Amendment 2016 Part I

Amendment 2016

Legal and Structural Reform for a better Liberia

The Judicial Power of the State

By Counsellor Frederick A.B. Jayweh, Esq.

Part I

“Historically, good governance has been one of Liberia’s mean problems. How can we build and sustain the practices of good governance, rule of law, transparency, accountability, tolerance, merit, equity and decentralization? We must address ourselves to the serious problems we have when it comes to governance. It is a mess”. Yarsuo Weh-Dorliae: Proposition 12 for Decentralized Governance in Liberia, Power Sharing for Peace and Progress, Xvi.

All power is inherent in the people. All free governments are instituted by their authority and for their benefit and they shall have the right to alter and reform the same when their safety and happiness so require. In order to ensure a democratic government which responds to the wishes and cause of the governed, the people shall have the right at such period and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments. Liberian Constitution Chapter I: Structure of the State, Article I: Power of the People, 1986. Particularly, laws are made to enhance the lives of the people and protect good and advancement of every country and society.

Since 1847 and in spite of the specific command and authority of Liberia’s Constitution that vests the power and control of the Republic squarely in the hands of the people of Liberia, unfortunately, the power and control of Liberia has always intentionally being removed from the hands of the people and reposed into the hands of an over-priced and over-valued supper-powerful presidency; politically and legally, a presidency that may appoint and terminate appointments at-will. Such unhealthy displacement and dislodgement of power and sovereignty from the hands of the people of Liberia and reposing power in the Presidency of Liberia has for all intents and purposes, always injured the foundation of the rule of law and severely weakened the responsiveness and function of the government and legal system of Liberia. Like the Legislative branch of Liberia’s Government, historically, the powerful and dominating hands of the Presidency of Liberia have always and intentionally targeted and dominated the daily functions and activities of the Judiciary of Liberia. To avoid this administratively unhealthy and damaging interference, Liberians need to come together restructure and reform their legal system and the structure of their government. In my sense, this will provide equality and equity before and under the laws in Liberia. Liberians desire a legally relevant Judiciary and not a controlled system.

To sustain equality before and under the law in Liberia, the structure of Liberia’s Judiciary must be reformed, made functional, responsive, independent and decentralized to provide for and ensure judicial power and financial revenue sharing for all of Liberia’s Courts, for a better Liberia. Outside of the City of Monrovia, the Civil and Criminal Justice Systems of Liberia or the Court Systems (Civil Law and Criminal Law practice) remain woefully dysfunctional and unresponsive to the needs of the people of Liberia. For the most part, many of Liberia’s Courts outside of the City of Monrovia are administratively and legally ineffective and in some cases, presided over or manned by administratively and legally incompetent and inexperienced attorneys or counselors; many of whom are poorly trained or are not graduates of accredited law schools and may not fully understanding the inner working of the law. Qualified and competent attorneys and counselors appearing before these interior courts or courts residing outside of the City of Monrovia, as some may refer to them, usually find many of these courts to be run as religious or family tribunals wherein the act of substantive and procedural due process of law are many times intentionally violated or subconsciously set aside due to poor training or lack of clear understanding of process of substantive and due process of law. Some of the courts outside of the City of Monrovia are left to the discernment of the resident or assigned circuit judges to be had or conducted in private homes or on private possessions. Such private homes are either the personal property of the presiding judge or wealthy litigants that may be a party before many of the courts outside the City of Monrovia. Unfortunately, these harmful and ineffectual factors many times negatively impact the development, growth and transparent application of the rule of law in many of Liberia’s local counties and courts. Since 1847 to this point, the structure of Liberia’s Judiciary has remained weak and unresponsive to the needs of all the people of Liberia due to the fact that Liberia’s Judiciary has entirely sat in the City of Monrovia and has primarily been unconcerned with the judicial life and health of courts outside of Monrovia; thus judicial reform in Liberia remains a necessity and a must, for all intents and purposes, and an obligation placed on the shoulders of all Liberians. Liberia’s judiciary must be reformed and adequately supported for a better Liberia prior to or after 2018 and possibly years beyond. Indeed, all power is inherent in the people; and so, sovereignty must be returned and reposed in the people of Liberia and not agonizingly left into the hands and to the election of a super-powerful and overvalued presidency of the Republic.

 

CHAPTER VII: Proposed Amendments

The Judiciary of the Republic
Article 68

The Judicial Power of the Republic shall be vested in a Supreme Court, three Intermediate Appellate Courts, and such other subordinate courts as the Legislature may from time to time establish. The Supreme Court and Intermediate Appellate Courts shall apply both statutory and customary laws in accordance with the standards enacted by the Legislature. Judgments of the Intermediate Appellate Courts shall be final; except for and as otherwise provided and where by leave of the Supreme Court of the Republic of Liberia, a writ of certiorari is prayed for and issued by the Supreme Court of the Republic to hear and determine such matters rooted in the Constitution in which case, the judgment of the Supreme Court shall be final. Nothing in this Article shall prohibit administrative consideration of justifiable matters prior to being reviewed by a court of competent jurisdiction. Except, as otherwise provided, the Immediate Courts of Liberia and the Supreme Court of the Republic of Liberia shall equally share financial revenue and concurrent judicial powers as provided for and contained in the Constitution, except in Constitutional matters.

