A Critique of the Supreme Court’s Opinion on the Unconstitutionality of Certain Legislative Actions

1. Introduction:

The Liberian Supreme Court’s opinion in In Re: The Unconstitutionality of Certain Actions Taken by Some Members of the House of Representatives raises significant questions concerning the court’s role in interpreting constitutional issues related to internal legislative disputes. This critique examines the Supreme Court’s handling of jurisdiction, due process, and its failure to resolve the underlying constitutional questions, ultimately contributing to ambiguity rather than clarity in the law.

1. Jurisdiction—Authority to Hear and Decide a Matter

The issue of jurisdiction, especially subject-matter jurisdiction, hinges on the question of redressability. In the case at hand, petitioners, led by Speaker J. Fonati Koffa et al., sought the Supreme Court’s intervention to determine whether certain actions taken by members of the House of Representatives, the respondents, were unconstitutional. These actions primarily involved:

1. “The convening of a purported and illegal Plenary of the House of Representatives without the Speaker, the constitutionally designated Presiding Officer of the House of Representatives in Article 49 of the Constitution, notwithstanding the fact he is present and available to perform his duty.

• Using the illegal Plenary to unconstitutionally suspend Representatives Edward Flomo, Abu Kamara, and Marvin Cole as members of the House of Representatives, without first affording them the necessary and required constitutional Due Process mandated by Article 20 of the Liberian Constitution and Rule 48 of the House Standing Rules.

• Illegal restructuring and reconstituting Statutory Committees of the House of Representatives in violation of the Committees’ Chairmen and Co-Chairmen appointment by the Speaker for 3years and that they can only be removed by two-third vote of the entire Membership of the House of Representatives.

• Unconstitutionally seizing and taking possession of the 2025 Draft National Budget by the Deputy Speaker, Honorable Thomas P. Fallah, and Honorable Samuel G. Kogar, although it was directed to Speaker Koffa in his capacity as the Presiding Officer of the House of Representatives, and unlawfully acting on same in violation of Article 49 of the Constitution and Rule 10 of the House Standing Rules.”

The respondents, in contrast, argued that their actions were consistent with the law and urged the Court to dismiss the case, contending that the dispute was a political question and not a matter for judicial review.

The Court initially addressed the issue of jurisdiction and concluded that it had the authority to hear constitutional issues arising from internal disputes among members of the legislature, citing Article 66 of the Liberian Constitution. This provision states that 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 records, courts not of records, administrative agencies, autonomous agencies, or any authority, both as to the law and fact.” Thus, the Court asserted its jurisdiction over the matter, rendering the dispute justiciable.

However, after assuming jurisdiction, the Court failed to address the substance of the constitutional issues raised by the petitioners. Instead, it focused solely on the jurisdictional question, leaving the substantive constitutional issues unresolved. The most pressing question that arises is why the Court, after asserting jurisdiction, would avoid addressing the constitutional matters at bar. This failure is legally untenable and inconsistent with the principles of common law jurisdictions, where a court assuming jurisdiction is expected to resolve the underlying constitutional questions.

III. Ambiguity and Confusion in the Court’s Opinion

In attempting to resolve the issues at hand, the Court introduced the term ultra vires to describe the actions of the members of the House of Representatives but failed to explain which specific actions by which faction constituted ultra vires conduct. The Court’s failure to provide a detailed explanation only resulted in more confusion rather than clarity.

The petitioners argued that the self-styled majority bloc violated Article 33 of the Constitution, while the majority bloc contended that their actions were in line with Article 33. Instead of resolving this dispute, the Court merely instructed the parties to “act according to Article 33.” This instruction did little to resolve the matter, especially given that the “majority bloc”, the respondents, had already claimed to be acting in compliance with Article 33.

Moreover, the Court attempted to reconcile Articles 33 and 49 by asserting that regardless of whether a simple majority or a smaller number is present, the Presiding Officer, as defined in Article 49, is the Speaker, or in his absence, the Deputy Speaker. Speaker Koffa contended that his conduct was justified since he was present and available to preside, but the majority bloc argued that his failure to join them at the joint chambers to preside, despite repeated invitations, constituted an absence that necessitated the Deputy Speaker’s assumption of the role. The Court, however, avoided clarifying what constitutes “absence” under these circumstances. Addressing this question would have provided a definitive resolution to the dispute and clarified the legality of the parties’ actions.

The Court’s failure to address this critical issue, despite having asserted jurisdiction over the matter, constitutes a legal blunder. In common law jurisdictions, once a court asserts jurisdiction, it is expected to either invoke the Political Question Doctrine to avoid passing on the issue or proceed to resolve the constitutional conflict. The Court’s failure to do either is a departure from established legal principles hoary with age.

IV. The Court’s Missed Opportunity to Invoke the Political Question Doctrine

One opportunity the Court had was to invoke the Political Question Doctrine, which holds that certain issues are non-justiciable because they are more appropriate for resolution by the executive or legislative branches. This doctrine is based on the separation of powers principle, which dictates that the judiciary should avoid interfering in matters that fall within the purview of elected officials.

In Baker v. Carr (1962), the U.S. Supreme Court established a framework for determining when a political question exists, considering factors such as whether there is a textual commitment to another branch of government, whether judicial standards exist for resolution, and whether the resolution would require a policy determination. Had the Court invoked this doctrine, it could have avoided rendering an ambiguous and vague opinion that adds little to the jurisprudence of Liberia. The Court could have simply declined to address the matter, deeming it a political question.

