, being to provide a home for the dispersed and oppressed children of Africa, and to regenerate and enlighten this benighted continent, none but Negroes or persons of Negro descent shall be eligible to citizenship in this Republic.

Article 11, 1986 Constitution of the Republic of Liberia

a) All persons are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty, or pursuing and maintaining the security of the person and of acquiring, possessing and protecting property, subject to such qualifications are provided for in this Constitution.

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b) All persons, irrespective of ethnic background, race, sex, creed, place of origin or political opinion, are entitled to the fundamental rights and freedoms of the individual, subject to such qualifications as provided for in this Constitution. c) All persons are equal before the law and are therefore entitled to the equal protection of the law.

Article 18, 1986 Constitution of the Republic of Liberia

All Liberian citizens shall have equal opportunity for work and employment regardless of sex, creed, religion, ethnic background, place or origin or political affiliation and all shall be entitled to equal pay for equal work.

Article 22(a), 1986 Constitution of the Republic of Liberia

Every person shall have the right to own property alone as well as in association with others, provided that only Liberian citizens shall have the right to own real property within the Republic.

Article 27(b), 1986 Constitution of the Republic of Liberia

In order to preserve, foster and maintain the positive Liberian culture, values and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.

The principle of equality is central to the Liberian constitution, and a number of constitutional provisions protect it. Article 11(a) provides that all people are

“born equally free and independent; Article 11(b), that all persons are entitled to fundamental rights, regardless of their ethnic background, race, sex, creed, place of

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origin or political opinion; Article 21(c) provides that all persons are “entitled to the equal protection of the law”; and Article 22(a) provides that all Liberian citizens shall have equal opportunity and equal pay for work regardless of sex, creed, religion, ethnic background, place of origin or political opinion.

The principle of equality does not command, however, that the law must treat

all persons in exactly the same way. All laws draw distinctions between people.

For example, those who have committed crimes may be committed to prison, and

those who have not, may not be. Blind people may not drive cars on the public road,

but sighted people may. Children are required to go to school, but adults are not.

For that reason, the Liberian Constitution does not globally prohibit all

discriminations between people; instead, it contains a number of prohibitions on

particular sorts of discriminations.

CH. SEVENTEEN(a) DISCRIMINATION BASED ON ETHNICITY, RACE, SEX, CREED, PLACE OF ORIGIN, OR POLITICAL OPINION

The Constitution is especially concerned about discrimination based on ethnic background, race, sex, creed, place of origin, or political opinion. Article 11(b) provides that regardless of these characteristics all persons shall enjoy the

“fundamental rights and freedom of the individual”; and Article 22(a) provides that regardless of these characteristics all persons shall enjoy equal opportunity and

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equal pay. As broad as these provisions are, it is important to note their

limitations.

First, they ban discrimination with respect only to these particular characteristics. Under these provisions, the State is free to discriminate with respect to age, sexual orientation, prior military service, or any other characteristic.

For example, these provisions would not prevent the State from deciding to employ short people but not tall, right-handed people but not left-handed, people with hair but not bald people, and so forth. It is possible that the equal protection clause, contained in Article 11(c) would prohibit discrimination based on more characteristics, but the Supreme Court has not yet so ruled.

Second, these provisions ban discrimination with respect only to fundamental rights and to employment. Under these provisions, the State is completely free to discriminate with respect to other issues, even when it is discriminating on the basis of ethnicity, race, sex, creed, place of origin or political opinion. For example, the State could not stipulate that women will be paid less than men in employment, but it could provide that men but not women may whistle in public—assuming that whistling is not one of the fundamental rights of the individual.

Indeed, the Constitution itself not only allows but commands racial discrimination with respect to the issue of citizenship: under Article 27(b), only persons who “are Negroes or of Negro descent” may be citizens. In other words, even if the Legislature wished to give citizenship to other types of people, it could not. Further, because only citizens may own real property under Article 22(b), and

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only Negroes may be citizens, only Negroes may own real property. Again, the

Constitution not only allows but commands racial discrimination on the issue of ownership of real property. The Court has made this rule explicit: “Under our

Constitution, only persons of Negro descent can be citizens, and only citizens may hold lands in fee; in other words, only citizens can be freeholders.” Koffah v.

Republic of Liberia, 13 LLR 232, 239 (1958). Even if the Legislature should wish to give real property rights to non-Negroes, it could not.

Article 27(b) explains that it is necessary to restrict citizenship to Negroes so as to “preserve, foster and maintain the positive Liberian culture, values and character.” According to the Constitution, in other words, admitting Negroes to citizenship would injure the positive attributes of Liberian culture, values and character. For that reason, the Legislature could allow a recently arrived African-

American to become a citizen but not a Lebanese person whose family had lived in

Liberia for several generations. Although this racial restriction on citizenship is clearly the law of the land, the Liberian Supreme Court has from time to time condemned of all racial classifications: “We must learn to appreciate the unqualified equality of the human person, irrespective of race, creed, nationality or political affiliations, in our great struggle toward the brotherhood of man and the goal of making this world a better place to live in.” In re Cassell, 14 LLR 391, 411

(1961). Presumably, the Court would not extend this condemnation to the question of Liberian citizenship.

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The third limit on these provisions is that they guarantee only equal

treatment, not good treatment. Under these provisions, the State may deny

fundamental rights or work opportunity so long as it denies those things to

everyone alike. For example, the government could not forbid one ethnic group to

marry while allowing all the others to do so; it could, however, universally forbid

marriage, because such a general prohibition treats all groups equally, even though

very badly. Other provisions of the Constitution may prohibit such even-handed oppression, but these articles do not.

Fourth, although both provisions clearly block discrimination by the government—i.e. they apply vertically—it is less clear whether they block private discrimination—i.e. whether they apply horizontally. As noted in the chapter on the nature of rights, in the United States, the constitution limits only what the government may do: it has only vertical application, and so it allows private discrimination, though many statutes restrict it. By contrast, the Supreme Court of

Liberia has indicated that certain constitutional rights limit what private persons can do: employers, for example, may not dismiss employees without according them due process.

The Supreme Court has never exhaustively explained whether or when these provisions apply horizontally. Nevertheless, it is possible to make some inferences.

Because Article 11(b), forbids discrimination with respect to the “fundamental rights and freedoms of the individual,” it seems to be intended as a reinforcement of those underlying fundamental rights: other provisions create or recognize the

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rights, and Article 11(b) mandates their equal protection. For that reason, Article

11(b) will probably apply horizontally whenever the particular underlying

horizontal right applies horizontally. The Supreme Court has primarily applied

such rights vertically against the government: the State may not, for example,

establish a church, but presumably private parties may. As described in the

Chapter on the Structure of Rights, however, the Court has sometimes applied some

constitutional rights against some private parties. It seems likely, therefore, that if

a particular fundamental right applies horizontally, the prohibition on

discrimination with respect to that right would apply horizontally as well. If, on the

other hand, a fundamental right does not apply to the action of private parties, then

the ban on discrimination with respect to that right also does not apply to those

parties. For example, because employers may not interfere with the right of

employees to assemble, see Dismissed Employees of the Inter-Con Security System v. Doe, March Term 2004 at 164 (2004), employers are also forbidden from allowing men but not women to assemble. By contrast, because a private person may bar others from using his front yard to give political speeches, he would also be free to allow only those of a particular political opinion but forbid all others.

Article 18, by contrast, seems rather clearly intended to control the actions of private employers. Article 18 protects two rights: all Liberians, regardless of race, sex, creed, place of origin, or political opinion, must have equal opportunity for work and equal pay for equal work. Although it is conceivable that these restrictions apply only to government employment, Article 18 contains no language limiting its

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application in that way. Because many Liberians work for private employers, the article most likely commands that no employer may discriminate between employees on the basis of the forbidden classifications. Employers may not hire members of one ethnic group rather than another, or pay men more than women, or promote members of one political party more rapidly than members of a rival party, and so forth.

CH. SEVENTEEN(b) DISCRIMINATION BASED ON ALIENAGE

The Constitution itself commands that foreigners be treated differently from citizens for some purposes. Most fundamentally, Liberian citizens have the right to come to, go from, and remain in the country: “Every Liberian citizen shall have the right to leave and to enter Liberia at any time.” 1986 Const. of the Republic of

Liberia art. 13(b). Foreigners, by contrast, may enter the country only with the permission of the government, which has discretion whether to grant it: “[T]he right of a State to decide by statute the conditions upon which aliens shall be allowed to reside within its territories is an unquestionable one and is inherent in every sovereign and independent State.” Pratt v. Republic, 2 LLR 289, 291 (1918).

Even after being admitted, resident foreigners may still be expelled, though only for cause: “Non Liberian residents may be expelled from the Republic of Liberia for cause.” 1986 Const. of the Republic of Liberia art. 13(b).

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In addition, the Constitution gives preferential treatment to citizens for certain political and economic activities. With respect to politics, Article 30 provides that only citizens may become members of the Legislature; Article 52(a) provides that only natural born citizens may become President or Vice President;

Article 68(a) provides that only citizens may sit on the Supreme Court; Article 77(b) guarantees only to Liberian citizens the right to vote (though it does not, on its face, forbid the Legislature to extend the franchise to aliens); and Article 91(2) specifies that constitutional amendments may be proposed either by the Legislature or by a petition signed by at least ten thousand citizens.

With respect to the economy, Article 22(b) provides that only citizens may own real property, and the Supreme Court has interpreted the provision also to bar foreigners from holding long-term leases. For detailed analysis, see the section in this chapter on Property Rights. Article 7 instructs the Legislature to manage the economy to ensure the “maximum feasible participation of Liberian citizens.”

Although the Court has never exhaustively propounded its meaning, this provision would presumably require the Legislature to prefer the economic well-being of citizens over that of foreigners—at least some times and under some circumstances.

For detailed analysis, see the section in this chapter on Liberianization.

The Court has also observed that the Constitution allows the government to give economic preference to Liberians, even where the Constitution does not necessarily so command. Thus, the Court has held that the government has discretion whether to issue a work permit to a foreigner: “The granting or denial of

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work permits to all aliens is within the discretion of the Minister of Labour. The granting of work permit is a privilege the Government allows the employer to enjoy at the government’s discretion.” Woewiyu & Harvey v. Int’l Trust Co. of Liberia, 38

LLR 568, 578 (1998). For that reason, the Court upheld a statute providing that foreigners should receive work permits “only in cases in which it is satisfied that suitably qualified Liberians are not available to meet the Labour requirement of the employer concerned. . .” Id.

The Court has, however, taken a very different view of foreigners in the court system: they have exactly the same rights as citizens. Thus: “Speaking for the

Supreme Court, I’d like it to be known that the courts of Liberia recognize no foreign litigants, as against citizens who come before the courts. All litigants are equal before the laws of our Country, and any judge who breaches this basic requirement of fair treatment under our law, is unfit to continue to serve in the judiciary.” Hassen v. Hon. Krakue, 20 LLR 653, 659 (1971). Again: “The Minister of Justice has an equal responsibility to the citizens and residents within our gates, to see that their rights are also protected, and that where they violate the laws which give them protection, they will be punished [only] by due process of law.”

Nasser v. Minister of Justice, 25 LLR 382, 390 (1976).

For example, aliens have the same right to bail as citizens: “Section 20th of

Article I of the Constitution guarantees to all persons arrested for crime the right to bail by sufficient sureties. The application of this provision is not restricted to

Liberians as against foreign persons; our courts treat all persons alike.” Id. As a

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result, foreigners have the right to post a valid surety bond, just as citizens do, and courts may not demand a cash bond for fear that “because the defendant is a foreigner, he might abscond.” Hassen, 20 LLR at 659.

As another example, aliens have the same due process rights as citizens:

“These provisions, and others, incorporated in the Bill of Rights primarily for the protection of citizens would seem to inure also to the benefit of aliens who are here by permission of the government, and especially those by virtue of treaty stipulations.” Fazzah Bros. v. Hon. Collins & Central Industries, Ltd., 10 LLR 261,

279 (1950). Accordingly, foreigners may not be subjected to summary foreclosure proceedings, without an opportunity to be heard. See id. at 277-80.

Indeed, even at deportation hearings, aliens have due process rights: when the reason for deportation is the foreigner’s misconduct inside the country, the government must prove the misconduct in the same way as in a criminal prosecution. Thus: “Due process means they must have been taken into custody upon proper warrant, furnished with a copy of the charge which was the basis of the warrant, confronted with the witnesses against them and also given compulsory process for having witnesses testify for them, and given opportunity to cross- examine witnesses against them, and the exclusion from the country ordered only if and when the charges had been shown by evidence to have been proven.

Constitution of Liberia, Article I, Section 7th.” Nasser et al. v. Minister of Justice,

25 LLR 382, 387 (1976). Under the current constitution, resident aliens may be

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deported only for cause, see Article 13(b), and so presumably the government must always prove the cause through due process.

CH. SEVENTEEN(c) DISCRMINATION BASED ON OTHER CLASSIFICATIONS

As noted, Articles 11(b) and 18 forbid discrimination based on a list of particular characteristics (race, sex, creed, place of origin, or political opinion), but they allow discrimination based on any other characteristic. By contrast, Article

11(b) broadly provides that all persons are entitled to “the equal protection of the law,” and Article 11(a) provides that all persons are “born equally free and independent.” Presumably, both provisions bar discrimination based on certain characteristics, but neither specifies which characteristics in particular are forbidden grounds. In other words, these two provisions seem to protect a more abstraction notion of equality than Articles 11(b) and 18. It is therefore possible that the Supreme Court will read them to forbid discrimination based on additional characteristics, beyond those listed in Articles 11(b) and 18.

To date, however, the Court has never definitively so held. Instead, on rare occasions, the Court has only hinted that it might read the Constitution to forbid discrimination based on other characteristics. In one case, the Court observed that the United States Supreme Court had found that discrimination against children born out of wedlock violated the Equal Protection Clause of the American constitution: “The Supreme Court of the United States has also held that

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workmen’s compensation statutes which discriminate against illegitimate children are unconstitutional and constitutes [sic] a denial of equal protection under the law.” Children & Beneficiaries of Scott v. Hon. Johnson, 30 LLR 30, 34 (1982)

(citing Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972)). The Court did not, however, indicate whether the Liberian Equal Protection Clause also bars such discrimination.

In another case, the Court indicated that the Constitution might prohibit discrimination based on a large number of classifications. When counsel argued that a deed should be interpreted to vest property in members only of one particular ethnic group, the Court responded that the Constitution protected the right of all persons to own property: “Every citizen has the legal right of acquiring property anywhere in Liberia so long as he conforms to set principles of law.” Karpai v.

Sarfloh, 26 LLR 3, 19 (1977). The Court, however, did not merely hold that individuals have the right own land; it also observed that the Legislature could not discriminate between groups with respect to their property rights: “In the Republic of Liberia, the acquisition of property is not restricted to any one class, creed, or origin. . . . There is no class legislation or inhibition or limitation to acquiring land in Liberia. It is therefore inconceivable to imagine a prohibition against any citizen attempting to acquire land whether he is from the East or the West.” Id. In this analysis, the Court holds that legislation may not discriminate on the basis of the specific characteristics of creed or place of origin, but it also explains that discrimination based on “class” would also be unconstitutional. The Court did not

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explain the exact meaning of this term. It might refer to social “class,” but it might

also refer to all “classifications” of whatever sort. If the latter, this case would

prohibit many different sorts of discrimination, at least when property rights are at

issue.

CH. SEVENTEEN(d) ARBITRARY TREATMENT OF INDIVIDUALS

The Court has also held that when the government arbitrarily denies a person any right that he is due by law, it violates the Equal Protection Clause—in addition to violating the rights due by law. In such a case, the government is not oppressing a person because of his or her membership in a particular group, such as women or Kru people or residents of Nimba County. Rather, the law generally grants rights to people, but the government fails to respect the rights of a particular person in a particular case without a legal basis for so doing.

Thus, when a lower court judge refused to allow a defendant his choice of bail modes, the Court rebuked: “This choice of the accused is an independent choice which no individual or law shall be permitted to prohibit. The petition [sic—

“petitioner”] was denied his right to choose. Hence, such denial is tantamount to a denial of the accused [sic—“accused’s”] constitutional right to bail as well as his right to be treated equally before the law.” Zuo v. Hon. Morris & Republic of

Liberia, 37 LLR 604, 609 (1994). Similarly, when the prosecution detained a defendant for a very long time without bringing him to trial, “[t]he 12 years of

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confinement of the accused without being accorded the right to a fair and speedy trial was a denial of his fundamental rights to the equal protection of the law and freedom from oppression.” Feleku v. Republic of Liberia, 30 LLR 189, 192 (1982).

The Court’s most general pronouncement of this rule came in Republic of

Liberia v. Leadership of the Liberian National Bar Association of the Republic of

Liberia: “This constitutional clause also means that all courts are opened to any person on the same condition as to any other person with the rules of evidence and modes of procedure for the security of their person and property, the prevention and redress of wrongs, and the enforcement of contracts, all being the same. It means that no person shall be subjected to any restriction in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness, which do not generally affect others; that no person shall be liable to others [sic—“other”] or greater burdens and charges than such as are laid upon others; that no greater or different punishment is enforced against a person for a violation of law.” 40 LLR

635, 657 (2001) (citing Walters v. City of St. Louis, Missouri, 347 U.S. 231 (1954)).

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SUBPART II(B): ECONOMIC RIGHTS

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CHAPTER EIGHTEEN PROPERTY RIGHTS

Article I, Section 1st, 1847 Constitution of the Republic of Liberia

All men are born equally free and independent, and have certain natural, inherent and inalienable rights; among which, are the rights of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and of pursuing and obtaining safety and happiness.

Article 11(a), 1986 Constitution of the Republic of Liberia

All persons are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty, of pursuing and maintaining the security of the person and of acquiring, possessing and protecting property, subject to such qualifications as provided for in this Constitution.

Article 22, 1986 Constitution of the Republic of Liberia

(a) Every person shall have the right to own property alone as well as in association with others; provided that only Liberian citizens shall have the right to own real property within the Republic. (b) Private property rights, however, shall not extend to any mineral resources on or beneath any land or to any lands under the seas and waterways of the Republic. All mineral resources in and under the seas and other waterways shall belong to the Republic and be used by and for the entire Republic.

CH. EIGHTEEN(a) THE RIGHTS AND RIGHT-HOLDERS PROTECTED

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The Liberian Constitution has always given special protection to property rights. Article 11—the first article in the Fundamental Rights section of the

Constitution—lists the right to acquire, possess, and protect property as one of the

“natural, inherent and inalienable rights” along with such central freedoms as the right to life, liberty, and the security of the person. As the Court has explained,

“[q]uestions of property, especially real property, and human life are to be handled with every available care by our courts. If you deprive a man of his life, you deprive him of further existence on earth; if you deprive him of his real property unjustifiably, you deprive him of a basic means of existence that is seriously difficult for one to obtain in our time, and which stands to be more difficult to obtain in the years ahead.” Kennedy v. Goodridge & Hon. Hilton, 33 LLR 398, 405 (1985).

Article 11 protects a broad class of rights-holders. It stresses that “all persons” are equal in possessing the right to property. Although Article 22 creates an exception to this rule, providing that foreigners may not own real property, the

Court has emphasized that all Liberian citizens possess the right to property regardless of their ethnic identity or place of birth. In Karpai v. Sarfloh, for example, the Court considered a deed given by President Arthur Barclay to Kindi

Worrell “and to the inhabitants of Kindi Town and to their heirs as tenants in common forever.” 26 LLR 3, 5 (1977). Decades later, one group of residents of

Kindi Town sought to eject a different group. The plaintiffs claimed that the defendants were not actually descendants of Kindi Worrell, in part because they

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were “of the Vai tribe, whose ancestors came from Grand Cape Mount County.” Id.

at 11.

The Court concluded, however, that the defendants were descendants of

Kindi Worrell, and it stressed that Article I, Section 1st in the 1847 Constitution

(the analogue of current Article 11) gave property rights to all Liberians: “[G]reat

emphasis has been placed on the tribal identities of the forebears of both plaintiff

and defendant, thus implying prejudice against Kindi Worrell’s heirs and the

inhabitants of the 100 acres of land in Kindi Town. . . . Let us be reminded that

under Article I, section 1st, of the Bill of Rights, ‘all men are born equally free and

independent, and have certain natural, inherent and unalienable rights; among

which are the rights of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and of pursuing and obtaining safety and

happiness.’” Id. In the Republic of Liberia, the acquisition of property is not

restricted to any one class, creed, or origin. Every citizen has the legal right of

acquiring property anywhere in Liberia so long as he conforms to set principles of

law. There is no class legislation or inhibition or limitation to acquiring land in

Liberia. It is therefore inconceivable to imagine a prohibition against any citizen

attempting to acquire land whether he is from the East or the West.” Id. at 18-19.

Article 11 thus protects a broad class of rights-holders; by its terms, it also

protects a broad collection of rights: the Republic must always allow people to

acquire, possess, and defend property. (The only exception is that under Article

22(b), the Republic owns all sub-surface mineral resources and all lands under the

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waterways of the Republic). By contrast, many constitutions protect only a right against expropriation, which the Liberian Constitution also protects: the state may take private property only for a public purpose and with compensation. A right against expropriation, in other words, protects only property currently owned against governmental seizure; it places no limits on the state’s power prospectively to regulate the market in land. By its terms, Article 11 thus goes far beyond a right against expropriation: it guarantees that Liberia shall always have a system of private property. As an example of this contrast, consider a law providing that all private property shall escheat to the Republic on the death of its owner, with proper compensation to the heirs, to be held in perpetuity for the public good. A right against expropriation would not invalidate such a scheme because it requires compensation and a public use. Article 11, on the other hand, would make such a scheme unconstitutional because, over time, it would eliminate the private market in land. Once all real property passed into public ownership, the right to own and possess land would become meaningless.

Although Article 11 thus protects a broad collection of rights, the Court has never definitively detailed the scope of these rights, presumably because the

Republic has never sought to restrict the right to own and possess land in a significant way. Instead, the Court has devoted most of its attention to the other provisions of the Constitution governing property rights, especially the rights of aliens and married persons, and the procedural protections for property rights.

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CH. EIGHTEEN(b) THE PROPERTY RIGHT OF ALIENS

Article V, Section 12th, 1847 Constitution of the Republic of Liberia

Article 22, 1986 Constitution of the Republic of Liberia

(a) Every person shall have the right to own property alone as well as in association with others; provided that only Liberian citizens shall have the right to own real property within the Republic. . . (c) Non citizen missionary, educational and other benevolent institutions shall have the right to own property, as long as that property is used for the purposes for which acquired; property no longer so used shall escheat to the Republic. (d) The Republic may, on the basis of reciprocity, convey to a foreign government property to be used perpetually for its diplomatic activities. This land shall not be transferred or otherwise conveyed to any other party or used for any other purpose, except upon the expressed permission of the Government of Liberia. All property so conveyed may escheat to the Republic in the event of a cessation of diplomatic relations.

Article 24(b), 1986 Constitution of the Republic of Liberia

All real property held by a person whose certificate of naturalization has been cancelled shall escheat to the Republic, unless such person shall have a spouse and/or lineal heirs who are Liberian citizens, in which case the real property shall be transferred to them in accordance with the intestacy law.

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Ch. Eighteen(b)(1): Prohibition on Foreign Ownership of Real Property

From the inception of the Republic, Liberia’s constitutions have always provided that only citizens may own real property. Article 24(b) further provides that when a person loses his citizenship, he also loses his real property, which must be transferred to his Liberian heirs, if any exist, and otherwise to the Republic. The

Constitution contains two exceptions to this rule: under Article 22(c), foreign benevolent institutions may own property, and under Article 22(d), foreign governments with whom Liberia has diplomatic relations may own property for their diplomatic activities.

Because the Liberian Constitution limits citizenship to those of Negro descent, see 1986 Const. of the Republic of Liberia art. 20(b), the Constitution effectively provides that only those of Negro descent may own real property. The

Court has stressed this restriction: “Under our Constitution, only persons of Negro descent can be citizens, and only citizens may hold lands in fee; in other words, only citizens can be freeholders.” Koffah v. Republic of Liberia, 13 LLR 232, 239 (1958).

The Court has explained that the Constitution restricts land ownership to

Liberian citizens because foreign land ownership might injure the ability of

Liberians to govern themselves and direct their own future. Thus: “One of the cherished objects of the framers of the constitution was to provide a home for persons of Negro descent . . . where unmolested by the interference of aliens, they might enjoy the lands provided for them and undisturbedly work out their own destiny.” Couwenhoven v. Green, 2 LLR 301, 306 (1918). The Court has also recognized from time to time that although the restriction may protect Liberian

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self-determination, it also discourages foreign investment. The Courts should therefore not over-read the restriction on foreign property-holding. See, e.g., Van

Ee v. Gabiddon, 11 LLR 159, 162-63 (1952); Beavans v. Jurs, 3 LLR 28, 29 (1928).

Ch. Eighteen(b)(2): Foreign Leases

Although foreigners may not own real property, they may generally lease it from Liberians, because a leasehold constitutes a mere chattel right of usage, not an interest in real property. See Couwenhoven v. Green, 2 LLR 301, 305 (1918);

Bingham v. Oliver, 1 LLR 47, 49 (1870). Thus, the Court has explained: “It is admitted that an alien cannot hold land in this Republic in fee; he may lease property from the Government or a citizen of Liberia, and such a lease extends to mere chattel right.” Beavans, 3 LLR at 28. Similarly, the Court held: “Does the enjoyment of a leasehold right for a definite term of years make the lessee a freeholder of the property so leased? We have no hesitancy in saying it does not.”

Koffah, 13 LLR at 239.

In order to protect foreign investment, the Court has also held that foreign leaseholders may bring ejectment actions against Liberians who are infringing the leasehold: “[A] tenant having possessory title has the right to bring an action of ejectment, although an alien, and when such action is brought it is not unconstitutional. To uphold a contrary view would be to place a check upon the economic development of the country. Large amounts of capital are being invested by aliens in the Republic; the interest of the investor must be safeguarded and his investment secured.” Beavans, 3 LLR at 28-29.

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The Court has explained that the central difference between a lease and a property interest is duration: “[I]t is not hard to see the great difference between a freeholder and a leaseholder; the one holding absolutely and indefinitely for him and his heirs forever, whilst the other is controlled by time and stipulation.”

Koffah, 13 LLR at 239. The difference between a leasehold and a freehold, in short, is that the former is temporary but the latter is perpetual. Because leases are limited in duration, foreign leases do not unduly injure the ability of Liberians to govern themselves and direct their own future.

For that reason, the Court has held that very long term leases are akin to freeholds. When Liberians grant such leases to foreigners, they defeat the constitutional policy of restricting real property ownership to citizens. In effect, they are colluding with foreigners to evade the constitutional restriction, and the

Court “has not been loathe to discourage any veiled attempt to subvert existing fundamental laws of the Republic, especially our Constitution.” Van Ee v.

Gabiddon, 11 LLR 159, 162-63 (1952). To allow long term leases by non-citizens

“would result in placing in the hands of foreigners, an instrument for the overturning of the Constitution and the subversion of the Government.”

Couwenhoven, 2 LLR at 306.

The Court has therefore ruled that long term leases to foreigners are constitutionally void. The Court has generally struck down any lease for longer than twenty years: “[T]his Court has always looked with disfavor upon lease agreements which have been executed to cover periods of longer than twenty years,

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and has declared them to be against the organic law of the land.” Van Ee, 11 LLR

at 161. See also Cooper-Daniels v. Buccimazza Industrial Works Corp., 33 LLR 557

(1985) (holding that a fifty year lease violates the Constitution); Couwenhoven v.

Green, 2 LLR 301 (1918) (holding that a lease with an indefinite number of renewal

terms violates the Constitution); Bingham v. Oliver, 1 LLR 47 (1870) (holding that a

ninety-nine year lease violates the Constitution).

On the other hand, the Court has also ruled that the parties to such long term leases will not be permitted to cancel them, because of estoppel. Thus, in a very early case, the Court explained: “A lease for lands to a foreigner for fifty years, although repugnant to the Constitution, will not nevertheless be set aside at the instance of a party thereto; a party will not be allowed to impeach his own deed.”

West v. Dunbar, 1 LLR 313, 313 (1897). The Court has affirmed this rule as recently as 1985: “Agreements are binding and one who is voluntarily a party thereto for some consideration, however small or violative of the law, cannot impeach his own deeds by raising the issue of its illegality after enjoying said consideration. . . . [A] party who makes an illegal contract will not be allowed to take advantage of his own wrongs by showing the illegality of the same; nor can he seek relief at law or in equity. . .” Cooper-Daniels v. Buccimazza Industrial Works

Corp., 33 LLR 557, 563 (1985).

As a practical matter, this rule—that illegal leases to foreigners may not be cancelled at the request of the parties—is very important, because frequently no one but the parties has an interest or even standing in seeking cancellation. If the

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parties cannot cancel the lease, in other words, it is likely that no one may cancel

the lease. As a result, the ban on long term leases to foreigners will be largely

nugatory. Most often, it is probably the Liberian lessor who has second thoughts:

having granted a long term lease, the lessor later wishes to revoke because he has

found a more profitable use for the property. The Court has firmly rejected such

maneuvering on the ground that it discourages foreign investment: “This Court has

always been hesitant and cautious in decreeing the cancellation of lease agreements

which have been entered into in good faith by parties, many of whom have been

foreigners who have invested capital in our country. In so acting this Court feels

itself serving the public good and subserving public policy which, in this connection,

is to encourage investments that would conserve and maintain our economic

stability.” Van Ee, 11 LLR at 162.

CH. EIGHTEEN(c) MARRIED PERSONS’ PROPERTY RIGHTS

Article V, Section 10th, 1847 Constitution of the Republic of Liberia

The property of which a woman may be possessed at the time of her marriage, and also that of which she may afterwards become possessed, otherwise than by her husband, shall not be held responsible for his debts, whether contracted before or after marriage. Nor shall the property thus intended to be secured to the woman be alienated otherwise than by her free and voluntary consent, and such alienation may be made by her either by sale, devise or otherwise.

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Article 23, 1986 Constitution of the Republic of Liberia

(a) The property which a person possesses at the time of marriage or which may afterwards be acquired as a result of one’s own labors shall not be held for or otherwise applied to the liquidation of the debts or other obligations of the spouse, whether contracted before or after marriage; nor shall the property which by law is to be secured a man or a woman be alienated or controlled by that person’s spouse save by free and voluntary consent. (b) The Legislature shall enact laws to govern the devolution of estates and establish rights of inheritance and descent for spouses of both statutory and customary marriages so as to give adequate protection to surviving spouses and children of such marriages.

The Liberian Constitution has always protected the right of married women to own property distinct from her husband’s estate. Unless she voluntarily decides to surrender control to her husband, a married woman owns all the property that she possessed at the time of marriage and all the property that she acquired by her own labors afterwards. The separate property of married women may not be used to satisfy her husband’s debts, and he may not alienate it without here agreement.

Thus, in a very early case, the Court explained: “It is hardly necessary for this court to say, the Constitution of Liberia provides that a femme couverte may convey property she is possessed of otherwise than through her husband; which term includes both personal and real property, and that by sale, devise or otherwise.

This court is of opinion that she being allowed to bargain and sell under such circumstances, is also allowed to bargain and buy more especially by her husband’s assent.” Dlyon v. Lambert, 1 LLR 178, 180 (1884). Moreover, a married woman

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does not lose her right to own property when she marries a foreigner, even though he could not own property in the Republic. See Curtis & Dennis v. Brown, 3 LLR

320, 324 (1932).

When the Constitution was first adopted in 1847, this position was progressive by comparison to many other legal systems. The traditional rule had been that a married woman’s property became part of her husband’s estate upon marriage. The Liberian Framers held a more enlightened view, as the Court has explained: “Formerly the civil existence of the wife was completely merged in that of her husband, she could not carry on business without the consent of her husband no matter what wealth or property she possessed; she could make no contract with respect to her separate property, because the husband acquired an interest in that property which entitled him to alienate same, or in the case of his bankruptcy, it would vest in his assignee for the benefit of his creditors, in many cases leaving her and her children entirely destitute. Gradually a more liberal sentiment in favor of the wife grew up in England and in a majority of the United States of America.

Statutes were enacted giving to married women certain rights in respect to their separate property and enabling them to carry on business. The framers of our

Constitution shared these advanced views, and embodied them in said Constitution.

. .” Pritchard v. Parker, 2 LLR 426, 429 (1922).

In 1847, the Constitution specifically provided only that married women could own separate property; it said nothing about the right of married men to own separate property, presumably for the obvious reason that the right of men to

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property was never under threat. Nevertheless, the 1847 Constitution was formally discriminatory in safeguarding the rights of wives but not husbands. The 1986

Constitution therefore amended the provision to protect the right of all spouses, regardless of gender: instead of protecting the right of a “woman,” it now protects the right of a “person.” 1986 Const. of the Republic of Liberia art. 23.

The Court has reaffirmed the right of married women to own property under the 1986 Constitution. In particular, the Court explained that a woman may constitutionally own separate property in her maiden name: “Whether or not a married woman bears the name of her husband is a matter of preference and style and it does not affect the right of a woman to own property in her maiden name while married. The purchase of property by appellant during the life of a marriage and the right to control and alienate same is a constitutional right.” Barclay v.

Digen, 39 LLR 774, 787 (1999). The Court also held that either spouse may surrender control to the other, so long as the surrender is voluntary. See id. at 788.

CH. EIGHTEEN(d) PROCEDURAL PROTECTIONS FOR PROPERTY RIGHTS

The Court has repeatedly stressed that because the right to property is fundamental, courts must exercise special care before depriving any person of his property. Thus, “[s]ince the Constitution of the Republic guarantees to each citizen the right to the acquisition, protection, and defense of property, the legal procedure to contest this right should be meticulously and jealously prescribed and guarded.”

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Karnga v. Williams, 10 LLR 114, 120-21 (1949). The Court has even suggested that courts should accord property rights the same sort of procedural protection that they would accord a criminal defendant in a capital case: “Questions of property, especially real property, and human life are to be handled with every available care by our courts. . . . Our warning requires that our judges afford all parties who stand to lose life and/or property every chance and patience to appear and to defend their cause according to the means accorded them by law, and under no circumstances should it be maintained otherwise.” Kennedy v. Goodridge & Hon. Hilton, 33 LLR

398, 405-06 (1985).

The Supreme Court has specified three particular procedures that courts must respect before depriving a person of property. First, in most civil actions, the plaintiff is immediately entitled to a default judgment when the defendant fails to appear, but in an ejectment action, the defendant must be given a second chance.

After the first failure to appear, “there shall be placed upon the property, the subject of the action, copies of the summons and re-summons as further assurances

that the defendant or defendants will have due notice of the pending action.”

Karnga, 10 LLR at 121. If the defendant still fails to appear within four days of the

return date of the re-summons, then the court may enter a default judgment. See

id. at 121 (quoting Stat. of Liberia (Old Blue Book) ch. II, section 36, 2 Hub. 1553).

The Court explained that statutes, rather than the constitution, required this

particular default judgment procedure, but the Court also intimated that the

Constitution required some such procedure. In describing the required procedure,

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the Court began: “In passing, we would observe that the statutes of the country are somewhat more rigid in the conduct of cases in ejectment than they are with respect to many other civil cases. Since the Constitution of the Republic guarantees to each citizen the right to the acquisition, protection, and defense of property, the legal procedure to contest this right should be meticulously and jealously prescribed and guarded.” Karnga, 10 LLR at 120-21.

Decades later, during the reign of the People’s Redemption Council, the Court reiterated this requirement. See Kennedy, 33 LLR at 405-06. The Court stressed that the requirement arose from the Constitution: “As far back as 1949, about thirty-six years ago, this Court held in the case of Karnga v. Williams et al., 10 LLR

114 (1949), that since the Constitution of the Republic guarantees to each citizen the right to the acquisition, protection, and defense of property, the legal procedure to contest this right should be meticulously and jealously prescribed and guarded, and for that reason where a defendant in an action of ejectment is returned summoned but fails or refuses to appear, the plaintiff is not thereby, as in other cases, immediately entitled to a judgment by default.” Kennedy, 33 LLR at 406. At the time that Kennedy was decided, the Constitution had been suspended, but the

Court held that the statutes still mandated the special default procedure for ejectment actions: “The constitution referred to in Karnga v. Williams et al. is now moribund, but the statutes remain, and none can be said to have overruled that opinion rendered since 1949.” Id. at 406. Today, the 1986 Constitution has revived

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the constitutional protection for the right to property, and so the special default

procedure presumably has a constitutional basis once again.

