Catholic & Peace Commission et al v RL [2006] LRSC 18 (18 August 2006)
Catholic Justice and Peace Commission, by and thru its National Director, J. Augustine Toe, The Green Advocate, by and thru its Executive Director, Alfred Brownell, Liberia Democracy Watch, by and thru its Executive Director, George Williams et. Al. Petitioners Versus The Republic of Liberia, by and thru the Executive Branch of Government, Counselor Kabinah M. Ja’neh and the Honorable House of Senate, by and thru its President Pro Tempore, and all those working under the scope of their authority Respondents
PETITION FOR A WRIT OF PROHIBITION.
Heard: June 19, 2006 Decided: August i8, 2006
MR. CHIEF JUSTICE LEWIS delivered the opinion of the Court.
Following her inauguration as President of the Republic of Liberia in January 2006, Her Excellency Ellen Johnson-Sirleaf, in exercise of her constitutional duty, with the consent of the Liberian Senate, to appoint the Chief Justice and Associate Justices of the Supreme Court of Liberia, nominated the Chief Justice and four Associate Justices. Co-respondent Kabineh M. Ja’neh was one of four Associate Justices nominated. The Senate Judiciary Committee had confirmation hearings for the Chief Justice and the four Associate Justices, including co-respondent Ja’neh, on 24 and 27 February, and 1 March 2006. On 1 March 2006, the full Senate, in Executive Session, on the recommendation of its Judiciary Committee, confirmed the nominations for the Chief Justice and three of the Associate Justices.
On receipt of the decision of the Senate confirming the nominees for Chief Justice and three of the Associate Justices, the President of Liberia, on 3 March 2006, administered the oaths of office to the Chief Justice and the three Associate Justices in the Parlors of the Executive Mansion. The Chief Justice and the three Associate Justices were formally seated, consistent with the Canons of the Supreme Court, on 13 March 2006, during the opening ceremonies for the March 2006 Term of the Supreme Court of Liberia.
The Senate Judiciary Committee deferred a decision on co-respondent Ja’neh, indicating that it was affording the opportunity for interest groups and individuals, who had expressed opposition to the nomination, to appear and testify before the Committee.
J. Nathaniel Williams and J. Melvin Page, Sr. were two of those who had expressed opposition to the nomination of Mr. Ja’neh. They, and others who had opposed the nomination of Mr. Ja’neh, as well as others who supported the nomination, appeared before the Senate Judiciary Committee and testified, respectively, against and in favor of the nomination. On consideration by the Senate, in Executive Session, co-respondent Ja’neh did not get the required votes for confirmation. Senator Clarice Jah of Margibi County almost immediately filed an oral motion for reconsideration. A few weeks thereafter, the Senate adopted the motion for reconsideration, and on consideration, again in Executive Session, co-respondent Ja’neh received the requisite votes and was confirmed.
On 19 May 2006, J. Nathaniel Williams “et. al.” filed a five-count petition for a writ of prohibition before our late distinguished colleague, Associate Justice J. Emmanuel Wureh, who was then presiding in Chambers. The petition named the Republic of Liberia, by and thru the Ministry of Justice, represented by the Minister of Justice and Attorney General, and the Ministry of State for Presidential Affairs, represented by its Minister, and Counselor Kabineh M. Ja’neh and those working under their scope of authority, as respondents.
On 30 May 2006, His Honor Justice Wureh ordered the issuance of the alternative writ, that the respondents file returns on or before 10 June 2006, and that the petition be forwarded before the Full Bench of the Supreme Court in view of the claim by the petitioners that the process of co-respondent Ja’neh’s confirmation was unconstitutional.
Co-respondent Ja’neh, represented by Sherman and Sherman Law Offices and Kemp and Associates Law Offices, filed returns on 8 June 2006. The Ministry of Justice, representing the Republic of Liberia and the Ministry of State for Presidential Affairs, filed returns on 10 June 2006.