V. The Court’s Responsibility to Resolve Constitutional Issues

Alternatively, the Court could have exercised its jurisdiction and resolved the constitutional conflict. if the Court chose to assume jurisdiction, as it did under Article 66, it was obligated to exercise that jurisdiction fully. Jurisdiction refers to the authority of a court to hear and decide a case, and once assumed, it requires the court to resolve the pertinent issues raised. It is not sufficient for a court to assume jurisdiction and then leave the underlying issues unresolved.

It is also worth noting that it is within the Court’s authority to address only those issues that are germane and dispositive to the case at hand. However, the Court’s failure to exercise this authority accordingly and appropriately has exacerbated ambiguity, contributing to confusion, and leaving legal scholars to interpret the opinion in their own ways. This situation presents a significant concern, as the interpretation of laws lies exclusively within the authority of the Supreme Court.

The Court’s failure to resolve the constitutional questions before it seems to indicate a greater interest in asserting its authority than in addressing the specific prayers of the petitioners. This constitutes an egregious legal misstep and an unprecedented error by the Supreme Court of Liberia.

VI. Due Process and the Court’s Omission

Perhaps the most egregious oversight by the Court is its failure to address the issue of what it termed “the law of the land”—Due Process! in the landmark case of Wolo v. Wolo decided February 12, 1937, which was central to the petitioners’ case. The petitioners alleged that Representatives Edward Flomo, Abu Kamara, and Marvin Cole were suspended without being afforded the required constitutional due process mandated by Article 20 of the Liberian Constitution and Rule 48 of the House Standing Rules. Despite assuming jurisdiction over the matter, the Court neglected to determine this crucial constitutional issue.

The Supreme Court has consistently held that the right to due process is fundamental and extends to all proceedings that may affect personal or property rights. By neglecting to address the due process issue, the Court missed an opportunity to provide clarity on the constitutional requirements governing legislative procedures and undermined the importance of due process and its role in safeguarding individual rights.

VII. Judicial Review—A Mechanism for Clarity, Not Confusion

Judicial review is a critical mechanism that ensures laws and government actions comply with constitutional mandates. Its primary purpose is to provide clarity in the interpretation and application of the law, not to exacerbate confusion. Judicial review serves as a stabilizing force in governance, guiding future conduct by ensuring that governmental actions are aligned with the Constitution, the supreme law of the land.

In Marbury v. Madison (1803), Chief Justice John Marshall emphasized the judiciary’s duty to “say what the law is,” ensuring that constitutional principles govern legal disputes. This duty remains vital in Liberia, where the Supreme Court has invalidated actions that violate constitutional provisions. By clarifying legal ambiguities and resolving constitutional conflicts, the Court upholds the rule of law and prevents further legal confusion.

However, in this case, the Supreme Court failed in its obligation to clarify the law. Instead of offering meaningful guidance, the Court’s opinion restated constitutional provisions without providing substantive interpretation. This failure to “say what the law is” ultimately leaves a legal void, particularly given the unique nature of this case, which may not arise again in this generation.

VIII. The Existence of law to Compel Legislative Attendance

Finally, the Court’s intimation that “the Legislature has promulgated no enabling statute or standing rules setting forth the process for compelling absentee members to attend sessions as envisioned under Article 33 of the Constitution” is problematic. Liberia’s Civil Procedure Law, enacted by the Legislature in 1972, specifically Chapter 16, Subchapter B, Section 16.21(2), provides for the use of mandamus to compel public officials to perform duties required by law. The Court itself has defined mandamus as “a judicial proceeding to coerce the performance of duties devolved by law upon public officials,” as established in RL v. Leadership of LNBA et al. (40 LLR 635, 2001).

Why would the Court assert with certainty that there’s no law to compel absent lawmakers to avail themselves for quorum when the office of mandamus is absolutely meant for that exercise or function? Is the Court stating otherwise that the duty to attend session is not an official duty devolved by law as enshrined in article 33 of the Liberian Constitution? The duty of lawmakers to attend sessions is enshrined in Article 33 of the Liberian Constitution, and mandamus serves as an appropriate legal mechanism to compel this duty. The Court’s failure to recognize this mechanism represents a significant legal oversight.

One may argue that enforcement could present challenges, but that is not within the province of the Court. It would be worth noting that the refusal of absent members to attend sessions with the presiding officer or their deputy has been declared illegal. Consequently, any actions taken by such absent members—whether through holding parallel sessions or engaging in other conduct—are ultra vires and void ab initio.

In the more recent case of Snowe v. 52nd Legislature (2007), which involved a similar legislative impasse, the Supreme Court declared Hon. Edwin Melvin Snowe as the legitimate Speaker after he had complained of being removed by a majority of his colleagues without due process. The majority of his colleagues refused to recognize his authority and declined to sit under his gavel even after the Supreme Court’s decision reaffirmed his legitimacy, which led to his eventual resignation. However, this did not alter the Court’s declaration that he was the lawful Speaker and that all actions taken by the majority were ultra vires.

By asserting that there is no law to compel absent lawmakers to attend sessions, the Court overlooks the clear mandate of the Civil Procedure Law.

IX. Conclusion

In conclusion, the Supreme Court of Liberia’s opinion in In Re: The Unconstitutionality of Certain Actions Taken by Some Members of the House of Representatives is a significant missed opportunity to clarify important constitutional issues. The Court’s failure to resolve the fundamental issues of jurisdiction, due process, and legislative authority not only creates ambiguity but undermines the stability and clarity that judicial review is meant to provide. By neglecting its duty to clarify the law and resolve constitutional conflicts, the Court has left unresolved questions that could have profound implications for Liberia’s governance and legal system.