The second special procedural protection for property rights is that even if a

court has once ruled that a party does not own the contested property, that single

decision alone cannot constitution conclusive evidence that the party does not, in

fact, own the property. As the Court explained, “[o]ne verdict and one judgment in

a party’s favor are not conclusive evidence of title even as against the party whose

interest is adversely affected by said verdict and judgment.” Karnga, 10 LLR at

121. Instead, two or even three judgments might be necessary to provide conclusive

proof of title.

The Court quoted the relevant statute at length: “A verdict and judgment in ejectment shall be evidence, but not conclusive evidence of title, but two verdicts in actions between the same parties or those under whom they claim, in favor of the same side, shall be conclusive, unless it is shown that there has been a verdict and judgment the other way, and even in that case, three similar verdicts and judgments shall be final and conclusive.” Karnga, 10 LLR at 122 (quoting Stat. of

Liberia (Old Blue Book) ch. XI, section 20, 2 Hub. 1552). Again, although the Court directly relied on the statute, it explained that the statute merely implemented the underlying constitutional directive that property rights should receive special procedural protection. Ergo, the Constitution presumably requires some such rule, although some variation might be constitutionally permissible. See also Kennedy,

33 LLR at 406.

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The third procedural protection for property rights is that only a jury may determine title in ejectment actions. See United Methodist Church & Consolidated

African Trading Corp. v. Hon. Cooper, 40 LLR 449, 461 (2001). It appears that this rule is not actually a special rule for the protection of property; instead, it s only an application of the general rule that juries must determine mixed issues of law and facts, because ejectment cases always contain such issues. See id. at 461-62 (citing

Larsannah v. Passawe, 14 LLR 599 (1961) and Gbassage v. Holt, 24 LLR 293

(1975)). Nonetheless, the Court has stressed that the rule has special importance in title disputes: “A jury trial is so vital in the procedure to determine title. . . . The consistency of the holdings of the Court on this issue points out clearly that only a jury can decide the issues joined by the parties to the ejectment suit and anything contrary to this, as was done in the instant case, constitutes a gross error on the part of the judge, and this Honourable Court so holds.” United Methodist Church,

40 LLR at 461-62.

CH. EIGHTEEN(e) THE RIGHT AGAINST EXPROPRIATION

Article I, Section 13th, 1847 Constitution of the Republic of Liberia

Private property shall not be taken for public use without just compensation.

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Article 24, 1986 Constitution of the Republic of Liberia

(a) While the inviolability of private property shall be guaranteed by the Republic, expropriations may be authorized for the security of the nation in the event of armed conflict or where the public health and safety are endangered or for any other public purposes, provided: (i) that reasons for such expropriations are given; (ii) that there is prompt payment of just compensation; (iii) that such expropriation or the compensation offered may be challenged freely by the owner of the property in a court of law with no penalty for having brought such action; and (iv) that when property taken for public use ceases to be so used, the Republic shall accord the former owner or those entitled to the property through such owner, the right of first refusal to reacquire the property.

The Liberian Constitution centrally protects private property by providing that the Republic may expropriate property only under certain conditions. First, the Republic must give reasons for the expropriation, so as to demonstrate the land was expropriated for a public purpose and not merely to enrich a government official or a powerful private party. Second, the Republic must promptly pay just compensation for the property taken. Finally, if the Republic no longer needs the property for a public use, it must give the former owner the right to re-purchase the land before offering it to anyone else.

For example, in Liberian Eastern Timber Corporation v. Liberian Logging and Wood Processing Corporation and the Ministry of Agriculture, the Court ruled that the Ministry of Agriculture had tried to take a property right without compensation. The dispute involved the construction of a road: appellant, the holder of one concession, agreed to allow appellee, the holder of a neighboring

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concession, to build a road through its concession. The agreement did not allow

appellee to cut logs on either side of the road, but the Ministry of Agriculture

unilaterally “permitted the appellee corporation to fell logs one-half mile on each

side of the road constructed. There is no question regarding the logs felled on the

road itself, since appellant had agreed to jointly build the road.” 27 LLR 11, 22

(1978).

The Court held that the Ministry had thereby invaded appellant’s property

right, which had been created by the terms of the concession: “[D]oes the

Agriculture Ministry have the right to violate . . . Article I, Section 13th, that

private property shall not be taken for public use without just compensation? If the

Legislature is barred under the Constitution of the Republic to pass a law with

these effects, can a Ministry in carrying out its duties and functions override this

basic law of the Republic? We think not. . . . It is no secret that the concession

agreements of this Republic provide that compensation shall be paid to the owner or

occupant of land for loss of the right to use the land for the period of a lease, or for a

right of way or easement; and this is in harmony with the rights established under

Article I, Section 13th, of the Constitution.” Id. at 23.

Because the government may not take land without compensation or for private uses, the government may not repeatedly give title to the same land to different parties. Thus, the President may not convey land to one party from the public domain when the land has already been conveyed by an earlier president to a different party. In such a case, the later deed must be void.

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For example, in 1906 President Arthur Barclay granted twenty-five acres of

land to Chief Murphy Sone, and in 1931, President Edwin J. Barclay apparently

executed a deed for the same twenty-five acres to Morve Sone and others. The

Court cancelled the second deed: “In the case Davies v. Republic, 14 LLR 249

(1960), this Court held as follows: ‘Contractually, the grantor is bound by perpetual obligation to defend the grantee’s ownership of property transferred by deed; and the fact that the Republic of Liberia is one of the parties dues [sic—“does”] not lessen the binding effect of the terms of the contract.’” Republic of Liberia v. Sone,

35 LLR 126, 134 (1988).

Similarly, President Stephen Allen Benson signed a bounty deed for one hundred acres of land granted to George Shaw, but in 1965 President William

Tubman signed a public land sale deed for 26.4 acres of the same tract. See Wilson v. Dennis, 23 LLR 263, 264-66 (1974). The Court again held that the latter deed was void: “It is quite easy to see, therefore, that the State could not possibly grant land, the title of which had already been transferred. It is physically impossible to give what one does not have.” Id. at 268 (citing Davies v. Republic, 14 LLR 249,

253-54 (1960)).

In voiding the second deeds, these cases do not directly rely on the ban on expropriation. Instead, they explain that later deeds are void because the president has an obligation to defend the earlier deeds and cannot grant what he does not own. Nonetheless, the cases could be read implicitly to hold that the earlier deeds are void because of the ban on expropriation as well. Because the government has

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the power to expropriate property, the latter deeds could be regarded simply as expropriations of the first deeds. If the government were to make this argument, however, the Court seems to have implicitly rejected it in these cases, presumably on the grounds that the latter deeds expropriated property from the first deed- holders without compensation and to benefit a private person as forbidden by the

Constitution.

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CHAPTER NINETEEN THE OBLIGATION OF CONTRACTS

Article I, Section 10th, 1847 Constitution of the Republic of Liberia

Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted. Nor shall the legislature make any law impairing the obligation of contracts; nor any act punishable, in any manner in which it was not punishable when it was committed.

Article 25, 1986 Constitution of the Republic of Liberia

Obligation of contract shall be guaranteed by the Republic and no laws shall be passed which might impair this right.

CH. NINETEEN(a) REASONS FOR PROTECTING THE OBLIGATION OF CONTRACT

The Liberian Constitution has always protected the obligation of contract.

The Supreme Court has defined a contract as “an agreement entered into by the assent of two or more minds by which one party undertakes to give some valuable thing, or to do or omit some act, in consideration that the other party shall give or has given some valuable thing, or shall do or omit, or has done or omitted, some act.” Sherman v. Republic of Liberia, 1 LLR 145, 151-52 (1881). As the Court has

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explained, the Constitutional protection for the obligation of contracts is “derived

tacitly from the law by reason of the manifest necessity which exists, with a view to

the well being of the community, that every man should fairly and honestly perform

what he has undertaken to do.” Id. at 152. For that reason, “contracts are sacred

undertakings; so sacred in fact, that the Constitution has forbidden the Legislature

to pass any laws which would impair their obligation.” Bah v. Philips, 27 LLR 210,

219 (1978). Again: “Under the Constitution, we are commanded always to respect

the obligations imposed by contracts; and indeed, that is a fundamental basis of

simple honest dealing which should be respected by all men and all nations.”

Davies v. Republic of Liberia, 14 LLR 249, 254 (1960).

The Court has also made clear that the Constitution protects the obligation of contract in part so that foreign investors will feel confident: “If the Supreme Court should neglect to uphold the fundamental law of the nation and thereby deprive parties of rights guaranteed thereunder, be they citizens or expatriates, it will reflect discredit on the Government of Liberia, and with respect to the case at bar, discourage investors in a country where they are not sure that a written contract means truly what it says.” Liberian Eastern Timber Corp. v. Liberian Logging &

Wood Processing Corp. & Ministry of Agriculture, 27 LLR 11, 24 (1978).

CH. NINETEEN(b) PROTECTION FOR CURRENT CONTRACTUAL OBLIGATIONS BUT NOT THE RIGHT TO CONTRACT

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The phrase “obligation of contract” has a particular meaning: existing

contracts place the parties thereto under obligation; the government may do

nothing that would impair those obligations, as by voiding or changing part or all of

the contract. The government must thus respect the obligations created by existing

contracts: “[A]ny laws [sic] which enlarges, abridges, or in any manner changes the

intention of the parties resulting from the stipulation in contract, necessarily

impairs it.” Sherman, 1 LLR at 153 (1881).

The Constitution does not, however, limit the government’s ability

prospectively to regulate the making of future contracts. Precisely because such

contracts have not been made, they impose no current obligations, and the

government may regulate their making without impairing any existing contractual

obligation. In the text of the 1847 Constitution, the protection for the obligation of

contracts is immediately followed in the same sentence by the ban on ex post facto

laws: “nor [shall the legislature make] any act punishable, in any manner in which

it was not punishable when it was committed.” 1847 Const. of the Republic of

Liberia art. I sec. 10th. The placement is significant: the framers placed the two clauses together in the same sentence because they understood both to be protections against retrospective legislation.

Thus, the Court has held that a law providing for forfeiture of bonds may not be retrospectively applied because the posting of a bond creates a contractual relationship, which creates obligations that the government may not thereafter impair: “The second constitutional reason why this Act does not, and cannot

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support the Minister’s forfeiture of Mr. Bah’s bond in the manner in which he tried

to do it relying upon this statute, is that the Act cannot apply in a case which had

its origin at a time previous to the enactment of the law upon which it relies. As the

impairment of the obligation of a contract, this is yet another constitutional

violation, Constitution, Article I, Section 10th. No law passed after Mr. Bah’s bond

was filed in December 1976 might be made to control forfeiture of the said bond.”

Bah v. Philips, 27 LLR 210, 228-29 (1978).

The protection for the obligation of contract does not, however, prevent the

government from prospectively controlling the making of contracts. The Legislature

may make such contract regulations as seem fit to it: it would not impair the

obligation of existing contracts for the Legislature to dictate the way that contracts

may be made in the future; or to forbid certain sorts of contracts; or even to forbid

the making of contracts altogether. Thus, the Court has explained that although

the Legislature must respect current contracts, “this prohibition must be

distinguished from its right to adopt measures for the benefit of the nation, and

from the necessity of the case, which may be subsequently varied or discontinued as

the public good may require.” Sherman, 1 LLR at 155.

In other words, the Constitution protects the obligation of existing contracts

but not the right to contract. As long as the Legislature regulates prospectively, it may restrict or even eliminate the ability of private parties to order their affairs through binding agreements. The Contract Clause thus contains no protection for the free market: “[T]he State is free to adopt whatever economic policy may

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reasonably be deemed to promote the public welfare, and to enforce that policy by

legislation adopted to its purpose. The courts have no authority either to declare

such policy invalid when it is declared by the Legislature, or, by the President. . .”

Ayad v. Dennis, 23 LLR 165, 171-72 (1974). In this sense, the Contract Clause is quite different from the Constitution’s protection for property, which forbid the government not only to take existing property but also prospectively to limit the right to acquire, possess, and defend property.

CH. NINETEEN(c) SCOPE OF THE CONTRACT CLAUSE

Ch. Nineteen(c)(1): Which Contractual Obligations Are Protected

Ch. Nineteen(c)(1)(ii): Government Contracts and Private Contracts

The protection for obligation of contract extends to both the government’s own contracts and to contracts between private parties: the government may impair neither. Thus, the Court has stressed that the government must honor its own promises just as much as private persons must honor theirs. When the government, for example, tried to declare a bond forfeit even though the poster of the bond had fulfilled his obligations, the Court reminded the government: “The Government is no exception to this sacred rule [that contracts must be respected]; in fact, it is expected that it would be among the first parties to such contracts (bonds) to observe and perform its obligations thereunder. Moreover, it would not be in good

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taste for the Government to make laws for the governance of parties, whether

citizens or aliens, and disregard them itself. It is our opinion that the commitment

of the condition of a bond binds with equal effect each of the parties to the contract.”

Bah v. Philips, 27 LLR 210, 219-20 (1978).

Similarly, when the government issues a deed, the Court has found that it

assumes contractual obligations to honor the deed. For that reason, if the

government thereafter issues a deed for the same land to a different person, it

violates the obligation of its own contract. For example, when two different

presidents issued two different deeds twenty-five years apart, the Court ruled that

the second deed was void: ““In the case Davies v. Republic, 14 LLR 249 (1960), this

Court held as follows: ‘Contractually, the grantor is bound by perpetual obligation

to defend the grantee’s ownership of property transferred by deed; and the fact that

the Republic of Liberia is one of the parties dues [sic—“does”] not lessen the binding

effect of the terms of the contract.’” Republic of Liberia v. Sone, 35 LLR 126, 134

(1988).

Just as the government must honor its own contracts, it must also respect private contracts. Once private parties enter an agreement, they are bound by its terms, and the government may not retrospectively change those terms. For example, in one case, a party agrees allowed another party to build a road through its concession land but nothing in the contract permitted the road-builder to fell logs except on the road bed. The government, however, “permitted the appellee corporation to fell logs one-half mile on each side of the road constructed. There is

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no question regarding the logs felled on the road itself, since appellant had agreed to jointly build the road.” Liberian Eastern Timber Corp. v. Liberian Logging &

Wood Processing Corp. & the Ministry of Agriculture, 27 LLR 11, 22 (1978). The

Court ruled that the government could not grant this permission because it would change the terms of the contract. The Court asked rhetorically: “[D]oes the

Agriculture Ministry have the right to violate the provision of the Constitution of this Republic, Article I, Section 10th, which states among other things that the

Legislature shall not make any law impairing the obligation of contracts . . . ?” The

Court answered its own question: “We think not.” Id. at 23.

Although the Contract Clause thus requires the government to respect private contracts, it does not give the government the power unilaterally to enforce contracts between private parties. Private parties do have the power to go to court to enforce their contracts, but they may decided whether, where, when, and how to do so, within the parameters set by law.

Thus, when the government sought mandamus to force lawyers to honor their contracts with their clients, the Court held that the government had no standing because it had not been legally injured by whatever breach of contract might have occurred. The government contended that it had been injured because it was constitutionally charged with enforcing private contracts, but the Court ruled that the enforcement of private contracts belonged to the parties thereto, using their judicial remedies: “[D]uring the arguments before the bench, counsel for the petitioner contended that the Government has the responsibility to guarantee all

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contracts and that the only thing that the Government was doing in these mandamus proceedings was ensuring that the private contracts between the lawyers and their clients are protected. However, our interpretation of the equal protection clause [sic—presumably the Contract Clause] of the Constitution is that it seeks to prevent the government from interfering with, frustrating or otherwise impairing private contracts. It is not intended that the government would insist that one party performs his side of such contracts as they are private obligations for which there are adequate remedies available to the parties whose rights have been violated. . . . The protection and enforcement of contract rights is vested in the

Judiciary and not in the other two branches of the Government.” Republic of

Liberia v. Leadership of the Liberian Nat’l Bar Ass’n of the Republic of Liberia, 40

LLR 635, 655 (2001).

Ch. Nineteen(c)(1)(ii): Lawful Contracts

The protection for obligation of contract applies only to those contractual provisions that were lawful at the time that they were made, because only such provisions created obligation on the parties. For example, the Contract Clause would not protect a contract that was void for reasons of public policy, such as a contract to conspire to assassinate the President.

As another example, the Court has held that private contracts may not arrogate to the parties a power reserved to one of the branches of the Liberian government. By infringing on the constitutional authority of the government, such contracts were void ab initio and therefore created no obligation. For example,

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because the Constitution gives to the Legislature the power to pass statutes of

limitations, private parties may not agree that suits on a contract must be brought

within a shorter period than that specified by the Legislature. Thus: “Accordingly,

the twelve-months period stated by the insurance contract as the period within which a suit or action can be commenced for any breach of the contract is a usurpation of the legislative functions delegated to our legislature by the

Constitution. As such, the clause of the insurance contract which is contrary to the

above quoted statutory provision is therefore declared null and void and of no legal

and binding effect on the appellant.” Super Cold Svc. v. Liberian-American

Insurance Corp., 40 LLR 189, 197 (2000).

For a time, the Court also ruled that binding arbitration contracts were void because they attempted to oust the courts of their constitutionally stipulated jurisdiction. The Court explained: “[S]ince the jurisdiction of the courts cannot be ousted by private agreements of individuals made in advance, a clause in a contract is invalid which provides that if a question relating to the contract cannot be settled satisfactorily by the parties, it shall be referred to a board whose findings the parties agree to accept as final and binding.” Grant v. Foreign Mission of the Nat’l

Baptist Convention, 10 LLR 209, 217-18 (1949).

Decades later, however, the Court reversed this view, holding that binding arbitration contracts were enforceable. In explaining this reversal, the Court did not explain why arbitration contracts do not oust courts of their constitutional jurisdiction. Instead, the Court observed that the Legislature had passed a statute

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authorizing binding arbitration: “The Court takes judicial notice that at the time the case Grant v. Foreign Mission Board of the National Baptist Convention, USA,

10 LLR 209 (1949) was decided, our Civil Procedure Law did not provide for arbitration and judicial enforcement of arbitration awards. However, Following

[sic—“following”] the Grant decision, the Legislature enacted the 1956 Code and the current 1973 Civil Procedure Law, as Title 1 of the Revised Code (1 LCLR), both of which expressly provide for arbitration and judicial enforcement of arbitration awards, and state these to be legal and valid procedures for dispute resolution by private parties.” Chicri Brothers, Inc. v. Isuzu Motors Overseas Corp., 40 LLR 128,

134 (2000). This ruling does not actually address the basis for the earlier rule: if binding arbitration contracts violate the Constitution, as Grant had said they did, then the new binding arbitration statute would presumably be unconstitutional as well. In any event, since binding arbitration contracts are now lawful, the Contract

Clause protects them: “Under the Liberian Constitution, obligations of contract cannot be impaired.” Id.

Ch. Nineteen (c)(2): Who Is Forbidden to Impair Contracts

By its terms, the protection for the obligation of contracts limits only the

Legislature; only the Legislature is forbidden to impair contracts. Thus, the 1847

Constitution expressly refers to the Legislature: “Nor shall the legislature make any law impairing the obligation of contracts. . .” Article I, Section 10th, 1847

Constitution of the Republic of Liberia. The 1986 Constitution does not refer expressly to the Legislature, but it does specifically forbid laws impairing the

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obligation of contract: “Obligation of contract shall be guaranteed by the Republic and no laws shall be passed which might impair this right.” 1986 Const. of the

Republic of Liberia art. 7. Because only the Legislature may make laws, Article 7 thus seems largely to be directed to the Legislature.

The Court has held, however, that the Constitution also forbids the executive branch from impairing contracts. The Court reasoned that the ban on legislative impairment would have give scant protection to the obligation of contracts if the executive could impair contracts instead: “If the Legislature is barred under the

Constitution of the Republic to pass a law with these effects, can a Ministry in carrying out its duties and functions override this basic law of the Republic? We think not.” Liberian Eastern Timber Corp. v. Liberian Logging & Wood Processing

Corp., 27 LLR 11, 23 (1978). See also Bah v. Philips, 27 LLR 210, 228-29 (1978)

(holding that the Minister of Finance had violated the Contract Clause).

In addition, the Contract Clause requires courts themselves to protect the obligation of contracts—in other words, to interpret and enforce contracts according to the intent of the contractors. In general, contract law requires courts to enforce contracts as written, but the Contract Clause constitutionally mandates that practice. If a judge misinterprets a contract, he thus actually violates the

Constitution. Thus: “[T]his Court holds that ligation [sic—“obligation”] of contract shall be guaranteed by the Republic and that no law shall be passed which might impair this right. Under our laws, courts cannot enforce a contract in a manner otherwise than expressed therein. . . . For reliance, see Sherman v. Republic, 1 LLR

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145 (1988), text at 151-153; LIB. CONST., Art. 25 (1986).” Liberian Trading &

Development Bank (TRADEVCO) v. Hon. Mathies & Brasilia Travel Agency, 39

LLR 272, 283 (1998).

At times, the Court has even suggested that the Contract Clause constitutionally forbids private parties from impairing their contracts by misinterpretation or failure to perform. Again, ordinary contract law commands parties to honor their contracts, but so construed, the Contract Clause would dictate that every breach of contract is also a violation of the Constitution. In other words, the Contract Clause would not just vertically to prevent the government from impairing contracts but also horizontally to command private parties to honor their contracts.

The Court advanced this suggestion in at least two cases decided within months of one another: Liberia Trading & Development Bank (TRADEVCO) v. Hon

Mathies & Brasilia Travel Agency, 39 LLR 272 (1998); and Fayad v. Dennis, 39 LLR

587 (1999). In the former, Brasilia Travel Agency held two accounts with the

Liberia Trading and Development Bank; one was in Liberian dollars and one in US dollars. See TRADEVCO, 39 LLR at 277. The bank then informed the travel agency that both accounts were Liberian dollar accounts and would be paid as such.

See id. at 278. The bank defended this action on the grounds, inter alia, that the

National Bank of Liberia had itself converted the Liberia Trading and Development

Bank’s US dollar accounts to Liberian dollar accounts. Thus, the Court framed the question: “Whether or not, the action of the National Bank of Liberia against

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petitioner in 1988, in converting said petitioner’s statutory and excess reserve account into Liberian dollars may be used as a defense to deny co-respondent receiving United States dollars from its account established in 1989?” Id. at 281.

The Court ruled that the action of the National Bank of Liberia could not constitute an excuse for converting the account to Liberian dollars. The basis for the holding is significant: the Court seemed to say that the Liberia Trading and

Development Bank could not rely on the National Bank’s action as an excuse because it would then be impairing its own contract, in violation of the Constitution.

Thus: “Under our laws, courts cannot enforce a contract in a manner otherwise than expressed therein, nor can even the Legislature make a law impairing the obligation of a contract, much less the National Bank of Liberia or the petitioner in this case. For reliance, see Sherman v. Republic, 1 LLR 145 (1881), text at 151-153;

LIB. CONST., Art. 25 (1986)(emphasis supplied).”

In the second case, M.A. Fayad held a lease on property owned by Charles D.

Sherman, who then sold it to Gray D. Allison. Fayad, 39 LLR at 589-90. The Court held that the sale did not void the lease, so Allison was required to honor Fayad’s lease. In a passage very similar to the TRADEVCO holding, the Court seemed to rule that the Contract Clause forbade Allison to impair the lease. When Allison died and the administrator of his estate refused to respect the lease, Fayad sued.

The Court held that Allison’s administrator could not violate the terms of the lease:

“It is the further holding of this Court that the act binding one of a reasonable mind, which when legally consummated, has a binding force and effect on the

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contracting parties. The appellee is therefore compelled to honour and perform the unexpired conditions and terms of the agreement between the appellant and the late Gray D. Allison, whom he represents or claims to succeed on the theory of intestate succession.” Id. at 594. The Court might have rested its holding entirely on ordinary contract law, but instead it indicated that the Contract Clause required

Allison’s administrator not to impair the contract. Immediately before the holding, the Court described the meaning of the Contract Clause, thus implying that it was the basis for the holding: “Mr. Justice Mitchell, speaking for the Court in the case:

Ajavon v. Bull et al., 14 LLR 86 (1960), said among other things, that: ‘the

Constitution of Liberia made it plain that not even the Legislature, which is the law making body of the Republic, has the right to enact any law impairing the obligation of contract.’ For reliance, see LIB. CONST., Art. 25 (1986).” Fayad, 39

LLR at 594.

In short, if TRADEVCO and Fayad are still good law, every time a private party breaches a contract, he also violates the Constitution. It is possible and even perhaps likely, however that TRADEVCO and Fayad are not still good law. The two cases were decided within months of each other, by the same justice, at a time of great turbulence in Liberia. In other words, they might be a short-lived aberration. In addition, the two cases do not recognize that applying the Contract

Clause horizontally to the acts of private parties was an innovation, and so they make no effort to explain the reasons for the new direction. Finally, the Contract

Clause by its terms protects the obligation of contract only against the State:

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“Obligation of contract shall be guaranteed by the Republic and no laws shall be passed which might impair this right.” 1986 Const. of the Republic of Liberia art.

25. In other words, the language of Article 25 does not issue any commands to private parties at all.

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CHAPTER TWENTY LIBERIANIZATION

Article 7, 1986 Constitution of the Republic of Liberia

The Republic shall, consistent with the principles of individual freedom and social justice enshrined in this Constitution, manage the national economy and the natural resources of Liberia in such manner as shall ensure the maximum feasible participation of Liberian citizens under conditions of equality as to advance the general welfare of the Liberian people and the economic development of Liberia.

Article 7 of the 1986 Constitution contains a new section governing the management of the national economy. It instructs the Republic to follow three principles: ensuring the maximum feasible participation of Liberian citizens; creating conditions of equality; and advancing the general welfare of the Liberian people and the economic development of Liberia. These principles are sometimes called the Liberianization policy because they seek to promote the well-being of

Liberian citizens, rather than allowing foreigners to profit at their expense.

Because it appears in Chapter II, which addresses General Principles of

National Policy, it is clearly intended as an instruction to the Legislature, listing the principles that it should prioritize in setting national policy. Because there are so many different ways to advance and combine these three principles, and because the principles are themselves so vague, the meaning and application of the Article are not and cannot be determinate. For that reason, the Article may not provide

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standards sufficiently specific to allow courts to decide cases under it. As a result,

the Article may be a non-justiciable guide to the Legislature: it imposes real

requirements for the formulation of economic policy, but no one may enforce those

requirements through the courts.

The Supreme Court has never definitively decided whether Article 7 is

justiciable. It has, however, strongly indicated that the provision primarily

functions as a general guide for the Legislature, which has substantial discretion in

fulfilling the Liberianization policy.

The Court has decided only two cases addressing the meaning of the article.

In the first, the Monrovia Tobacco Corporation had given Abi-Jaoudi & Azar

Trading Corporation a license to distribute its products in Liberia, but then the

Monrovia Tobacco Corporation began to distribute its own products directly to the

product as well. See Abi-Jaoudi & Azar Trading Corp. v. Monrovia Tobacco Corp.,

36 LLR 156, 158 (1989). In court, the Abi-Jaoudi & Azar Trading Corporation argued that its distribution license was exclusive; in its view, the Monrovia Tobacco

Corporation had agreed not to do any direct marketing. The government of Liberia then sought to intervene on behalf of the Monrovia Tobacco Corporation. The government asserted that it had standing to intervene because it was trying to promote the policies of Article 7: because the Monrovia Tobacco Corporation was a

Liberian company and the Abi-Jaoudi & Azar Trading Company was not, allowing the Tobacco Company directly to market its own product would promote the maximum feasible participation of Liberians in the economy. See id. at 159-61.

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The Court ruled that the framers intended that Article 7 should be implemented through broad statutes, not through the intervention of the government in private contract disputes. Thus: “Surely, it must have been intended that, in order to give ‘teeth’ to the above quoted constitutional provision, enabling statutes would be enacted by the National Legislature and rules and regulations promulgated pursuant thereto, setting forth with some consistency such matters as the areas of the Liberian economy that are to be Liberianized, and when, how and under what conditions this process will take place.” Id. at 165. As a result, the government had no standing to intervene because Article 7 gave it no legally cognizable interest in the outcome of private contract disputes: “We cannot believe that the framers of the new Liberian Constitution intended that [Article 7], containing such a broad statement of national policy, would be applied directly so as to allow the Republic of Liberia to involve itself in litigations between private parties and thereby substantially and adversely affect their assertion of private contractual rights.” Id.

In the second case, the Liberia Institute of Certified Public Accountants challenged the decision of the government to retain a foreign firm of auditors to conduct a diagnostic audit. The Institute argued that in order to ensure the maximum feasible participation of Liberians in the economy, the government should have retained Liberian accountants rather than foreigners. See Liberia

Institute of Certified Public Accountants of Liberia, 38 LLR 657, 660-61 (1998). The

Court rejected the argument, explaining that Article 7 merely “sets out the

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fundamental principles of governance which shall serve as guidelines in the formulation of legislative, executive and administrative directives and policy making and their execution.” Id. at 668. The government had retained a foreign accounting firm because international donors had insisted on one, and reconstruction grants were in the long run critical for the growth of the economy, which would in turn help all Liberians. Thus: “The Court takes note that the nation has emerged from a period of conflict into a period of reconstruction, and that in view of this, we therefore consider the compliance with the requirement of financial and other international donors in an effort to secure grants for the reconstruction programmes of the Government, as fundamental and concrete steps, to enable the Government to manage the national economy and to ensure the maximum feasible participation of all Liberians.” Id. at 669.

Although indicating that the government does have substantial leeway in deciding how to fulfill its Article 7 responsibilities, however, the Court stopped short of holding that the provision is entirely committed to the discretion of the

Legislature. The Court intimated that if the government ever took action profoundly at odds with the Article 7 principles, the Court might strike it down:

“This does not go to say that the Co-respondent Minister of Finance is authorized to execute his duties and responsibilities in such a manner that requirements for loans, grants and other financial aid which are clearly repugnant to and compromise the fundamental and basic tenets and ideals of Liberians and the nation should be tolerated or upheld.” Id.

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SUBPART II(C): RIGHTS IN THE LEGAL PROCESS

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CHAPTER TWENTY-ONE THE RIGHT OF APPEAL

Article 20(b), 1986 Constitution of the Republic of Liberia

The right of an appeal from a judgment, decree, decision, or ruling of any court or administrative board or agency, except the Supreme Court, shall be held inviolable. The legislature shall prescribe rules and procedures for the easy, expeditious and inexpensive filing and hearing of an appeal.

A party has the right to appeal an adverse decision made by any court or administrative body. The Supreme Court has defined an appeal as “resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency; a complaint to a higher tribunal of an error or injustice committed by a lower tribunal where the error is sought to be corrected or reversed.” Majority Membership of the United Church of the Lord, Inc. v. Minority

Membership of the United Church of the Lord, Inc., 39 LLR 692, 706 (1999)

(quoting Black’s Law Dictionary 96 (6th ed.)). The Court has further explained that in Liberia, the Constitution guarantees a right to appeal as “a process by which a higher tribunal conducts a review of a decision, judgment or order issued or given by a lower tribunal.” Id. (citing Article 20(b), 1986 Constitution; Civil Procedure

Law, Rev. Code 1:51.2).

The right of appeal has several components.

CH. TWENTY-ONE(a) REFUSALS TO ALLOW AN APPEAL

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First, neither the courts nor the legislature may outright refuse to allow a

losing party to appeal once final judgment has been rendered in the body below.

Thus, in Liberia Electricity Corporation v. Hon. Kpanan, the Court reversed the

decision of a National Labour Court to disallow an appeal from an enforcement

order. The Court held that the order was a final judgment, which is defined as “one

that puts an end to a suit or action; one which puts an end to an action at law by

declaring that the plaintiff either has or has not entitled himself to recover the

remedy he sued for.” 37 LLR 316, 324 (1993) (quoting Black’s Law Dictionary 979

(4th ed.)). As a result, the Court held that the “trial judge’s act of denying

petitioner’s announcement of an appeal was illegal.” Id. at 325.

CH. TWENTY-ONE(b) LEGISLATIVE REGULATION OF THE RIGHT OF APPEAL

Second, the legislature may regulate the right of appeal, but those regulations must ensure that appeals are “easy, expeditious, and inexpensive.”

Article 20(b). Thus, on the one hand, the Court has explained that because the right to an appeal is not self-executing, the Legislature must create procedures for an appeal in order for the right to be operationalized: “[T]his Court is of the opinion that the constitutional provision granting the right to an appeal is not self-

executing. Hence, section 51.8 [requiring an appeal bond] and other similar

provisions are enabling statutes designed to secure the enjoyment of the

constitutional right granted by article 20(b).” Estate of Bowier v. Williams, 40 LLR

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84, 94 (2000). For that reasons, the Court has frequently held that appellants must

take all the steps necessary to complete an appeal as specified in statute. If they

fail to take those steps, they will their right to appeal through their own actions:

“[E]ven though appeal is a matter of right, there are certain procedural requisites, which must of necessity be employed.” Majority Membership of the United Church of the Lord, Inc. v. Minority Membership of the United Church of the Lord, Inc., 39

LLR 692, 706 (1999).

In addition, the Court has held that the requirement of an appeal bond in particular also serves the separate constitutional provision for a speedy trial because it allows the other party quickly and easily to collect the judgment should he win the appeal. As a result, the Court upheld the requirement against a challenge that it unduly burdened the right of appeal because sometimes appealing parties found it difficult to secure a bond: “[S]ection 51.8 of the Civil Procedure Law does not restrict the constitutional right of appeal. Instead, the legislative intent was to ensure that in the process of exercising one’s right of appeal, the constitutional rights of the adverse party to a fair and speedy trial is [sic] protected.” Estate of Bowier, 40 LLR at 94.

In general, to complete an appeal, appellants must announce an appeal in

open court when the lower body renders judgment; file a bill of exceptions; file an

appeal bond; and serve notice upon completion of the appeal. See id. When

appealing from a decision of a Chambers Justice to the Full Bench of the Supreme

Court, a party need only file exceptions and announce the appeal in open court. But

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the party must take each and every one of these steps. Thus, when a party files

exceptions but fails to announce an appeal from a decision of the Chambers Justice,

the appeal to the Full Bench will fail, and the matter will remain with the

Chambers Justice: “[O]ral announcement of appeal in open court upon rendition of

the ruling is a must and cannot be dispensed with.” 39 LLR at 706-07. Accord Sipo

Logging Int’l v. Hon. Kpomakpor, 34 LLR 809, 818-19 (1988).

On the other hand, although the legislature may regulate appeals, the legislature may not cancel any of the components of the appeal right. Thus, as explained below, the Court has held that during the pendency of the appeal, the

Constitution requires that the lower court’s judgment be suspended. It would therefore be unconstitutional for the legislature to order that the judgment should be immediately enforced: “What purpose would an appeal serve if the judge’s judgment, decision, or ruling is enforced? The obvious answer is none whatsoever and, moreover, the appeal provision under the Constitution would be most ineffective. The Legislature can only prescribe rules and procedure for the expeditious and inexpensive filing and hearing of an appeal. The Legislature cannot prescribe any rule or procedure which would in any manner violate Article

20(a) [sic—should be 20(b)] of the Constitution. The right to appeal is not a statutory right. It is a right mandatorily granted to every person by the

Constitution and this right is inviolable.” Aminata Shipping Lines, Inc. v. Hellenic

Cruising Holidays, 37 LLR 87, 92 (1992) (emphasis in original).

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In addition, the legislature’s regulations must ensure that appeals are “easy, expeditious, and inexpensive.” Article 20(b), 1986 Constitution of the Republic of

Liberia. The Court has explained: “The object of this constitutional provision is to enable a party litigant appealing from a judgment to easily and inexpensively perfect his appeal for a hearing by this Court.” Goffa v. Teah, 39 LLR 137, 141

(1998). The Legislature may not therefore enact procedures that are overly burdensome for the appellant. The Court has not had occasion to define exactly what sorts of regulations are too onerous, but it has held that Article 20(b) requires the courts themselves to make appeals easy: the provision “is intended to discourage dismissal of appeal on technical grounds and to enable this Court to hear

an appeal on its merits.” Id. Thus, in one case, the Court allowed a party to pursue

her appeal even though she had not taken all the necessary steps until two days

after the statutory deadline: “We agree that this Court may dismiss an appeal upon

motion for failure of the appellants to serve on appellee a notice of completion of

appeal within sixty days, as required by law . . . . However, be that as it may, this

Court in the instant case, frowns on the strict application of our procedural statutes

which in the past deprived parties litigant of their lives and valuable properties.”

Id. at 142.

Similarly, the Court has held that when a party is absent from court at the

moment that judgment is rendered, the court must deputize temporary counsel to

announce an appeal, because without such announcement, the appeal would be

forfeit. See Nat’l Iron Ore Co. v. Hon. Yancy, 39 LLR 126, 133-34 (1998). The court

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need not appoint counsel only when it is clear that the party has decided not to pursue the litigation. See Sackie v. Kaba, Oct. Term 2004 at 53, 60-62 (2005).