On 13 June 2006, the petitioners filed a notice of withdrawal, with reservations to refile; an amended petition was filed the same day. The petitioners to the amended petition, however, had increased and were Catholic Justice and Peace Commission, by and thru its National Director, J. Augustus Toe, The Green Advocate, by and thru its Executive Director, Alfred Brownell, Liberia Democracy Watch, by and thru its Executive Director, George Williams, J. Melvin Page, Sr., Independent Human Rights Advocate, J. Nathaniel Williams, Liberia Democracy Watch, et. al.
The petitioners named the following respondents in the amended petition: The Republic the Republic of Liberia, by and thru the Executive Branch of Government, Counselor Kabineh M. Ja’neh and the Honorable the House of Senate, by and thru its President Pro Tempore, and all those working under the scope of their authority.
We quote the petitioners’ amended petition:
“Petitioners in the above entitled cause of action, pray this Honorable Court to restrain and prohibit the respondents herein from further commissioning with subsequent induction into office, Counselor Kabineh M. Ja’neh as Associate Justice of the Supreme Court of Liberia for the following legal and factual reasons showeth, to wit:
“1. Petitioners say that they are members of the Human Rights and Prodemocracy community with the mandate to promote Human Rights in Liberia.
“2. And also because petitioners contend and say that the organic law of our land provides guidelines for tripartite system of government: the Legislature, Executive and the Judiciary, and also because petitioners contend and aver that the Constitution which is the organic law of our land grants unto the head of the Executive Branch of Government to nominate qualified personnel to the Upper House of the Legislature, the Senate, for public screening subsequently followed by confirmation by the Senate.
“3. Further to the above, petitioners further say that it is in compliance with the Liberian Constitution [1986], the head of the Executive Branch of Government nominated co-respondent Counselor Kabineh M. Ja’neh to the co-respondent House of Senate for confirmation to sit on the Supreme Court Bench as Associate Justice of the Supreme Court of Liberia.
“4. Petitioners further contend that the nomination of co-respondent Counselor Kabineh M. Ja’neh was objected to by the petitioners herein. The petitioners accused co-respondent Ja’neh of poor human rights records, and his total disregard for the rule of law during his administration as Minister of Justice in the Transitional Government. The petitioners also accused co-respondent Ja’neh of gross human rights abuses to include the illegal imprisonment of the Bassa people for demanding for (sic) their rights and entitlement for their land in LAC, Grand Bassa County, the evasion of the Criminal Court “A” at the Temple of Justice upon his orders by two pick-up full of police officers which led to the brutality of court officers with serious injuries, and the threats to brutalize the Resident Judge of Criminal Court “A,” His Honor James W. Zotaa, by the evaders of the Criminal Court “A.” The petitioners also accused the co-respondent Counselor Kabineh M. Ja’neh of disrespecting the order the Supreme Court emanating from a writ of prohibition prayed for by the Human Rights Community for the stockpile of iron ore that was at the Buchanan Port not to be taken away by a Chinese company, and that he is not a qualified Counselor to sit on the Supreme Court.
“5. The petitioners objectors (sic) communicated with co-respondent, the Honorable House of Senate, not to confirm co-respondent Ja’neh until they are heard as in keeping with the principle of due process of law. See objectors’ communication to the co-respondent, the Honorable House of Senate, marked as “P/1” in bulk to form cogent part of petitioners’ petition.
“6. Petitioners further contend and say that because of the weight of the petitioner’s evidence without due process, co-respondent Ja’neh was denied confirmation by the plenary of the Senate, which is the highest decision-making body of the Senate, but later he was confirmed ‘n close door in the absence of the plenary without conducting hearing into the allegations levied against co-respondent Ja’neh which is in gross violation of the constitutional rights of the petitioners to due process.