Article 69

The Supreme Court of the Republic of Liberia shall be final arbiter of all constitutional issues and shall exercise final appellate jurisdiction in all cases involving constitutional matters, 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 Intermediate Appellate Courts of Liberia shall exercise final and original jurisdiction. The Legislature shall make no law nor create any exceptions that would deprive the Supreme Court and Intermediate Appellate Court of Liberia of any of the powers granted under these proposed amendments to the Constitution.

 Article 70

The Supreme Court of the Republic of Liberia shall comprise of one Chief Justice and four Associate Justices, three of whom shall be deemed competent to transact the business of the Court. If a quorum is not obtained to enable the Court to hear a case, a judge of the Intermediate Appellate Court in the order of seniority, shall sit as an ad hoc justice of the Supreme Court. And except as otherwise provided, the Intermediate Appellate Courts of the Liberia shall each comprise of one Chief Intermediate Appellate Judge and two Intermediate Appellate Judges; two of whom shall be deemed competent to transact the business of the Court. If a quorum is not obtained to enable an Intermediate Appellate Court to hear a case, a judge of the Circuit Court in order of seniority, shall sit as an ad hoc Intermediate Appellate Judge for the hearing of such particular cases.

Article 71

The Chief Justice and Associate Justices of the Supreme Court and all Judges of the Intermediate Appellate Courts of Liberia shall, with the consent of the Senate and House of County Legislative Assembly, be appointed and commissioned by the President of Liberia and President of the County Governors Association; provided that any person so appointed shall be by the advised and recommended by National Judicial Commission of the Republic (NJCR;) and these shall be a:

  1. a) Natural born citizen of Liberia and of good moral character; and,
  2. b) Counselor of the Supreme and Intermediate Appellate Courts’ Bars who has practiced law in Liberia for at least 10 years before the Supreme and Intermediate Appellate Courts of the Republic of Liberia prior to his/her appointment and ascendency to the Supreme or Intermediate Court.
  3. c) a graduate of the Louise Arthur Grimes School of Law, University of Liberia or any other accredited and recognized College of Law or University.

Article 72

The judges of subordinate courts of record shall, with the consent of the Senate and County Legislative Assembly, be appointed and commissioned by the President of Liberia and President of the County Governors Association; provided that any person so appointed shall be a:

  1. a) Natural born or naturalized citizen of Liberia and of good moral character; and
  2. b) an attorney-at-law who has practiced law for at least 7years, or a counselor of the Supreme Court of the Republic and the Intermediate Courts’ Bars of the Republic of Liberia.
  3. c) Graduate of the Louise Arthur Grimes School of Law or any other accredited law school.

Article 73

The Chief Justice and the Associate Justices of the Supreme Court, all Judges of the Intermediate Appellate Courts of Liberia and all judges of subordinate courts shall, before assuming the functions of their offices, subscribe to a solemn oath or affirmation to discharge faithfully and impartially the duties and functions of their offices and to preserve, protect and defend the Constitution and Laws of the Republic. The oath or affirmation shall be administered by the president of Liberia and President of the County Governors Association or their designee.

Article 74

The Chief Justice and Associates Justices of the Supreme Court and all Judges of the Intermediate Appellate Courts and the judges of subordinate courts of record shall hold office for life and/or be retired at age 70years. They shall be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, bribery, inability to perform the functions of their office, or conviction in a court of law for treason, bribery, murder, or other infamous crimes.

Article 75

The Justices of the Supreme Court, Judges of the Intermediate Appellate Courts of Liberia and all other subordinate courts judges, shall receive such salaries, allowances and benefits as shall be established by law, tradition and best practices. Such salaries shall be subject to taxes as defined by law, provided that they shall not otherwise be diminished. Allowances and benefits paid to Justices of the Supreme Court, Judges of the Intermediate Appellate Courts of Liberia and judges of subordinate courts may by law be increased but may not be diminished except under a national program enacted by the Legislature; nor shall such allowances and benefits be subject to taxation. Such benefits shall include but not be limited to life insurance and retirement benefits which shall be 75% of the regular salaries as Justices and Judges of the Republic provided they are not gainfully employed by the Republic and government of Liberia.

  1. b) The Chief Justice and the Associate Justices of the Supreme Court, Judges of the Intermediate Appellate Courts of Liberia and judges of subordinate courts of record shall serve for life or be retired at the age of 70 years; provided, however, that a justice or judge who has attained that age. may continue in office for as long as may be necessary to enable him to render judgment or perform any other judicial duty in regard to proceedings entertained by him before the attained that age.