CH. TWENTY-ONE(c) SUSPENSION OF THE JUDGMENT DURING APPEAL

Third, the Court has generally held that an announcement of an appeal constitutes a supersedeas of the lower court’s decision, i.e. the judgment is stayed and may not be enforced until the higher court has rendered its own judgment.

Thus, the Court has instructed: “The right of appeal from rulings and judgments of all courts except the Supreme Court, en banc, is a basic constitutional right that cannot be denied. Likewise is the basic rule than an appeal serves as a supersedeas to the enforcement of judgment. In other words, it serves as a bar to its execution until a decision is entered by the Supreme Court.” In re Gibson, 16 LLR 202, 203-

04 (1965). See also Jones & Thompson v. Pearson, 31 LLR 330, 334 (1983).

If the appeal did not stay the judgment, frequently the execution of the judgment during the appeal would make the appeal itself pointless because some judgments, once imposed, may not effectively be un-imposed. Thus, if a lower court seeks to enforce a fine for contempt pending the appeal, a contemnor might have to go to prison if he had not the funds to pay the fine. If the contempt order were later reversed, it would be too late because he would have already served his time. Thus:

“What purpose could be served by an appeal if its enforcement leaves the party against whom a ruling is made with no alternative but to serve prison sentence in

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satisfaction of said ruling, due to his inability to pay the fine imposed where the

ruling of the Chambers Justice is reversed upon review by the Court en banc,

especially where the rule provides no redress for this unlawful injury. By logical

deduction, it is reasonable to conclude that this rule could by no means permit the

enforcement of a ruling when an appeal therefrom has been announced and taken.”

In re Gibson, 16 LLR 202, 205 (1965).

Similarly: “[W]hen an appeal is announced, the party announcing such

appeal believes that he has suffered some injustice or that the court has committed

some error which is adverse to the party’s interest, and which he desires to have

corrected by the superior court. What purpose would an appeal serve if the judge’s

judgment, decision, or ruling is enforced? The obvious answer is none whatsoever,

and, moreover, the appeal provision under the Constitution would be most

ineffective.” Aminata Shipping Lines v. Hellenic Cruising Holidays, 37 LLR 87, 92

(1992) (emphasis in original).

The Court has further held that an appeal will stay the judgment whether the defendant or the plaintiff appeals the decision. In Aminata Shipping Lines v.

Hellenic Cruising Holidays, the lower court found for the defendant and dismissed the action “on the grounds that the court lacked jurisdiction over the [defendant] for want of proper service of process.” 37 LLR at 89. The lower court granted the plaintiff’s appeal but ruled that it would not serve as a supersedeas to his dismissal of the action. He relied on Civil Procedure Law, section 51.20, which, by its literal terms, provided that only an appeal by the defendant, not the plaintiff, could stay

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the judgment. The Court suggested that if the statute really did so provide, it might be unconstitutional: “The Legislature cannot prescribe any rule or procedure which would in any manner violate Article 20(a) [sic—should be 20(b)] of the

Constitution.” Id. at 92. For that reason, the Court chose to interpret the statute more broadly than its words: “We . . . hold that when an appeal is announced by either a plaintiff or defendant, such appeal serves as a stay to the execution of the judgment.” Id. at 94.

As noted, the rule that an appeal stays the judgment is a constitutional

mandate, so that the Legislature may not alter it. Only once has the Court

suggested that the rule might not have constitutional stature. In Farhat v.

Gemayel, the Court upheld Decree Number 12 of the Interim National Assembly,

which provided that an appeal in an action of debt would not stay the execution of

the judgment. 34 LLR 24, 29 (1986). The Court explained that the Decree did not

violate the right of appeal, because the losing party was still allowed to appeal, even

though “it merely does not serve as a stay pending final determination of the

appeal.” Id. at 37. In addition, if the appellant should win the appeal, he can then

undo the execution of the judgment below: he has “the right to recover against the

successful party in the debt court should the said court decision be reversed in his

favor upon determination of the appeal by the Supreme Court. It means that the

appealing party can regain his status quo ante as a result of the appeal.” Id. The

Court also believed that the decree had good social policy reasons: “Decree no. 12

attempts to address the unnecessary delays occasioned by appeals in normally

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factual matters such as debt transactions. The problem should also be looked at as

a social one which should be given some attention.” Id.

The Farhat decision contradicts an otherwise unbroken line of precedent

holding that an appeal stays the judgment, even if there might be good social policy

reasons for not staying the appeal. The Farhat Court cites no precedent for its

holding, and indeed it seems to treat the question as one of first impression. Farhat

was also decided at a turbulent, anomalous period in Liberian history. It is

therefore probably best regarded as of dubious precedential authority.

CH. TWENTY-ONE(d) EXTRA-STATUTORY CONDITIONS ON AN APPEAL

Fourth, lower courts may not generally impose conditions on an appeal beyond those specified in statute. The Court has explained that lower courts possess no general discretion whether to permit an appeal: “If the authority to enforce a ruling or judgment were held to be a discretionary right of any judge or justice, this would be an abuse that would destroy the very essence, intent and purpose of an appeal.” In re Gibson, 16 LLR 202, 205 (1965). Similarly, they possess no general discretion to condition an appeal: “[T]he claimed authority of this rule which gives the [Chambers] Justice the right to say under which condition an appeal may be taken to the Supreme Court not only violates a basic right which one appealing enjoys under the statute, but tends to make worthless and ineffective a judgment of the Supreme Court reversing said ruling.” Id.

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Even when the Supreme Court Rules give a Chambers Justice the power to

impose conditions on an appeal, the Court has interpreted such authority very

narrowly. Thus, in In re Gibson, the Court recognized that the Rules permitted an

“appeal to the Supreme Court upon such conditions as the Justice may prescribe.”

16 LLR at 203 (emphasis supplied) (quoting Rule XII (3) of the Revised Supreme

Court Rules, 13 LLR 704). Nonetheless, the Court held that the Chambers Justice

may impose conditions only under extraordinary circumstances when those

conditions are necessary to ensure that if the appellee prevails, his interests will not

have been prejudiced by the lapse of time during the pendency of the appeal. As an

example, “where, for the conservation of perishable property, or the continuity of

the flow of income, a Chambers Justice may permit an appeal on the condition that

a trust be established in the interim of the prosecution and finalization of the appeal, so that the assets accruing to the estate held in escrow and the property secured from loss or damage might be available to the party who may be successful at the termination of the case on appeal.” In re Gibson, 16 LLR 202, 205 (1965). By contrast, a Chambers Justice may not condition an appeal on the requirement that the appellant forward the records made before the Chambers Justice to the Full

Bench within two weeks. See Jones & Thompson v. Pearson, 31 LLR 330, 332-36

(1983).

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CHAPTER TWENTY-TWO THE RIGHT TO A JURY IN CIVIL TRIALS

Article I, Section 8th, 1847 Constitution of the Republic of Liberia

No person shall be deprived of life, liberty, property or privilege, but by judgment of his peers, or the law of the land.

Article 20(b), 1986 Constitution of the Republic of Liberia

. . . in all cases not arising in courts not of record, under courts martial and upon impeachment, the parties shall have the right to trial by jury.

As explained in the chapter on Criminal Process rights, Article 21 of the

Liberian Constitution lays down strict requirements for criminal jury trials, and the

Supreme Court has decided many cases on the meaning of these requirements.

Article 21, however, governs only criminal cases, and so cases decided under it do not directly govern civil cases. Instead, it is Article 20(b) that guarantees the right to a jury trial in civil cases. The 1847 Constitution did not specifically guarantee the right to a jury trial in civil cases at all, but the Court held that Article I, Section

8th—providing that a person may lose his rights only “by judgment of his peers, or the law of the land”—to guarantee the right to a civil jury trial. See Massaquoi v.

Tolbert, 17 LLR 219, 223 (1966).

The Court has propounded a number of limits on the right to a civil jury trial.

First, because the jury’s role is to determine facts, a party has the right to trial by jury only when the case presents triable issues of fact or “mixed questions of law and facts.” Steele v. Chase Manhattan Bank, 34 LLR 21, 23 (1986). Indeed, when a

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party requests a jury trial, a court may require that he first present a prima facie case: “A plaintiff who fails to present a prima facie case is by no means entitled to have his case presented for jury trial since indeed there will lie no triable issues for the jury in such a case.” Id. at 22-23 (citing Rev. Code 1: 22.1(6), which implements the right to a civil jury trial).

By the same token, however, when there are triable issues of fact, the parties have a right to a jury trial in every type of trial. Thus, even in a declaratory judgment action, a party has a right to a jury trial when the case presents triable issues of fact. See Vargas v. Hon. Reeves & Eid, 39 LLR 368, 381-82 (1998).

Similarly, even in a quo warranto proceeding brought before the Supreme Court, the party may demand a jury trial. As explained in an opinion of a justice in chambers: “[T]he right to trial by jury of the proceeding does not ipso facto oust the

Supreme Court of jurisdiction to hear and determine quo warranto proceeding as conferred upon it by the statutes, nor will the jurisdiction of the Supreme Court to hear and decide quo warranto proceedings bar a party thereto from exercising his right to request for jury trial in order to present and establish factual issues raised by the parties.” Williams v. Smith, 30 LLR 788, 793 (1982) (opinion of Justice

Smith in chambers).

Second, the Legislature may adopt procedures for the implementation of the right to a civil jury trial: “A trial by jury is a constitutional right which shall be preserved inviolate, but in exercising such right, the legislative intent and conditions of the statute must be complied with.” UPA Import Corp. v. Citizens of

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Bokomo District, March Term 2005, 3, 10 (2005). Thus, the Court has observed that

Article 20 “is silent as to the time, forum, and manner in which this right to trial by jury can be invoked and enjoyed.” Vargas v. Hon. Reeves & Eid, 39 LLR 368, 376

(1998). In other words, the right to trial by jury “is merely a declaration which is not self executing but requires enabling legislation to give it effect.” Id.

Nevertheless, the Supreme Court will review the enabling legislation to ensure that it does not overly restrict the exercise of the underlying right: “We therefore turn then to the statute enacted pursuant thereto to determine whether the said statute is in contravention of the constitutional provision or within its contemplation.” Id. at 377. The Court will uphold an implementing statute when it

“gives form, shape and effect to the broad constitutional provision which is merely a general guideline,” id., and it gives “life or meaning to constitutional principles,” id. at 378. For example, the Court has upheld reasonable time limits: “The inclusion of a time limit for the enjoyment of the right to a jury trial does not operate as a limit on or denial of the right but only ensures that it is enjoyed with some order.”

Id. at 381.

The Court will be especially inclined to uphold an implementing statute when it appears that the legislators were trying to honor the constitutional requirements.

Thus, the Court observed that the chapter of the Procedure Law on jury trials begins with a legislative assertion of the importance of the right to trial by jury:

“’The right to trial by jury as declared by the Constitution or as given by statute shall be preserved inviolate‘ Civil Procedure Law, Rev. Code 1: 22.1.” Vargas, 39

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LLR at 378. The Court accordingly found that the statute was constitutional: “This

shows that our lawmakers were mindful of the constitutional right at the time the

statute was being enacted and therefore their intent could not have been to

undermine that constitutional provision.” Id.

When the Court concludes that the goal of an implementing statute is to

effectuate, rather than to frustrate, the right, then parties must take care to

conform to the statute’s requirements. If they do not, the court will hold that they

have waived the right: “We hereby reiterate that the failure of any person to obey,

comply with, and abide by provisions of ancillary or enabling statutes which seek to

give meaning to rights guaranteed by the Constitution amounts to a waiver or

forfeiture of said right, and that a challenge to such statute will not be entertained

simply because a person feels or is affected by the application of such statute.”

Vargas, 39 LLR at 380. For example, parties must comply with the statutory time

limit allowing ten days after service of pleading to request a jury trial. See also

UPA Import Corp., March Term 2005, at 10-11; Vargas, 39 LLR at 381; Williams v.

Smith, 30 LLR 633, 650-51 (1983); Williams v. Smith, 30 LLR 788, 793-94 (1982).

The third limit on the right to a civil jury trial is that when a party enters a binding arbitration agreement, the courts will directly enforce the arbitration award without empanelling a jury. In such cases, the decision of the arbitrator will substitute for a jury verdict: “An award from an arbitration board is sufficient to serve as a verdict when no objections are raised against its validity; and such award being predicated upon the law of the land conforms with the provision of the

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Constitution relied upon by appellant.” Massaquoi v. Tolbert, 17 LLR 219, 223-24

(1966). By way of explaining why enforcement of binding arbitration awards without a jury does not violate the right to a jury trial, the Supreme Court relied entirely on a statutory provision: “After judgment has been entered upon an award, it shall have the same status as a verdict and shall be proof of the facts stated therein against all parties to the arbitration.” Id. at 224 (quoting 1956 CODE 6:

1286). See also Karpeh-Wreh & Monger v. Baker-Azango & Hon. Weeks, 18 LLR

293, 296 (1968).

In other words, the Court seemed to conclude that the right to a jury trial was not violated because the Legislature had said so. Not all statutes, however, are constitutional, and presumably the Court was obligated to measure the statute against the Constitution, rather than simply accepting the Legislature’s determination. If the Court had conducted this independent inquiry, it might still have held the statute constitutional on the grounds that when a party enters a binding arbitration agreement, he waives his right to a jury trial because the purpose of the agreement is to forestall a lengthy trial.

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CHAPTER TWENTY-THREE DUE PROCESS OF LAW

Article I, Section 8th, 1847 Constitution of the Republic of Liberia

No person shall be deprived of life, liberty, property or privilege, but by judgment of his peers, or the law of the land.

Article 20(a), 1986 Constitution of the Republic of Liberia

No person shall be deprived of life, liberty, security of the person, privilege of any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law…

Liberia’s original constitution did not require “due process” in so many words, but it did command that the Republic must conform to “the law of the land.” The

Supreme Court has explained that the two phrases have an identical meaning:

“The Attorney General of Liberia in his opinion given on that question on the 11th

July, 1922, pointed out that Lord Coke had held that the term ‘law of the land’ used in Magna Charta [sic] meant exactly the same thing as ‘due process of law’ used in the Constitution of the United States.” Wolo v. Wolo, 5 LLR 423, 426-27 (1937).

For that reason, long before the adoption of the new Constitution, the Supreme

Court routinely held that the Constitution required “due process” and seldom referred to the “law of the land” as such. The 1986 Constitution codified this usage: it omits the law of the land clause and instead requires that government action be

“in accordance with due process of law.”

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CH. TWENTY-THREE(a) WOLO V. WOLO

The Due Process clause received its definitive interpretation in Wolo v. Wolo,

5 LLR 423 (1937), authored by Chief Justice Louis Arthur Grimes. All interpretations of the clause begin with the case, and its explanation of the various requirements of the clause continues to structure the Court’s analysis. Wolo v.

Wolo is also one of the most frequently cited and well known cases in Liberian

jurisprudence, and for that reason due process has come to be a central and familiar

legal concept.

In Wolo v. Wolo, the Court held that legislative divorces violate due process.

The Legislature had granted a divorce to a particular man, P.Gbe Wolo, from his

wife, Juah Weeks Wolo. The Court offered two different but related grounds for

invalidating this statute. First, as explained in the Chapter on Legislative power,

the Court held that the Legislature had over-stepped its bounds and intruded on the domain of the courts. The Legislature may make general rules governing divorces, but only the courts may apply them in particular cases. In effect, in granting the legislative divorce, the Legislature had decided a particular divorce case. See id. at 436-39.

Furthermore, in addition to intruding into the judicial sphere, the

Legislature had failed to accord due process to Juah Weeks Wolo: the legislators decided her case without giving her an opportunity to appear and be heard. She thus had no chance to argue that the Matrimonial Laws then in effect did not permit the divorce. Thus, the Court explained: “Mr. Wolo, arguing the case here in

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his own behalf, admitted that she was not cited to appear and answer; that no opportunity was given her to produce witnesses in her own behalf; nor was she given the opportunity to cross-examine witnesses offered against her; nor indeed could he show that his petition, upon which the Legislature is supposed to have acted, complained of any misconduct committed by her. . .” Id. at 429.

The two bases for the opinion—separation of powers and due process—seem to be connected at a deep level. The Legislature lacks the power to decide particular cases precisely because it is not designed to accord due process in particular cases.

The Legislature is organized to investigate social problems and to represent constituents’ views on broad policy issues. It is not designed to apply pre-existing rules to specific facts with scrupulous care for the particularities of each situation.

Only the judiciary may accord such due process, and so due process and the judiciary are mutually defining.

Chief Justice Grimes accurately anticipated the profound effect that Wolo v.

Wolo would have on Liberian jurisprudence. He explained that the case had significance far beyond its two parties: “The principle involved in the construction of this constitutional provision is so broad, so deep, so fundamental, that when considered in all its possible ramifications the case Wolo v. Wolo cannot but sink into insignificance beside the potential applications that might arise from any decision we might give in the premises.” Id. at 430. The principle of due process was so important because it enshrined the rule of law “in defense of vested rights about to be wrung from [their holders] by violence.” Id. The government could act

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against a person only through law, not by mere will or arbitrary desire: “This picture should be a constant reminder to us that in a country such as ours the only bulwark of the people against oppression, or the illegal deprivation of their rights and privileges, be they high or low, be they rich or poor, is the written constitution handed down to us as the most precious heritage bequeathed to us by our fathers.”

Id. The Chief Justice explained that lawlessness in a people can become habitual, accepted as the normal state of affairs: “[T]he disregard of the law constantly repeated develops a psychology to violate law just as the propensity to kill unchecked develops homicidal mania.” Id. at 431. Correlatively, if lawfulness in a people can also become habitual, then constant vigilance in the protection of due process is a critical responsibility of the Court and indeed of all Liberians.

The Wolo Court offered both a general description of the idea of due process and a specific enumeration of its requirements. Both have been frequently quoted in later cases. The general description explains: “What is meant by the expression

‘due process of law’? It has been defined as: ‘A law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. Law in its regular course of administration through courts of justice.’” Id. at 426 (quoting 8

Cyc., 1081). The specific enumeration provides: “The term ‘due process of law,’ when applied to judicial proceedings, means that there must be a competent tribunal to pass on the subject-matter; notice actual or constructive, an opportunity to appear and produce evidence, to be heard in person or by counsel; and if the subject-matter involves the determination of the personal liability of defendant he

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must be brought within the jurisdiction by service of process within the state, or by his voluntary appearance.” Id. at 428 (quoting 8 Cyc. 1083 and cases cited). The

Court summarized these elements: “The essential elements of due process of law are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.” Id. (quoting 6 R.C.L. Const. Law § 442).

The Wolo Court did not have occasion to elaborate on these requirements because the legislative divorce so thoroughly failed even the most minimal standards of due process. In later cases, however, the Court has explained these elements in greater detail: notice, an opportunity to be heard; a competent forum; and the jurisdiction of the court over the party.

CH. TWENTY-THREE(b) APPLICABILITY OF THE DUE PROCESS CLAUSE

The Supreme Court has held that the due process clause has very broad applicability: to all government actions which might deprive any person of his or her vested rights and apparently even to some private actions.

Ch. Twenty-Three(b)(1): Who Has Due Process Rights

All persons, not just citizens, have due process rights. The current Due

Process Clause provides that “no person” shall be deprived of his rights except by due process of law. The term “person” clearly refers to all human beings, not merely citizens of Liberia. The Court has made it very clear that non-citizens who are legally in the country may claim the benefit of due process: “These provisions, and

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others, incorporated in the Bill of Rights primarily for the protection of citizens would seem to inure also to the benefit of aliens who are here by permission of the government, and especially those by virtue of treaty stipulations.” Fazzah Bros. v.

Hon. Collins, 10 LLR 261, 279 (1950).

The Court has not yet had occasion to decide whether illegal aliens, those who are in the country without the government’s permission, also have due process rights. On the one hand, the Fazzah Brothers Court carefully specified that “aliens who are here by permission of the government” had due process rights; if the Court thought that all aliens had due process rights, it would not have needed to add the qualifier “by permission of the government.” On the other hand, the Court may simply have decided not to examine the question whether illegal aliens have due process rights because it did not need to do so in order to decide the extant case, which involved only legal aliens. The United States Supreme Court has ruled that illegal aliens generally enjoy constitutional rights, including those recognized by the

Fourteenth Amendment, which contains the due process clause. See Wong Wing v.

United States, 163 U.S. 228 (1896).

Ch. Twenty-Three(b)(2): Which Actions Must Conform to Due Process

The due process clause applies to all governmental proceedings that might result in loss of vested rights. In Wolo v. Wolo, Chief Justice Grimes made clear that the government may never deprive a person of vested rights before according due process: “The constitutional provisions that no person shall be deprived of life, liberty, or property without due process of law extend to every governmental

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proceeding which may interfere with personal or property rights, whether the

proceeding be legislative, judicial, administrative or executive, and relate to that

class of rights the protection of which is peculiarly within the province of the

judicial branch of government.” 5 LLR 423, 427-28 (1937) (quoting 6 R.C.L. Const.

Law § 442). More recently, the Court has also held that due process even applies to

the internal procedures of other branches, such as the decision by the House of

Representatives to remove its speaker. See Snowe v. Members of the House of

Representatives (29 January 2007). For a more extensive discussion of the Snowe

case, see the section on Justiciability.

Opportunity to be heard must occur before a deprivation of rights; it is not enough that the law allow a person opportunity to be heard after the deprivation.

Thus, the Court held that the Legislature could not allow summary foreclosures with no opportunity for the mortgagor to appear and defend before the foreclosure, and the opportunity to defend afterward did not remedy the scheme: “The only opportunity reserved to [the mortgagor] is the redemption of the mortgaged property within five days after seizure.” Fazzah Bros., 10 LLR at 272.

In short, then, some form of due process requirement attaches to all

government actions that might result in a deprivation of rights. In addition, on at

least one occasion, the Supreme Court has ruled that due process applies even to

the actions of some private parties against other private parties. In Wilson v.

Firestone Plantations Company, the Court considered Prince Wilson’s claim that

Firestone had illegally terminated his employment. At the time, Liberian law

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permitted employers to dismiss employees without notice “where it is shown that

the employee has been guilty (emphasis ours [i.e. the Court’s]) of a serious breach of

duty.” 34 LLR 134, 139 (1986). Firestone received a communication from West

Africa Travel Agency that Wilson had fraudulently obtained airline tickets from the

agency for his own use but under color of his authority as a Firestone employee. Id.

at 138. Firestone thereupon dismissed Wilson without conducting an in-house

investigation or allowing Wilson to confront his accuser, the West Africa Travel

Agency.

The Court ruled that Firestone had failed to conform to due process in the

termination and that therefore the termination was invalid. The Court first quotes

extensively from Wolo v. Wolo on the meaning of due process. It then holds: “There

is no showing that these fundamental principles were adhered to by co-appellee

Firestone Plantations Company.” Id. at 144. The Court held the company to the

same standards as a court, and it analyzed the company’s proceedings in the same

way that it would review a lower court. Thus, the Court condemned the

termination because Wilson “was never confronted with a representative from the

West Africa Travel Agency, the accuser.” Id. Further, “[t]he establishment of the

guilt of the accused presupposes that a fair and impartial trial or hearing has been

conducted, whether judicial or administrative, which must conform to existing

laws.” Id. at 143.

The Wilson Court, in other words, implicitly extended the reach of the due process clause from governmental actions to at least some private actions.

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According to the case, as Wilson’s employer, Firestone was legally bound by the due process clause itself in dismissing him. Firestone’s due process obligation clearly did not arise from the Labor Law, which actually allowed Firestone to dismiss

Wilson without any advance notice of any kind if it found misconduct. The

Legislature clearly intended to allow summary dismissals for misconduct, but the

Court seems implicitly to have overruled this section of the Labor Law: if the employer must give the employee a hearing before dismissal, then plainly the employer may never dismiss without notice. Instead, the statute merely vested

Wilson with a right to employment, and the due process clause then provides that

Firestone may not deprive him of that right without an opportunity to confront his accuser and to be heard in opposition.

Unfortunately, the Court never remarked on the fact that Firestone was a private party, and so it gave no guidance as to exactly why and how far the due process clause will govern the actions of private parties. In the United States, the

Constitution binds only the government, but in Liberia it sometimes reaches private action. As discussed in the chapter on the Nature of Rights, the Court has yet to delineate exactly how far constitutional rights will apply horizontally to private action, rather than just vertically to state action.

CH. TWENTY-THREE(c) NOTICE

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If a person has not received notice of a judicial proceeding, then the

proceeding may not deprive him of any vested rights; any such proceeding is void

insofar as it purports to act against the absent and un-notified party. As the Court

has explained, “Under our law, a party cannot be deprived of any right to life,

liberty or property without a fair and just hearing. Without notice and an

opportunity to attend, there can be no judicial hearing.” Johnson-Maxwell v. Hon.

Tulay, 29 LLR 355, 358 (1981). Thus, when the counsel for a party did not receive

notice of the date of the trial and the trial went forward in his absence, the Supreme

Court vacated the judgment of the lower court and ordered a new trial. See Liberia

Electricity Corp. v. Badio, 29 LLR 586, 592 (1982).

The Court has been exacting in its insistence on the necessity of notice.

Thus, the Court has held that notice is essential even when it is extremely difficult

to serve notice. Thus, in Jonhson-Maxwell v. Tulay, the plaintiff made several efforts to serve notice over the course of three years, but because the defendant was out of the country and so could not be served, litigation affecting his rights could not move forward. 29 LLR 355, 358 (1981).

Similarly, when a party’s housing unit was destroyed during Operation

Octopus and as a result she fled, the Court held that the National Housing

Authority could not re-assign her unit to someone else until it had served actual notice on her: “NHA has separate tenancy agreement [sic—presumably

‘agreements’] with each and every tenant. Therefore, if NHA wanted to contact appellee, Cecelia T. Weah, concerning a matter affecting her unit, NHA should have

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personally served notice on the appellee.” Kruah v. Weah, March Term 2004, 125,

129 (2004). The Court required this actual notice even though it might have been impossible to know where Weah was: “The records in this case reveal that the appellee relocated herself when her house was destroyed due to fighting in 1992. It is not stated where she went, maybe she found accommodation elsewhere in or outside of Monrovia or even outside of Liberia. This was the normal trend of population movement during the civil war.” Id. at 128.

Further, the Court has held that notice may not be simply assumed or averred; it must be proved by evidence in the records. For example, even though a lower court judgment referred to “notices of assignment, radiograms, telephone calls to counsel for plaintiff-in-error,” the Court nonetheless vacated the judgment because there was “no evidence that any of them was received by counsel for plaintiff-in-error.” Liberia Electricity Corp. v. Badio, 29 LLR 586, 588 (1982).

When the Court does not have before it the sheriff’s return signed by counsel, it will assume that the party received not notice. For example, in Walker v. Kazoula, a

“notice of assignment for November 20, 1974, was signed only by counsel for defendant in error, and there is no indication to show that it was served on the plaintiff in error.” 25 LLR 325, 327 (1976) (quoting with approval the opinion of the

Justice in Chambers). In the absence of such proof, the Court will find that the party had received no notice: “Since the records do not show that . . . the notice of assignment for November 20, 1974, was ever served on the plaintiff in error, we must conclude that the plaintiff in error was not given that notice necessary for him

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to be given his day in court.” Id. at 328. Under such circumstances, the Court will

vacate the judgment and remand for a new trial. See id. at 329.

In addition, notice must be served on both the party and the party’s counsel.

In Liberia Electric Corporation v. Badio, the Court vacated a lower court judgment

because notice of the date of trial had been delivered only to the plaintiff, not to the

plaintiff’s counsel: “The returns of the sheriff to the notice of assignment indicates

that it was served on the parties, but certainly not on any counsel for the plaintiff- in-error.” 29 LLR 586, 588 (1982).

The Court has not made clear when, if ever, general notice to the public at large, i.e., constructive notice, can substitute for personal notice to the party, i.e., actual notice. In Kruah v. Weah, when the Republic was plunged into civil war, a tenant of the National Housing Authority fled to a location unknown. The NHA wanted to re-assign her unit to another person and attempted to serve notice on her by radio broadcast. The Court found that the NHA had not thereby served notice on the tenant, but it did not explain exactly when, if ever, a general public notice will suffice. On the one hand, the Court hinted that notice in the newspapers might serve: “This Court agrees with Mr. Justice Wright when he opined that newspaper publications are more reliable and more substantive than radio announcements.”

2004 March Term 125, 128 (2004). On the other hand, the Court ultimately held that nothing less than actual personal notice would do: “Even if NHA included her name amongst others who were in similar category with her, a separate copy of

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such categorized names should have personally been served on the appellee to constitute notice to her.” Id. at 129.

CH. TWENTY-THREE(d) OPPORTUNITY TO APPEAR AND BE HEARD

Due process further requires that not only must the party have notice of the judicial proceeding, he must also have an opportunity to appear and participate in the proceedings by presenting evidence and arguments, confronting the opposing party, and cross-examining opposing witnesses. At the most extreme, Liberian law has sometimes absolutely denied the right to participate. For example, some statutes have given a party literally no opportunity to appear and be heard. The

Court has been firm in striking down such statutes. Thus, the Chattel Mortgage

Act of 1936 allowed mortgagees to secure summary foreclosures, with no opportunity for the mortgagor to present his side of the case. Fazzah Bros. v. Hon.

Collins, 10 LLR 261, 271 (1950). The Court recognized that the Legislature may have allowed summary foreclosures so as to attract mortgage capital to the country and that it may have succeeded. Id. at 270. Nonetheless, the Court strongly condemned the law: “It simply leaves room for any unscrupulous or unfair mortgagee to take advantage of a mortgagor with no privilege reserved to the mortgagor to appear and defend.” Id. at 272.

Similarly, sometimes Liberian courts have allowed defendants no opportunity to participate at all. Thus, in Henrichsen v. Horace, the defendant posted an

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appearance bond when sued for assault and battery, but when he appeared in court to argue that his bound should not be estreated, he was imprisoned with no opportunity to defend himself: “[A]lthough he was cited to appear and show cause why his bond should not be forfeited, upon his appearance a commitment for his incarceration had been issued, and he was summarily ordered imprisoned in spite of his plea for an opportunity to be heard.” 6 LLR 266, 267-68 (1938). The Supreme

Court reversed.

In yet another example, when the plaintiff in error’s counsel was “out of the country on Government business,” he asked for postponement or opportunity to retain other counsel or at least “to be allowed to represent himself.” Massaquoi v.

Swaray, 23 LLR 406, 407 (1974). The lower court held that the plaintiff in error had never actually made a formal appearance, as required by statute, so he could not be recognized by the court. The lower court then empanelled a jury, held a trial, and issued a judgment, all in the presence of the plaintiff in error but without his participation. The Supreme Court reversed. It held that the plaintiff in error had established an appearance: his requests “could be considered a motion and by implication definitely could constitute a general appearance.” Id. at 411. The Court further ruled that due process required this interpretation of the appearance requirement; to hold otherwise, that the plaintiff in error had not appeared, would deprive him of his constitutional right to participate. Thus, “[t]he plaintiff in error, therefore, did not have his day in court. Whatever disagreement there may be as to

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the scope of ‘due process’ of law, there can be no doubt that it embraces the

fundamentals of a fair trial and an opportunity to be heard.” Id.

On the other hand, the Court has often found no denial of the right to

participate in a very different sort of case: counsel for one of the parties has been

given notice to appear, but he or she has repeatedly failed to do so, sometimes with

an inadequate excuse or none at all. The Court has explained that when such

dilatory conduct becomes excessive, the party may be considered to have had an

opportunity to participate, which he or she has implicitly waived. On motion from

the other party, the lower court may then proceed to judgment even in the absence

of the party who has waived his rights. When a lawyer so behaves, he deeply

injures his client, who will lose his right to participate because of his lawyer’s negligence: “This Court has observed . . . that there has been and continues to be a great abuse . . . by lawyers in this jurisdiction by resorting to excuses for nonattendance that are frivolous and dilatory, with the result that they also infringe upon the rights of parties litigant before the courts by defeating the very

Constitutional principles relating to fairness in the trial of cases they were intended to promote.” Walker v. Kazoula, 25 LLR 325, 328 (1976). The Court has accordingly warned lawyers against such behavior. See id.; Middle East Trading

Co. v. Chase Manhattan Bank, 34 LLR 419, 428 (1987).

Because due process rights are at stake, it is very important to determine exactly when lawyers delay so excessively that their clients can be considered to have abandoned their right to be heard. Although a decision on whether to excuse a

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lawyer’s absence may seem like routine judicial business, it is constitutional in

nature because if the lawyer is not excused, the client will forfeit his constitutional rights. The Court has concluded that lower courts must possess some discretion in making such an essentially context-specific determination: “Whether or not a continuance should be granted because of the absence, from illness, death or other cause, of applicant’s counsel must necessarily depend on the facts and circumstances of each particular case.” Teewia v. Urey, 27 LLR 91, 96 (1978)

(quoting R.C.L. Continuances § 6 (1915)). See also Massaquoi v. Republic of Liberia,

8 LLR 155 (1943).

The Court has also, however, pointed to some relevant factors that lower courts should consider. First, multiple failures to appear without excuse warrant a finding of abandonment. See Sackie v. Hon. Kaba, Oct. Term 2004, 61-62 (2005).

The Court has explained: “Certain it is that the mere absence of counsel unexplained, or without sufficient reason being given therefor, is not a ground for a continuance, and in general it seems that courts in considering applications for a continuance, and in inquiring into the grounds therefor, do not view the absence of counsel with much favor.” Teewia v. Urey, 27 LLR 91, 96 (1978) (quoting R.C.L.

Continuances § 6 (1915)).

Second, if a lawyer fails to appear in a lower court because he is appearing before the Supreme Court, he must be excused: “[S]uch engagements take preference over those of the subordinate court.” Walker v. Kazoula, 25 LLR 325,

327 (1976).

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Third, illness generally constitutes an excuse as well. In 1978, the Court explained, “It has been the holding of this Court for more than forty-three years that the illness of counsel is a proper ground for continuance of a cause.” Teewia v.

Urey, 27 LLR 91, 96 (1978). A lawyer, however, must be careful to address the

Court respectfully when requesting a continuance because of illness. For example, in Teewia, counsel merely noted on the Supreme Court’s notice of assignment:

“Sorry ill. Will be prepared on Monday the 8th.” 27 LLR at 96. The Court rebuked the offending attorney: “Every lawyer practicing before this Court should be aware that the practice of law is not a joke but an art to be practiced with professionalism and common sense in handling the tools of the profession.” Id. The Court held the lawyer in contempt and proceeded to decide the case in his absence, so that his client lost the right to appear and be heard. Id. at 97.

Fourth, a lawyer’s reasonable fear that he might be endangered by coming to a court proceeding may also constitute an excuse for absence. For example, in West

Africa Trading Company v. Hon. Metzger, counsel declined to appear on the grounds that the opposing party had allegedly threatened his life and the life of his client should they appear in the Bong Count courthouse. See 39 LLR 151, 161

(1998). Counsel therefore requested postponement so as to retain the services “of a competent resident lawyer of Gbarnga City.” Id. The lower court ignored the allegations and proceeded with the trial. The Supreme Court overturned: “We . . . wonder what is more material to the trial judge than the precious lives of the plaintiff-in-error’s counsel and his client for which he disregarded their letter

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alleging threats of their lives . . . . It was indeed incumbent upon the trial judge to suspend hearing of the case and allow the plaintiff-inn-error (as defendant) a reasonable time” to find local counsel. Id.

Finally, when counsel is part of a law firm, the Court will generally require that his associates attend court dates even when counsel himself cannot. For that reason, counsel’s inability personally to attend—even if excusable in itself—will not provide an excuse for his associates not to attend. For example, In the Middle East

Trading Co. v. Chase Manhattan Bank, after many delays, counsel was in Lebanon on the date of assignment and had locked up the case file, with the result that his associates could not appear for their client. 34 LLR 419, 427 (1987). The lower court proceeded with the trial, and the Supreme Court affirmed: “It is our opinion that the contention that a particular lawyer should represent a case in court at a trial, in preference to other competent counsel also announced on the same side in the case is not only baseless in law and unfair to his adversary but it also encourages delay tactics, which all courts frown upon.” Id. at 430-31 (quoting

Nigerian Port Authority v. Brathwaite, 26 LLR 338, 348 (1977)). Because someone from counsel’s firm could have appeared at trial, the party had an opportunity to appear and be heard. Therefore, “the elements of due process of law were satisfied in the instant case. Consequently, appellant was afforded its day in court.” Id. at

430.