“Wherefore, and in view of the foregoing, petitioners pray this Honorable Court to nullify the confirmation of co-respondent Counselor Kabineh M. Ja’neh as Associate Justice of the Supreme Court of the Republic of Liberia since the Senate did not conduct hearing into the allegations levied against co-respondent Kabineh Ja’neh by the petitioners, and order that a hearing be conducted by the co-respondent Honorable House of Senate in keeping with the principle of due process of law. Petitioners further pray Court to grant unto them any relief the Court deems necessary and equitable.”
Co-respondents the Republic of Liberia and the Honorable House of Senate did not file returns to the amended petition; rather, the co-respondents, by and thru the Ministry of Justice, filed a co-respondents’ brief setting forth two issues:
“1. Whether the discretion of members of the Liberian Senate to exercise their lawful authority to confirm a nominee can be a subject of judicial review?
“2..Whether prohibition will lie to prevent the Government of the Republic of Liberia from commissioning and seating a nominee for the post of Associate Justice of the Supreme Court, who has been confirmed by the Senate?
Counsel for the co-respondents, the Ministry of Justice, answered both issues with an emphatic “NO.”
As to the first issue, the co-respondents relied on two articles of the Liberian Constitution (1986):
(1) Article 54 which provides that “the President shall nominate and, with the consent of the Senate, appoint and commission [officials of government]. .
(2) Article 3 which provides that “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.”
On the basis of these two provisions of the Constitution, the Ministry of Justice maintained in its brief that “the decision of the President of Liberia to nominate, appoint and commission are generally influenced by political considerations and are therefore discretionary;” that “the decision of the Senate to approve or give consent to the appointment of a person to public office is influenced by objections, statements of support and other political actions geared towards making the Senate decide one way or the other;” and that the decisions of the President and the Liberian Senate regarding the filling of public offices are discretionary and therefore political in nature.
The Ministry of Justice maintained further that
“The courts will not rule upon questions which are exclusively or predominately political in nature rather than judicial. Such operations are within the domain of the executive or legislative branches of the government. The nonjusticiability of a political question is primarily a function of separation of powers.” 16 Am Jur 2d Constitutional Law, § 312.
As to the second issue, the Ministry of Justice, again relying on Art. 54 of the Constitution, maintained that
“A petition to prevent the commissioning and seating of an Associate Justice of the Supreme Court clearly seeks to prevent the President of Liberia from performing a constitutional duty” and that “by this reasoning, the petitioners are requesting the Court to act in complete disregard of Art. 61 of the [Liberian] Constitution [1986] which provides that ‘[t]he 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 the Constitution or any other laws of the Republic.”
On 16 June 2006, co-respondent Kabineh M. Ja’neh, represented by Sherman and Sherman, and Kemp and Associates Law Offices filed returns to the amended petition.
Under scope of inquiry by the Supreme Court of legislative actions not involving the enactment of law, co-respondent Ja’neh maintained as it is not the province of the judiciary to direct the Legislature how to do its work, courts are often very hesitant, on grounds of respect for basic concepts of distribution of power, to intervene in the internal affairs of the Legislature.
Under legitimacy of the Senate proceedings confirming co-respondent Ja’neh as Associate Justice of the Supreme Court, co-respondent Ja’neh maintained that Art. 38 of the Constitution empowers the Liberian Senate to adopt its own rules; the only exception being that the rules should conform to due process of law. Certainly, he maintained, “due process of law,” as that expression has been defined by this Honorable Supreme Court, was complied with in the confirmation proceeding for co-respondent Ja’neh in that an open, public hearing was held where petitioners’ objections were read and considered and oral representations by them entertained.
Several issues, some constitutional, some non-constitutional, have been raised in the brief filed by the Ministry of Justice, on behalf of the co-respondents Republic of Liberia and the Honorable House of Senate, and in the amended returns of corespondent Kabineh M. Ja’neh. We have decided, however, to consolidate the issues, and to address two only:
1. Whether the petitioners have directly raised a constitutional issue which this Court is bound to decide?
Article 66 of the Liberian Constitution (1986) provides:
“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” (emphasis supplied).
