Supreme Court’s Opinions Risk being Pilloried and Overturned

By: Atty. Isaac W. Jackson, Jr.

Besides the jurisprudential ideology that underlies the recent decision of the United States Supreme Court in Roe v Wade, the key message espoused by the Roberts Bench is that questionable opinions of Supreme Courts can be overturned. Writing for the majority, Justice Samuel Alito averred that, “Roe was egregiously wrong from the Start.” It is not our place to pass such judgments on Roe v Wade, but in the same spirit of the process of judicial review of decisions of the Supreme Court, we can draw attention to a number of ‘egregious’ decisions of the Liberian Supreme Court which can and should be the subject of judicial review and overturn by a bench of judicial advocates and scholars more committed to the sanctity of the law as opposed to the fleeting convenience of politics.

Hence, we pick upon the carcass of ‘Roe v Wade’ to drive home a message that most cases decided by the Korkpor Bench risk being overturned eventually because they are tainted by judicial willfulness as opposed to the philosophical perspectives of the Law of the land outlined herein below.

The most recent Opinion of the Supreme Court of Liberia in the Case UP v CPP constitutes a classic example of judicial willfulness, in that, the Court deviated from the well-established legal principle which states: “private contract rights are not subject for the scrutiny of Constitutional Courts.” This principle which draws its legal soundness from “Shelley v. Kraemer” – a landmark case decided by the US Supreme Court in 1948 – was upheld by the Supreme Court of Liberia in the Case “Wilmot Paye v. The Leadership of the Unity Party, decided in 2020. Speaking for the Court and upholding the principle of law espoused in Shelley v. Kraemer, Justice SIE-A-NYENE G. YUOH opined: “We hold that because the petition for declaratory judgment contains factual issues, this Court is unable to exercise original jurisdiction over the same, plus the fact that a challenge to the Unity Party’s Constitution is not a constitutional issue as contemplated by Law.” (emphasis supplied)

As correctly indicated above, Justice SIE-A-NYENE G. YUOH did not only decline to exercise jurisdiction over the subject matter brought by Wilmot Paye because it was borne out of private contract right; Her Honor clearly stated that the Challenge to the Unity Party’s Constitution was not a Constitutional issue as contemplated by Law, i.e., Article II of the 1986 Constitution of Liberia.

To broaden the knowledge of those who may not have followed the Paye Case, the summary facts are: Unity Party Chairman Wilmot Paye was suspended; not being satisfied with the suspension, he  filed a Bill of Information containing 17 counts to the Honourable Supreme Court arguing, amongst other things, that his due process right, pursuant to the relevant provisions of Article 20 of the 1986 Constitution, was violated because Section 4, Article X of the Unity Party’s Constitution was the basis of the decision of the Executive Committee to suspend him – binding and final – since said decision of the Unity Party was non-reviewable by any appellate body. Here, the Court correctly held that it could NOT exercise jurisdiction in matters bordering on private rights.

Regrettably, the Supreme Court of Liberia shocked the legal world when it shamelessly departed from its own Opinion of 2020 in the Paye Case; and that of the Landmark Opinion in Shelley v. Kraemer by entertaining the Unity Party v. CPP Case, which is clearly a private contract right case.  The Unity Party, having enjoyed the benefits of associating with the CPP, called upon the Supreme Court and alleged that Section 8.5.2 of the CPP Framework document was violative of its Article 17 Constitutional right. And so, the question is, on what basis did the Supreme Court exercise jurisdiction in the UP’s Case, having refused to exercise jurisdiction in the Paye Case; if not on the basis of judicial wilfulness?

The General principle of Law as we clearly know it is that private acts are not subject to constitutional challenges. The Supreme Court’s power of judicial review established by Article II of the Constitution does not extend to declaring private acts unconstitutional to the extent of any inconsistency with the Constitution, but specifically speaks to and covers decrees, statutes, regulations, and other public acts. In upholding this age-old principle of Law, the United States Supreme Court in its unanimous 6-0 decision in Shelley v. Kraemer opined that “the – racially – restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. Private parties might abide by the terms of such a restrictive covenant …”

Based upon the soundness of the legal points made supra, anybody who is not overwhelmed by blind prejudice would readily agree that the Supreme Court of Liberia made an egregious error in exercising jurisdiction in the Case UP v. CPP Case. Hence, the inescapable conclusion is that the Court’s decision is in danger of being overturned by a stronger and more independent Bench.

At the risk of violating the rules of thumb of not quoting oneself, I am constrained to remind the public that in the second paragraph of my Piece entitled, “Seizing the Teachable Moment,”  I subtly predicted what the Supreme Court would have done in the UP v. CPP by asserting that, “… Given the protection offered Oldman Joe Boakai in the Magisterial Court, one can surmise what the Ruling of the Supreme Court might be on this important matter.” I was of the view that such a prediction would have immunized me from the tirades of the overzealous Unity Party’s keyboard warriors. No, I was wrong! They still attacked me instead of criticizing the epic lack of judgment on the part of their leader, Joseph Boakai, which saw him testifying in a bogus case that ended in fiasco.  Obviously, I get it – this is the price one must pay for being tough, independent- minded and critically unique. Now, I only hope that those who unfairly pilloried me would live long to see this egregiously wrong opinion of the court overturn.

Having zoomed in on the error associated with the Court’s Opinion regarding the UP v. CPP case, may I point out other cases that are in danger of being overturned?

Obviously, the Case of Justice Kabineh Ja’neh will be the first to be overturned. It is not just a sore in the public eyes, it has seriously reduced the reputation of our Court, and tainted the Chief Justice for presiding over what the ECOWAS Court properly described as an illegal impeachment.

The other, has to do with my Case against the Government. Following my spirited fight to call out Chief Justice Korkpor for wrongdoing by complaining against him to the Judicial Inquiry Commission, coupled with the Commission’s disgraceful response in which, it stated that it lacked the competence to investigate Chief Justice Francis Korkpor. I am told that the Supreme Court recently conducted a reverse ferret in its regulation and has now made the Chief Justice a subject of investigation when he happens also to be the subject of a complaint. While I recognize this measure as a positive step growing out of my Case, I think the Court still has a lot of difficult work to do. For example, The Court has not heard my Bill of Information – issues regarding my remuneration and my right to carry a diplomatic passport since the court declared me a diplomat. These are issues I hope to raise when the Court grows in more strength and independence.

Another egregiously wrong Opinion of the Supreme Court that risks being overturned is seen in the case, CDC and Liberty Party v. The Executive Branch of Government, decided January 11, 2008. In this case, contrary to the rich history of our democratic practices, the Supreme Court of Liberia, by a bare majority, declared that the President of Liberia has the constitutional authority to appoint city mayors even though as far back as 1915 city mayors and common councilmen were elected for the southern port City of Buchanan. The egregiousness of the Court’s decision in this matter was not that it denied the people the right to elect their leaders; it effectively made Article 77a of the Constitution a mere rhetorical flourish.

Of course, the Supreme Court’s decision that brought the CDC Administration to power was also problematic, in that, it connotes a tacit endorsement of a flawed election.

In view of the foregoing analysis, our Judiciary naturally invites legal scholarship, because what we are sadly witnessing is the ruin or demise of brilliant legal scholarship!

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