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CH. TWENTY-THREE(e) A COMPETENT TRIBUNAL

The third Wolo element is that only a competent tribunal may deprive a

person of a vested right. A competent tribunal is one that legally can take

jurisdiction over the case—“a tribunal legally competent to pass on the subject

matter.” Ayad v. Dennis, 23 LLR 165, 178 (1974). Thus, Executive branch officials

violate due process when they impose a criminal fine because only courts are

competent to convict persons of criminal offenses. See id. at 178. As another

example: the Supreme Court has held that a lower court violated the law of the

land clause when it disbarred a lawyer, because only the Supreme Court has

jurisdiction over disbarment proceedings. See Caranda v. Worrell, 3 LLR 279, 282-

83 (1932).

CH. TWENTY-THREE(f) JURISDICTION OVER THE PARTY

One of the most fundamental rules of Liberian jurisprudence is that no

person can be bound by a court decision to which he or she was not a party. The

foundational case is Tubman v. Murdoch, 4 LLR 179 (1934), by Chief Justice

Grimes. W.S. Murdoch secured a money judgment against Firestone Plantations

Company, but the sheriff sought to levy the judgment against William S. Tubman,

who was not a party to the suit. Id. at 180-81. The Court explained that every civil case has two parties: the plaintiff and the defendant. The plaintiff voluntarily

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submits to the jurisdiction of the court by filing a complaint. But the court can

secure jurisdiction over defendants only when they “have been served with process

or . . . having notice that process has been issued or ordered issued, voluntarily

appear and submit to the jurisdiction of the court.” Id. at 183. In words that later

courts would often repeat, the Chief Justice explained: “It is a rule of universal

application that the rights of no one shall be concluded by a judgment rendered in a

suit to which he is not a party, and that a party cannot be bound by a judgment

without being allowed a day in court.” Id. at 184 (quoting 11 Ency. of Pl. & Prac.

842-43). In short, “a judgment concludes only parties to the suit and those in

privity of relation with them.” Id. at 182-83 (citing 2 B.L.D. Judgment). Because

Tubman was never made a party defendant, he could not be made to answer the judgment against someone else. He was not even aware of the judgment “until the

Deputy Marshal suddenly landed in Cape Palmas from a ship, and swooped down upon him with the execution now on the tapis without any previous notice or warning that he had been a party to a suit in this Court.” Id. at 185.

In the years since Tubman v. Murdoch, the Court has had many occasions to apply this rule, particularly in property disputes. For example, when a party secures a deed cancellation against a second party, the party may claim possession only against that second party. If a third party also has claims on the property, the earlier decision cannot defeat such claims; instead, they must be separately adjudicated between the first party and the third. See Barbour-Tarpeh v. Dennis,

25 LLR 468, 471-72 (1977). The Court explained: “It is well settled that a judgment

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is not binding upon a party who has neither been fully cited to appear before the court nor afforded an opportunity to be heard.” Id. at 471.

Similarly, when a party wins an action of ejectment against a second party, the judgment will not bind a third party who had bought the property from the second party, built a house on it, and lived there for a number of years. See Boye v.

Nelson, 27 LLR 174, 176-79 (1978). The Court was stern in its condemnation of any attempt to bind a person by a decision to which she was not a party: “In the instant case, the petitioner was never brought under the jurisdiction of the court and never had her day in court, yet the sheriff is attempting to enforce a judgment against her. Nothing could be more anomalous. We liken this anomaly to a person who is indebted to another and is informed on the streets by the ministerial officer that a case has been adjudged against him making him liable for the payment of a debt and that the execution of the judgment is being enforced. A judicial infamy that would be.” Id. at 179. As another example: when a person brings a shareholder’s derivative suit against the president of a corporation but fails to join the corporation itself, the court may issue no judgment against the corporation. See African Int’l

Corp. v. Hon. Morris, Oct. Term 2004, 120, 127 (2005).

The Court has thus been very consistent that a party may be bound only by decisions to which she was a party. Even if a person has actual notice of a suit, he is not subject to the final judgment unless he was brought within the court’s jurisdiction. For example, in Boye v. Nelson, following a judgment for ejectment, the sheriff attempted to evict a person (Mokoh Boye) who had not been joined in the

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suit. The sheriff claimed that because Boye “had knowledge of the ejectment suit . .

. , she should have intervened.” 27 LLR 174, 179 (1978). Boye denied that she had

knowledge of the suit, but the Court found that whether she knew was irrelevant.

Even if she had knowledge, she had not been joined and so the ejectment action

could not be enforced against her: “Be that as it may, because petitioner did not

intervene, could a judgment be enforced against her when she was never brought

under the jurisdiction of the court? We think not. . . . It is our opinion that no

judgment could be enforced against her without due process of law.” Id. at 179-80.

On the other hand, the Court has also held that if a party has actual notice, he may be subject to an injunction or restraining writ (not a final judgment) in a suit to which he has not been made a party. For example, in Fazzah Bros. v. Hon.

Collins, petitioner filed an action in civil law court to enjoin respondent corporation from commencing foreclosure proceedings against the petitioner. Process was served on the corporation’s counsel who was not, however, the corporation’s attorney-in-fact, so the corporation was never joined. 10 LLR at 264-65.

Nevertheless, because the corporation had actual notice, the Court held that it had

become subject to the civil law court: “[T]o render a person amenable to an

injunction it is neither necessary that he be a party to the suit in which the

injunction was issued, nor be actually served with a copy of it, as long as he appears

to have had actual notice.” Id. at 265. Similarly: “[O]bedience to a restraining writ

commences from the time a party has knowledge that such writ had been ordered to

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be issued or that it has been issued and not after its service and returns thereto.”

In re Gibson, 16 LLR 202, 206 (1965). See also In re Moore, 2 LLR 97 (1913).

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SUBPART II(D): CRIMINAL PROCESS RIGHTS

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CHAPTER TWENTY-FOUR THE RIGHT TO A SPEEDY, PUBLIC, AND IMPARTIAL TRIAL BY A JURY OF THE VICINITY

Article I, section 7th, 1847 Constitution of the Republic of Liberia

No person shall be held to answer for a capital or infamous crime, except in cases of impeachment, cases arising in the army and navy, and petty offenses, unless upon presentment by a grand jury; and every person criminally charged shall have a right . . . to have a speedy, public and impartial trial by a jury of the vicinity.

Article 21(h), 1986 Constitution of the Republic of Liberia

No person shall be held to answer for a capital or infamous crime except in cases of impeachment, cases arising in the Armed Forces and petty offenses, unless upon indictment by a Grand Jury; and in all such cases the accused shall have the right to a speedy, public and impartial trial by a jury of the vicinity unless such person shall, with appropriate understanding, expressly waive the right to a jury trial.

From the beginning of the Republic, Liberia’s constitution has required that certain criminal trials be (1) speedy; (2) public; (3) impartial; and (4) by a jury of the vicinity. Each of these is an independent requirement and will be considered separately below. On two issues, however, the four requirements should be considered comparatively, as a group.

CH. TWENTY-FOUR(a) WAIVER

First, Article 21 (h) specifically provides that a person may waive his or her right to a jury trial but does not specifically provide that a person may waive his or

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her right to a speedy, public, and impartial trial. The Article provides that a person

may “with appropriate understanding, expressly waive the right to a jury trial,” but

it says nothing about the right to waive the other requirements. By implication,

then, those other requirements are not waivable. The framers clearly believed that

the rights are not waivable unless the text of the constitution expressly so provides;

otherwise, they would not have needed to specify that the right to a jury trial is waivable. But because the constitution does not expressly provide that the other requirements are waivable, then they are not.

In one case, however, the Court suggested in passing that all the

requirements are waivable. In Francy v. Republic of Liberia, the Court explained that the defendant has the right a speedy trial, and so although the normal practice is to schedule a trial in the term after the indictment, he may petition to move the

trial forward to the term in which he was indicted. On the other hand, he could

choose to allow the trial date to remain in the term following the indictment,

because he can waive his right to a speedy trial: “[O]nly defendant can waive any of

the rights granted under the quoted Article; and even then, he can only do so with

sufficient or adequate understanding. . . . The constitutional right of an accused to

a speedy trial is a right left to his own convenience.” 34 LLR 680, 691 (1988).

This ruling may, however, be of limited precedential authority. First, it is

dicta: the Court’s holding was that the prosecution did not have a right to a speedy

trial, and so it is was technically irrelevant whether the defendant could waive the

right to a speedy trial. Second, the Court’s reasoning is strained: it suggests that

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when the defendant allows the trial to remain in the term after indictment, he was waived his right to a speedy trial; if so, it follows that every trial that occurs in the term after indictment—in other words, most trials—is not speedy; it also follows that the defendant has an absolute constitutional right to advance the trial date to the term of indictment, rather than merely a right to petition, as under the current practice. Finally, the Court did not take notice of the fact that by its terms, Article

21(h) stipulates only that the right to a jury trial may be waived, as opposed to the right to a speedy, public, and impartial trial.

Inferentially, then, all trials covered by Article 21(h) must be speedy, public, and impartial, even if the defendant wishes otherwise. The apparent reason is that those requirements serve the public’s interest in the proper administration of justice, not just the defendant’s interest in defending himself. Indeed, as will be explained in the section below on speedy trials, the Court has specifically explained that the right to a speedy trial serves not just the interest of the defendant to come to trial but also the interest of the people in the brisk processing of cases.

CH. TWENTY-FOUR(b) APPLICATION ONLY TO TRIALS FOR CAPITAL OR INFAMOUS CRIMES

Second, all four requirements apply only to prosecutions for “a capital or infamous crime.” Article 21(h) first provides that all prosecutions for infamous or capital crimes must be brought before a grand jury; and it then provides that “in all such cases” (meaning infamous or capital crimes), the defendant shall have a right

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to a speedy, public, impartial trial by jury. In other words, Article 21(h) of the 1986

Constitution does not on its face require that trials for lesser offenses be speedy or

public or impartial or by a jury—although other provisions of the Constitution

might be interpreted to impose some of these requirements.

By its terms, the analogous provision of the old constitution—Article I,

section 7th—mandated a different rule: only capital and infamous crimes had to be presented to a grand jury, but all criminal defendants were entitled to a speedy, public, and impartial trial by jury. Thus, the provision first required that prosecutors bring capital and infamous crimes before the grand jury: “No person shall be held to answer for a capital or infamous crime . . . unless upon presentment by a grand jury.” But it then provided that “every person criminally charged” shall have a right to a speedy, public, impartial trial by jury. The phrase “criminally charged” would seem to refer to any type of criminal charge, whether infamous or not. By its own terms, then, the old constitution apparently required that only

infamous or capital crimes must go before a grand jury, but the trials for all crimes

must be speedy, public, impartial, and by a jury.

On this question, the Supreme Court was not consistent in its interpretation

of Article I, section 7th. Sometimes, the Court held that all criminal defendants were entitled to speedy, public, impartial trials by jury. Thus, the Court explained:

“The right to a speedy trial obtains without respect to the grade of the crime of which the accused may stand charged.” Page v. Republic of Liberia, 4 LLR 348, 351

(1935) (quoting 8 R.C.L. Criminal Law §§ 24, 25). Similarly, the Court pronounced:

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“To effectuate the right to a fair and impartial trial, the law guarantees that each

person criminally charged is entitled to a trial by jury.” Kamara v. Republic of

Liberia, 23 LLR 329, 331 (1974) (emphasis supplied).

By contrast, the Court sometimes held that the right to a speedy, public,

impartial trial by jury extends only to capital and infamous crimes: “From the text

and context of this section of the Constitution, it is conclusively obvious that the

trial of defendants in criminal causes by a jury of the vicinity, is a right granted and

guaranteed to all defendants who may be criminally charged with capital or infamous crimes, except in cases of impeachment and cases arising in the Army or

Navy.” Bryant v. Republic of Liberia, 6 LLR 128, 134 (1937).

As already noted, the 1986 Constitution expressly codified the latter view:

Article 21(h) gives the right to a speedy, public, impartial trial by jury only to

defendants accused of capital or infamous crimes. As a result, the earlier

disagreement under the old constitution is now irrelevant.

The definition of a capital crime is straightforward: it is a crime for which

the penalty could be death. The Court has generally defined an infamous crime as a

felony: “all prosecutions for criminal offenses of the degree of felonies . . . must be

upon indictment based upon presentment of a grand jury of the community in which

the offence is allegedly committed,” Mirza v. Republic of Liberia, 13 LLR 41, 44

(1957); “The seventh section of the first Article of the Constitution does not only

grant to defendants charged with felonies and capital crimes the right of trial by a

jury of the vicinity, but they are entitled to a fair and impartial trial. . . ,” Bryant v.

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Republic of Liberia, 6 LLR 128, 140-41 (1937). Thus, in Bryant, the criminal code provided: “If two or more persons shall conspire together to commit a crime . . . they shall be deemed guilty of a felony . . .” 6 LLR at 135. The Court concluded:

“Appellants being charged with conspiracy to commit murder, the penalty provided by the Criminal Code in such a case makes it an infamous crime.” Id.

The Legislature has the power to decide which crimes shall be felonies and therefore which crimes shall be considered to be infamous. The Court has explained: “The question then arises: what are infamous crimes? By statute, infamous crimes are defined as comprising: ‘Murder, treason, sedition, conspiracy against the State or its official Head, rape, slave trading, pawning, burglary, embezzlement, kidnapping, larceny, robbery, receiving stolen goods, perjury, bribery, forgery, and arson. . . .” Tompo v. Republic of Liberia, 13 LLR 207, 208

(1958) (quoting 1956 Code, tit. 27, section 43). Because Article 21(h) applies only to felonies, and because the Legislature has the power to denominate felonies, the

Legislature has the power to determine the crimes to which Article 21(h) shall apply. In other words, defendants have the right under Article 21(h) to a speedy, public, impartial trial by jury only if the Legislature feels that the crime of which they stand accused is sufficiently severe.

The Court has occasionally intimated that “infamous crimes” include all crimes, even misdemeanors. Thus, in Harge v. Republic of Liberia, the Court held that filiation proceedings may be brought only upon indictment by a grand jury and that defendants had the right to trial by jury. The statute on bastardy provided

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that the justice of the peace or magistrate should determine the paternity of an

illegitimate child, based on the statements of the mother, and then bind the person

alleged to be the father over for trial by the circuit court. If the circuit court

determined that the defendant is in fact the father, it may require the father to pay

maintenance for the child to prevent it from becoming a public charge. See 14 LLR

217, 220-21 (1960). The Court observed that because the petty courts had no power

to try filiation proceedings, “[i]t should follow therefore, that if these cases are not

petty offenses, but belong to the trial jurisdiction of the circuit court, then they

should have originated before the grand jury, and be determinable by the by the

verdict of a petty jury, as all other indictable misdemeanors are.” Id. at 221-22

(emphasis added).

In other words, the Court seems to take the view that all those charged with

indictable misdemeanors, not just with felonies, have the right to a jury trial: “The appellants’ requests to have been tried by jury were requests within their constitutional rights.” Id. at 222. The Court then broadly held that all criminal defendants have the right to a jury trial, upon indictment by a grand jury: “The rights of a defendant to be tried in all criminal cases in the circuit court upon the

charge of the grand jury and by a jury of the vicinity are constitutional rights and

should not be denied a defendant.” Id. (emphasis added).

As noted earlier, the text of the old Constitution specifically required that only capital and infamous crimes had to be presented to a grand jury, although it seemed to provide that all criminal defendants had the right to a speedy, public,

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impartial trial by jury. Therefore, the Hague Court apparently held that infamous crimes include “all criminal cases.” If so, the case is clearly erroneous: the category infamous crimes cannot mean all crimes, because the modifier infamous clearly was intended to restrict the category to a subset of all crimes. In addition, the Hague

Court never expressly recognized that the Constitution required that only infamous and capital crimes go before the grand jury, so in all likelihood, the holding was simply based on an oversight. Finally, because it departs from the mass of the precedent, its authority should be regarded as suspect.

CH. TWENTY-FOUR(c) THE REQUIREMENT OF A SPEEDY TRIAL

Trials for capital or infamous crimes must be speedy. The purpose in the requirement of a speedy trial is to protect the defendant and to hasten the administration of justice: “This constitutional provision, adopted from the old common law, is intended to prevent the oppression of the citizen by holding criminal prosecutions suspended over him for an indefinite time; and to prevent delays in the administration of justice, by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations.” Page v.

Republic of Liberia, 4 LLR 348, 351 (1935). The Supreme Court attaches great importance to the requirement of a speedy trial and sometimes is forced to rebuke lower courts for their dilatory pace: “Moreover, so important is this right that in the event it is denied the judge who is responsible for the neglect promptly to dispose of

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a cause may be, by mandamus, compelled to proceed to trial, or in the event he refuses either to try or to discharge the prisoner he may be impeached.” Id. at 352

(citing Opinions of the Attorney General of Liberia for 1923, at *18).

Ch. Twenty-Four(c)(1): The Definition of Speedy

Necessarily, the constitutional requirement of a speedy trial does not allow for bright line rules. Instead, courts must administer it with an awareness of practical realities: the prosecution must be allowed a reasonable time, but no more, to prepare and present its case. Thus: “All that can be asked is that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law does not exact impossibilities, or extraordinary efforts, diligence, or exertion from the courts or the representatives of the state; nor does it contemplate that the right of speedy trial which is guaranteed to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting criminals. But if the trial, by reason of the neglect or laches of the prosecution in preparing for it, is delayed beyond such period, when there is a term of court at which it might be had, such delay is a denial to the defendant of his right to a speedy trial.” See Page v. Republic of Liberia, 4

LLR 348, 352 (1935) (quoting 8 R.C.L. Criminal Law §§ 24, 25).

The Legislature has sought to supplement the constitutional requirement of a speedy trial by passing statutes that specify the pace at which a prosecution must proceed. Typically, these statutes are more exacting and concrete than the constitutional requirement itself. Thus, in finding that the prosecution had violated

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a defendant’s constitutional right to a speedy trial, the Court has relied on the

Criminal Procedure Law, Rev. Code 2: 18.2: “Unless good cause is shown, a court shall dismiss a complaint against a defendant who is not indicted by the end of the next succeeding term after his arrest for an indictable offense or his appearance in court in response to a summons or notice to appear charging him with such an offense. Unless good cause is shown, a court shall dismiss an indictment if the defendant is not tried the next succeeding term after the finding of the indictment.”

Mgmt. of Firestone Plantations Co. v. Republic of Liberia, 34 LLR 614, 624-25

(1988).

Nevertheless, the constitutional requirement is independent of the statutory one, and if the statutes should ever specify a pace slower than the constitutional one, the Court would hold them to be unconstitutional: “Whether a defendant has been denied his right to a speedy trial is a constitutional question reviewable as such, although there are statutes supplementing the constitutional guaranty.” Page v. Republic of Liberia, 4 LLR 348, 351-52 (1935) (quoting 8 R.C.L. Criminal Law §§

24, 25).

Ch. Twenty-Four(c)(2): Application at All Stages

The requirement of a speedy trial applies at all stages of the prosecution: before, during, and after the trial itself. Before the trial, the requirement directs that the trial date may not be unreasonably delayed. For example, the Court has ruled that when a defendant was indicted in August 1933 and then petitioned for an assignment of his case at every term of court until November 1934, see Page v.

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Republic of Liberia, 4 LLR 348, 348-49 (1935), the judge must “either dispose of said

case during the first week of said term of court, or to discharge the prisoner, and

cancel his bond without permission to re-indict.” Id. at 352. In another case, the

Court held “where the defendant had been indicted for a period of more than twenty-six terms of court without being tried while he remained suspended from his job,” then “the constitutional rights of the complainant . . . were grossly violated, and . . . the dismissal of the indictment by the court below was in order.” Mgmt. of

Firestone Plantations Co. v. Republic of Liberia, 34 LLR 614, 627 (1988).

Perhaps most shockingly, in Feleku v. Republic of Liberia, the defendant was convicted, moved for a new trial, was granted the motion, but then remained in prison for twelve years awaiting his new trial. See 30 LLR 189, 192 (1982).

Because the new trial had not yet occurred, the Supreme Court could not take jurisdiction over the appeal, but it instructed the circuit court to “resume immediate jurisdiction over the case and give it priority consideration on the trial docket.” Id. at 194. The Court further explained that “if there is any remedy consistent with this opinion to be granted the accused, it is within the province of the trial court to give.” Id. at 193. Nonetheless, the Court clearly intimated that under such extraordinary circumstances, the defendant should be immediately released: “We are of the opinion that where the illegal trial of an accused has been purposely concocted by the prosecution, and the court aids in the gross irregularities which result into a denial of the basic rights of the accused, he should be granted relief

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from the further denial of his liberties by a discharge without day [sic—presumably

‘delay’].” Id. at 192.

During the trial, the prosecution may not unreasonably delay the

proceedings, as by inappropriate requests for continuances. Thus, the Court has

held: “As we have said before in this opinion, very rarely is the prosecution granted

a continuance in a criminal case, especially so in a case involving a capital offense.”

Hon. Lewis & Hon. Pierra v. Yancy, 17 LLR 319, 331 (1966). The Court stopped short of saying that continuances will never be granted to the prosecution, but specified that such motions should be granted only when based “upon real factual grounds” and in “conform[ity] to the provisions or requirements of the law.” Id. at

330. Thus, when the prosecution asks for a continuance because of the absence of a material witness, the Court held that the prosecution must at least show that it had actually issued subpoenas to the witness by entering the returns made by the sheriff into evidence. See id. at 330.

Finally, even after the conclusion of the trial itself, the requirement of a speedy trial mandates that the appeal not be unnecessarily protracted—although the Court has handed down only limited caselaw on this point. Thus, the Court has explained that the legislature requires an appeal bond so that the other party will be able quickly to collect the judgment should he win the appeal. Because the requirement served the constitutional goal of a speedy trial, the Court upheld it against a challenge that it violated the right to an appeal under Article 20(b):

“[S]ection 51.8 of the Civil Procedure Law does not restrict the constitutional right

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of appeal. Instead, the legislative intent was to ensure that in the process of exercising one’s right of appeal, the constitutional rights of the adverse party to a fair and speedy trial is [sic] protected.” Estate of Bowier v. Williams, 40 LLR 84, 94

(2000). The Intestate Estate of Bowier was a civil case, and the requirement of a speedy trial applies only to criminal cases under Article 21(h), so it is not clear why the Court thought that the requirement was applicable. Nevertheless, the case stands for the proposition that insofar as the requirement is applicable to a given case, it extends into the appeals stage.

Ch. Twenty-Four(c)(3): Who Holds the Right to a Speedy Trial

The right to a speedy trial belongs only to the defendant, not to the prosecutor. For that reason, the defendant may petition to advance his trial earlier than the normal date as set by the criminal procedure law, i.e. during the term subsequent to the indictment. The prosecutor, however, must wait for the normal trial date so as to allow the defendant time to prepare his case, should he desire that time. Thus: “[T]here is no doubt that the right to a speedy trial is a right exclusively reserved to a criminal defendant, and guaranteed under our

Constitution. Hence, while a defendant has the right to request a trial in the term indicted, no such right exists for the prosecution. The prosecution can only request trial in the succeeding term, in order to afford defendant an opportunity to exercise his rights to obtain counsel and witnesses. . . . The constitutional right of an accused to a speedy trial is a right left to his own convenience; it is not a right granting to a criminal prosecutor an excuse for rushing the defendant into trial

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without the adequate preparation guaranteed under our Constitution.” Francy v.

Republic of Liberia, 34 LLR 680, 690-91 (1988).

CH. TWENTY-FOUR(d) THE REQUIREMENT OF A PUBLIC TRIAL

Trials for capital or infamous crimes must be public. The Constitution guarantees that the public must be allowed to witness trials for capital or infamous crimes. Public attendance at trials makes it more likely that the trial will be conducted in accord with the constitution because there will be witnesses to judicial or prosecutorial misconduct: “This requirement forbids that a criminal trial be held in secret, lest the rights of the accused be trampled upon behind closed doors.”

Sackor v. Republic of Liberia, 21 LLR 394, 399 (1973). On the other hand, excluding disorderly persons from the trial does not infringe the right to a public trial: “The Constitution of the Republic guarantees a public trial to every person criminally charged; but when persons visiting the trial become so unbearable and obnoxious as to impair respect for the authority of the courts, there is justifiable reason for them to be excluded from the courtroom.” Horace v. Republic of Liberia,

16 LLR 341, 356 (1958).

CHAPTER TWENTY-FOUR(e) THE REQUIREMENT OF IMPARTIALITY

Ch. Twenty-Four(e)(1): Incorporation of Other Provisions Into the Requirement of Impartiality

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Article 21(h) requires that all trials for capital or infamous crimes must be impartial. Impartiality is the goal not only of Article 21(h) but of many other provisions as well. Some of those provisions require impartiality by name, especially the Due Process Clause, as explained in the section on that provision.

Other provisions do not demand impartiality in so many words, but that ideal is nonetheless their animating purpose, such as the presumption of innocence, notice of the charge, the right to compulsory process, and the right to trial by jury itself.

Indeed, in elucidating the requirement of impartiality, the Court has generally referred to those other provisions; in effect, it has incorporated them by reference into the meaning of Article 21(h).

For example, the Court has explained that the requirement of impartiality incorporates the presumption of innocence: “An impartial trial contemplates that the burden imposed upon the State to convict the accused of the crime charged by the testimony of witnesses is never removed or diminished. And it makes no difference whether or not the accused confesses to the crime.” Sackor v. Republic of

Liberia, 21 LLR 394, 400 (1973) (interpreting the provision of the old constitution analogous to Article 21(h)). Thus, when the defendant has not admitted to the killing but the judge instructs the jury that he has, the trial is not impartial: “[T]he judge seems to have manufactured a fact to the prejudice of the defendant, and then instructed the jury to consider it in its deliberation.” Id. at 401.

Similarly, the Court has held that when a court fails to furnish the defendant with a copy of the charge, it violates the requirement of impartiality because it

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violates the defendant’s separate constitutional right to be furnished a copy of the

charge. See Harge v. Republic of Liberia, 14 LLR 217, 218-19 (1960). (Article I,

section 7th of the 1847 Constitution provided, “[E]very person criminally charged,

shall have a right to be seasonably furnished with a copy of the charge”; similarly,

Article 21 (f) of the 1986 Constitution provides, “Should the court determine the

existence of a prima facie case against the accused, it shall issue a formal writ of

arrest setting out the charge or charges.”).

Further, the Supreme Court has held that the requirement of impartiality

incorporates the right of the defendant to compulsory process, which is separately

protected under Article 21(h). Thus, the Court has explained: “Indeed, the

constitutional guaranty of a fair and impartial trial contemplates and includes the right of the accused to the compulsory attendance of witnesses.” Matierzo v.

Republic of Liberia, 34 LLR 791, 802 (1988). On numerous occasions, the Court has found that the lower court failed to act impartially when it denied the defendant the right to summon witnesses. See, e.g., Jappa v. Republic of Liberia, 21 LLR 339, 346

(1972); Tay v. Republic of Liberia, 9 LLR 92, 94 (1945); Witherspoon v. Republic of

Liberia, 6 LLR 211, 215 (1938).

Yet again, the Court has explained that the right to a trial by jury, which the

Constitution separately protects, is also necessary to an impartial criminal trial:

“Among those rights is the right to an impartial and speedy trial. Constitution,

Article I, Section 7th. . . . To effectuate the right to a fair and impartial trial, the law guarantees that each person criminally charged is entitled to a trial by jury.”

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Kamara v. Republic of Liberia, 23 LLR 329, 331 (1974). When the judge improperly

influences the jury, he invades the defendant’s right not only to a jury trial but also

to an impartial trial. See Talib v. Republic of Liberia, 20 LLR 254, 255-58 (1971).

Indeed, the Court has broadly held that a court violates the requirement of impartiality whenever it violates any of the defendant’s constitutional rights: “Any sentence pronounced against an accused . . . which infringes the legal and/or constitutional rights of a defendant, could not be taken as being the result of a fair and impartial trial.” Harge, 14 LLR at 222. A full description of the idea of impartiality therefore requires reference not only to cases decided under Article

21(h) but also under those other provisions as well. Again: “[T]he ethical and primary duty of a prosecutor is not to convict, but to afford the defendant charged with crime a fair and impartial trial. Fairness of trial must comprehend justness of the laws under which defendant answers; and the justness of those laws must be measured against defendant’s rights under the Constitution.” Oruma v. Republic of

Liberia, 21 LLR 14, 20 (1972).

Ch. Twenty-Four(e)(2): Incorporation of the Requirements of the Criminal Procedure Law into the Requirement of Impartiality

Beyond incorporating other constitutional rights, the requirement of impartiality also requires courts to conform to the general protections for the defendant contained in the criminal procedure law. Thus: “Any sentence pronounced against an accused which can be shown to have grown out of a trial not in harmony with procedure in our criminal courts . . . could not be taken as being the result of a fair and impartial trial.” Harge v. Republic of Liberia, 14 LLR 217,

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222 (1960). Similarly, the Court held: “[T]he prisoner should be afforded every opportunity to establish his innocence; and when he is deprived of any right or privilege guaranteed to him by the constitution or law, by the subterfuge of his opponent, or the action of the court, he can not be said to have had a fair and impartial trial.” Weah v. Republic of Liberia, 35 LLR 567, 578-79 (1988). See also

Matierzo v. Republic of Liberia, 34 LLR 791, 800; Jappa v. Republic of Liberia, 21

LLR 339, 345 (1972); Talib v. Republic of Liberia, 20 LLR 254, 256 (1971); Ledlow v.

Republic of Liberia, 2 LLR 529 (1925). In this sense, impartiality entails procedural regularity from case to case; the judge may not treat one defendant differently from another by failing to accord him his rights under the law.

For example, when a court fails to furnish a defendant with a copy of the charge, it violates impartiality not only because the constitution entitles the defendant to a copy of the charge but also because normal procedure so entitles him.

See Harge, 14 LLR at 218, 222. As another example, the defendant has not received an impartial trial when the court denies his right, protected under the criminal procedure law, to introduce medical evidence of insanity. See Weah, 35 LLR at 576-

79. Yet again, the Court has held that when the defendant has not received the assistance of competent counsel, he has not received a fair and impartial trial. See

Garlo v. Republic of Liberia, 20 LLR 234, 235-36 (1971).

Ch. Twenty-Four(e)(3): Miscellaneous Requirements of Impartiality

The Court has decided a number of cases explaining the requirement of a

“fair and impartial trial” without specifically tying that requirement to any

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provision in the Constitution. Nonetheless, presumably the Court decided these

cases under Article I, Section 7th of the old constitution and Article 21(h) of the

new, because those provisions specifically guarantee the right to an impartial trial.

In general, however, these cases indicate that all criminal defendants have the right

to a fair and impartial trial, not only those accused of capital or infamous crimes.

For example, the Court has explained that the defendant has a right to

change the venue of the trial when local jurors would likely be so prejudiced in the

matter as to make an impartial trial impossible. Thus: “It is a fundamental

principle of our law that every person charged with a crime shall have a right to a

fair and impartial trial; and while it is generally presumed that a defendant can

obtain a fair and impartial trial in the county where the offense with which he is

charged was committed, when he can show that because of local excitement or

prejudice against him in the county where the indictment is found, he will be unable

to obtain a fair trial there, he is entitled to have the venue changed to another

county.” Weah v. Republic of Liberia, 35 LLR 567, 574 (1988) (quoting 56 Am. Jur.,

Venue, at 59). Under Liberian statutory law, the right to change venue is absolute

if the defendant submits a sworn statement: “[T]his Court has held in Sawyerr [sic]

v. Republic, 8 LLR 311 (1944), that ‘where a defendant in a criminal case involving a felony swears that he fears because of local prejudice, he will be unable to obtain justice, our statutes make it mandatory that a change of venue be granted.’” Weah,

35 LLR at 571. In the absence of such a statement, the trial judge has more discretion in deciding whether to change the venue, but his “discretion is judicial in

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character, a sound discretion guided by law, and his ruling is therefore subject to

review by an appellate court, and will be reversed where an abuse of discretion

plainly appears.” Id. at 575 (quoting 56 Am. Jur. § 14, at 74). As noted, however,

these requirements are statutory, and it is not clear whether the Constitution would

require as much.

In addition, the requirement of impartiality is violated whenever the judge

has formerly played any partisan role in the proceedings leading to the prosecution

before him. Thus, where the judge had earlier been involved in the commission that

investigated the alleged crime, he could not then preside over the case: “[A]ppellant

could not have had a fair and impartial trial when the Judge presiding had allowed

himself to be disqualified and prejudiced by attending the executive investigation

held by the Honorable the Superintendent and his Council.” Ware v. Republic of

Liberia, 5 LLR 50, 52 (1935). For that reason, “[j]udicial officers should abstain

from participating in public meetings in which questions are discussed which may

afterwards come before them for decision, because a judge should not be a partisan.

Whenever he becomes a partisan, his usefulness on the bench is greatly impaired, if not entirely destroyed.” Id. at 53 (citing 15 R.C.L. § 18, at 532).

Ch. Twenty-Four(e)(4): Remedies for Violations of the Requirement of Impartiality

When the defendant has not received a fair and impartial trial, the Supreme

Court will set aside the conviction and order a new trial. See Garlo v. Republic of

Liberia, 20 LLR 234, 236 (1971). In order to secure such a reversal, however, the

appellant may not merely assert that he did not receive a fair and impartial trial;

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he must show concretely how his trial departed from the ideal of impartiality. For

example, “[t]he petitioner believed that the trial judge violated his constitutional

right to a fair and impartial trial by having private conversation with the em-

paneled jurors. Whilst such behavior may be considered improper and hence

reprehensible, petitioner must show how the judge’s conversation with his jurors

prevented him from enjoying a fair and impartial trial.” Momo v. Hon. Gwyan, 37

LLR 756, 759 (1995).

CH. TWENTY-FOUR(f) RIGHT TO TRIAL BY A JURY OF THE VICINITY

Persons charged with capital or infamous crimes have a waivable right to

trial by a jury of the vicinity. The Constitution protects the right to a jury trial

because the jury represents and therefore will reflect the wisdom of the citizenry in

making determinations of guilt: “In this process, one who has been criminally

charged with an offense which lies beyond the jurisdiction of courts not of record, is

judged only by his peers, who are members of the community, who come from all walks of life, and who hold a diversity of opinions. In so judging person, therefore, the law requires that the jury satisfy itself that the prosecution has proven beyond a reasonable doubt that the defendant is guilty of the offense for which conviction is sought.” Kamara v. Republic of Liberia, 23 LLR 329, 331 (1974).

Ch. Twenty-Four(f)(1): The Determination of Facts

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In cases of capital or infamous crimes, the jury is the sole judge of facts, and the judge must not interfere with the jury’s determination of facts. As the Court has explained, “Sedgwick in his work on Constitutional Law, remarks that: ‘the general idea intended to be conveyed by the constitutional guaranty of the trial by jury undoubtedly is, that all contested issues of fact shall be determined by a jury and in no other way;’ and this doctrine has been very faithfully carried out by the judiciary.” Harmon v. Republic of Liberia, 2 LLR 480, 481-82 (1924). The Court has proclaimed that this right is “very dear to the people of this country.” Id. at 481.

Judges may not invade the fact-finding role of the jury. This rule imposes at least two different limits on judges. First, judges may not simply dispense with juries and instead determine the facts themselves in trials of infamous or capital crimes. Nor may the Legislature grant to courts the power to try such crimes without a jury. Thus, when the Legislature authorized summary trials for cases of election tampering, the Court struck the statute down as inconsistent with the right to trial by jury. See Harmon, 2 LLR at 484.

Second, judges may not seek to influence the jury’s determination of facts:

“[A] speedy, public and impartial trial by a jury means that the minds of the jury should not be influenced by the court and that whatever verdict it brings against or in favour of any party should be based upon the evidence adduced at the trial, the jury being the sole judges of facts in whose province it is to accord whatever credibility it deems fit to the evidence brought before it in any given case.” Munnah

& Sommah v. Republic of Liberia, 35 LLR 40, 46 (1988).

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If a judge attempts to influence the jury’s fact-finding, he commits two

constitutional violations. First, he invades the defendant’s right to trial by jury,

because in a trial by jury, the jury determines the facts: “Where the trial judge

makes a declaration in the hearing of the trial jury, as in the instant case, regarding

the credibility of the evidence adduced at the trial, the judge thereby usurps illegally the functions of the trial jury.” Id. Second, by attempting to influence the jury, the judge damages the impartiality of the trial: “In the event a verdict of guilt is brought against the party based upon the judge’s influence and statement, be in

or out of court, such verdict must be set aside and declared null and void for want of

fairness and impartiality.” Id. See also Sackor v. Republic of Liberia, 21 LLR 394,

400-01 (1973). Again: “It is as improper for the judge, by act, conduct, gesture or

demeanor, as by remarks or comments, to indicate any opinion on an issue of fact,

the merits of the case, the credibility of a witness, the weight or sufficiency of the

evidence, or the extent of the damages sued for, and he should not adopt or exhibit a

hostile attitude toward a party or his counsel, or otherwise so treat counsel as to

prejudice the interests of his client, or by his manner or conduct show bias or

prejudice toward or against either party, or do anything calculated to influence the jury in reaching its verdict.” Talib v. Republic of Liberia, 20 LLR 254, 257-58 (1971)

(quoting 64 C.J. Trial § 107).