This Court accepts the responsibility that it is the final arbiter of constitutional issues and shall exercise final appellate jurisdictions 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.
This Court holds that “any other authority, as stated in Art. 66 of the Constitution, includes, within limitations, acts by both the legislative and executive branches of the Government; for, “it is emphatically the province and duty of the judicial department to say what the law is”. Marbury v. Madison, 5 U.S. [1803] USSC 16; (1 Cranch) 137, 2 L.Ed. 60 (1803).
This Court accepts, also, that the nature of the power of the Supreme Court to declare acts unconstitutional is one of an obligatory duty and that “the rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is directly drawn into question” (emphasis supplied). 16 Am Jur 2d Constitutional Law, § 155. Re Notice from the President of the Removal of Associate Justice McCants-Stewart[1915] LRSC 1; , 2 LLR 175, 181-2 (1915).
What we must decide, therefore, is whether, any act of the Senate in the confirmation of co-respondent Kabineh M. Ja’neh has directly been drawn into question?
It is a basic principle of constitutional law that “the particular provision of the Constitution alleged to be violated must be pointed out, and it is not enough to set out constitutional provisions and assert that rights have been violated, but the facts constituting the violation must be set out.” State ex ret. Kenosha Auto Transport Corp. v. Flanigan, 349 Mo 54, 159 SW2d. 598, cited 16 Am Jur 2d Constitutional Law, § 184, fn. 23
“A court will not pass upon the question of the unconstitutionality of an act of the Legislature unless the party raising the issue specifically designates the particular portion of the Constitution which he claims is violated by the legislative act; it is necessary to particularize to the fullest extent possible.” Gorham v. Robinson, 57 RI 1, 186 A 832, cited in 16 Am Jur 2d Constitutional Law, § 184, fn. 24.
The petitioners have neither in their amended petition nor in their brief filed with and argued before this Court “pointed out” or “specifically designated” the particular provision or provisions of the Constitution which the co-respondent Liberian Senate is alleged to have violated during the confirmation process involving co-respondent Kabineh M. Ja’neh.
Both counsels for the petitioners, Counselor Ignatius Weah and Counselor T. Dempster Brown, had the opportunity to “point out” or “specifically designate” the particular provision or provisions of the Constitution which the co-respondent Liberian Senate is alleged to have violated during the confirmation process involving corespondent Ja’neh when, during argument before this Court, they were asked several times by the Court to point out the particular provision or provisions of the Constitution which the Senate had violated. The closest they came to a response was Chapter 3 of the Constitution, although Chapter 3 of the Constitution, on Fundamental Rights, contains sixteen articles. Another response was “day in court.”
Counsels for the petitioners were asked, alternatively, what was the specific act of the co-respondent Liberian Senate which was in violation of the Constitution. They both replied the Senate Standing Rules governing confirmation of officials of Government; yet, neither had a copy of the Standing Rules of the Senate, so neither could refer to the specific provision of the Standing Rules which was in violation of the Constitution.
Article 38 of the Liberian Constitution [1986] provides:
“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 sub-committees; 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 (emphasis supplied).
Under this provision of the Constitution providing that each House shall adopt its own rules of procedure “which shall conform to the requirements of due process of law,” it was required of the petitioners to “point out” or “specifically designate” the provisions of the Standing Rules of the Senate which were in violation of the Liberian Constitution. Had this been done, it would have been obligatory upon this Court, “as the final arbiter of constitutional issues,” to address the issue and determine whether the Standing Rules of the Senate governing the confirmation process of government officials “conformed to the requirements of due process of law laid down in [the] Constitution.”
We hold that the petitioners have failed, both in their amended petition and in their brief before this Court, as well as in response to questions from the Court during arguments, to “point out” or “specifically designate” what provision or provisions of the Liberian Constitution was or were violated by the co-respondent Liberian Senate.
