By: Cllr. Gboto A. Watson, Sr.
It takes two to tango. While an independent judiciary is essential for upholding the rule of law and protecting individual rights, it becomes concerning to legal pundits and ordinary citizens when judicial actors stray into the realm of judicial activism. This undermines the very fabric of the delicate balance which should exist between the judiciary and the legislature in advancement of the separation of powers. Undeniably law and politics are inextricably linked and built on foundations deeply rooted in history, philosophy as well as contemporary scholarly perspective. Unlike lawmaking which creation and amendment goes through political processes reflective of the prevailing political ideologies and power dynamics, judicial outcomes are meant to be predictable even though judicial appointments are influenced by political considerations and public opinions.
The effective functioning of democratic societies around the world depends on a robust and responsive legal system that reflects the will of the people while upholding the principles of justice and fairness, but when the court is confronted with complex political situation it must take cognizant of that fact and shrewdly navigate its way out in a manner reflective of maintaining the peace and stability of the society. This is exactly what Chief Justice John Marshall did in 1803 in the landmark case-Marbury v. Madison when he was confronted with a complex political situation. When Marbury demanded his commission on a petition for a writ of mandamus, Chief Justice John Marshall speaking for the unanimous Supreme Court held for him saying that Marbury was entitled to his commission. However, Chief Justice Marshall declared the section of the Judiciary Act of 1789 granting the Supreme Court the power to issue writ of mandamus in the given instance as unconstitutional. It is that shrewd act of Chief Justice Marshall that formed the basis for judicial review as practiced today.
Similarly, Chief Justice Johnny Lewis in the 2011 landmark case-MPC et al v National Election Commission et al, Supreme Court Opinion October 5, 2011 shrewdly navigated out of a complex political situation at the time when Former President Ellen Johnson-Sirleaf running for reelection was challenged along with other aspirants on the 10-year residency clause under Article 52 (c) of the 1986 Constitution of Liberia. The Movement for Progressive Change (MPC) petitioned for a writ of prohibition challenging the National Elections Commission (NEC) for certifying the candidates to participate in the 2011 Presidential Election. Although the Court strictly interpreting the law as argued by petitioner and from the intent of the framers holding that “Article 52(c) means and requires that for a person to contest the presidency of the nation he or she must have resided at least ten consecutive years prior to the election in which he/she seeks to be elected to the presidency of the nation.” However, the Court denied the petition for reason that the Constitution was suspended between 1990 and 1997 and 2003 to January 6, 2006, during the period of the civil conflict. And that tolling the Constitution during the time it was suspended would be punitive and within the ex post facto prohibition to bar the presidential aspirants from participating in the 2011 Presidential and General Elections on account of Article 52(c), same having been suspended because of the civil war and which was restored only on January 16, 2006, the date of the inauguration of the newly elected constitutional government. Much appreciation to the Court for cleverly maneuvering its way out of a complex political situation it was confronted with.
The Perilous Path of Judicial Activism
The Supreme Court has overtime being confronted with complex political situations and has drawn it jurisdiction from Articles 2, 26, and 66 of the 1986 Constitution of Liberia. Undeniably, the Court has authority under these constitutional provisions to preside over complex political cases, but what is of greater importance is not the exercise of its jurisdiction, but rather how it navigates its way out. The rise in populist movements and political polarization as we see it today has impregnated and proliferated our society. The judiciary should exercise so much caution so that its decisions should not be seen as judicial activism because it will be going down a slippery slope. This idea was extolled in the preamble of Justice Gbeisay’s dissenting opinion when he said “under the doctrine of separation of powers, this Court cannot decide a case in which it is clear that the responsibility to make a core decision which ought to put finality to the controversy at hand falls solely on the legislative or executive branch of government.” The Supreme Court made a huge departure from norm by delivering two opinions in a single matter before it. How do I mean? The In re: the unconstitutionality of certain actions taken by some members of the House of Representatives of the 55th Legislature appeared two times before the Supreme Court: the first time on November 22, 2024 when it was filed and the other on March 5, 2025 by way of Bill of Information when the Supreme Court had rendered its 6th December 2024 ruling not answering any of the issues enumerated in the prayer, but ruled declaring that any action taken by members of the House of Representatives not in compliances with Articles 33 & 49 as ultra vires. In my view, this was a shrewd way Informants/Petitioners re-litigated the matter disguising it as Bill of Information. Legal pundits had argued that this is not the office of Bill of Information and that the next action taken should have been Motion for reargument.