Ch. Twenty-Four(f)(2): A Jury of the Vicinity

In cases of capital or infamous crimes, the jury must be of the vicinity. The

Court has explained that a “jury of the vicinity” refers to “a select group of men

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and/or women of the neighborhood, or locality, or county.” Sackor v. Republic of

Liberia, 21 LLR 394, 399 (1973). In another case, the Court more specifically defined “a jury of the vicinity” as “a jury of the county in which the offense is alleged to have been committed.” Bryant v. Republic of Liberia, 6 LLR 128, 136 (1937).

The Court has explained that the right to a trial by jury of the vicinity is ancient.

See Sackor, 21 LLR at 400. The right ensures that the defendant will not be tried by strangers who might be too ready to find the defendant guilty: “The wisdom of such a requirement is obvious, for a neighbor, or a citizen of the same locality or county in which the crime was committed, is less likely to condemn the accused if the chain of evidence was not strong enough to bind him with certainty to the commission of the crime. For, how could they be unfair to a neighbor?” Id.

To move the venue of a trial to a different county would therefore violate the right to a trial by a jury of the vicinity, because the jury would be drawn from the citizens of a foreign county. Because the defendant may waive his right, he may petition for a change of venue: “To apply for a change of venue to the nearest county because of existing local prejudices, whereby a defendant believes or fears he will not be able to obtain justice in the county where the indictment was founded, would obviously be a waiver of the constitutional right to be tried by a jury of the vicinity, although not a waiver of the right to trial by a jury of the vicinity of the nearest county whither the venue is sought to be taken.” Bryant, 6 LLR at 136.

Inferentially, however, the prosecution may not petition to move the venue, even if

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local feelings are strongly inflamed, because the prosecution may not deprive the defendant of the right to be tried by his neighbors.

Ch. Twenty-Four(f)(3): Waiver of the Right to Trial By a Jury of the Vicinity

The defendant may waive the right to trial by jury. The 1847 Constitution did not specify whether the right to trial by jury was waivable. The Supreme Court recognized that the legal authorities were in conflict on whether a defendant may waive the right to trial by jury. See Bryant v. Republic of Liberia, 6 LLR 128, 137-

39 (1937). The Court held that in Liberia, the defendant may waive his right in at least one circumstance: when a defendant petitions for a change of venue, he is technically waiving his right to trial by a jury of the vicinity because the new jury will be drawn from a different vicinity. The Court concluded that the Constitution would allow such a waiver because the change in venue might be necessary for an impartial trial, which the Constitution also guarantees: “The seventh section of the first article of the Constitution does not only grant to defendants charged with felonies and capital crimes the right of trial by a jury of the vicinity, but they are entitled to a fair and impartial trial, and if such a trial cannot be had by a jury of the vicinity, the greatest object and guarantee of the Constitution to defendants criminally charged fails.” Id. at 140-41.

Today, the new constitution explicitly protects the right of defendants to waive their right to a jury trial, and unlike the Bryant Court, the Constitution allows waiver for any reason as the defendant sees fit, so long as the waiver is express: “[T]he accused shall have the right to a speedy, public and impartial trial

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by a jury of the vicinity unless such person shall, with appropriate understanding,

expressly waive the right to a jury trial.” 1986 Const. of the Republic of Liberia art.

21(h) (emphasis supplied).

Ch. Twenty-Four(f)(4): Who Holds the Right to Trial By Jury of the Vicinity

The prosecution, no less than the defendant, has the right to demand a trial

by jury. By its terms, Article I, section 7th of the 1847 Constitution granted the right to trial by jury only to the defendant, not the prosecution. Similarly, Article

21(h) of the 1986 Constitution guarantees only the defendant’s right, and it further

expressly provides that the defendant may waive that right. Thus, focusing only on

the language of the provisions, it would appear that if the defendant fears that a

jury will not be sympathetic to him, he can waive his right to a jury trial and receive

instead a bench trial.

In Kamara v. Republic of Liberia, however, the Supreme Court held that the

State as well as the defendant has the right to a jury trial. See 23 LLR 329, 343

(1974). The Court based its holding not on Article I, Section 7th but rather on the

immediately preceding Article I, Section 6th, which provided: “[I]n all cases, not

arising under martial law, or upon impeachment, the parties shall have a right to a

trial by jury.” The 1986 Constitution contains an analogous provision, Article 20(a),

so Kamara presumably still governs: “[I]n all cases not arising in courts not of

record, under courts-martial and upon impeachment, the parties shall have the

right to trial by jury.”

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According to the Kamara Court, Article I, Section 6th guaranteed to all parties in all types of cases the right to trial by jury: “We get the impression from this provision of the Constitution that any one of the parties in any case, civil or criminal, may elect or demand to have his case tried by jury. In other words, the right to such jury trial is no less binding upon a party in civil cases, than it is upon the State or defendant in criminal cases, so long as the desire to have a jury hear and decide is indicated.” 23 LLR at 343. The State indicates its desire for a jury trial by bringing an indictment, which automatically mandates a jury trial: “Going to trial on the indictment instead, which compelled a jury trial, was within its constitutional rights, in keeping with Article I, Section 6th, quoted above.” Id. at

344.

Kamara, however, may be of uncertain precedential authority, both because it is old and because its reasoning may be strained. If Article I, Section 6th really gave the right to a jury trial to all parties in all sorts of cases, then it would have been entirely unnecessary and repetitive for Article I, Section 7th to assert this right for criminal defendants in particular. More likely, Article I, Section 6th governed the rights of civil litigants, and Article I, Section 7th governed the rights of criminal defendants. The former Article made no overt reference to criminal trials, and its use of the term “parties” suggests a civil context: although the prosecution is technically a party to a criminal trial, the term “parties” is most often used to refer to parties in interest in a private dispute. Further, Kamara’s reliance on

Article I, Section 6th for the claim that an indictment invariably mandates a jury

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trial seems misplaced because that section said nothing about indictments. By contrast, Article I, Section 7th did make provision for indictments: in cases of capital or infamous crimes, the prosecution could be brought only by indictment, and the defendant had a waivable right to jury trial. But if Article I, Section 7th governed the question, then the State did not have a right to jury trial because that provision granted the right only to the defendant. Exactly the same analysis applies to the 1986 Constitution because Article 20(a) is almost identical to Article

I, Section 6th, and Article 21(h) is almost identical to Article I, Section 7th.

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CHAPTER TWENTY-FIVE RIGHTS TO MAKE A DEFENSE

Article I, Section 7th, 1847 Constitution of the Republic of Liberia

[E]very person criminally charged, shall have a right to be seasonably furnished with a copy of the charge, to be confronted with witnesses against him, and to have compulsory process for obtaining witnesses in his favor. . .

Article 21(f), 1986 Constitution of the Republic of Liberia

Every person arrested or detained shall be formally charged and presented before a court of competent jurisdiction within forty-eight hours. Should the court determine the existence of a prima facie case against the accused, it shall issue a formal writ of arrest setting out the charge or charges . . .

Article 21(h), 1986 Constitution of the Republic of Liberia

In all criminal cases, the accused shall have the right to be represented by counsel of his choice, to confront witnesses against him, and to have compulsory process for obtaining witnesses in his favor.

The Constitution guarantees to a defendant certain rights to defend himself in criminal proceedings. These include the right to be presented with the charge within a reasonable time; to confront witnesses and evidence against him; to present witnesses and evidence; and to have compulsory process for obtaining witnesses. In a sense, these rights are similar to the due process right to notice and an opportunity to appear and present evidence and arguments: “Another constitutional right to which the appellants were entitled, and which was denied them, is the right to have been tried by due process of law. Under this right, every opportunity should have been given the accused to prove their innocence.” Harge v.

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Republic of Liberia, 14 LLR 217, 222 (1960). These due process-style rights are especially important in a criminal prosecution. The Court has also stressed that in capital cases, the courts should be especially careful to respect these rights.

CH. TWENTY-FIVE(a) THE RIGHT TO BE FURNISHED WITH THE CHARGE

In order to defend himself against the charge, the defendant must first know what the charge is, and the charge must be sufficiently detailed to allow for a thorough defense. Thus, the Court has explained: the accused has a right “to be informed of the nature and cause of the accusation against him” and to have the offense “fully and plainly, substantially and formally, described to him” so that he

“might be able to defend himself against the charge.” Lone v. Republic of Liberia,

27 LLR 148, 158 (1978) (quoting 3 Greenleaf Evidence § 10 (16th ed., 1899) & John v. Republic, 7 LLR 261, 271 (1941)). Again: “[O]ur Constitution provides that every person criminally charged shall be seasonably furnished with a copy of the charge against him. This is fundamental.” Swaray v. Republic of Liberia, 15 LLR 149, 172

(1963). The indictment must state the charge with “sufficient certainty”: “An indictment which informs the accused of the time, place, circumstances and conditions of committing the unlawful act therein alleged, and that the act complained of is contrary to law, is generally a sufficient charge against him, especially if stated with sufficient certainty to enable him thereafter to plead

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autrefois convit or autrefois acquit.” Id. at 172-73 (quoting Seton v. Republic, 4 LLR

238, Syllabus 2 (1935)).

For example, because embezzlement consists of converting property entrusted to the defendant for his own use, the charge must specify which property was allegedly entrusted to the defendant: “In other words, the indictment must charge him with having been given custody of the property by the owner in a prosecution for the crime of embezzlement. This is not the case here, because the indictment did not charge the defendant with this amount of $200.” Lone v.

Republic of Liberia, 27 LLR 148, 158 (1978).

The defendant has the right to be furnished with a charge for each offense of which he has been accused. Thus, when a defendant is charged with contempt during his trial for an offense separate from the contempt, he is entitled to a separate charge detailing the allegation for contempt: “As to criminal contempts, the authorities are all in unison, in that not only must the accused be given an opportunity to defend himself in court, but also that he is entitled to a separate and distinct notice of the accusation against him, independently of the proceedings in connection with which his alleged contempt arose.” Howard v. Republic of Liberia,

8 LLR 135, 138-39 (1943) (quoting 6 R.C.L. Contempt § 45, at 532-33 (1915)).

CH. TWENTY-FIVE(b) THE RIGHT TO CONFRONT WITNESSES AND EVIDENCE

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In order to put on a defense, the defendant must know not only with what he is charged; he must also know the prosecution’s evidence for the charge, and he must be allowed to try to rebut it. Thus, in a trial for embezzlement, when the prosecution relies upon an audit and receipts but fails to enter them into evidence, the defendant has not had an opportunity to confront the evidence against him:

“The fact that appellant never read the statements and report of the auditors who inspected and audited her accounts, and the fact that none of the thirty-nine (39) or twenty-five (25) taxpayers, whose receipts were received ever testified at the trial, shows that appellant was not afforded the opportunity for confrontation as is required by the constitution. LIB. CONST. Art. I, Sec. 7th.” Webster-Ankra v.

Republic of Liberia, 28 LLR 76, 87 (1979). Similarly, in a bastardy proceeding, the alleged father has the right to confront the mother alleging paternity: “[T]he failure of the private prosecutrix to take the stand and testify in support of her charge deprived the defendant of his right to cross-examine her on the charge she had made against him.” Harge v. Republic of Liberia, 14 LLR 217, 223 (1960). Further, when a witness testifies before a justice of the peace in a preliminary examination, the justice’s description of that testimony may not be entered into evidence because the defendant would have no ability to cross-examine the witness: “The admissibility of Justice Aaron J. George’s statement against appellants deprived them of being confronted with the witness against them as warranted by the

Constitution of Liberia.” Brown v. Republic of Liberia, 2 LLR 548, 549-50 (1926).

Finally, the prosecution may not examine its own witnesses before the jury unless

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the defendant is present: “The examination of witnesses must be done in the presence of the accused . . .” Tobah v. Republic of Liberia, 2 LLR 53, 54 (1911).

CH. TWENTY-FIVE(c) THE RIGHT TO PRESENT WITNESSES AND EVIDENCE AND THE RIGHT TO COMPULSORY PROCESS

In order to conduct his defense, the defendant must have the right not only to confront the prosecution’s witnesses but to present his own: “Our law does not compel a defendant in a criminal case to give evidence against himself; nor, if he elects to take the witness stand, does the law require him to answer questions which would have a tendency to incriminate him. But the law does give him the right to have witnesses deposed in his behalf to disprove any evidence made against him by the adverse side.” Swaray v. Republic of Liberia, 15 LLR 149, 173 (1963).

Ch. Twenty-Five(c)(1): The Defendant’s Right to Summon Witnesses

The trial judge therefore may not refuse to allow the defendant’s witnesses to testify. See Ware v. Republic of Liberia, 5 LLR 50, 55 (1935). For example, several times, the Supreme Court has held that when the defendant avers that he is insane, the trial judge must allow him to summon witnesses on that issue. Thus, the court granted the defendant’s “application for a medical doctor to testify to the mental soundness and physical fitness of the prisoner.” Weah v. Republic of Liberia, 35

LLR 567, 576 (1988). Similarly, the trial court commits “a prejudicial and reversible error in denying appellant the right to have a psychiatric examination so

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as to determine medically whether or not appellant was sane to stand trial.” Joillia v. Republic of Liberia, 29 LLR 540, 543 (1982). See also Tay v. Republic of Liberia,

9 LLR 92, 994 (1945).

The defendant has the right not only to produce witnesses but also to invoke the resources of the trial court to arrange for their attendance “whenever the testimony of a witness is procurable.” Ware v. Republic of Liberia, 5 LLR 50, 55

(1935). When requested, the court must send for the witnesses: “It is the duty of the court, on the application of the prisoner, to send for witnesses, wherever they may be had, within the jurisdiction of the court . . . .” Witherspoon v. Republic of

Liberia, 6 LLR 211, 215 (1938) (quoting 2 Watson on the Constitution, at 1485).

The court must also order the sheriff to search for witnesses. Indeed, the Supreme

Court has held that the sheriff must “make every possible effort to serve the subpoena,” and if he does not, the Court will sustain an exception. Witherspoon, 6

LLR at 214. Again: “Furthermore, the refusal of the trial judge to compel the sheriff to make diligent search for appellant’s witnesses . . . was another serious and reversible error committed by the trial judge. Appellant was therefore deprived of the legal right to obtain witnesses in her own favour.” Joillia v. Republic of Liberia,

29 LLR 540, 543 (1982).

Finally, the trial court must compel the attendance of the defendant’s witnesses: “Compulsory process, within the meaning of this clause, means that the power of the court may be invoked by the defendant to compel the attendance of witnesses who will testify in his behalf.” Witherspoon, 6 LLR at 214 (quoting 2

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Watson on the Constitution, at 1485). Similarly, “[w]e now hold, as we have held

before, that it is the duty of the court, on the application of a prisoner, to send for

his witnesses where ever they may be had, and if necessary, to issue compulsory

process in order to obtain them.” Matierzo v. Republic of Liberia, 34 LLR 791, 801

(1988). When the defendant’s witness is actually in the Republic’s custody as a

prisoner, the court must compel the Republic to produce the witness at trial: “It

was also error not to have compelled the State to produce defendant’s prospective

witness, Myer Tickley, especially since he had been arrested along with the accused

and was detained as one of the perpetrators of the crime. According to the record

taken at the trial, not only did the prosecution fail to produce this witness asked for

by the defendant, but for some reason unknown this said witness completely

disappeared from custody.” Sarbo v. Republic of Liberia, 21 LLR 481, 485 (1973).

The court can compel only those witnesses who are within its geographical jurisdiction: “It is the duty of the court, on the application of the prisoner, to send

for witnesses, wherever they may be had, within the jurisdiction of the court . . . .”

Witherspoon v. Republic of Liberia, 6 LLR 211, 215 (1938) (quoting 2 Watson on the

Constitution, at 1485) (emphasis supplied). On the other hand, the court must

make efforts to secure the testimony even of those witnesses not within its

jurisdiction. In particular, the Court must seek to secure the absent witness’s

testimony through letters rogatory “to be sent to a competent tribunal [in the

country where the witness is located] to have [the witness] appear before the said

court or tribunal to answer under oath to the interrogatories annexed to and/or

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couched in the application, and to have said deposition submitted in writing and returned to the court below with the letters rogatory.” Matierzo v. Republic of

Liberia, 34 LLR 791, 803 (1988).

The right to produce witnesses and to compulsory process is mandatory: the trial judge may not choose to deny it in his discretion. The Supreme Court’s instructions on this point have been pointed. As early as 1894, the Court explained, in words that have often been quoted afterwards: “The Constitution of this

Republic (Art. I, sec. 7) expressly declares that every person criminally charged,

‘shall have a right to have compulsory process for obtaining witnesses in his favor.’

There is no qualification whatever expressed in this connection. The language is unequivocal and imperative, clearly indicating the intention of the framers of that instrument to throw around the citizen or subject every conceivable safeguard against the exercise of arbitrary power by those who might be invested with authority.” Cooper v. Republic of Liberia, 1 LLR 256, 258 (1894). To deny this right is “not only a stupendous error, but also a flagrant violation of the organic law of the land.” Id. See also Matierzo v. Republic of Liberia, 34 LLR 791, 797-98 (1988);

Jappa v. Republic of Liberia, 21 LLR 339, 346-47 1972); Tay v. Republic of Liberia, 9

LLR 92, 94 (1945). The Court has also phrased the requirement thus: “It is not a matter of discretion for the trial court, and, therefore, the court cannot deprive the accused of his right to have compulsory process.” Matierzo v. Republic of Liberia, 34

LLR 791, 802 (1988).

Ch. Twenty-Five(c)(2): Limits on the Right to Summon Witnesses

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Ch. Twenty-Five(c)(2)(i): The Defendant’s Responsibilities

On the other hand, there are several limits on the right to produce and compel witnesses. The first limit is that although the defendant must be given a reasonable opportunity to locate and produce witnesses, if he tarries too long, the court may move the trial forward even in the absence of the defendant’s witnesses.

Although the right to produce witnesses is mandatory, the trial court will inevitably need to exercise judgment in deciding when the defendant has taken too long. In striking this balance, the Court has drawn attention to several considerations.

First, the defendant is not required to secure all his witnesses before the trial begins. If, during the course of the trial, it becomes plain that he needs additional witnesses, he can compel them at that time: “In fact, the constitutional right obtains at all times to the end of the trial and gives the accused the right, at all times during the trial, to procure compulsory process for the attendance of witnesses when he learns that it is important to his defense.” Matierzo v. Republic of Liberia, 34 LLR 791, 802 (1988). On this basis, the Supreme Court rebuked a trial court thus: “The trial judge seemed to have taken the position that the defendant ought to have secured these witnesses before the trial commenced and that since he had not done so he left no other impression but that they were not important or material witnesses. We find ourselves unable to agree with this position, especially in face of the fact that these persons were referred to during the trial by both sides as being present at the time and place the offense charged was alleged to be committed.” Stubblefield v. Republic, 10 LLR 104, 106-07 (1949). In

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short, “a witness may be subpoenaed during the trial.” Jappa v. Republic of Liberia,

21 LLR 339, 346 (1972) (citing Tunning v. Republic of Liberia, 15 LLR 137 (1963)).

Second, unless the defendant has somehow culpably delayed, trial courts must generally grant continuances when necessary to secure the attendance of material witnesses. For example, in Stubblefield v. Republic of Liberia, defendant has asked the court to summon three material eyewitnesses; the sheriff had searched for but failed to find two and had apparently made no effort to find the third. 10 LLR 104, 105 (1949). The defendant asked for a continuance until the next day to secure the witnesses, but the trial court refused. The Supreme Court held that the defendant has a right to the continuance: “We are of the opinion that the request of the defendant for suspension of the trial until the next morning with a view to securing the attendance of his witnesses was sound and reasonable . . . ; its denial was, to say the least, a deprivation of defendant’s constitutional rights, which should be frowned upon and deprecated.” Stubblefield, 10 LLR at 107.

As another example, in Witherspoon v. Republic of Liberia, during the trial, the defendant asked for a continuance because two of his witnesses were ill and a third was serving in the House of Representatives which was then in session. 6

LLR at 214. The trial court overruled the motion, but the Supreme Court held that the overruling was in error: “The ruling of the trial judge on the aforesaid motions in our opinion lacks sound discretion.” Id. at 215.

Third, when a material witness is located in a different country, trial courts must generally send letters rogatory to that country so that a competent tribunal

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can take the witness’ sworn testimony—even if the process will delay the trial. See

Matierzo v. Republic of Liberia, 34 LLR 791, 802-04 (1988). Thus, when a trial court refused to delay the trial until the receipt of the letters rogatory because of

“the complication and time consuming activities involved,” the Court responded:

“Could these factors have prevented the learned judge from performing legal duty . .

. ? Certainly not.” Id. at 803-04.

On the other hand, if the defendant fails to act with due responsibility in securing his witnesses, the trial court may proceed without those witnesses. As the

Court has explained, the defendant is “entitled [only] to a reasonable opportunity to procure witnesses for his defense.” Matierzo v. Republic of Liberia, 34 LLR 791, 802

(1988). Similarly, “[I]t is error for the trial court to proceed to the trial of the cause without giving the accused an opportunity of procuring such witnesses [only] provided he shall have exercised due diligence so to do.” Ware v. Republic of Liberia,

5 LLR 50, 55 (1935) (emphasis supplied). Again: “In exercising his right to compulsory process, accused should act seasonably and diligently to secure the attendance of his witnesses, especially where it is sought to procure their attendance at public expense.” Tozoe v. Republic of Liberia, 22 LLR 113, 116 (1973)

(quoting 97 C.J.S. Witnesses § 6). In short, “[l]itigants must not expect courts to do for them that which it is their duty to do for themselves.” Id. at 117 (quoting

Blacklidge v. Blacklidge, 1 LLR 371, 372 (1901)).

For example, in Tozoe v. Republic of Liberia, the Court found that the defendant had failed to act seasonably and diligently. The case was assigned for

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hearing on May 12 but was then postponed until May 19. The defendant therefore had one week to subpoena witnesses, but he failed to do so: “The defendant should have exerted every effort to see that process for his witnesses was served and returned between May 12, when the case was first assigned for hearing and May 19, when the trial actually began.” 22 LLR at 115. When the trial began, the court adjourned for one day in order to allow the defendant to secure his witnesses: “In addition, when the case was suspended by the trial judge to be resumed the following day at eight o’clock in the morning, it was possible for defendant’s witnesses to have been summoned and placed under the jurisdiction of the court by eight o’clock the next morning when the case was assigned to be continued. . .” Id.

Because the defendant had had one week to subpoena witnesses, however, the trial court declined to allow him the benefit of court process to summon his witnesses during this one day adjournment. The Supreme Court concluded that this ruling did not violate the right to compel witnesses: “Therefore, it cannot be said that the trial judge arbitrarily refused compulsory process.” Id. at 116. If the defendant felt that his rights had been violated, he could have asked for a continuance, but again he failed so to do. See id. As a result, the Court concluded: “From the surrounding circumstances in this case it is clear that appellant failed to have taken the necessary measures to secure his constitutional rights, which amounts to a waiver thereof.” Id.

Yet again, in Jappa v. Republic of Liberia, the trial court denied defendant’s motion for a continuance until two o’clock of the same day so that his witness, who

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had been in court the day before and had to travel a long distance from home, could appear. 21 LLR 339, 345-46 (1972). The Supreme Court rebuked the trial court:

“This is alarming. For this is a constitutional right of an accused which should not have been denied him. . . . The trial judge was obviously impatient and did not exhibit that judicial impartiality expected of every judge, considering that a similar request had been made by the prosecution for a postponement of the trial, which was granted.” Id.

Ch. Twenty-Five(c)(2)(ii): Relevant and Material Witnesses

The second limit on the right is that the defendant may produce and subpoena only those witnesses whose testimony would be relevant and material to the case. Liberian law allows only the admission of relevant evidence at trial. See

Forleh v. Republic of Liberia, March Term 2004 at 21, 25 (2004). Therefore, no witness who will offer irrelevant or immaterial evidence should be summoned. But the cases seem to disagree on the appropriate procedure for determining whether a witness will offer only irrelevant or immaterial testimony. Some cases indicate that the defendant can summon any witnesses whose testimony he believes to be helpful to his case. Thus, the Court condemned a lower court for refusing to summon a witness: “Such denial is high-lighted, considering that the witness had been subpoenaed and classed by defendant as being very material to the case and, therefore could have better clarified the minds of the jurors.” Jappa v. Republic of

Liberia, 21 LLR 339, 342 (1972) (emphasis supplied). It would be pointless for the defendant to summon a witness whose testimony he knows to be irrelevant or

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immaterial, but if he made a mistake and summoned such a witness, the court would simply disallow the testimony once it became plain that it was irrelevant or immaterial.

By contrast, Forleh v. Republic seems to hold that a court may decline to issue a subpoena if, in the court’s own view, the witness will not offer testimony that is relevant and material. Thus, in Forleh v. Republic, the trial court refused to summon a witness for the second time because the witness was “out of the bailiwick of the Republic which [could] be seen by the returns to the [first] subpoena.” Forleh v. Republic, March Term 2004, at 21, 25 (2004). The Court upheld the denial.

First, it explained that defendants can summon witnesses only to offer material and relevant evidence: “This Court says that while it is the constitutional right of the defendant/appellant in the instant case to compulsory process to obtain witnesses

(Article 21(h) of 1986 Constitution), the witness testimony sought to be introduced in court must be relevant to the matter at bar.” Id. The Court then found that the

“testimony of said witness sought to be brought before the court would not be relevant, or in order [sic—presumably ‘other’] words, would have nc [sic— presumably ‘no’] impact on the on-going trial considering the overwhelming evidence adduced by prosecution at the trial in its favor.” Id. Because the Court found that the testimony would have contributed nothing to the trial, it sustained the lower court.

Forleh, however, seems to be internally in conflict on this point. In the same general discussion, the Court explained that the lower court should have granted

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the second subpoena and that indeed its denial infringed the defendant’s right to compulsory process: “[T]he trial judge erred in not granting the said defendant/appellant counsel’s application for the writ to be issued for the second time in order to have his witness appear and testify in his behalf, which is a violation of his constitutional right to compulsory process to obtain witness [sic— presumably ‘witnesses].” Id.

But if the testimony was truly irrelevant, it is unclear why the court should have summoned the witness or why the refusal invaded the right to compulsory process, which allows defendants to put on only relevant testimony. And indeed, at a slightly later point in the opinion, the Court suggests that the trial court had the power to exclude the testimony: “A trial court may also exclude evidence sua sponte if the question is irrelevant or legally untenable.” Id. at 26. Again, if the court has the power to exclude irrelevant testimony, and if the testimony at issue was irrelevant, it would follow that the judge did not err in excluding it—but the Court says that the judge did err.

The Forleh opinion is confusingly written, and no reading will make it a coherent whole. Nonetheless, reading decision as a harmless error case might produce the greatest degree of coherence. First, the defendant has the right to summon any witnesses that he thinks will help his case. For that reason, the trial court should have issued the second subpoena. But after the fact, the Court can determine that in fact the testimony would not have helped the defendant’s case because there was so much evidence for conviction. Ergo, the Court will not now

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reverse the conviction, even though the denial was erroneous, because the error did not affect the outcome: “We are therefore of the opinion that even though the trial judge erred in not granting the defendant/appellant’s counsel [sic—presumably

‘counsel’s’] application to produce said witness, we will not reverse the matter on this issue as the testimony which the counsel sought to bring before the court was not relevant ana [sic—presumably ‘and’] material to this matter, as stated earlier.”

Id.

Ch. Twenty-Five(c)(2)(iii): Immune, Disqualified, or Exempt Witnesses

The third limit on the right to produce and compel witnesses is that the defendant has no right to produce or compel witnesses who are immune, disqualified, or otherwise exempt. Thus: “[T]he Constitution of Liberia guarantees to every person accused compulsory process for obtaining witnesses in his favor, and unless any person so offered as a witness is exempted from testifying, it is error for the trial court to conclude a case without allowing the exercise of such constitutional right.” Jappa, 21 LLR 339, 347 (1972) (emphasis supplied). Again:

“The Court will remark in passing that inasmuch as the Constitution of Liberia guarantees ‘compulsory process for obtaining witnesses’ in favor of the persons accused, it would seem that whenever the testimony of a witness is procurable, and such witness is neither exempted by any immunity nor disqualified, it is error for the trial court to proceed to the trial of the cause without giving the accused an opportunity of procuring such witnesses provided he shall have exercised due

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diligence so to do.” Ware v. Republic of Liberia, 5 LLR 50, 55 (1935) (emphasis supplied).

The Supreme Court has not always been consistent about the appropriate remedy for a trial court’s violation of the right to produce and compel witnesses.

Sometimes, the Court has indicated that the defendant should receive a new trial.

See Stubblefield v. Republic of Liberia, 10 LLR 105, 107 (1949); Tay v. Republic of

Liberia, 9 LLR 92, 95 (1945). On other occasions, the Court has held that such a defendant is entitled to outright acquittal: “The Constitution guarantees compulsory process for compelling attendance of the defendant’s witnesses, Article

I, Section 7th. Whenever a defendant in a criminal case cannot enjoy this guarantee, he is entitled to an acquittal.” Sarbo v. Republic of Liberia, 21 LLR 481,

485 (1973).

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CHAPTER TWENTY-SIX CAPITAL CASES

Because the punishment for a capital offense is death, the Supreme Court has sternly warned that courts must be especially careful to protect the rights of a defendant in such a case. The Court has explained the significance of the death penalty: “The dearest of man’s inalienable rights is life. We may deprive him of liberty with only temporary effect; we may deny him the pursuit of happiness, but such denial is not necessarily permanent; but if we take his life, it is the end of all.

Courts, therefore, while never forgetting the duty to guard with jealous care the rights of litigants in general, should watch with special care every incident of the trial where human life is at stake.” Lawrence v. Republic of Liberia, 2 LLR 65

(1912). In other words, “[w]e have held in the past and we continue to hold that in criminal cases, especially capital cases, the prisoner should be afforded every opportunity to establish his innocence.” Jappa v. Republic of Liberia, 21 LLR 339,

345 (1972). See also Matierzo v. Republic of Liberia, 34 LLR 791, 800 (1988); Wreh v. Republic of Liberia, 30 LLR 459, 464 (1983); Nimley v. Republic of Liberia, 21

LLR 348, 357 (1972); Yarssah v. Republic of Liberia, 20 LLR 14, 15-16 (1970).

This requirement falls on both the trial court, in conducting the trial, and the

Supreme Court, in reviewing it. Thus, regarding trial, “[this Court has held that in criminal cases, especially capital cases, the prisoner should be afforded every opportunity to establish his innocence. . .” Weah v. Republic of Liberia, 35 LLR 567,

578 (1988). Further, “it is a wicked and mischievous thing in capital cases to

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deprive a prisoner of the testimony of his witnesses because of technicality.” Id. at

579.

In reviewing capital cases, the Supreme Court must assume an affirmative

responsibility to assure that justice has been done; it may not merely pass on the

arguments proffered by counsel. Thus: “[W]e would like to remark that this is a

case involving the life of a human being and that therefore, we feel it our solemn

duty, as the court of last resort, to thoroughly investigate the whole case . . . . And

in doing this, we have not confined ourselves to the points submitted for our

consideration by counsel with respect to the judgment of the lower court, but we

have extended our investigation to the facts surrounding the case.” Jappa v.

Republic of Liberia, 21 LLR 339, 340 (1972).

In addition, in capital cases, the Supreme Court must be especially careful to review the evidence given below to ensure that the prosecution has met its burden

of proof. Thus, in Yarssah v. Republic of Liberia, the Court characterized the

evidence thus: “Witnesses for the prosecution testified to the effect that appellant

and decedent in the course of their fatal dispute were struggling over a bayonet,

commonly carried by military personnel. All efforts on the part of the prosecution to

show that appellant did in fact inflict the fatal wound proved futile.” 20 LLR 14, 15

(1970). Because the evidence was not sufficient, the Court overturned the jury

verdict of guilty: “The evidence in this case lacks the degree of certainty necessary

to convict defendant of murder, and this Court declares the verdict returned by the

jury erroneous, the judgment is reversed and the appellant discharged without day

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[sic—“delay”].” Id. at 17. See also Jappa v. Republic of Liberia, 21 LLR 339, 340

(1972).

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CHAPTER TWENTY-SEVEN CRIMINAL RETROACTIVITY

Article I, Section 10th, 1847 Constitution of the Republic of Liberia

Nor shall the Legislature make . . . any law rendering any act punishable, in any manner in which it was not punishable when it was committed.

Article 21(a), 1986 Constitution of the Republic of Liberia

No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offense, nor shall the Legislature enact any bill of attainder or ex post facto law.

Under the Liberian Constitution, no-one may be punished under a law that was not in effect at the time that the deeds were committed. The State may not

seek to punish the deeds under a statute that was adopted after the deeds, nor may

it seek to punish the deeds under a statute that had been repealed before the deeds.

If the deeds were not a crime at the time that they were done, then the doer may not be punished at all. Thus, for example, the 1969 Penal Law punished “the unpermitted use of another person’s land for settlement and development,” but the superseding 1976 Penal Law criminalized only the “un-permitted entry into or stay in a building or other occupied structures.” Hne v. Republic of Liberia, 33 LLR 235,

242 (1985). In other words, the later law criminalized only entry into buildings, not entry into undeveloped land: “The New Penal Law of 1976, being the law in force in

1983, the time appellant was indicted, was the law properly applicable to his case.

Under that law, however, as pointed out earlier, appellant committed no act of

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criminal trespass simply because he built on land which he considered public land and which he had paid for; nor did he commit criminal trespass under our law because he refused to demolish his structures on said land, and refused to yield in to workers sent on that land by a rival claimant.” Id. at 242-43.

In addition, even if the deeds were a crime at the time that they were committed, the State may inflict only the penalty specified by statute at the time of the deeds, not a different penalty that was in effect before or after. Thus, when the penal law in force at the time of the offense made criminal trespass only a misdemeanor, the State may not seek to punish it under an earlier penal law, which made it a felony. See id.

Sometimes a later law implicitly repeals all or part of an earlier law, ether by changing the penalty or by criminalizing conduct that had not been criminal before.

Under such circumstances, the defendant may not be tried under the earlier law if he committed his deeds after the implicit repeal. Thus, the Court explained in one case: “The 1969 Penal Law, under which appellant was tried and convicted, is clearly repugnant to the 1976 Penal Law on the law of criminal trespass. The 1976 statute therefore impliedly repealed the 1969 statute, and it therefore prevails over and supersedes the latter, even though it contains no such repealing clause.” Id. at

242.

On the other hand, the Court has also held that at least the ban on retroactivity does not apply to changing judicial interpretations of statutes. Thus, the Court still has the power to overrule its earlier decision and treat the defendant

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in accord with its new interpretation of the statute. Thus, the Court held that it

could change its interpretation of the statutes defining the sufficiency of an appeal

bond and immediately apply that interpretation to the case at hand: “In Count 1 of

the motion for reargument, appellant seeks to have the motion to dismiss reargued

on the ground that, although the decision of this Court in Saleeby v. Haikal, 14

L.L.R. 356 (1961) has since been overruled in Mark-Reeves v. Republic, 15 L.L.R.

229 (1963), her appeal should be controlled by the interpretation of the statute

which then prevailed; and that it would be an ex post facto decision if this Court

bound her under the principles laid in a case which overruled our prior decision,

supra. . . . It is obvious that, where an opinion of this Court contains a

misinterpretation of a statute, requiring correction by a subsequent opinion, parties

in litigation must be barred from any benefits thereunder.” Mark-Reeves v.

Republic of Liberia, 15 LLR 343, 346 (1963).

Although Mark-Reeves clearly holds that the Court may sometimes change an interpretation without violating the ban on criminal retroactivity, it is less clear on the question of when exactly the Court may do so. Mark-Reeves itself involved a

merely procedural question—the sufficiency of an appeal bond. But it might be a

very different case if a later opinion changed the interpretation of the substantive

law, such that conduct not criminal under the old interpretation at the time of

commission suddenly becomes criminal under the new interpretation. Such a case

would pose concerns about retroactivity not present when the Court merely

reinterprets the procedural law. When the Court changes the procedural

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interpretation, it changes how the defendant will be tried, but it does not change his actual culpability. When the Court changes its interpretation of the substantive law, by contrast, the defendant may have committed acts that he thought were not criminal, in reliance on the Court’s interpretation; if the Court then punishes him under a new interpretation, it would in effect be applying to him a rule that was not in effect at the time.

