A Memo to the Judiciary: Avoid Constitutional Chaos -Supreme Court Must Be Clear on House Leadership Question

MONROVIA – Article III of the Liberian Constitution stipulates that the judiciary is one of the three equal and separate branches of government that operates on the principle of checks and balances. The Supreme Court being the highest within the Judiciary is granted original jurisdiction over constitutional disputes, cases in which the country is a party, and for cases where ministers or ambassadors are involved by the Constitution of Liberia.

Over the years, Liberians have come to view the Supreme Court with esteemed regard as the final arbiter of constitutional justice, especially when all seems to have failed at the lower courts. But the ongoing leadership saga at the House of Representatives appears to have shattered the hopes of many Liberians who had believed that the Supreme Court could live up its constitutional mandate to resolve the House leadership fracas and avert a national crisis that is now posing unprecedented consequences for the country’s fledgling democracy.

For the first time in the country’s history, the House of Representatives has two Speakers, one elected through unconstitutional means under the gavel of the Majority Bloc; and another Speaker who wields a legitimate mandate but cannot exercise his authority because his side doesn’t have the numbers to preside over a session. The expectation of Liberians was that the Supreme Court December 6, 2024 ruling would have provided a definitive outcome to the House leadership impasse and circumvented a constitutional crisis.

But instead of providing a definitive constitutional resolution, the Court ruled that it could not intervene in an internal legislative matter. Chief Justice Sie-A-Nyene Yuoh, delivering the Court’s ruling said, “Under these circumstances, the Supreme Court cannot do for the Legislature what is within its [legislative] purview to do, as to do so will be a violation of the constitutional mandate on the separation of powers.”

In its judgment, the Court confirmed its jurisdiction to decide constitutional issues arising from legislative disputes but fell short of providing means to end the crisis. Instead, it emphasized that the Constitution is “devoid of the mechanism for how the minority is to compel attendance of absent members”, given that the Legislature has failed to promulgate enabling statutes or rules to address such scenarios.

In its interpretation of Article 33 of the Constitution, the Supreme Court in that ruling stated that in case a simple majority or a lower number of lawmakers is present, a presiding officer—defined under Article 49 as the Speaker or, in their absence, the Deputy Speaker—must oversee legislative proceedings. The Court in its final ruling then stated that any actions taken outside this framework are ultra vires, or beyond the scope of their authority.

The Supreme Court’s rather ambiguous ruling has elicited a myriad of interpretations from all parties involved, with the Majority Bloc claiming victory because the court was not specific as to which action carried out by the Majority Bloc was beyond their constitutional mandate.

“The Supreme Court held that the parties should return and conduct themselves in keeping with the law,” Sherman said at the time, noting, “since no action of the Majority was declared unconstitutional, then the Majority could proceed while continuing to conduct themselves in keeping with the law. In effect, the Majority won.”

Since that ruling, the Legislature continues to be a hotbed of unrest, especially given Justice Minister Oswald Tweh’s recent legal opinion to the Supreme Court ruling, a legal opinion that  favored only the Majority Bloc, thus setting the pace for the Richard Koon-led speakership to enforce all of the actions which Speaker Koffa and his group of lawmakers had prayed the Supreme Court to address.

Last Redress against Constitutional Breakdown

Frustrated, embattled Speaker J Fonati has returned to the Supreme Court with a Bill of Information praying for the apex court to provide a definitive meaning to its “ultra vires” ruling, since in fact, the Majority Bloc has proceeded to continue with all of the actions they were complained about. Speaker Koffa has also prayed for the Supreme Court to have Attorney General Tweh withdraw his controversial legal opinion that is now being used as an instrument for the Executive Branch and the Senate to recognize Representative Koon’s speakership.

Madam Chief Justice and Associate Justices, Liberia is at a critical juncture in our democratic sojourn, and this country needs to erect all the safeguards against constitutional anomalies that tend to undermine the rule of law. If the Supreme Court, which is considered the only constitutional authority to settle constitutional matters, continues to remain vague and indecisive about the leadership crisis brewing on Capitol Hill, Liberians will finally lose hope in the judicial system. Our international partners and the international community are keenly watching how the Supreme Court dispenses justice in this situation.

The entire nation is waiting with bated breath whether or not the Supreme Court will listen to the Bill of Information case filed by Speaker Koffa or play to the gallery of executive influences that could finally break down the noble ideal of the separation of powers enshrined in our republican form of governance. The ball is in your court!