We hold also that the petitioners have failed, both in their amended petition and in their brief before this Court, as well as in response to questions from the Court during argument, to “point out” or “specifically designate” what provision or provisions of the Standing Rules of the Liberian Senate governing confirmation of government officials is or are in violation of the Liberian Constitution.
In view of these failure, we hold that the petitioners have not directly raised a constitutional issue which this Court is bound to decide.
The Ministry of Justice, representing co-respondents the Republic of Liberia and the Liberian Senate, in its brief identified two issues for this Court’s consideration:
(1) Whether the discretion of members of the Liberian Senate to exercise their lawful authority to confirm a nominee can be a subject of judicial review.
(2) Whether prohibition will lie to prevent the Government of the Republic of Liberia from commissioning and seating a nominee for the post of Associate Justice of the Supreme Court, who has been confirmed by the Senate?
Rather than address the issues as have been formulated by the Ministry of Justice, we have decided to consolidate the two issues into the second issue which we shall address.
2. Whether the constitutional duty of the President to nominate justices of the Supreme Court, and the Liberian Senate’s consent, is subject to judicial review?
Article 54 of the Liberian Constitution [1986] provides:
“The President shall nominate and, with the consent of the Senate, appoint and commission:
“(a) cabinet ministers, deputy and assistant cabinet ministers;
(b) ambassadors, ministers, consuls; and
(c) the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts;
(d) superintendents, other county officials and officials of other political subdivisions;
(e) members of the military from the rank of lieutenant or its equivalent and above; and
(f) marshals, deputy marshals, and sheriffs” (emphasis supplied).
On the qualification of the Chief Justice and Associate Justices of the Supreme Court, Art. 68 of the Constitution provides:
“The Chief Justice and Associate Justices of the Supreme Court shall, with the consent of the Senate, be appointed and commissioned by the President; provided that any person so appointed shall be: “(a) a citizen of Liberia and of good moral character; and
“(b) a counselor of the Supreme Court Bar who has practiced for at least five years.”
Of the six categories of officials which Art. 54 of the Constitution grants unto the President the power to nominate and, with the consent of the Senate, appoint and commission, Art. 68 on the nomination of the Chief Justice and Associate Justices of the Supreme Court, is the only provision of the Constitution which provides for the qualification of officials of the Government which the President may appoint. We hold, therefore, that in a case where the President nominates one, and the Senate confirms that person, who does not have the requisite qualifications set forth in Art. 68 of the Constitution on qualification of one to serve as a Justice of the Supreme Court, both acts bring into play a constitutional issue subject to judicial review, and it would be obligatory upon this Court, as “the final arbiter of constitutional issues,” to “say what the law is.”
The authority of the United States Supreme Court to “say what the law is,” as is this Supreme Court, was revisited in United States v. Nixon, [1974] USSC 159; 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed. 2d. 60 (1974), and while the issue in that case was the United States President’s claim of privilege, the constitutional principle invoked by the President was the separation of powers doctrine. The United States Supreme Court held:
“The first contention is a broad claim that the separation of powers doctrine precludes judicial review of the President’s claim of privilege. . . .
“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Morbidly v. Madison, that IT is emphatically the province and duty of the judicial blanch to say what the law is.’
“Our system of government ‘requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.’ . . . And in Baker v. Carr, 369 U.S., at 211, the Court stated:
“‘Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution’.”
The United States Supreme held further:
“Notwithstanding the deference each branch must accord the others, the ‘judicial power of the United States’ vested in the federal courts by Art. III, Sec. 1 of the Constitution can no more be shared by the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of the tripartite government. . . . We therefore affirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison, supra.”
In view of the foregoing, the alternative writ of prohibition is hereby quashed, and the peremptory writ is denied. Costs are ruled against the petitioners. It is hereby so ordered.
Prohibition denied.