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CHAPTER TWENTY-EIGHT THE PRESUMPTION OF INNOCENCE

In Liberia, every criminal defendant is presumed innocent until proved guilty, and the jury or judge may convict only when the prosecution has proved its case beyond a reasonable doubt. The Court has propounded this rule many times:

“This we have repeatedly stated, that in all criminal cases the State must prove beyond a reasonable doubt that the person or persons who have been criminally charged, are guilty of the offense for which they are being prosecuted.” Kamara v.

Republic of Liberia, 23 LLR 329, 331-32 (1974). Again: “[T]he strictness of proof required on the part of the state is subject to the one universal test: It must establish the guilt of the accused beyond a reasonable doubt in order to overcome the general exculpatory presumption of the innocence of the accused.” Nimley v.

Republic of Liberia, 21 LLR 348, 364 (1972).

The purpose of the presumption of innocence is the protection of the liberty and security of the people of Liberia. So long as the presumption is honored, no-one need fear being punished, based on scant evidence, for something that he did not do.

Sometimes, the presumption may result in a guilty party going free because the prosecution simply cannot meet its burden of proof, not because the defendant is innocent. Nevertheless, it is more important zealously to protect the liberty of innocent persons than to convict guilty ones: “’It is better,’ said Judge Sir Mathew

[sic—should be “Matthew”] Hale on one occasion, ‘for ten guilty persons to go unpunished than that one innocent person should be punished’; and this theory has been upheld by this Court for more than 80 years as a safe and sound rule for the

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observance of criminal tribunals.” Nimley v. Republic of Liberia, 21 LLR 348, 361

(1972).

CH. TWENTY-EIGHT(a) THE MEANING OF THE REASONABLE DOUBT STANDARD

Generally, the Court has held that the prosecution must prove its case only beyond a reasonable doubt, not beyond all possible doubt no matter how faint.

Sometimes, however, the Court has given the requirement a stricter interpretation, at least for very serious crimes: “This presumption is legally held to give the benefit of the doubt to the accused, and it cannot be repelled by any evidence which is short of sufficiently establishing the fact of criminality with moral certainty. To affix on any person the stigma of a crime of such a degree as murder requires that the evidence must be convincing and excludes from the mind all doubts.” Monie &

Garzu v. Republic of Liberia, 34 LLR 502, 515 (1988) (emphasis supplied) (citing

Burphy v. Bureau of Traffic, 25 LLR 12, 20 (1976)).

The 1847 Constitution did not require the presumption of innocence in so many words, but the Court found that the requirement of a fair and impartial trial—which was textually mandated—included the presumption of innocence.

Thus: “Among those rights [guaranteed by the Constitution] is the right to an impartial and speedy trial. Constitution, Article I, Section 7th. . . . In this process, one who has been criminally charged with an offense which lies beyond the jurisdiction of courts not of record, is judged only by his peers . . . . In so judging a

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person, therefore, the law requires that the jury satisfy itself that the prosecution has proven beyond a reasonable doubt that the defendant is guilty of the offense for which conviction is sought.” Kamara v. Republic of Liberia, 23 LLR 329, 331 (1974).

Similarly, the Court explained: “An impartial trial contemplates that the burden imposed upon the State to convict the accused of the crime charged by the testimony of witnesses is never removed or diminished.” Sackor v. Republic of Liberia, 21 LLR

394, 400 (1973). Today, the 1986 Constitution specifically requires proof beyond a reasonable doubt: “In all criminal cases, the accused . . . . shall be presumed innocent until the contrary is proved beyond a reasonable doubt.” 1986 Const. of the Republic of Liberia art. 21(h).

Liberian statutory law has also traditionally required proof beyond a reasonable doubt, and the Court sometimes relies on the statutory requirement interchangeably with the constitutional one: “Any person criminally charged is presumed to be innocent until the contrary is proven; and in case of reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to an acquittal.

1956 Code, tit. 8, section 268.” Thompson v. Republic of Liberia, 14 LLR 133, 139

(1960). See also Munnah & Sommah v. Republic of Liberia, 35 LLR 40, 47 (1988).

For a conviction, the prosecution must prove every element of the offense beyond a reasonable doubt: “In a criminal case the burden is on the prosecution to prove beyond a reasonable doubt the essential elements of the offense with which the accused is charged; and if this proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal.”

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Kamara v. Republic of Liberia, 23 LLR 329, 332 (1974) (citing Am. Jur. 2d Evidence

§ 148). In other words, “[t]he presumption of innocence . . . has relation to every fact that must be established against [the defendant] to prove his guilt beyond a reasonable doubt.” Saar v. Republic of Liberia, 29 LLR 35, 63 (1981) (quoting 30

Am. Jur. 2d Evidence § 1170).

The burden always rests on the prosecution to prove its case beyond a reasonable doubt, although the defendant must carry the burden of proof for an affirmative defense. The Court has explained: “The burden of proof is never on the accused to establish his innocence or disprove the facts necessary to establish the crime charged. Although the accused is required to assume the burden of proving the affirmative defense upon which he relies, the burden of establishing his guilt rests on the prosecution from the beginning to the end of the trial, even in a case in which the defendant offers an affirmative defense.” Kamara v. Republic of Liberia,

23 LLR 329, 332 (1974) (citing Am. Jur. 2d Evidence § 148). Again: “An impartial trial contemplates that the burden imposed upon the state to convict the accused of the crime charged by the testimony of witnesses is never removed or diminished.

And it makes no difference whether or not the accused confesses to the crime.”

Sackor v. Republic of Liberia, 21 LLR 394, 400 (1973). Finally: “The presumption of innocence attends all proceedings against the accused from their initiation until they result in a verdict which either finds him guilty or converts the presumption of innocence into an adjudged fact.” Saar v. Republic of Liberia, 29 LLR 35, 63 (1981)

(quoting 30 Am. Jur. 2d Evidence § 1170).

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As a result, the defendant never bears the burden of proof to establish his own innocence. The Court has explained: “The burden to prove the guilt of a defendant in a criminal action remains unshakable and rests perpetually on the side of the affirmative to the final conclusion of the case or unless in the case of an alibi. Hence, it is nowhere provided in the Laws of Liberia where it becomes the right of a defendant to be compelled, or, as the appellee calls it, ‘to be called upon to substantiate his innocence.’” Wreh v. Republic of Liberia, 30 LLR 459, 468-69

(1982). For that reason, a defendant need not even put on a defense; he may simply argue that the prosecution has failed to prove its case: “Therefore the trial court grossly erred in refusing to accept the appellant’s waiver of the production of evidence and thereby compelling him to take the stand against his consent and against the advice of his counsel.” Id. at 469.

CH. TWENTY-EIGHT(b) EVIDENTIARY REQUIREMENTS

Because of the requirement of proof beyond a reasonable doubt, the prosecution may prove its case with circumstantial evidence only when the circumstances are not reasonably consistent with the defendant’s innocence. Thus, the Court has explained: “Circumstantial evidence need not be such that no possible theory other than guilt can stand; but the theory of guilt must be beyond a reasonable doubt; i.e. the circumstances must not be consistent with innocence within a reasonable doubt. They must be inconsistent with, or such as to exclude,

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every reasonable hypothesis or theory of innocence.” Nimley v. Republic of Liberia,

21 LLR 348, 362 (1972) (quoting 2 Wharton Criminal Evidence § 922 (11th ed.)). In short, “if the circumstances, no matter how strong, can be reasonably reconciled with the theory that some other person may have done the act, the defendant should not be convicted.” Id. at 363.

All doubts about the reliability or meaning of evidence must be resolved in favor of the defendant. Thus, in Eldine v. Republic of Liberia, the Court detailed the way that the evidence offered in the trial court did not prove that the defendant has committed murder. The prosecution entered the alleged murder weapon into evidence, but “no bullets were offered in evidence, nor was a ballistic test taken in order to identify the weapon with certainty. Neither the decedent nor the appellants claimed ownership of the weapon, and no attempt was made to discover its owner. . . . [N]o fingerprint tests were taken to ascertain whether the weapon bore the fingerprints of either the decedent or the appellant or both.” 27 LLR 133,

139 (1978). As a result, “a doubt does arise as to the weapon that was offered in evidence, and it should operate in favor of the appellants.” Id. (citing Banjoe v.

Republic, 26 LLR 255 (1977)).

In its appellate role, the Supreme Court will review the evidence offered in the lower court to ensure that the prosecution has met its burden. In a number of cases, the Court has overturned a jury verdict because the evidence did not prove guilt beyond a reasonable doubt. For example, the Court found that in a prosecution for obtaining money under false pretense, the evidence did not establish

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proof beyond a reasonable doubt when a witness testified that he, not the

defendant, received the money: “[W]e fail to see how the jury could have concluded

that the appellant was guilty of the offense charged in the indictment, when a

witness has taken the witness stand and acknowledged that not only was he a

prime negotiator in the transaction, which was legal and legitimate, but also that he had been the one who had received the $150.00 paid as the first installment; further, that the appellant was only a middleman in the negotiations.” Kamara v.

Republic, 23 LLR 329, 341 (1974).

As a more egregious example, the Court overturned a verdict when the judge instructed the jury that the defendant had confessed when in fact he had not:

“[H]ow can it be said the trial was impartial when the judge told the jury in his charge to it that the defendant had admitted the killing, when there is no evidence of such admission in the record of the trial? In other words, the judge seems to have manufactured a fact to the prejudice of the defendant, and then instructed the jury to consider it in its deliberation.” Sackor v. Republic of Liberia, 21 LLR 394, 400-01

(1973).

As another example, the Court overturned a guilty verdict because the body

of the alleged murder victim had never been found: “From a careful scrutiny of the

records certified to us, we have seen no where therein where it is mentioned that

the body of the little girl was ever found. This, of course, raises a doubt as to

whether she is dead or alive. The disappearance of a human being and the people’s

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failure to find her—dead or alive—do not mean that she is dead or that she has been murdered.” Monie & Garzu v. Republic of Liberia, 34 LLR 502, 514 (1988).

In determining whether prosecution met its burden of proof, the Supreme

Court will even consider whether the State’s witnesses were credible, and if they

were not, the Court will overturn the verdict. As an example, “[W]e noted in the

testimony of some of the prosecution’s star witnesses a tendency to overreach in

stating facts supposed to be peculiarly within their knowledge, and tending to prove

the guilt of the accused.” Thompson v. Republic of Liberia, 14 LLR 132, 139 (1960).

The Court then proceeded to examine the testimony of the witnesses in close detail.

See id. at 139-42. As another example, the Court found: “The pathologist who was

introduced to establish the cause of death, there being no other evidence on this

point, was contradictory and uncertain in his conclusions on this essential element

of the case, and announced various hypotheses or theories as to the probable cause

of the death of the decedent.” Nimley v. Republic of Liberia, 21 LLR 348, 360

(1972).

In general, when the Supreme Court finds that the prosecution failed to

prove guilt beyond a reasonable doubt, it orders the acquittal and discharge of the

defendant rather than remanding for a new trial. See Munnah & Sommah v.

Republic of Liberia, 35 LLR 40, 48 (1988); Monie & Garzu v. Republic of Liberia, 34

LLR 502, 517 (1988); Eldine & Saab v. Republic of Liberia, 27 LLR 133, 147 (1978);

Nimley v. Republic of Liberia, 21 LLR 348, 365 (1972); Thompson v. Republic of

Liberia, 14 LLR 133, 144 (1960). Presumably the Double Jeopardy Clause would

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prevent a new trial: in the first trial, the prosecution had a chance to prove its case; having failed, it may not just try again. Nonetheless, and perplexingly, on a few occasions, the Court has remanded the case to the trial court for a new trial. See

Wreh v. Republic of Liberia, 30 LLR 459, 472 (1982); Sackor v. Republic of Liberia,

21 LLR 394, 401 (1973).

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CHAPTER TWENTY-NINE THE RIGHT AGAINST SELF-INCRIMINATION

Article I, Section 7th, 1847 Constitution of the Republic of Liberia

. . . [E]very person criminally charged . . . shall not be compelled to furnish or give evidence against himself . . .

Article 21(h), 1986 Constitution of the Republic of Liberia

In all criminal cases, the accused . . . . shall not be compelled to furnish evidence against himself. . .

In Liberia, the State may not force defendants to incriminate themselves by providing evidence to the prosecution. The prosecution must therefore develop its own case, without the co-operation and assistance of the person being prosecuted.

Forcing a defendant to incriminate himself offends “an underlying principle in the enforcement of our criminal law; that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” Anderson v. Republic of Liberia, 27 LLR 67, 80

(1978) (quoting Rogers v. Richmond, 365 U.S. 534, 540 (1961)).

CH. TWENTY-NINE(a) REASONS FOR THE RIGHT AGAINST SELF-INCRIMINATION

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The Constitution protects the right against self-incrimination for two reasons. First, coerced confessions tend be unreliable: “[W]hen an innocent person is suddenly accused of an offense involving reputation, life, or liberty ‘he will choose any risk that may exist in an untrue confession, hoping for some fortuitous deliverance when the future situation connected with such false confession may become acute, and accept it as a present relief.” Anderson v. Republic of Liberia, 27

LLR 67, 80 (1978) (quoting Wharton Criminal Evidence § 603 (11th ed., 1935)). In short, “one of the main objectives of the rule is not to exclude the truth, although it might consist of an admission of guilt, but to avoid the possible confession of guilt by one who is, in fact, innocent.” Anderson, 27 LLR at 80.

Second, when police and prosecutors come to rely on coerced confessions, they tend to become abusive toward the dignity and autonomy of the citizenry. Thus:

“We have learned the lesson of history . . . that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Anderson v.

Republic of Liberia, 27 LLR 67, 80 1978) (quoting Escobedo v. Illinois, 378 U.S. 478,

488 (1964)). Indeed, “no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights.” Id. at 80-81 (quoting Escobedo v.

Illinois, 378 U.S. 478, 490 (1964)). Again: the right against self-incrimination “was taken by the Americans from the English, who had set this as a safeguard against

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the inhumane and unfair inquisitorial practices of the Sixteenth Century. ‘No man is bound to accuse himself’ has come to be, in judicial proceedings of today, one of the greatest safeguards of liberty any man can enjoy in a free political society.”

Williams v. Republic of Liberia, 15 LLR 99, 111 (1962).

The right against self-incrimination may make law enforcement more difficult, but it is an important safeguard against governmental over-reaching: “We have dealt lengthily on the erroneous admission of these apparently involuntary confessions in order to sound a warning to prosecutors that confessions obtained by violation of the Constitution will be excluded, and hence of no avail to them. This means that their zeal in the fight against crime must be tempered with a due regard for the defendant’s rights as guaranteed to him by the Constitution.”

Anderson, 27 LLR at 81.

CH. TWENTY-NINE(b) SCOPE OF THE RIGHT AGAINST SELF-INCRIMINATION

Ch. Twenty-Nine(b)(1): Which Testimony May Be Withheld

The right allows the defendant to withhold only such testimony as might lead to his criminal liability; it does not apply to testimony that might result in his civil liability. Thus, “recourse to Article I, Section 7th of the Constitution, clearly shows that the clause: ‘He shall not be compelled to furnish or give evidence against himself . . . .’ must be interpreted to mean that no individual criminally charged or being investigated by a tribunal which might institute criminal proceedings against

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him can be required to testify against himself.” Johns v. Arraskalar, 17 LLR 372,

376 (1966). As a result, “[t]his privilege . . . is confined to such cases or proceedings

as are criminal in form or criminal in their nature and consequences. . . . And it

applies to all proceedings which, though civil in form, are really criminal in their

nature.” Dennis v. Republic of Liberia, 6 LLR 269, 275 (1938) (quoting Black,

American Constitutional Law).

For the same reason, a party may not refuse to answer questions on the

grounds that answering them would expose him to general opprobrium. In one

case, the Court explained: “The appellant here invoked the privilege but it cannot

apply to the question posed to him. He did answer the question, and it is clear that

the answer does not subject appellant to any criminal responsibility. From the

circumstances, it seems that appellant’s reluctance to answer the question is

founded on the notion that it would degrade or embarrass him, but the Constitution does not protect one against such embarrassment under the circumstances, the reason being that one can only refuse to answer a question and invoke the privilege when answering such a question may subject him to punishment for a crime.”

Harmon v. Republic of Liberia, 24 LLR 176, 179 (1975).

But the right protects the party from being forced to answer any question, in

any proceeding, that might result in criminal liability: “The privilege against self-

incrimination is not restricted to criminal cases, but applies alike to civil and

criminal proceedings wherever the answer to a question put to a witness might tend

to subject him to criminal responsibility.” Harmon, 24 LLR at 179 (quoting 21 Am.

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Jur. 2d Criminal Law § 353 (1965)). Moreover, the defendant may refuse to provide answers that may be used against him even if they do not themselves constitute a confession: “The privilege protects an individual not only from giving answers that are in themselves directly incriminating, but also from giving answers that may provide a link in the chain of evidence against him.” Id.

Ch. Twenty-Nine(b)(2): Whose Testimony May Be Withheld

The right is personal to the defendant: he may withhold testimony, but he may not prevent others from testifying. In particular, spouses may testify against each other, see Dennis & Dennis v. Republic of Liberia, 3 LLR 45, 49 (1928). This rule obtained even when husbands and wives were considered one person at law.

When a defendant argued that to force his wife to testify was in effect to force him to testify because they were the same person, the Court ruled: “[T]here is no rule or law whereby the husband or wife is precluded from giving testimony against each other’s ill treatment and gross injustice and that the giving of such testimony operates as an infringement on that protected right secured to each spouse by the

Constitution and laws of this Republic.” Id.

CH. TWENTY-NINE(c) EXTRA-JUDICIAL CONFESSIONS

The Supreme Court has identified two primary components of the right against self-incrimination: extra-judicial confessions may be admitted into evidence only if they were clearly voluntary; and the defendant may not be compelled to

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furnish evidence that might incriminate himself. In other words, the privilege “is directed against the extraction of confessions by torture or otherwise, and against the inquisitorial method of trial.” Dennis v. Republic of Liberia, 6 LLR 269, 275

(1938) (quoting Black, American Constitutional Law).

Ch. Twenty-Nine(c)(1): The Inadmissibility of Involuntary Confessions

Confessions may be entered into evidence only if they are voluntary. A confession made “from threats, fear or inducement” is involuntary and so may not be presented to the fact-finder. Dennis & Dennis v. Republic of Liberia, 3 LLR 45,

49 (1928). See also Flo v. Republic of Liberia, 29 LLR 3, 8 (1981). The police may therefore not coerce a confession behind closed doors during interrogation: “We will here remark that the police or other investigation services have the authority to apprehend suspected criminals and hold them in custody as a preliminary step to accumulating evidence to connect the accused with the crime charged; but this privilege and authority are abused when the authority is required to give testimony that could be self-incriminating; still worse if made under duress or other circumstances which can exact an involuntary confession.” Gio v. Republic of

Liberia, 17 LLR 681, 690 (1966). If the police violate this restraint, the prosecution may not introduce the confession at trial: “[T]he written statements so procured must be regarded as inadmissible; therefore the trial judge erred in submitting them to the jury over the objections of appellants.” Id. at 693.

A truly voluntary confession, however, may be admitted: “[W]hen a party of his own volition, without being compelled by the court, voluntarily comes forward

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and of his or her own free will elects to take the stand and give testimony in a case in which he or she is directly interested and concerned,” he may give evidence.

Dennis & Dennis v. Republic of Liberia, 3 LLR 45, 46-47 (1928). The fact that defendant was in police custody when he made the confession does not automatically mean that the confession was involuntary: “If, by some coincidence or spontaneous and voluntary act of anyone, be he or she detained on suspicion or not, a statement is made confessing association with, or commission of, the crime, this not only lessens the burden of the law enforcement agents but is evidence of the highest degree to convict for the crime committed.” Gio v. Republic of Liberia, 17

LLR 681, 691 (1966).

Ch. Twenty-Nine(c)(2): Who Determines Whether a Confession is Voluntary

In short, the Court has uniformly held that in order to decide whether to admit a confession as evidence, a determination must be made as to whether the confession was voluntary. The Court, however, has been less clear as to who—the judge or the jury—should make this determination. Sometimes, the Court has held that the voluntariness of a confession is entirely a factual question for the jury. The trial court should therefore admit the confession but also admit all the evidence relevant to whether the confession was coerced, so that the jury can decide how much weight to ascribe to it. The judge should therefore never charge the duty to treat a confession as voluntary: “Notwithstanding the evidence of the involuntariness of the confessions, instead of the judge leaving it to the jury to determine whether, from their testimony and their physical appearances, the

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defendants had been brutally treated, he told the jury that the confessions were voluntary and should be treated as such. . . . Hence, it can be said that the right to give or deny credence to the evidence of the circumstances surrounding the making of the confessions was virtually taken away from the jury. This was clearly an invasion of the province of the jury, and hence a prejudicial error.” Anderson v.

Republic of Liberia, 27 LLR 67, 79 (1978).

At other times, however, the Court has also indicated that before the judge admits the confession into evidence, he should make a preliminary decision that it was in fact voluntary. Even if the jurors ultimately decide that the confession was coerced, it may still unduly influence their thinking. Even in Anderson v. Liberia, which held that voluntariness was a factual question for the jury, the Court recognized the problem created by allowing a coerced confession ever to go before the jury: “At best it is difficult for the jury to ignore a confession involuntarily made, when the fact of the defendants’ confessions is solidly implanted in their minds, after hearing the confessions.” Anderson, 27 LLR at 79. Accordingly, the

Court has explained that when the judge concludes that the confession was involuntary, he should not allow it to go before the jury at all: “There being no other evidence to rebut this charge of torture, we must conclude that it was employed and that the written statements so procured must be regarded as inadmissible; therefore the trial judge erred in submitting them to the jury over the objections of

[the defendants].” Gio v. Republic, 17 LLR 681, 693 (1966).

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When one reads these two lines of case together, the rule appears to be that before a confession may constitute evidence, both the judge and the jury must conclude that it is voluntary. First, the judge must make a preliminary decision whether the confession might have been voluntary. If not, the confession should never go before the jury because it might prejudice their thinking. But if the court decides that it might have been voluntary, then he will admit it with stern instructions to the jury that they may rely on it only if they conclude, as a factual matter, that it was in fact voluntary based on all the evidence: “Whilst it is true that the jurors are the sole judges of the facts, no written statement extrajudicially made where the right of confrontation is denied can be submitted to a jury as conclusive evidence against the accused unless the court explains to the jury the legal value such a written statement can have in deciding upon a verdict in a case, especially so when there are signs of forceful means that were employed in obtaining those written statements.” Gio, 17 LLR at 692.

Ch. Twenty-Nine(c)(3): Torture

A confession is always involuntary if obtained through torture: “[W]here methods are employed such as exacting confessions by forceful means, threats, and torture, this class of confession must be considered as involuntary.” Gio v. Republic of Liberia, 17 LLR 681, 691 (1966). Anderson v. Liberia provides an appalling catalogue of examples of torture, all allegedly perpetrated by the police in that case: the defendant was “handcuffed very tightly and an officer stepped upon the cuffs so that they pressed deeper into his flesh; he was also stripped naked and thrown into

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a cell filled with human feces and urine. . . was beaten with a fan belt on his back

and penis.” Anderson, 27 LLR at 73. Law enforcement officers “took a rope and tied [another defendant’s] testicles, handcuffed him to a ladder naked; . . . gave him twenty-five lashes on his back while tied; . . . made him squat in a drum containing ice blocks and beat him.” Id. at 74. A female defendant “testified that the police officers threatened to kill her; they stripped her and she was beaten with rifle butts; they kicked her and ordered her to spread her legs open in the street; she was handcuffed . . . and made to sit on the floor and subsequently pushed over with her legs up and spread apart; one officer pulled out a revolver and threatened to shoot her.” Id. at 75.

In another case, one defendant was beaten so severely that he died, and the police officer in charge of his interrogation was ultimately convicted of murder. See

Swaray v. Republic of Liberia, 28 LLR 194, 195 (1979). The Supreme Court upheld the conviction and sternly warned: “The evidence adduced at the trial shows clearly the extent to which some law enforcement officers would go in order to extract evidence from persons accused of crimes, evidence which in the final analysis is self- incriminating and hence unconstitutional. . . . This Court has held time and again that confessions obtained by such brutal methods are unconstitutional. Not only are they unconstitutional, but the acts themselves are immoral and a clear violation of the accused’s human rights. There is no legal justification for engaging in such acts.” Id. at 201.

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On the other hand, mere physical restraint does not constitute torture or duress, and so a confession made while the defendant is restrained may be voluntary. The Court has explained: “The fact that when the confession was made the hands and feet of defendant were tied, or that he was handcuffed or in chains,

or had been placed in the stocks for safekeeping, does not exclude a confession

which appears to have been free and voluntary.” Glay v. Republic of Liberia, 15

LLR 181, 197 (1963) (quoting 12 CYC. 467 Criminal Law). In a later case, the

Court cautioned that the Glay decision should not be read “to imply that this Court

condones the admissibility of confessions obtained by third-degree methods.

Nothing could be further from the truth.” Anderson v. Republic of Liberia, 27 LLR

67, 78 (1978). Instead, Glay held only that “if a defendant confesses voluntarily

while he is tied or in chains or handcuffed, his confessions should not be excluded.

This is different from a situation in which one confesses because of inhumane

treatment inflicted upon him to make him confess.” Id.

A confession is involuntary not only when the police use torture but also

when they just threaten to use torture. Thus, in one case, the police threatened to

burn defendant’s beard with a lighter; to avoid being tortured, he signed a

confession that the police had written for him. See Eldine & Saab v. Republic of

Liberia, 27 LLR 133, 143 (1978). The Court observed that the prosecution

“contended that if the [defendant] had permitted himself to be burned, then his

contention of coercion and duress would be valid. We see it differently. It is illegal

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to obtain a confession by force or threats because in either case the confession would

not have been made voluntarily.” Id.

For the same reason, the administration of sassy-wood violates the right against self-incrimination. As the Court explains, when threatened with the ordeal, many defendants will confess simply to avoid the poison, and the resulting confession will therefore be the product of a threat of torture: “With regard to the administration of sassy-wood, which is in some cases an ordeal dangerous to life, we are of the opinion that while it is provided that the native and district courts shall administer the native customary law, we cannot admit the legality of a proceeding which is evidently intended to extort a confession from the accused, and which is in conflict with the organic law of the state, which declares that ‘no person shall be compelled to give evidence against himself.’ (See Const. Lib., art. I, part of sec. 7).”

Boyah v. Horace, 2 LLR 265, 269 (1916). See also Salala Rubber Co. v. Onadeke, 24

LLR 441, 442-43 (1976); Posum v. Pardee, 4 LLR 299, 304-05 (1935).

Ch. Twenty-Nine(c)(4): Proving Duress in Closed-Door Investigations

When the police obtain a confession during closed-door investigation, the court may have limited evidence to determine whether the confession was voluntary: “It is unfortunate that, joining issue with the police and NBI on the making of voluntary confessions by the defendants, the opportunity of corroboration of the statements of those law enforcement agents, or those of the defendants, could not be had since a third party or parties were excluded from the closed-door investigations out of which these alleged confessions were made and subscribed to;

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hence a doubt as to whether or not they were voluntarily made.” Gio v. Republic of

Liberia, 17 LLR 681, 688-89 (1966). Because no witnesses were present in closed- door interrogations, the defendant might later insist that the confession was involuntary even when it was freely given: “Exacting confessions from persons criminally charged in these closed-door inquiries . . . affords an opportunity, sometimes unmeritoriously exerted, to claim duress and other forceful means as a circumstance by which these confessions were made when a public trial of the case is had.” Id. at 691.

But when the defendants “exhibited scars and other physical signs as proof of torture,” id. at 689, the testimony of police officers who conducted the interrogation will not be sufficient to rebut the claim, without corroboration: “There being no other evidence to rebut this charge of torture, we must conclude that it was employed and that the written statements so procured must be regarded as inadmissible.” Id. at 693. In another case, the Court reconfirmed this rule, that if unrebutted, the physical signs of torture suffice to establish that a confession was involuntary: “[T]he allegations of brutality during detention of the [defendants] were never denied or rebutted. In fact the prosecution made no effort to prove that these physical signs of maltreatment were caused by means other than what was testified to by the appellants.” Anderson v. Republic of Liberia, 27 LLR 67, 76

(1978). And it is not necessary for the defendants to put on corroborative witnesses because such witnesses will typically not be available: “Aside from the physical evidence of third-degree methods being used upon the defendants, it is questionable

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that the defendants could have brought witnesses to testify to the use of force or torture during the investigation because usually this is done in a secluded interrogating room in which only law enforcement officers and the accused are present.” Id. at 77.

Ch. Twenty-Nine(c)(5): The Warning Requirement

In order to ensure that all confessions are voluntary, the Court has instructed that before a custodial interrogation, the officers of the State should inform the defendant that he has the right to remain silent and that he should “be careful what he said, as whatever statement he made would operate against his interest.”

Teddaway v. Republic of Liberia, 5 LLR 126, 137 (1936). More specifically, the

Court will find that the police did not give adequate warnings to the defendant when “[t]here is no indication in the records . . . that [the defendant] was ever informed of the nature of the offense of which he was accused or suspected; that he had the right to have legal counsel present at all times while he was being interrogated; or was making any statement or admission regarding the offense for which he was accused or suspected; and that any statement or admission made by him might be used against him in a criminal prosecution.” Saar v. Republic of

Liberia, 29 LLR 35, 60 (1981). Liberian statutory law has also imposed these warnings requirements. See Anderson v. Republic of Liberia, 27 LLR 67, 76 (1978).

Under the 1847 Constitution, however, the Court took different views on whether a custodial confession could be admitted into evidence when the police failed to offer the warnings. On the one hand, the Court sometimes held that when

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such a confession is entered, the defendant must be discharged: “[I]t goes without saying, that the legal rights of the [defendant] in this case were indeed violated and infringed upon by the prosecution. Hence, appellant was not accorded a fair and impartial trial as it is required in all criminal prosecutions.” Saar, 29 LLR at 60-61.

On the other hand, the Court sometimes held that even without the warnings, a confession might be voluntary and so should be admitted: “A voluntary admission made by a party is evidence against him even where it does not appear that he was warned by the judge of the penalty he might incur provided such admission was not made from threats, fear or inducement, and such evidence when admitted will be evidence of no low grade.” Dennis & Dennis v. Republic of Liberia, 3 LLR 45, 48-49

(1928).

By contrast, the 1986 Constitution specifically provides that police officers must inform defendants that they cannot be forced to incriminate themselves:

“Every person suspected or accused of committing a crime shall immediately upon arrest be informed . . . of the right to remain silent and of the fact that any statement made could be used against him in a court of law.” 1986 Const. of the

Republic of Liberia art. 21(c). When a police officer fails to give this warning, he therefore violates the Constitution itself. In other words, the warnings are no longer merely a prophylactic way to ensure that confessions are voluntary; instead, they are an independent constitutional requirement in their own right. The Court has not had occasion to rule definitively on whether confessions made without the warning may ever be entered into evidence. It seems likely, however, that it will

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conclude in the negative, because by failing to warn, the police trammel on the defendant’s constitutional rights to a warning.

Ch. Twenty-Nine(c)(6): Confessions in the Absence of Counsel

It is clear, however, that admissions made in the absence of counsel are inadmissible as evidence. Article 21(c) specifically provides: “Any admission or other statement made by the accused in the absence of such counsel shall be deemed inadmissible in a court of law.” This provision is presumably a prophylactic against coerced confessions: when the defendant’s lawyer is present, the police will be less likely to try to force a confession; and if they do, the lawyer will be able to inform the court. The protection is absolute: literally nothing that a defendant says to law enforcement authorities is admissible unless his counsel was present.

CH. TWENTY-NINE(d) THE RIGHT TO REFUSE TO FURNISH EVIDENCE

Before or at trial, neither the court nor the prosecution may force the defendant to give evidence against himself. The right applies not just at the trial itself but also before the grand jury. See Dennis v. Republic of Liberia, 6 LLR 269,

275 (1938) (quoting Black, American Constitutional Law). This protection precludes the prosecution from forcing the defendant to incriminate himself in any way: “Let us notice that the Constitution does not only grant immunity to one who is a defendant in a criminal case being compelled to give evidence against himself; but

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he, said defendant, shall not even be commanded or compelled to furnish evidence against himself.” Id. at 276 (emphasis in original).

The court may therefore not force the defendant to take the stand to deny the charges, because the burden lies on the prosecution to prove the charge, not on the defendant to disprove it: “[I]t is nowhere provided in the Laws of Liberia where it becomes the right of a defendant to be compelled, or, as the appellee calls it, ‘to be called upon to substantiate his innocence.’ Therefore, the trial court grossly erred in refusing to accept the appellant’s waiver of the production of evidence and thereby compelling him to take the stand against his consent and against the advice of his counsel.” Wreh v. Republic of Liberia, 30 LLR 459, 469 (1983).

The court may also not force the defendant to produce documents that might incriminate him: “The seizure or compulsory production of a man’s private books or papers, to be used in evidence against him, is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty, or forfeiture, is equally within the constitutional prohibition.” Dennis, 6 LLR at 275 (quoting Black,

American Constitutional Law). The Court therefore holds that it is “a flagrant and gross disregard of the constitutional privilege of the defendant for the prosecution with the approval of the court to have issued a writ to defendant to produce private letters written to him and to require him to identify them to be used as evidence against himself in a case pending against him upon an indictment of the grand jury for a felony and in the trial of the identical cause.” Id. at 275-76.

Ch. Twenty-Nine(d)(1): Prohibition on Inferences of Guilt

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Neither the prosecution, nor the jury, nor the judge may infer that the

defendant chose not to furnish evidence because he is guilty: “[T]he law has

expressly declared that not taking the stand cannot be an inference of guilt.” Bing

v. Republic of Liberia, 18 LLR 377, 382 (1968) (citing The Criminal Procedure Law,

1956 Code 8:274). Again: “[W]here the defendant’s refusal to give evidence after

having been accused is predicated upon the advice of counsel, no unfavorable

conclusion may be drawn from the failure of the accused to make or deny a

statement.” Scott v. Republic of Liberia, 18 LLR 13, 15 (1967) (citing 80 A.L.R.

1267; 20 Am. Jur. Evidence § 572). Liberian statutory law has codified this

requirement, but the Court has described such rules as merely the “statutory

complement of the Constitution . . . in Article I, Section 7th.” Id.

For example, one judge instructed the jury: “The defendant is responsible for

the accusation placed against him; that it is expected of the defendant to defend

himself by testifying in his own behalf, which is to deny the allegation made against him, and where he fails to do such, then the jurors have no doubt, neither can the law interpret it to be clearly a reasonable doubt.” Bing, 18 LLR at 381-82. On review, the Supreme Court rebuked the lower court: “For a trial judge to make such a declaration to a jury upon the conclusion of the presentment of evidence in a criminal case is grossly misleading and prejudicial.” Id. at 382.

For the same reason, the court may not force the defendant to swear that he has refused to furnish evidence because that evidence would result in his conviction:

“[I]t would seem extremely prejudicial to the interest of a defendant for him to be

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required to swear that for him to testify or furnish evidence. . . would be to subject

him, by operation of law, to punishment other than pecuniary fine.” Dennis v.

Robert, 6 LLR 269, 276 (1938). In effect, forcing the defendant to swear that the

evidence would subject him to punishment is to force him to swear that he has

committed a crime—in other words, to incriminate himself, the very thing that the

court may not make him do.

Ch. Twenty-Nine(d)(2): The Right Against Self-Incrimination When the Defendant Chooses to Testify

The Court has not been consistent on the extent of the defendant’s right against self-incrimination if he chooses to take the stand and testify in his own behalf. Most often, the Court has held that even when the defendant takes the stand, he may refuse to answer particular questions that may incriminate him.

Thus: “Even if a defendant elects to testify as a witness for himself, he cannot be required to answer questions that will tend to incriminate him.” Anderson v.

Republic of Liberia, 27 LLR 67, 88 (1978). Again: “A defendant, however, who elects to take the stand as a witness for himself, falls under the same rule as any other witness and shall in such circumstances alone be compelled to answer every question that is put to him. But even then he shall not be required to answer questions that will tend to incriminate him.” Dennis & Dennis v. Republic of

Liberia, 6 LLR 269, 277 (1938). For example, in a prosecution for theft, “it was most improper for [the defendant] to have been required to answer any question which might have made him say” that he had carried off the property in question.

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Williams v. Republic of Liberia, 15 LLR 99, 112 (1962). See also Tozoe v. Republic

of Liberia, 22 LLR 113, 114-15 (1973).