I maintain my position that the matter was being relitigated but disguised as Bill of Information because included in Informant’s prayed was for the Supreme Court to “declare the actions of the purported speaker Koon and members of the majority bloc null and void ab initio and sessions, hearings, or decisions that violate the Court’s ruling and final judgment ultra vires and unconstitutional.” How can a bill of information make such a prayer? As an accusatory proceeding complaining a judge of a party litigant of obstructing or undermining a Court’s mandate, the normal prayer in a bill of information is punishment in contempt of court of the alleged violator. This idea was again extolled in Justice Gbeisay dissenting opinion when he said “In the bill of information, the prayer can never legally be a request to declare an act or action unconstitutional and illegal as contained in the current informant’s prayer quoted above. A prayer for a bill of information is to punish the respondent for violation or disobedience of the court’s mandate.”
If not for the exercise of judicial activism, the Supreme Court could have navigated its way cleverly out of the complex political situation like Chief Justices John Marshall and Johnny Lewis by simply declaring that any sitting not in compliance with Articles 33 & 49 of the 1986 Liberian Constitution as illegal and unconstitutional as it did in both instances, but with a subtle nuance of-to the exclusion of Cllr. Fonati Koffa in the second instance, but deny the bill of information as not being the proper action. By not denying the bill of information which would have struck a delicate balance between judicial action and legislative administrative procedures and practices vis-à-vis politics, it obfuscated an already volatile situation. In the Liberian parlance, it added flames to the fire.
Conclusion
And so, understanding the relationship between law and politics would require examining both their historical underpinnings and their contemporary manifestations, which ground work was laid by thinkers like Plato and Aristotle in The Republic and Politics respectively. In the Republic, Plato envisioned a just society governed by the emperor, where law serves to uphold the ideal form of justice. Whereas, in Politics, Aristotle emphasized the importance of a constitution is to balance the interests of different groups within the society, and shaping of the law to reflect the political order. Other thinkers like Hobbes, Locke, and Rousseau were proponents of the social contract theory which established the legitimacy of the State’s authority and the basis for law by means of a social contract between the citizens and the state.
Articles 2, 26 & 66, of the 1986 Constitution of Liberia mentioned supra, which the Supreme Court has derived its jurisdiction over cases of this nature, state that the Constitution is the supreme and fundamental law of Liberia; that its provisions have binding force and effect on all authorities and persons throughout the Republic; and that any laws, treaties, statutes, decrees, regulations, and customs found to be inconsistent with it shall to the extent of the inconsistency be void and of no legal effect. As such, any laws enacted by the Legislature or administrative actions or proceedings taken by any administrative agency of the Government in violation of or inconsistent with any provisions of that sacred document are deemed to be unconstitutional. To ensure that its provisions remain the supreme law of the land and that the rights guaranteed by it are protected, the document grants not only the right to seek redress but it also provides the mechanism through which the redress can be secured. It states, in Article 26, that any person alleging contravention of any of the rights granted by the Constitution or other laws may invoke the privilege and benefit of court direction, order or writ, including a judgment of unconstitutionality; and that any person injured by the act of the government or persons acting under authority of the government has the right to bring legal action for appropriate redress. Article 66 which the Supreme Court derived it jurisdiction from in the instance case states: “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 or any other authority, both as to law and fact….The Legislature shall make no law not create any exceptions as would deprive the Supreme Court of any of the powers granted herein.”
It is a no-brainer that the Supreme Court possesses such powers under our constitution and can execute it unhindered by any of the two branches of government, but in complex political situations brought before it wherein a party litigant is injure from a political action taken, the Court is limited to only pronouncing what the law is through its judicial function of interpreting the law and not to engage in judicial activism. As enunciated in his dissenting opinion Justice Gbeisay highlighted this idea when he said “the House of Representatives had placed itself in a “power struggle” motivated by politics, which this Court should be cautious not to be in the center of such a conflict. For the duty of the court is to state what the law is and not engage in political disputes.