On rare occasions, however, the Court has held that once the defendant has

taken the stand, the prosecution may cross-examine him on all relevant issues:

“[W]here an accused has determined that it is in his best interest to testify in his own behalf, having entered a plea of not guilty, which is a general issue plea, all facts and circumstances touching the commission of the alleged crime may properly be the subject of interrogations during the course of a judicial proceeding.” Scott v.

Republic of Liberia, 18 LLR 13, 15 (1967). The lower court may therefore appropriately overrule defense counsel’s objections to questions that would force the defendant to incriminate himself. See id.

If the defendant chooses to act as his own attorney and incriminates himself in a question that he poses to a witness, the question can form evidence against him, because he asked the question of his own will, not as a result of coercion. See

Bracewell v. Republic of Liberia, 15 LLR 520, 524, 529 (1964). For example, one defendant, who was accused of plotting to overthrow the government of Liberia,

asked the following question: “Mr. Witness, if you can recall, please say whether or

not it was on Sunday, the 9th of July, 1961, when I asked you to approach the

Russian Embassy to arrange one million dollars to overthrow the Government of

Liberia; and I should like to remind you definitely that it was on Sunday, July 9th

that we were supposed to discuss this one million dollars. Do you agree with the

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date of July 9th?” Id. at 524. The Court concluded: “This, indeed, constitutes a form of confession.” Id.

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CHAPTER THIRTY THE RIGHT TO BAIL

Article, Section 10th, 1847 Constitution of the Republic of Liberia

Excessive bail shall not be required . . .

Article I, Section 20th, 1847 Constitution of the Republic of Liberia

That all prisoners shall be bailable by sufficient sureties unless, for capital offenses, when the proof is evident or presumption great. . .

Article 21(d), 1986 Constitution of the Republic of Liberia

(i) All accused persons shall be bailable upon their personal recognizance or by sufficient sureties, depending upon the gravity of the charge, unless charged for capital offenses or grave offenses as defined by law. (ii) Excessive bail shall not be required . . .

The Liberian Constitution has always contained two provisions about bail: first, all persons are entitled to post bail so as to be at liberty pending the disposition of their case, except those persons charged with certain very serious offenses; and second, courts may not require an excessive amount for bail.

CH. THIRTY(a) THE GUARANTEE OF BAIL

All persons are entitled to post bail except those charged with capital or grave offenses. When a person posts a bail bond, he is released from jail pending

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final judgment in his case. The bond is, in effect, his promise to appear for trial at

the prescribed time; if he flees, he will forfeit the bond. Thus, the purpose of the

bail system is to allow the defendant his freedom during the proceedings but also to

compel his presence at trial: “[T]he primary purpose of bail in a criminal case are

[sic] to relieve the accused of imprisonment, to relieve the state of the burden of

keeping the accused pending trial, and at the same time to keep the accused

constructively in the custody of the court, whether before or after conviction, to

ensure that he will submit to the jurisdiction of the court and be in attendance

thereon whenever his attendance is required.” Zuo v. Hon. Morris & Republic of

Liberia, 37 LLR 604, 609 (quoting 8 Am. Jur. 2d Bail § 4).

Ch. Thirty(a)(1): Capital or Grave Offenses

The 1847 Constitution did not require courts to grant applications for bail by those charged with “capital offenses.” The 1986 Constitution expands the category to all those charged with “capital offenses or grave offenses as defined by law.”

Because such crimes are very serious, the Constitution does not demand that such defendants be released on bail, both because they might be too dangerous to society and because they might flee to escape trial.

Ch. Thirty(a)(1)(i): “When the proof is evident or the presumption great.”

Under the 1847 Constitution, courts could deny bail to persons charged with

capital crimes only “when the proof is evident or presumption great.” In other

words, because denying bail is a hardship for the defendant, it would be unjust to

refuse bail to one wrongly charged. For that reason, the court was required to take

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pains to make sure that the charge appeared to have some merit—to conduct a

judicial investigation before the trial itself so as to make the bail determination.

Thus: “It is obvious then that appellant upon being charged with sedition did have

a constitutional right to demand, as a prerequisite to being unconditionally

imprisoned, that a preliminary investigation be instituted to ascertain whether

proof that he had committed a capital offense were evident or the presumption

thereof great, especially in view of the nature of the indictment presented by the

grand jury against him.” Coleman v. Republic of Liberia, 8 LLR 59, 64 (1942).

The Court explained the normal procedure used by the courts to determine whether the proof is evident or the presumption great: “Our law provides, and it is the procedure known and followed in our courts, that upon arrest for a capital offense the accused has a right to apply to a court of first instance. There the

State’s witnesses will be examined in the presence of the accused, with a view of ascertaining whether the proof of the commission of the crime is clear or the evidence of the accused’s guilt strong. If the court of first instance so finds it will commit the accused to prison and report the findings to the superior court which has trial jurisdiction; if the court of first instance finds to the contrary, the accused may be released on bail pending trial for a less [sic] offense.” Kaifa v. Republic of

Liberia, 14 LLR 17, 19-20 (1960). This procedure thus satisfied the constitutional requirement, though the legislature and the courts might have had discretion to adopt a different procedure as well, so long as that other procedure allowed the court to ascertain whether the proof was evident or the presumption great.

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In contrast to the 1847 Constitution, the 1986 Constitution does not specify

that those charged with capital or grave offenses fall outside the guarantee of bail

only when the proof is evident or the presumption great. In other words, on its face,

Article 21(d) does not require that the court make a preliminary investigation

before denying bail to such defendants: the charge alone is enough. If the Court

reads Article 21(d) in that way, it would entail a marked change from the Liberian

legal tradition. It is possible, therefore, that the Court will conclude that the new

Constitution implicitly incorporated this requirement from the old, that defendants

charged with capital or grave offenses may be denied bail only after the prosecution has made a preliminary showing of guilt.

Ch. Thirty(a)(1)(ii): Discretionary Bail for Those Charged with Capital or Grave Offenses.

By its terms, then, the 1847 Constitution clearly provided that those charged with capital or grave offenses did not have a right to bail. The Constitution did not, however, specify whether courts were allowed to grant bail to such defendants as a matter of their normal discretion. The Liberian Supreme Court has not been consistent in answering that question.

Sometimes, the Court has answered in the negative: courts may not constitutionally grant bail to defendants charged with capital or grave offenses.

Thus: “The Constitution provides that all prisoners shall be bailable by sufficient sureties unless for capital offenses. Murder falling within the class of capital offenses, the judge was left no alternative when he denied the application for bail.”

Kaifa v. Republic of Liberia, 14 LLR 16, 19 (1960).

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On other occasions, however, the Court has answered in the affirmative:

courts have the discretionary authority even to those defendants charged with

capital or grave offense. Thus: “On the one hand the Constitution itself does not

give the right to bail in the class of cases last mentioned; and on the other hand, the

Constitution does not inhibit the legislature from doing so. State v. Collins, 10 N.D.

464, 88 N.W. 88, 12 Am. Crim. Rep. 41. Although the facts presented to the court

on the application for bail as a matter of right may not be sufficient to entitle the

accused thereto, this does not mean that he may not present facts which might

move the court to admit him to bail as a matter of discretion. Ibid.” Coleman v.

Republic of Liberia, 8 LLR 59, 65-66 (1942) (quoting Annot. 39 L.R.A. (n.s.) 752, at

756-58 (1912)).

Ch. Thirty(a)(2): Bail During the Appeal Process

The right to be granted bail extends to all stages of a criminal prosecution

before and during the trial. It also applies after the end of the trial during the

pendency of the appeal. Thus, it was error when the “prisoner gave notice of appeal

from his decision, in the meantime asking to be allowed bail pending the appeal,

and the judge paying no heed to such application, handed him over to his former

custodians to be borne away despite the provision of our Constitution, . . . which

states in plain and simple, yet mandatory language that all prisoners shall be

bailable by sufficient sureties unless in capital cases, where the proof is evident and

the presumption is great.” Wanney v. Massaquoi, 10 LLR 241, 246 (1949).

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When the appellant posts an appeal bond, it stays the judgment of the lower court, so the defendant cannot be forced to start serving his term while the appeal is ongoing. Thus: “[A]n appeal acts as a supersedeas or suspension of the proceedings of the trial court, and the appellant should be released from custody upon filing his appeal bond.” Ex parte Prout, 3 LLR 39, 40 (1928). Thus, when a defendant announced his appeal, “it should have appealed to the sober consciousness of the

[lower court] judge that prisoner’s notice of appeal was sufficient to serve as a supersedeas to his ruling remanding him to prison and that the least he could have done in the furtherance of justice was to have admitted prisoner to bail pending an affirmation or reversal of his ruling by the appellate court.” Wanney, 10 LLR at

246-47.

CH. THIRTY(b) EXCESSIVE BAIL

As explained in the last section, under the Liberian Constitution, courts must grant defendants the right to post bail. That right, however, is merely theoretical or even useless unless the defendant can manage to satisfy the requirements for bail.

If the court sets the bail amount too high or otherwise imposes onerous conditions on the granting of bail, the defendant will be unable to participate in the benefits of bail. For that reason, the Constitution requires that bail shall not be “excessive.”

As the Court has explained, this provision and the criminal statutes implementing it are “for the purpose of ensuring that an accused shall have the widest opportunity

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to obtain bail fairly, cheaply and without unnecessary difficulty.” Zuo v. Hon.

Morris & Republic of Liberia, 37 LLR 604, 609 (1994). In other words, “[t]he purpose of bail is to serve the convenience of the accused, without interfering with or defeating the administration of justice. Therefore, in the exercise of his right to bail an accused shall be given a fair opportunity to obtain bail.” Addo-Mills v.

Thorpe, 24 LLR 27, 34 (1975).

Bail is excessive when the amount is set too high. In general, the Court has required that bail be proportioned to the potential penalty in the case. For example, in one contempt proceeding, the lower court required bond in the amount of $1,600, even though the maximum fine for the contempt charge was only twenty dollars.

See Caranda & Opitz v. Porte, 13 LLR 57, 66 (1957). The Court explained: “It was legally inconsistent if not oppressive for the Probate Commissioner to have demanded bond in contempt proceedings in such an exorbitant amount contrary to the organic law. The Constitution provides: ‘Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.’ Const. Art. I, Sec.

10th. Therefore the Probate Commissioner erred in ordering respondent-appellant to file a bond in the amount herein-above mentioned for the payment of such a negligible and meager amount of fine.” Id. at 66-67.

In addition, when there is a statute specifying the bail amount, any amount greater is ipso facto unconstitutional. Thus, in one case, the lower court set bail at the statutory amount--$12,100—plus one and one half times the amount of allegedly smuggled goods, resulting in a requirement of $158, 350. The Court

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explained that because the bail amount exceeded the statutory provision, it also violated the Constitution: “This is outrageous and has no legal justification under our statute and therefore falls squarely under the excessive bail provision of the

Constitution.” Nasser v. Smith & Bright, 26 LLR 115, 126 (1977).

The statutory requirement therefore sets a constitutional upper limit for bail.

But the statutory requirements may themselves be excessive under the

Constitution, and the Court would strike such a statute down. In other words, the

Legislature does not have unlimited discretion to specify bail requirements. The

Court has explained this principle in a number of cases examining, not the permissible amount of bail, but rather the permissible methods of giving bail. Even when the amount is not set too high, bail is excessive when the judge or a statute overly restricts the means of paying it. The Court has made clear that the

Legislature must give the defendant a choice of means to satisfy bail; it may not stipulate one and only one means, such as a cash bond. As the Court has explained, the purpose of the ban on excessive bail is “to prevent the practical denial of bail either by fixing the amount so unreasonably high that it cannot be given, or restraining the means by which bail can be given.” Zuo v. Hon. Morris & Republic of Liberia, 37 LLR 604, 608 (quoting Addo-Mills v. Thorpe, 24 LLR 27 (1975)).

Thus, the Criminal Procedure Law generally permits a defendant to secure bail in four ways: through cash to the value of the bond, unencumbered real property, valuables, or sureties. See Zuo, 37 LLR at 608 (quoting Section 63.1 of chapter 63 of the Civil Procedure Law as incorporated by Section 13.3 of the

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Criminal Procedure Law). When, for particular crimes, the legislature provided

that the defendant could secure bail only through a cash bond, the Court struck the

statute down: “The fair opportunity to obtain bail is provided for under section 63.1

of the Civil Procedure Law because under this law defendant may choose any of four

reasonable modes which said section allows to obtain bail. This choice of the

accused is an independent choice which no individual or law shall be permitted to

prohibit.” Zuo, 37 LLR at 609. When a statute specifies only one means of

obtaining bail, it “appears to have as its primary objective to keep the accused in jail

until he has been tried and either acquitted or found guilty. The practice adopted

by Anglo-American law, and which we have also adopted in this jurisdiction, is

intended to keep an accused out of jail until he is found guilty.” Id. at 610. For that

reason, “[t]he statute under review is not in harmony with the Constitution and

therefore we have to declare it unconstitutional.” Id. See also Addo-Mills v. Thorpe,

24 LLR 27 (1975) (striking down a similar statute that required a cash bond for bail).

The Court has not, however, had occasion to explain exactly how many ways of obtaining bail must be made available to the defendant. A statute restricting the choice to one option—a cash bond—is clearly unconstitutional, and a statute making all four options available is clearly constitutional. But the Court has never specifically determined whether restricting the choice to two or three options would be constitutional. The language of Zuo, on its face, suggests that the legislature must make all four means available: “[U]nder this [Criminal Procedure] law

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defendant may choose any of four reasonable modes which was section allows to obtain bail. This choice of the accused is an independent choice which no individual or law shall be permitted to prohibit.” Zuo, 37 LLR at 609. If so, the Constitution actually requires the current Criminal Procedure Law, and though the Legislature may add options, it may not subtract them.

In addition, during an appeal, a court may require only an appeal bond, not an appearance bond as well. Even if either bond considered on its own might not be excessive, the combination becomes too much: “The act of the trial judge in requiring both an appeal and appearance bond in the execution of an appeal is erroneous, for we are of the opinion that the Constitution declaring that excessive bail should not be required will not support the contention that both an appeal and an appearance bond are required to effect an appeal.” Ex parte Prout, 3 LLR 39, 40-

41 (1928).

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CHAPTER THIRTY-ONE EXCESSIVE PUNISHMENTS

Article I, Section 10th, 1847 Constitution of the Republic of Liberia

Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.

Article 21(d)(ii), 1986 Constitution of the Republic of Liberia

Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.

In identical language, both the 1847 and 1986 Constitutions prohibit

excessive fines and punishments for crimes committed. As instruments of justice,

courts must ensure that the punishment fits the crime. If courts routinely imposed

draconian penalties even for relatively minor infractions, ordinary Liberians would

live in fear and oppression. The Court has explained the perils of oppressive fines

at length: “It is said that the judges should see that justice is impartially

administered, and that litigants have a fair and impartial trial. But if on the other hand, they were to regard themselves as tax collectors whose duty it is to see that the revenues of the government are increased at any hazard, then indeed would the lot of any citizen of this country become a sad and unenviable one. Poverty which already stalks through the land would claim as its victims, the few men and women who now enjoy a limited amount of the comforts of life, and men would be driven to destitution and despair. Our courts of justice would be regarded as instruments of

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tyranny and oppression, and the judges would be brought into disrepute and

contempt.” Scotland v. Republic of Liberia, 3 LLR 253, 255-56 (1931).

The Supreme Court has not been consistent in its analysis of what counts as an excessive penalty or fine. Sometimes, the Court has held that the Legislature has full discretion to decide what counts as an excessive punishment. For that reason, a punishment above the statutory limit is ipso facto excessive, and a punishment below the limit is ipso facto not: “One of the constitutional safeguards guaranteed to persons criminally charged and convicted before our courts, is that excessive punishment shall not be inflicted upon them. Art. I, Section 10th. This provision of our Constitution differs from the American, which forbids ‘cruel and unusual punishments.’ U.S. Const., Amend. VIII. However, the question to be resolved herein is what is excessive punishment? It is our opinion that punishment over and above what the law prescribes is excessive; contrariwise, any punishment imposed not over and above what the law prescribes for a crime, is not excessive.”

Browne v. Republic of Liberia, 22 LLR 398, 457 (1974). In this interpretation, an excessive penalty is one that the Legislature deems excessive, and the Court will not disturb those legislative judgments.

By contrast, at other times, the Court has held that it will strike down statutes that impose disproportionate penalties. Thus, in Scotland v. Republic of

Liberia, defendant was accused of forgery, and at trial he offered receipts to prove his innocence. He failed, however, to pay for and affix government stamps to the receipts as required by statute for their introduction into evidence. See 3 LLR 252,

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252-55 (1931). The Stamp Act imposed a penalty of fifty dollars for each failure to affix the required stamps, and following this statute, the lower court fined the three hundred fifty dollars for his multiple failures. See id. at 255. The On review, the

Court determined that the fine was excessive in comparison to the negligible cost of the stamps themselves: “The tenth section of the first article of the Constitution provides that ‘excessive fines [shall not be] imposed, nor excessive punishment inflicted.’ The Stamp Act with respect to receipts, is in our opinion contrary to this provision. For an amount of $.70 which might have accrued to the government had stamps been affixed to the receipts, the fine of three hundred fifty dollars which was imposed on appellant must be regarded as excessive.” Id. In this interpretation, an excessive penalty is one that the Supreme Court deems excessive, and the Court will overturn statutes based on that judgment.

In short, it is unclear whether the Supreme Court will invalidate legislative penalties for being excessive. When the Legislature has not specified a statutory penalty, the Court’s rule is clearer: a penalty is excessive when it is disproportionate to the gravity of the offense. For example, when a lawyer accused the Liberian judiciary of impropriety, the Court found that disbarment for life was an excessive contempt penalty because of its extreme effect on the defendant:

“[E]ven though counsellor MacFarland did act unbecomingly, yet consideration should have been given in setting the punishment. The practice of law is the only profession on which he depends and to deprive him until his death, was too strong a punishment for contempt.” In Re Petition of MacFarland, 35 LLR 630, 636 (1988).

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As a result, the Court reduced the penalty to a suspension from the practice of law

for two years. See id.

In Smith v. Republic of Liberia, the Supreme Court adopted a very different

and confusing analysis. The defendant was convicted of rape, but the Supreme

Court believed that the prosecution did not put forward convincing evidence to

warrant a guilty verdict: “[I]nspection of the records shows an insufficiency of the

evidence adduced at the trial.” 3 LLR 58, 59 (1928). Indeed, the Court opined that

the prosecutrix brought the charge largely to extort money from the defendant:

“The whole affair to the mind of the Court is saturated with mercenary

consideration rather than with a desire to bring the prisoner to justice.” Id. at 60.

The Court’s holding therefore seems to be that the prosecution failed to prove the

defendant guilty beyond a reasonable doubt, and so the defendant should be

acquitted. In other words, the reasoning suggests, not that the defendant should

have received a less severe penalty, but that he should have received no penalty

because he had not been proved guilty.

But instead of discussing the presumption of innocence, the Court held that the conviction violated the prohibition on excessive punishments: “We now come to the degree of punishment pronounced against the defendant, now plaintiff-in-error,

by the lower court. The Constitution of Liberia declares that ‘Excessive bail shall

not be required, nor excessive fines imposed, nor excessive punishment inflicted.’

Lib. Const., Art. I, sec. 10.” Id. at 60-61. The Court did not explain in what sense

the penalty was excessive. Presumably, the Court thought that given the scant

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evidence, as they saw it, it would be unjust to visit a severe penalty on the defendant, because the lower court simply could not be sure that he had committed the crime. But if the lower court really was unsure whether the defendant committed the crime, then the problem is not that the penalty was excessive but that guilt had not been proved. Further, if the problem with the conviction was that it imposed an excessive penalty, then one would expect the Court merely to reduce the penalty. Instead, the Court ordered the defendant released, see id. at 61, exactly the result that one would expect if the Court was really holding that the prosecution had not proved guilt beyond a reasonable doubt.

The Smith decision should therefore probably be best regarded as anomalous.

Its reasoning is strained; it is a very old case; and later Courts have not relied on it.

Its precedential authority is therefore very limited at best and perhaps non- existent.

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CHAPTER THIRTY-TWO DOUBLE JEOPARDY

Article I, Section 7th, 1847 Constitution of the Republic of Liberia

[N]o person shall for the same offense be twice put in jeopardy of life or limb.

Article 21(h), 1986 Constitution of the Republic of Liberia

. . . No person shall be subject to double jeopardy.

From the beginning of the Republic, the Liberian Constitution has always provided that no-one may be exposed to criminal punishment more than once for the same offense. In other words, as the Supreme Court summarized in the foundational case Wood v. Republic of Liberia, “no person shall for the commission of the same crime be twice tried.” 1 LLR 445, 447 (1905).

CH. THIRTY-TWO(a) REASONS FOR THE PROTECTION AGAINST DOUBLE JEOPARDY

Every prosecution subjects the defendant to inconvenience, anxiety, and a limitation on his liberties. The State must have the ability to impose such costs upon the defendant once, so as to convict the guilty. But to allow the State endless opportunities to prosecute the same person for the same offense would, in practice,

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put an end to his autonomy: “The supreme object of the Constitution, it appears to us, is to protect the prisoner against the inconveniences of repeated prosecutions for the same crime, which would tend to cripple his liberty and freedom. The chief guarantee of the Liberian Constitution is the protection of the liberties and freedom of the commonwealth.” Wood, 1 LLR at 451.

The protection grows from concern about prosecutorial abuses: “The idea may have derived its origin from the study of the Roman and English law in its early stages, when the freedom of men was sometimes greatly crippled and hampered by repeated prosecutions for the same offence.” Id. The Liberian framers adopted it from the American constitution, which was similarly concerned about infractions on liberty: “The provision is borrowed from the American Constitution, after which our Constitution is framed, and appears to have been introduced into the organic law of this Republic as a safeguard against the abuse of public justice and an equitable protection to life and liberty.” Id. at 447.

Because it is so important to liberty, the Supreme Court will not permit even a small infraction of the right against double jeopardy: “We hold that there can be no little violation of the basic rights of an accused. Tyranny, like a leviathan is born; it grows from infancy to maturity before, on whole-scale basis, it begins to destroy its prey. We cannot therefore accept any excuse for the violation of the fundamental rights of an accused. . . The worldwide abhorrence of double prosecution of an accused at the whims of the prosecution cannot be overlooked on

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the State’s plea of minimum violation of rights of the accused.” Republic of Liberia v. Karngbay, 30 LLR 127, 133-34 (1982).

Prosecutors thus have only one chance to put the defendant on trial. They should be careful to present their best case the first time, because there will not be a second. Accordingly, subject to the limitations described below, the prosecution may not generally petition for a new trial, nor may the court order one: “[A] request for a new trial cannot ordinarily be granted on the application of the prosecution, or upon the court’s own initiative, after jeopardy has attached and the accused has been tried and acquitted. Statutes which authorized new trials under such circumstances on the application of the state have been held violative of the constitutional prohibition against the double jeopardy.” Togba v. Republic of

Liberia, 35 LLR 389, 402 (1988). (On the other hand, defendants may constitutionally petition for a new trial after being convicted. See id.). If the jury acquits or an appeals court overturns a guilty verdict, the prosecutor may not try again.

On the other hand, although the protection is vital to liberty, the Court has also made clear that it should not be interpreted in such a way as to frustrate the prosecution of crime: “[W]e fail to recognize in said provision of our Constitution any design to baffle justice and to screen crime.” To admit this would be to impugn the righteous motives of the sainted framers of the organic law.” Wood, 1 LLR at

451. As a result, the Court has been careful to limit the protection in three ways.

First, the protection applies only when a defendant is put at jeopardy, which occurs

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only after the prosecution has taken certain definite steps to expose him to criminal liability. Second, when the jury must be disbanded and the trial postponed because of manifest necessity, the right against double jeopardy does not prevent the prosecution from trying the defendant before a new jury after a lapse of time.

Third, the defendant must be careful to assert his right against double jeopardy in a timely fashion.

CH. THIRTY-TWO(b) WHEN JEOPARDY ATTACHES

The protection against double jeopardy applies only when the defendant has twice actually been put at jeopardy for the same offense. In the language of the

1847 Constitution, he may not be “twice put in jeopardy of life or limb.” In other words, he may not twice be put at risk of being criminally convicted. A defendant is not put at actual risk when the police are merely investigating him. Rather, jeopardy attaches only when the state has commenced legal proceedings that could directly result in his conviction, i.e., when the defendant is actually brought to trial.

More specifically, the Court has held that three events must occur for jeopardy to attach: an indictment, an arraignment and plea, and the empanelling of a jury. Thus: “Jeopardy, as this court understands the law, attaches when, upon a valid indictment, the prisoner is arraigned and pleads, and the jury empanelled and sworn to try the issue raised by the plea.” Wood, 1 LLR at 451. See also Rogers v.

Hon. Thorpe & Republic of Liberia, 32 LLR 175, 180 (1984). Again: “A person is in

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legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance.” James v. Hon.

Krakue, 20 LLR 691, 693 (no date reported) (quoting Cooley’s Constitutional

Limitations). When the court will try the case, rather than a jury, double jeopardy attaches after the prosecution has brought an indictment, the defendant has been arraigned and pled, and the court has begun to hear evidence. See Logan v.

Republic of Liberia, 33 LLR 434, 443 (1985).

If the prosecution brings an indictment but then moves to dismiss it before the arraignment, jeopardy has not attached because it attaches only after an arraignment, plea, and empanelling. For that reason, where “the prosecution timely moved the court to dismiss the indictment with reservation to further prosecute the defendants in that there were defects in the indictment,” the court should grant the motion. Rogers v. Hon. Thorpe & Republic of Liberia, 32 LLR 175,

182 (1984). Thus: “The law writers hold the view that an accused is not in double jeopardy if the indictment is so defective that a verdict and judgment could not be sustained thereon and therefore, where the defendant is discharged for that reason without his consent, it is not an acquittal.” Id. at 182 (1984) (citing 22 C.J.S.,

Indictment § 259). Under such circumstances, the Court is “of the opinion that double jeopardy did not attach.” Id. at 181. In short, “[a]plea of double jeopardy . . . cannot be sustained where the indictment or complaint is dismissed at any time before the jury is impaneled and sworn or, if the case is to be tried by the court,

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before the court has begun to hear evidence.” Logan v. Republic of Liberia, 33 LLR

434, 443 (1985).

Similarly, when the defendant moves to quash the indictment as defective and the court grants the motion, jeopardy has not attached because the case has not reached “the point of joinder of issue.” Williams v. Republic of Liberia, 14 LLR 452,

454 (1961). Thus, “the law is patent that a ruling made on a motion to quash, is an interlocutory one and is only made on a plea in abatement, which is a plea to be raised in any given case before issue therein is joined, and is not interpreted to be a final judgment; nor is a plaintiff in a criminal matter compelled to note exceptions thereto, especially when the ground upon which the quashing is granted, is conceded.” Id. at 457-58.

For jeopardy to attach, the jury must be properly empanelled. For that reason, jeopardy will not attach “if it should be plainly found that a juror was legally incompetent to sit, or not sufficiently sworn, or if the cause should appear to have been tried by a less number of jurors than the law requires.” Wood, 1 LLR at

448-449 (quoting 1 Bisp. Crim. Law § 670).

CH. THIRTY-TWO(c) POSTPONING THE TRIAL FOR REASONS OF MANIFEST NECESSITY

Sometimes, even after a jury has been impaneled but before a verdict has

been reached, the jury must be disbanded or the trial suspended for reasons of

manifest necessity. In those circumstances, the Court has held, the defendant may

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still be tried before a new jury even though jeopardy had already attached.

Nonetheless, this exception applies only when it is truly necessary to end the trial:

“If at this stage of the proceedings the jury is disbanded and trial postponed, except for the plain causes of necessity mentioned in the common law and referred to above, the prisoner, under the great provision of the Constitution, may demand his discharge. But if, on the other hand, the postponement arises from palpable necessity, over which the court had no control, the prisoner may be tried and convicted by a second jury, upon the same indictment . . .” Wood, 1 LLR at 451.

Again: “If the disbanding of the jury is found to be void of manifest necessity then double jeopardy will attach to bar further prosecution of the defendants, but if manifest necessity is shown, double jeopardy will not attach under the prevailing circumstances.” Rogers v. Hon. Thorpe & Republic of Liberia, 32 LLR 175, 181

(1984).

Under these circumstances, the Wood Court held, double jeopardy does not attach in the second proceeding because it is an extension of the first, not a separate prosecution. Thus, the Court explained that the second “proceeding is only a continuance of the former proceedings.” Wood, 1 LLR at 451. To put the matter another way, if the trial had been terminated, then the second proceeding would be a separate trial, exposing the defendant to double jeopardy. But instead, in cases of manifest necessity, the court merely postpones the trial, so that when it resumes, it imposes no new jeopardy: “Whenever any of these cases [of manifest necessity] arises during the course of a trial, the judge may, with or without the consent of the

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prisoner, disband the jury and if necessary postpone the trial, and the prisoner will not be entitled to a discharge nor can he legally raise the plea of jeopardy when a new jury have been empanelled to try his cause.” Id. at 449 (emphasis added). In other words, although the manifest necessity doctrine is often described as an exception to the prohibition on double jeopardy, in fact it is not; instead, the Court has held that in such cases jeopardy attaches only once, because the second proceeding is only a continuation of the first (and only) jeopardy.

The Court has listed many examples of manifest necessity. For example, the trial cannot proceed without the participation of the judge, a full complement of twelve jurors, and the defendant. For that reason, if any of those actors cannot participate further, the trial must be postponed out of necessity. Thus, if any of those actors becomes too ill to participate, manifest necessity exists: “[W]here during the trial the judge takes sick and the trial cannot proceed, the jury, although sworn and empanelled, and the evidence perhaps gone into, may be disbanded and the trial postponed, and the prisoner is not entitled to a discharge on that account.

So also the sickness or incapacity of a juror, [or] sickness of the prisoner . . .” Wood,

1 LLR at 449. Accord: “The illness of a number of the jurors reducing the number of the trial jury below twelve, the illness of the trial judge, illness of the accused himself or his counsel, are all some of the main occurrences that may constitute manifest necessity if the illnesses are of degrees that they may render the further consideration of the trial impossible.” Republic of Liberia v. Karngbay, 30 LLR 127,

132 (1982). Similarly, the trial may be postponed when a juror is disqualified or

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commits misconduct. See Rogers v. Hon. Thorpe & Republic of Liberia, 32 LLR 175,

181 (1984).

On the other hand, the removal of a juror for illness, disqualification, or any

other reason constitutes manifest necessity to postpone the trial only if alternate

jurors are not available to bring the number back up to twelve. This rule applies even when the foreman of the jury is removed, because the foreman is no more essential to the trial than any other juror. See Karngbay, 30 LLR at 131-32.

Further, when the jury cannot agree on a verdict, the court may disband the jury and empanel a new one to try the defendant. Thus, Wood lists the “inability of a jury to agree” as an example of manifest necessity. Wood, 1 LLR at 449. For that reason, courts may routinely order new trials in the event of a “hung jury”: “The impaneled jury returning a verdict which was not unanimous shows their failure to agree on a verdict; consequently, the court did not err in disbanding said jury and awarding a new trial.” Mason v. Republic of Liberia, 4 LLR 81, 84 (1934) (citing

Wood v. Republic of Liberia, 1 LLR 445 (1905)). Again, another case explains that manifest necessity occurs “where there is no possibility for the jury to agree on and return a verdict.” Rogers v. Hon. Thorpe & Republic of Liberia, 32 LLR 175, 181

(1984) (quoting 22 C.J.S. Indictment § 259).

The Court has also explained that manifest necessity to discharge the jury occurs “where the court is compelled by law to be adjourned before the jury can agree on a verdict.” Rogers, 32 LLR at 181. For example, because the court must adjourn at the “expiration of the term,” Wood, 1 LLR at 449, it must disband the

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jury at that time. See also Rogers, 32 LLR at 181-82. In addition, whenever the court determines that the trial has become irremediably unfair, he may disband the jury, postpone the trial, and then empanel a new jury. Thus: “Manifest necessity means any circumstance that may tend to so disturb the trial resulting into an unfair and unjust hearing. Any circumstance the continuation of which may tend to deny either party his right to a fair and just jury trial may constitute manifest necessity for the termination of a trial.” Karngbay, 30 LLR at 132.

For example, when a juror “separated from the panel and went beyond the precincts of the court,” he may “have come in contact with some influence which may have swayed his mind and his vote in favor of or against the prisoner.” Wood,

1 LLR at 449. He may have been bribed by friends of the defendant to vote for an acquittal, or “what may be regarded as still more wicked and reprehensible, his vote and influence might have been secured by the haters of the prisoner, to bring down a verdict against him, however doubtful and insufficient the evidence against him may have been.” Id. at 450. As a result, the court “could not have an abiding conviction that the ends of public justice would not be defeated, if that juror were permitted to pass upon the prisoner’s guilt.” Id.

In such a case, to allow the jury to pass on the defendant’s guilt would therefore violate the court’s oath of office: “Obviously, as a dispenser of transparent justice, his duty would be to disband the jury whose legal disinterestedness in the cause could no longer be relied upon, and to empanel a new jury.” Id. But to release the prisoner merely because the court had disbanded the first jury and

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empanelled the second would also defeat the ends of justice: “To hold that the

disbanding of a jury under such circumstances is illegal and should operate as a

discharge of the prisoner, would be setting aside plain principles of the statute and

common law, and producing loop-holes for the escape of the guilty.” Id. The

appropriate—and constitutional course—therefore is to try the defendant before a new and untainted jury.

When the trial becomes irremediably unfair because of the defendant’s own conduct, it is especially necessary to postpone the trial, regardless whether the defendant consents, so that the accused cannot profit from his own misbehavior.

Thus, manifest necessity exists “where the prisoner by his own misconduct places it

out of the power of the jury to investigate his case correctly, thereby obtaining an

unfair advantage of the state. . .” Rogers v. Hon. Thorpe & Republic of Liberia, 32

LLR 175, 181 (1984) (quoting 22 C.J.S., Indictment § 259). Again: “We hold that

where the mistrial compelling the disbanding of the jury is attributed to the

outrageously bad behavior of the accused tending to create uncontrollable

atmosphere for a fair trial, a judge disbanding the jury and re-docketing the case

acts within the true concept of manifest necessity in protecting society’s interest in

justice and fairness.” Republic of Liberia v. Karngbay, 30 LLR 127, 131 (1982).

On the other hand, mere administrative inconvenience or cost cannot

constitute manifest necessity. For example, in Republic of Liberia v. Karngbay, the

lower court disbanded the jury and re-docketed the case for a new term of court on the grounds that defendant’s witnesses would be not available during the instant

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term. Id. at 129. The lower court, however failed to wait for the sheriff’s returns to

determine whether the witnesses would in fact be available. The prosecution

nonetheless argued that because it would waste time and money to wait for the

sheriff, there was manifest necessity to order a new trial: “The prosecution argued

in defense of the trial judge that because of waste of time, energy and money in

waiting for the return of the sheriff, manifest necessity existed for the disbanding of

the jury.” Id. at 130. The Supreme Court emphatically disagreed: “Only the return of the Sheriff could have legally informed the court of the necessity whether to wait for the arrival of the witnesses or to disband the jury. It is far better for this government and country to legitimately use time, energy, and money in order to

promote fairness and justice for one man, than to save all the time, energy and

money to install injustice.” Id. at 130-31.

By the same token, the State cannot argue that its own mishandling of the case constitutes manifest necessity, so the prosecution should get a second chance to present its case. Indeed, the whole point in the protection against double jeopardy is that the prosecution has only one opportunity to try a defendant for a given alleged offense: “The important countervailing interest of proper judicial administration of criminal justice is removed when the plea of manifest necessity as argued by the prosecution in this case is accepted to compensate the State for its gross procedural mistakes. . .” Karngbay, 30 LLR at 134.

Similarly, the Court has held that when a bailiff improperly influenced jurors

to acquit the defendant, the defendant may not thereafter be tried again: “If . . . the

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verdict was obtained by fraud, the jury concerned should have been held responsible for the said fraud, and not the defendant, for they, and not the defendant, were the parties who acted fraudulently . . . . [T]his being a felony, this court is of the opinion that, since it was upon a valid indictment, arraignment, and regular trial that the defendant was acquitted by the verdict of a competent jury, to have the defendant retried on the same indictment would be placing the defendant in double jeopardy.” Republic of Liberia v. Aggrey, 13 LLR 469, 476 (1960) (quoting with approval a lower court decision that, for procedural reasons, the Supreme Court could not enforce).

Although courts may therefore postpone cases for many different reasons, the court must always first investigate and establish the fact of manifest necessity; it may not be merely assumed. Thus, the Supreme Court has sternly warned:

“Appellant was not wrong in contending that illness of jurors can constitute sufficient ground for disbandment of a jury and award of new trial without prejudice to the defendant. But this is so only when manifest necessity has been duly established by investigation, including taking of medical evidence as to the existence and extent of such illness. Where no such investigation has been conducted, no manifest necessity for disbandment of the jury can have been established; and in such case, a new trial would place the defendant in double jeopardy.” Republic of Liberia v. Dillon, 15 LLR 119, 129-30 (1962).

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CH. THIRTY-TWO(d) ASSERTING AND WAIVING THE PROTECTION AGAINST DOUBLE JEOPARDY

In order to claim the protection against double jeopardy, the defendant must

assert it in a timely manner. When the prosecution brings a second indictment, the

defendant must assert his right against double jeopardy before pleading to the

charge. If he pleads, he has waived his right: “The defendant, now appellant,

having failed to plead autrefois acquit at the proper time, that is before pleading to

the charge, and having submitted to the jurisdiction of the court by joining issue to

the charge of grand larceny, was guilty [sic] of a waiver and could not at this stage

of the proceedings offer proof in support of said plea.” Cummings v. Republic of

Liberia, 4 LLR 16, 19 (1934) (citing 2 Wharton Criminal Procedure §§ 1413-14 (2d ed. 1918); B.L.D. Waiver). Accordingly, once he has waived his right, he may not at trial summon witnesses or put on evidence to show that he had already been acquitted of the charge in an earlier proceeding. See id. at 18-19.

When, on the other hand, the judge disbands the first jury and re-dockets the case on the grounds of manifest necessity, the defendant need not immediately object: “The failure to object to any gross irregularity in a criminal administration is not a waiver of the right of the accused to later take advantage of the illegal acts of either the prosecution or the court for his acquittal.” Republic of Liberia v.

Karngbay, 30 LLR 127, 131 (1982). Instead, the defendant may claim protection against double jeopardy when the new jury is called. See id. at 129. Again: “With respect to appellant’s contention that appellee’s failure to object to the ruling of the

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trial court disbanding the jury constituted a waiver of right to raise the constitutional issue of double jeopardy, we adhere to the settled common law rule . .

. that, in such a situation, the mere silence of the accused does not amount to a waiver of his constitutional right.” Republic of Liberia v. Dillon, 15 LLR 119, 130

(1962).

As noted above, the prosecution has only one opportunity to present his best case. If the jury acquits the defendant or an appellate court overturns a guilty verdict, the prosecution may not reindict. On the other hand, when the defendant himself, having been convicted, petitions the court for a new trial, he waives the protection against double jeopardy and may not object to the convening of the new trial which he himself requested. In such a case, the Court has explained: “It was the defendant’s right under the law to have moved for a new trial, which he did; and the same was granted. The moment the new trial was granted by the court below, there was no necessity for the rendition of a final judgment because the case obviously returned to the court’s docket for trial anew. Moreover, it was the defendant who sought the new trial, and under no parity of legal reasoning could he seek to recover against his adversary upon his own acts.” Williams v. Republic of

Liberia, 14 LLR 452, 457 (1961). Again: “[A] motion by the defendant in a criminal prosecution to quash the indictment, or to set aside the verdict and grant a new trial, is deemed a waiver of defendant’s constitutional right not to be twice put in jeopardy of life or limb for the same offense.” Griffiths v. Republic of Liberia, 22

LLR 288, 302 (1973).

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CHAPTER THIRTY-THREE THE WARRANT REQUIREMENT

Article I, Section 9th, 1847 Constitution of the Republic of Liberia

No place shall be searched, nor person seized, on a criminal charge or suspicion, unless upon warrant lawfully issued, upon probable cause supported by oath, or solemn affirmation, specially designating the place or person, and the object of the search.

Article 21(f), 1986 Constitution of the Republic of Liberia

Article 21(b), 1986 Constitution of the Republic of Liberia

No person shall be subject to search or seizure of his person or property, whether on a criminal charge or for any other purpose, unless upon warrant lawfully issued upon probable cause supported by a solemn oath or affirmation, specifically identifying the person or place to be searched and stating the object of the search; provided, however, that a search or seizure shall be permissible without a search warrant where the arresting authorities act during the commission of a crime or in hot pursuit of a person who has committed a crime.

From the inception of the Republic, the Liberian Constitution has required that the police obtain a judicial warrant before arresting a person or searching

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premises for evidence of crime. The goal of these restrictions is protection of the people against police abuse: the police may investigate crime, but they may not use their power to oppress the population. To prevent such an outcome, the

Constitution requires that before the police actually search or seize a person or property, they must secure the permission of a judge.

In this way, the Constitution interposes the judicial system between the law enforcement agencies and the people of Liberia. Under Article 21(f), a judge may issue an arrest warrant only if the prosecution demonstrates “a prima facie case” to believe that the person named in the warrant has committed a crime. Under

Article 21(b), before a judge will issue a search warrant, he must determine that the police have probable cause to believe that the search will yield evidence useful in a criminal investigation. The Liberian Supreme Court has not offered an exact definition of probable cause, but American caselaw contains extensive analysis of the nature of probably cause. For example, the United States Supreme Court has defined it as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense for which he is being charged.” Dumbra v. United

States, 268 U.S. 435, 441 (1925).

CH. THIRTY-THREE(a) ARREST WARRANTS

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The requirement of an arrest warrant ensures that executive branch officials, by themselves, may not arrest a suspect. Instead, arrest is an inherently judicial function, allowed only with the permission of a court: “[E]xcept in cases of treason or when the existence of the State is at stake—in which case, the suspect is kept at the post stockade, not in the central prison yard—the Minister of Justice cannot himself arrest and jail a person who is a suspect.” Trawally v. Hon. Scott, 33 LLR

200, 205 (1985). The purpose of this requirement is to prevent arbitrary arrests:

“Even though the prosecuting officers of the State have authority to investigate, it does not empower them to apprehend persons and charge them indefinitely, without a warrant charging a specific crime. Thus, speaking of the arrest warrant requirement, the Court explained: “The Constitution has preserved to citizens and persons within our borders rights against arbitrary arrest and illegal detention.”

Browne v. Republic of Liberia, 22 LLR 398, 404 (1974). Again: “The Constitution of

Liberia does not leave it discretionary with a Magistrate to seize and imprison persons who have committed crimes unless as specifically provided therein.” Daye v. Brown, 13 LLR 109, 119 (1957).

In addition to preventing the police from making arbitrary arrests, the requirement of an arrest warrant ensures that the defendant will be informed of the charge against him at an early stage of the proceedings: “A warrant of arrest performs two basic functions, each of which is necessary to the liberty of the citizen.

It notifies the accused of the charge against him, and thereby makes it possible for

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him to defend himself and it also informs him of the forum before which he is to appear to defend himself.” Thomas v. Morgan, 25 LLR 37, 38-39 (1976).

Courts may issue arrest warrants only for the actual commission of particular crimes, not for a mere tendency to commit a crime. Thus, the Court has explained: “It is clear that, to apprehend and punish for habitual criminal acts, the accused must commit some subsequent crime, for which a warrant will be issued and the particular crime charged against him.” Daye v. Brown, 13 LLR 108, 118

(1957). The Constitution thus does not allow a court to imprison a person “where it does not appear that petitioners’ imprisonment is the result of any recent crimes they had committed, but merely because they are regarded as hardened and habitual criminals.” Id. at 119. The 1986 Constitution makes this prohibition express: “There shall be no preventive detention.” Const. of the Republic of Liberia art. 21(f).

Although by its terms the 1847 Constitution required a warrant before arrest, the Supreme Court held that the arrest could come first, so long as afterwards the police secured a warrant as soon as possible. Thus: “There are several statutes, some going back to the earliest days of the Republic, which authorize arrest without warrant for persons criminally charged; but to comply with the requirement of the Constitution quoted above, such arrested persons must be subsequently served with process or warrant as soon as is conveniently possible.

Thus a statute authorizing arrest without warrant does not violate this

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constitutional provision, provided that such arrest is followed by issuance and

service of process within a reasonable time after the arrest.” Thomas, 25 LLR at 38.

The 1986 Constitution now codifies this rule and further specifies that the

police must secure the arrest warrant within forty-eight hours after the arrest:

“Every person arrested or detained shall be formally charged and presented before a

court of competent jurisdiction within forty-eight hours. Should the court

determine the existence of a prima facie case against the accused, it shall issue a

formal writ of arrest setting out the charge or charges and shall provide for a speedy

trial. There shall be no preventive detention.” 1986 Const. of the Republic of

Liberia art. 21(f).

If the police wait too long to obtain a warrant after the arrest, then the arrest will become illegal. For example: “According to the record the accused were taken into custody by the police without a warrant. . . and were not indicted nor arrested thereunder until April 5 of that year, ten days later. This was clearly in violation of the Constitution and the Criminal Procedure Law cited.” Browne v. Republic of

Liberia, 22 LLR 398, 405-06 (1974).

For that reason, when construing a statute that allows arrest before a warrant, the Court will infer that the Legislature intended the police to secure a warrant immediately afterwards: “Thus, it can be seen that arrest without warrant is not peculiar to the Emergency Powers Act; this is an old provision of the criminal statutes which obtains under certain conditions. We hold that the Legislature never intended that persons arrested without warrant under the Emergency Powers

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Act should not be served with process as soon after arrest as is conveniently possible.” Thomas, 25 LLR at 48-49.

On the other hand, if the police detain a suspect longer than constitutionally allowed but then eventually obtain a warrant, the defendant’s detention becomes legal. For that reason, he may not thereafter plead for his release on the grounds that his detention had, for a time been illegal. Thus, in one case, the Court explained: “[T]he subsequent finding of an indictment by the grand jury, and [the defendants’] arrest in consequence thereof, have corrected any irregularity practiced upon them. Raising the question after indictment and arrest is like closing the stable after the horse has gone.” Browne, 25 LLR at 406. For that reason, the

Court was “of the opinion that the illegal detention of the accused was nullified by the indictment and the subsequent execution of the warrant of arrest issued pursuant to the indictment.” Id. at 409.

CH. THIRTY-THREE(b) SEARCH WARRANTS

Evidence that has been seized during a warrantless search may not thereafter be admitted into evidence. When the defendant alleges that evidence was taken without a warrant, the prosecution must prove that the police had one:

“Since the prosecution claimed to have obtained a search warrant prior to searching the appellants’ premises, it had the burden of proof to show that such a warrant was in fact obtained in the face of appellant’s denial.” Raynes v. Republic of

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Liberia, 36 LLR 203, 221-22 (1989). The prosecution fails to carry its burden of proof when it cannot produce a copy of the warrant and the magistrate who allegedly issued the warrant cannot recall having done so. See id. at 222. Liberian

Criminal Procedure Law has traditionally reinforced the search warrant requirement by providing that the defendant may move to recover and to suppress as evidence anything obtained by an illegal search. See Hon. Jayweh v. Jawhary,

37 LLR 152, 156 (1993).

The search warrant requirement has one explicit exception. When the police actually witness a crime or are actively pursuing a fleeing criminal, they may search or seize without a search warrant: “[A] search or seizure shall be permissible without a search warrant where the arresting authorities act during the commission of a crime or in hot pursuit of a person who has committed a crime.”

1986 Const. of the Republic of Liberia art. 21(b). By its terms, the Constitution does not directly address whether the same exception exists for an arrest warrant, but as shown in the preceding section, the Constitution allows the police to arrest without a warrant, so long as they then secure a warrant as soon as possible.

According to an early case, the search warrant requirement applies only to a certain sort of search: the search of private property for evidence against the property’s owner. It does not apply to a search for contraband or for goods that have been concealed so as to avoid paying duties on them. Thus: “It seems to be clear to every legal mind, that there is a marked difference between a search for and seizure of a man’s private property for the purpose of obtaining information, or of

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using it as evidence against him; and a search for and seizure of stolen or forfeited

goods, or goods liable to duties and concealed to avoid the payment of same. In the

first case the government is not entitled to possession; whilst in the other, the

government is entitled to the possession of the property.” Overbeck v. Davis, 3 LLR

210, 218-19 (undated). Liberia’s first National Legislature—which also declared the

adoption of the Constitution—authorized the latter sort of searches, so the

legislators must have felt them to lie outside the search warrant requirement. See

id. at 219. Therefore, such searches are “not embraced within the prohibition of the

Constitution.” Id. Because this case is very old and the Court has not subsequently passed on the question, it may be that this exception to the warrant requirement no longer exists.

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CHAPTER THIRTY-FOUR HABEAS CORPUS

Article I, Section 20th, 1847 Constitution of the Republic of Liberia

. . . the privilege and benefit of habeas corpus, shall be enjoyed in this Republic, in the most free, easy, cheap, expeditious and ample manner: and shall not be suspended by the legislature, except upon the most pressing and urgent occasions, and for a limited time, not exceeding twelve months.

Article 21(g), 1986 Constitution of the Republic of Liberia

The right to the writ of habeas corpus, being essential to the protection of human rights, shall be guaranteed at all times, and any person arrested or detained and not presented to court within the period specified may in consequence exercise this right.

Article 87(b), 1986 Constitution of the Republic of Liberia

The writ of habeas corpus shall remain available and exercisable at all times and shall not be suspended on account of any state of emergency.

The Liberian Constitution has always guaranteed the right to habeas corpus.

As the Court has explained, a person detained by the State may apply for the writ before the appropriate court, which will then inquire whether the person’s detention is legal. If it is not legal, the court shall order the person’s release. The Court has explained that the “use [of the writ] is to enable the court or judge to ascertain

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whether the prisoner’s personal liberty is illegally restrained, and to release him if this be found proper to do.” Proceedings Upon a Writ of Habeas Corpus, 1 LLR 190,

194 (1885). More recently, the Court has observed: “Habeas corpus is a writ of right, and it will be issued whenever prisoners are detained without sufficient cause, or where liberties are restrained without due process of law.” Daye v. Brown,

13 LLR 109, 119 (1957) (citing Rev. Stat. § 1394).

The writ of habeas corpus is thus a great protection for the freedom of

Liberians. Because a detained person may always seek the aid of a court, the State may not simply imprison or “disappear” persons that the authorities regard as unsavory or dissident. Thus, in one of its earliest recorded cases, the Court has expatiated on the importance of the writ: “The writ of habeas corpus is a high privilege writ, and was so understood by the framers of the Constitution, the denial of which must soon endanger personal liberty, so sacred to the people of this

Republic; the refusal of this high writ would soon become the parent of despotism and leave the people’s liberty to the caprice of those vested with authority; and too soon the deformed head of Anarchy would rise up, and with great political upheavals, shake our beloved Republic to its very foundation.” Farrow v. Decorsey,

1 LLR 243, 244 (1893).

The purpose of the writ is to allow the court to inquire whether the applicant’s detention is legal. Even if the State believes that the detention is legal, therefore, it must produce the detainee to allow the court to decide that question.

Thus, in an early case, the Supreme Court explained that the “writ of habeas corpus

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. . . sought to remove from imprisonment two boys, in order that the judge might

inquire into the lawfulness of their confinement.” Farrow, 1 LLR at 244. In

another case, the Court instructed: “[I]f for any reason these persons held might

want have wanted to contend that they were being illegally detained on the sheriff’s

commitment, they had access to proper redress in habeas corpus proceedings

against the sheriff.” Mitchell & Sons Distillery v. Nelson, 22 LLR 67, 73 (1973).

If the State refuses to bring the detained person before the court on a writ of

habeas corpus, the court shall hold the relevant State official in contempt: “[A] writ

of habeas corpus is directed to the custodian himself, commanding him to produce

the said body of the person named in the writ, and if he fails to do so he is punished

for contempt, unless the court is satisfied that it was not in his power to produce the

body.” Proceedings Upon a Writ of Habeas Corpus, 1 LLR 190, 195 (1885). In

addition, if an Executive Branch official should seek to review a court’s judgment in

a habeas corpus proceeding, the court will hold the official in contempt as well:

“This act [by the Attorney General], when constructively considered, is an open

contempt to the court, in its presence, and it is also an outrage upon the judiciary,

tending to deprive the people of the benefits which by the Constitution of Liberia

ought to be enjoyed in the freest manner on habeas corpus.” Id. at 192.

Liberian statutes have provided that in habeas corpus proceedings, judges must examine the evidence, rather than summarily ruling against the detainee.

Thus, the Supreme Court reproved a lower court: “It is indeed regrettable to state that the records certified to this Court show that the judge, in utter disregard of the

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provisions of our statutes relating to habeas corpus proceedings which command him to examine upon oath the prisoner or other persons in position to give evidence, failed to inquire into these facts.” Wanney v. Massaquoi, 10 LLR 241, 246 (1949).

Because Liberian statutes have required such a process, the Court has never had

occasion to rule whether the Constitution on its own—in the absence of such

statutes—would require the same process, but the right to habeas corpus would be

meaningless if the courts could peremptorily rule against the detainee.

After the defendant has appeared and the court taken evidence, the court will

then decide whether the detention is in fact legal. If not, the court will order the

detainee’s release. For example, when the prosecution has neither secured an

arrest warrant nor presented the defendant with the charge, he may bring a writ of

habeas corpus for his release: “It does not appear to us that seizure and

imprisonment of the petitioners by the Magistrate without the service of a warrant,

or without having informed them of the charges upon which they were held, could

be regarded as having allowed them their rights of due process. . . . [T]he

petitioners now held without a charge against them are ordered released from

further custody.” Daye v. Brown, 13 LLR 109, 119-20 (1957).

Although the Liberian Constitution has always protected the right to habeas

corpus, the 1847 Constitution allowed the Legislature to suspend the writ under

dire circumstances. Article I, Section 20th provided that the writ “shall not be suspended by the legislature, except upon the most pressing and urgent occasions, and for a limited time, not exceeding twelve months.” Further, the Court explained

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that the Legislature could delegate to the President the emergency power to

suspend habeas corpus when, in his opinion, circumstances warranted: “[W]here a

most urgent and pressing occasion arose during the recess of the Legislature, how

would the writ be suspended to enable the President to deal with emergency?

Certainly the Legislature would have to be in session to be able to suspend. So it

seems reasonable for them to have authorized the President to suspend the writ

during their recess, for the benefit and safety of the State, should a most urgent and

pressing occasion arise. The safety of the State is the highest and most important

law, the Constitution notwithstanding.” Thomas v. Morgan, 25 LLR 37, 49-50

(1976) (emphasis in original). The Court further held that when the Legislature

delegates such power to the President, the Court will not review the decision of the

President to suspend the writ: “It was within the discretion of the President under

his executive powers to determine whether or not the circumstances amounted to an

emergency, to warrant suspension of the writ.” Id. at 51.

In dramatic contrast, the 1986 Constitution provides that the writ of habeas

corpus is absolute and may not be suspended. Thus, Article 21(g) specifies that the

writ “shall be guaranteed at all times” to “any person arrested or detained.”

(emphasis in original). In addition, Article 87(b) makes clear that the writ must be

available even during a state of emergency: “The writ of habeas corpus shall

remain available and exercisable at all times and shall not be suspended on account

of any state of emergency.” The constitution limits the right to habeas corpus in only one way: because Article 21(f) allows the State to detain a person twenty-four

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hours before presenting him to a court, the detainee may bring a writ of habeas corpus only after that time period has elapsed. Thus, Article 21(g) provides that any person who has been “detained and not presented to court within the period specified may in consequence exercise this right.” Despite this limit, the protection for the writ in the new constitution is extremely broad and reflects the framers’ apparent concern that the State might abuse its traditional power to suspend.

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CHAPTER THIRTY-FIVE THE RIGHT TO COUNSEL

Article I, Section 6th, 1847 Constitution of the Republic of Liberia

Every person injured shall have remedy therefor, by due course of law; justice shall be done without sale, denial or delay; and in all cases, not arising under martial law or upon impeachment, the parties shall have a right to trial by jury, and to be heard in person or by counsel, or both.

Article 21(c), 1986 Constitution of the Republic of Liberia

Every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, of the right to remain silent and of the fact that any statement could be used against him in a court of law. Such person shall be entitled to counsel at every stage of the investigation and shall have the right not to be interrogated except in the presence of counsel. Any admission or other statement made by the accused in the absence of such counsel shall be deemed inadmissible as evidence in a court of law.

The Liberian Constitution has always protected the right of a criminal defendant to be represented by counsel. The 1847 Constitution contained no provision specifically protecting the right of criminal defendants as such to counsel; instead, it protected the right of defendants as part of the more general right of all parties in all sorts of proceedings to an attorney: “[I]n all cases, not arising under martial law, or upon impeachment, the parties shall have a right . . . to be heard in person or by counsel, or both.” By contrast, the 1986 Constitution gives special protection to the right of criminal defendants to counsel: the right attaches “at

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every stage of the investigation”; the defendant may refuse to be interrogated unless

his attorney is present; and in any event, the court will not admit into evidence any

statement made by the defendant in the absence of counsel.

The Court has developed two primary lines of doctrine about the right of

criminal defendants to an attorney. The first concerns the right of indigent

defendants to court-supplied counsel. The second concerns the point in time at

which the right to an attorney attaches.

CHAPTER THIRTY-FIVE(a) THE RIGHT OF INDIGENT DEFENDANTS TO COURT-APPOINTED COUNSEL

Liberian statutory law has traditionally provided that indigent defendants are entitled to court-supplied counsel. Thus, in response to the question, “whether there is any law in this country authorizing the State to provide counsel for a person accused of a crime who cannot provide counsel for himself because of financial inability,” the Court answered: “In 1936 the Legislature created the office of Defense Counsel, whereby any person criminally charged who, because of financial inability, could not procure counsel for himself, was to be represented by said Defense Counsel. L. 1935-36, ch. XX, sections 1, 2.” Bruce v. Republic of

Liberia, 12 LLR 33, 39 (1954).

The Court has also indicated, however, that the right to court-supplied counsel is not merely statutory but also constitutional. Indeed, the Court has

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concluded that a criminal defendant has a right to the most competent available attorney: “Under our Constitution, every person is guaranteed a fair and impartial trial. When this is not accorded a conviction should be set aside. In cases of trials in forma pauperis, and in the absence of a defense counsel, trial courts should be particular in assigning lawyers to defend, and should make sure that the best available counsel are called in, particularly in cases of capital offenses involving the death sentence.” Quai v. Republic of Liberia, 12 LLR 402, 404 (1957). When the lower court fails to appoint the best available counsel, the Supreme Court will set aside a conviction and remand for a new trial. See id. For example, when the defense counsel files a bill of exceptions containing gross errors, the Court will conclude that the defendant had not received adequate assistance of counsel. See id. at 403-04.

The Court has also made clear, however, that when the defendant retains his own counsel, he may not thereafter complain that he “did not receive a fair and impartial trial because he was poorly represented in the lower court.” Quezon v.

Republic of Liberia, 23 LLR 33, 34 (1974). The Court explained: “It must be borne in mind that defendant appellant retained his own counsel. While we might agree that the case could have been handled more skillfully, yet we do not agree that that fact in itself is sufficient to make the trial unfair and thus warrant a reversal.” Id.

The Court carefully distinguished the rule for indigent defendants from the rule for defendants who retain their own counsel: “The appellant relied on Quai v.

Republic, 12 LLR 402 (1957). In that case, the court assigned counsel to represent

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the defendant. When that case was appealed, this Court held that in trials conducted in forma pauperis trial courts should assign the most competent available counsel, particularly in cases involving a capital offense in order to insure a fair and impartial trial. We reaffirm this position, but limit it to criminal cases, particularly those involving capital offenses. It is inapplicable where the appellant is not indigent and retains counsel.” Id.

When a defendant claims that he was represented in forma pauperis in the lower court and is thus entitled to court-supplied counsel before the reviewing court, the reviewing court must resolve all evidentiary doubts in favor of the defendant.

Thus, if the record contains conflicting evidence on whether the defendant was represented in forma pauperis, the Court must conclude that he was so represented:

“[I]n the present case a doubt was created, which, according to settled principles of law, must operate in favor of the accused. We therefore consider it proper to hold that appellant was represented in the court below in forma pauperis; and that, since he was represented in forma pauperis in the court of origin, he was entitled to representation in this Court at the expense of the State.” Bruce v. Republic of

Liberia, 12 LLR 33, 40 (1954).

CHAPTER THIRTY-FIVE(b) WHEN THE RIGHT TO COUNSEL ATTACHES

A criminal defendant has the right to counsel as soon as he is detained and at every step of the proceedings thereafter. By its terms, Article 21(c) specifies that an

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accused has a right to an attorney “at every stage of the investigation.” This provision merely codifies prior rulings of the Supreme Court under the 1847

Constitution, which contained no such express language. Thus, the Court explained: “Because the Constitution of Liberia vests a person charged with the commission of a crime the right of representation in person, by counsel, or both, the enjoyment of this option matures to the person charged immediately he or she is taken into custody; and where the service of counsel is sought it cannot be denied.”

Gio v. Republic of Liberia, 17 LLR 681, 692 (1966). Similarly: “A defendant’s fundamental right to counsel commences, under our law as well as the law of all civilized countries, as soon as his liberties are restrained by any peace officer or an employee of the state.” Sheriff v. Republic of Liberia, 29 LLR 103, 108 (1981).

The right to counsel has special force during interrogations. Article 21(c) specifically provides that the defendant has the right not to be interrogated unless his lawyer is present. Presumably, the defendant could waive this right and so permit an interrogation without his counsel. But Article 21(c) further mandates:

“Any admission or other statements made by the accused in the absence of such counsel shall be deemed inadmissible as evidence in a court of law.” This provision is phrased as a command to courts: they are not permitted to admit such evidence.

Ergo, even if the defendant waives his right to have an attorney present at the interrogation, any statement made during such an investigation may not be admitted into evidence. In other words, even if the defendant affirmatively wants to talk to the police without his attorney, he may not demand that his statements be

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entered into evidence. Presumably, the Constitution mandates this rule because of a systemic and prophylactics concern about police misconduct: if the police know that they may never secure admissible evidence unless an attorney is present, they will be more careful to respect the defendant’s rights.

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PART THREE: THE GEOGRAPHICAL STRUCTURE OF THE STATE

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CHAPTER THIRTY-SIX THE UNITARY BUT DECENTRALIZED STATE

Article 3, 1986 Constitution of the Republic of Liberia

Liberia is a unitary sovereign state divided into counties for administrative purposes. . .

CH. THIRTY-SIX(a) A UNITARY STATE

Article 3 of the 1986 Constitution explicitly provides that Liberia is a

“unitary state.” A unitary state is one in which the constitution grants all governmental power to a single government, the national government. A unitary state is distinguished from a federal state, in which the constitution grants only limited powers to the national government and gives the rest to the state or provincial governments. In other words, in a federal system, the national government may not intrude into the sphere reserved to the states by the constitution. In the United States, for example, the constitution grants to the national government only a specific list of enumerated powers; under the tenth amendment, all the other powers are reserved to the states. But in Liberia, as a unitary state, the constitution vests all governmental power in the national government, which has traditionally been located in Monrovia.

The Republic of Liberia was formed when the three independent settlements,

The Colony of Liberia, The Bassa Cove Colony and Mississippi in Africa first

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merged to form the Commonwealth of Liberia in 1839 and then agreed to enter a single constitutional system as an independent sovereign nation in 1847. See

Charles Henry Huberich, The Political and Legislative History of Liberia 568-615,

654, 817-818 (1947). When several independent polities come together into a single

state, they often create a federal system in which the hitherto-independent polities

retain some power. In Liberia, by contrast, the polities formed a unitary state.

The 1847 Constitution did not assert that Liberia is a unitary state in so

many words, but it did so implicitly. The Preamble to Article I explained that the

people of Liberia formed one government: “[W]e the People of the Commonwealth of

Liberia. . . hereby solemnly associate and constitute ourselves a Free, Sovereign and

Independent State, by the name of the Republic of Liberia, and do ordain and

establish this Constitution for the government of the same.” The Constitution

vested all the power of that one government in its three branches: “The powers of

this government shall be divided into three distinct departments: Legislative,

Executive, and Judicial. . .” Const. of the Republic of Liberia art. I sec. 14th. The

Constitution nowhere refers to state or provincial governments and therefore makes

no provision for vesting such governments with power.

After 1847, the understanding that Liberia was a unitary state was

universal. Liberia was never divided into states or provinces. No body of persons

ever claimed to represent a state or province with constitutionally reserved powers.

All the political subdivisions including the counties, territories and districts, were

established by and, accountable to the central government. See Chapters 1-5, Title

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20, Local Government Law, Liberian Code Revised (1999). No claimant ever argued

before the Supreme Court that the 1847 constitution was federal. For that reason,

prior to the 1986 constitution, the Supreme Court never had occasion expressly to

hold that Liberia was a unitary state, but it clearly was.

CH. THIRTY-SIX(b) DECENTRALIZATION

Although Liberia is not federal, it has always been partially decentralized by act of the legislature. In both federal and decentralized states, the law divides power between the national government and more local units. The difference is that in a federal state, it is the constitution that divides power, so that the division cannot thereafter be changed except by constitutional amendment. In other words, the national government may not alter the powers of the states, nor may it exercise those powers exclusively reserved to the states. By contrast, in a decentralized state, the national government chooses to delegate some of its own power to local units. It may delegate as much or as little power as it likes, and it may always subsequently take back some or all of the delegated power. In other words, the local government units are merely administrative subdivisions of the national government itself. When they exercise power, they do so only as instruments and in the name of the central government.

In Liberia, power has been decentralized to the counties, chiefs and chartered municipal corporations. The Supreme Court has always tacitly regarded such

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decentralization as constitutionally permissible, though not constitutionally

required.

Ch. Thirty-Six(b)(1): The Counties

The counties have always played an important role in the geographical

structure of the Liberian state. Even before Liberia adopted its first constitution in

1847, the Legislative Council of the Commonwealth had divided the Commonwealth

into counties for regulatory purposes, creating Montserrado and Grand Bassa

counties in 1839 and Sinoe County in 1846. See Charles Henry Huberich, The

Political and Legislative History of Liberia 1394, 1664 (1947).

The 1847 constitution did not require that the Republic be divided into

counties, nor did it specifically provide that the Legislature had the power to create

counties. It did, however, implicitly authorize the creation of counties by providing

that the political subdivisions created by the Commonwealth would continue to

function after the adoption of the Constitution: “All towns and municipal

corporations within the Republic, constituted under the laws of the Commonwealth

of Liberia, shall retain their existing organizations and privileges, and the

respective officers thereof shall remain in office, and act under the authority of this

Republic, in the same manner and with like powers as they now possess under the

laws of said Commonwealth.” 1847 Const. of the Republic of Liberia art. V sec. 3rd.

Presumably, the Framers intended this Article only as a transitional provision: until the Republic saw fit to re-organize, the system would remain as before.

Nevertheless, it clearly contemplated that the Republic had power to create political

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subdivisions. No claimant ever argued before the Supreme Court that the counties

were unconstitutional, and so the Court never had occasion expressly to decide that

question. The assumption that the counties were constitutional, however, appears

to have been universal. After 1847, the government admitted new counties from

time to time, beginning with Maryland County in 1856. See Huberich, at 881.

Today, the number of counties stands at fifteen. See Title 20, Liberian Code Revised

(1999).

Again, the 1986 constitution is more explicit: it provides that Liberia is “a unitary sovereign state divided into counties for administrative purposes.” 1986

Const. of the Republic of Liberia art. 3. This provision clearly authorizes the

Legislature to divide the Republic into counties, and it even seems to require that

Liberia must be divided into counties. For that reason, it would be unconstitutional

for the Legislature to eliminate the counties altogether. The counties’ existence is

thus constitutionally protected. The 1986 constitution does not specify, however,

that the counties shall be guaranteed any particular powers. Because Liberia is a

unitary state, all sovereign power is concentrated in the national government. For

that reason, the central government may give the counties as much or as little

power as it likes. The counties exist only for the “administrative purposes” that the

national government assigns to them.

Ch. Thirty-Six(b)(2): Chiefs

Since 1905, the Legislature has decentralized authority over some indigenous

populations to tribal chief, who govern according to customary law, insofar as that

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law is not repugnant to state law. In the past, Liberia was divided into two large

areas: the territory organized into counties, and the territory beyond the counties,

generally called the hinterlands. Although Americo-Liberians lived primarily in the

counties, indigenous persons lived in both areas. Statutes gave chiefs power to

exercise governmental functions both in the hinterland and in areas “wholly

occupied by natives,” Aborigines Law, Liberian Code of Laws, Title 1, Chapter 5

(1956). Chiefs had some authority, therefore, even within the counties. For

example, the Supreme Court explained in the 1960s: “For administrative reasons,

and because of the influx of several tribal peoples in the Monrovia area where there

is a better opportunity for a livelihood, it pleased the President of Liberia to

nominate and appoint a tribal chief for each of the principal tribal groups.” Odei v.

Verdier, 15 LLR 285, 286 (1963).

The Supreme Court has never expressly ruled on whether the Constitution

allows the legislature to devolve authority to chiefs. On at least two occasions, it

has acted on the implicit assumption that it does. For example, in Odei v. Verdier, the Court ruled that a person could not act as a tribal chief and also as a justice of the peace in the same case: “Inspecting the record certified to us, we find that, although the tribal chief sentenced appellant after trial as a tribal chief, he committed appellant as a justice of the peace, thereby exercising the functions of tribal chief and justice of the peace in one and the same action.” 15 LLR 285, 286

(1963). The Court objected to the combination of functions, but it implied that if the

chief had acted only as a chief, he would have been entirely within his legal

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authority. Similarly, in Jedah v. Horace, the Court explained that in the hinterlands, parties could appeal the decisions of native chiefs to Travelling

Commissioners, but the commissioners could not perform judicial functions in the counties. See 2 LLR 265 (1916). In ruling that parties could appeal the decisions of chiefs, the Court implicitly assumed that chiefs could make such decisions.

In short, the Court seems to have affirmed that the central government may decentralize authority over indigenous persons to local chiefs. The source of chiefly power, however, is a separate question. One possibility is that the chiefs exercise power delegated to them by the central government, so that they are acting as agents or instruments of the state. The other possibility is that they exercise their own pre-existing power, the power of a traditional chief under the customs of the tribe, recognized by the Republic but actually outside the unitary Liberian state as such. If they do possess such aboriginal power, they are not unique: to this day,

American Indian tribes exercise aboriginal power over their own members. See

Tallton v. Mayes, 163 U.S. 376 (1896).

Chapter Thirty-Six(b)(3): Municipal Corporations

Early in its history, the Republic of Liberia gave to the City of Monrovia a charter which delegated to it, inter alia, “the right to enact such laws and municipal ordinances as are necessary for its government, provided such laws and municipal ordinances do not conflict with the laws of the Republic,” In Re Jurisdiction of the

Charter of the City of Monrovia, 1 LLR 15, 15 (1862), and “to appoint one or more city magistrates and to specify and determine the duties of said officers,” Hammond

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v. Corp. of Monrovia, 1 LLR 137, 137 (1881). As early as 1862, the Court upheld this delegation: “The charter of the corporation is a constituted power, organized within a power.” In Re Jurisdiction of the Charter of the City of Monrovia, 1 LLR at

15.

The Court also intimated, however, that the Constitution limited how much power the Republic could delegate. First, as noted, the charter gave Monrovia the power to make its own ordinances, but such ordinances could not contradict the laws of the Republic. The Court seemed to hold further that even if the Legislature had wanted to give Monrovia the power to contradict legislative statutes, constitutionally it could not: Monrovia is “a constituted power, organized within a power, and therefore cannot make laws to supersede or nullify the power by which it was created.” Id. at 15-16. This rule grows logically from the fact that Liberia is a unitary state: because all sovereignty lies with the national government, its decision must always be supreme over its own agents, such as the corporation of

Monrovia. If the national legislature could give Monrovia the power to defy the national legislature, it would in effect be turning Liberia into a federal state.

Second, the Court considered whether the national legislature could give

Monrovia exclusive jurisdiction over some matter, such that the city could take jurisdiction and the national government would by law be forbidden from taking a concurrent jurisdiction. (Note that even if Monrovia could and did possess exclusive jurisdiction, it still could not contradict the laws of the Republic, and the Republic could always take back the exclusive jurisdiction). The Court adopted a plain

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statement rule. The legislature could delegate exclusive jurisdiction only if it made its intent unmistakably clear: “No right can be constitutionally delegated to any corporation to give it exclusive jurisdiction over any statute act, unless the

Legislature or sovereignty of Liberia will relinquish its political jurisdiction by an express repealing statute, which, however, would be very impolitic in any sovereign.” Id. at 16. Because the Republic had not so clearly given the corporation exclusive jurisdiction, the Court held that the city could prosecute misdemeanors under its ordinances and the nation could also prosecute the same misdemeanors under its statutes: “Each power has a right to do the same thing, both having the same ends in view.” Id.

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