Amendment 2011:

Legal and Structural Reform for a better Liberia

Part III: The Judicial Power of the State

“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 democratic government which responds to the wishes 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.

Since 1847 and in spite of the specific command and authority of Liberia’s Constitution that clearly vests the power and control of the Republic of Liberia 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 before and under the law in Liberia. Liberians desire a legally relevant and functional Judiciary.

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 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 setaside 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 being unconcerned about 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, an obligation placed on the shoulders of all Liberians. Liberia’s judiciary must be reformed for a better Liberia.

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 election of a super-powerful presidency.

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CHAPTER VII

THE JUDICIARY

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; in such cases, 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.

Article 69

The Supreme Court 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 country is a party. In all such cases, the Intermediate Appellate Courts of Liberia shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court and Intermediate Appellate Court of Liberia of any of the powers granted under these amendments to this Constitution.

Article 70

The Supreme Court 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 House of 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:

a) a citizen of Liberia and of good moral character; and

b) a counselor of the Supreme and Intermediate Appellate Courts’ Bars who has practiced law in Liberia for at least 5 years before the Supreme and Intermediate Appellate Courts of the Republic of Liberia.

c) a graduate of the Louise Arthur Grimes School of Law, University of Liberia or any other accredited law school.

Article 72

The judges of subordinate courts of record shall, with the consent of the House of Senate and County Legislative Assembly shall, 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) a natural born or naturalized citizen of Liberia and of good moral character; and

b) an attorney-at-law who has practiced law for at least 3 years, or a counselor of the Supreme Court of the Republic and the Intermediate Courts’ Bars of the Republic of Liberia.

c) a 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. 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

a) The Justices of the Supreme Court, Judges of the Intermediate Appellate Courts of Liberia and all other subordinate judges shall receive such salaries, allowances and benefits as shall be established by law. 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 allowance and benefits be subject to taxation. Such benefits shall include but not be limited to life insurance and retirement benefits.

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 be retired at the age of sixty five, 65 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 the age of 65 years.

Article 76

No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason, murder, bribery, or other felonies, misdemeanor or breach of the peace. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statement made or acts done shall be admissible into evidence against them at any trial or proceeding thereafter.

Article 77

In all matters of contempt of court, whether in the Supreme Court, the Intermediate Appellate Courts of Liberia, or in other subordinate courts, the penalty to be imposed shall be fixed by the Legislature and shall conform to the provision on Fundamental Rights laid down in this Constitution; except that such fine or imprisonment period shall not be less than and shall not exceed United States US$2,000 (Two Thousand Dollars) or thirty (30) days of imprisonment or both, depending on the gravity and factual history of the act of contempt of court. In all such cases, the accused must be accorded his day in court and a full hearing by the aggrieved court attempting to hold him in contempt of court; reserving original jurisdiction in all said matters.

Article 78

The Supreme Court shall from time-to-time make rules of court for the purpose of regulating the practice, procedure and manner by which cases shall be commenced and heard before it and all other subordinate courts. It shall prescribe such code of conduct for lawyers appearing before it and all other subordinate courts as may be necessary to facilitate the proper discharge of the court’s functions. Such rules and code, however, shall not contravene any statutory provisions or any provisions of this Constitution of the Republic as amended.

Article 79

a) Treason against the Republic shall consist of:

(1) levying war against the Republic;

(2) aligning oneself with or aiding and abetting another nation or people with whom Liberia is at war or in a state of war;

(3) acts of espionage for an enemy state;

(4) attempting by overt act to overthrow the Government, rebellion against the Republic, insurrection and mutiny; and

(5) abrogating or attempting to abrogate, subverting or attempting or conspiring to subvert the Constitution by use of force or show of force or any other means which attempts to undermine this Constitution.

The Legislature shall have the power to declare the punishment for treason; provided, however, that such punishment shall not include a death sentence or the deprivation or forfeiture of the right of inheritance by the convicted person of any property although he may not be entitled to enjoyment thereof for as long as he continues to serve the term of imprisonment imposed after conviction in a court of competent jurisdiction. The right to enjoyment of any property inherited or otherwise conveyed to or acquired by such convicted person shall be automatically restored upon serving the term of imprisonment or other punishment, or upon an executive pardon by the President. No punishment shall preclude the inheritance and enjoyment, or cause the forfeiture by others entitled thereto, of any property which the convicted person at the time of any conviction or subsequent thereto may have possessed or been seized.

Article 80

Intermediate Appellate Court

Except as otherwise provided, upon the coming into force of these amendments to this Constitution, there shall be established in the Republic of Liberia three Intermediate Appellate Courts to be known and referred to as the First Judicial Intermediate Appellate Court of Liberia; the Second Judicial Intermediate Appellate Court of Liberia; and the Third Judicial Intermediate Appellate Court of Liberia. And, except as otherwise provided, the First, Second and Third Judicial Intermediate Appellate Courts shall each be seated in the Cities of Monrovia, Buchanan and Gbarngba; Counties of Montserrado, Grand Bassa and Bong, Republic of Liberia; and they shall at all times share equal financial revenue and concurrent judicial powers with the Supreme Court of the Republic of Liberia; except for all other matters that are exclusively rooted in constitutional issues. And, except as otherwise provided, each Immediate Appellate Court shall be administered and presided over by three (3) intermediate appellate judges each to be appointed by the President of Liberia and the President of the County Governors Association by the advice and consent of the Houses of Senate and the County Legislative Assembly. Each intermediate appellate court of Liberia shall open on the Second Monday in March of each year and the Second Monday in October of each year to conduct judicial business in the Republic.

Article 81

Immigration and Nationality Courts

Except as otherwise provided, upon coming into force of these amendments to this Constitution, there shall be established in the Republic of Liberia three specialized immigration and nationality courts to hereafter be known and referred to as the immigration and nationality courts of Liberia to be seated in the Cities of Monrovia, Buchanan and Gbarngba; Counties of Monserrado, Grand Bassa and Bong, Republic of Liberia. The immigration and nationality courts of Liberia shall open on the second Monday of each month to conduct judicial business. These courts shall have concurrent jurisdiction to hear all immigration and naturalization cases that shall arise in their respective jurisdictions consistent with the Aliens and Nationality Law of the Republic of Liberia. Appeals from the judgments of these specialized immigration courts shall lie before the intermediate appellate court sitting in their respective jurisdictions whose judgments shall be final; except where a Writ of Certiorari shall be prayed for and granted by the Supreme Court of the Republic of Liberia. Each immigration and nationality court of Liberia shall be presided over by a resident circuit judge appointed by the President of Liberia and President of the County Governors Association with the advice and consent of the Houses of Senate and County Legislative Assembly of the Republic of Liberia; and they shall open on the Second Monday of each month to conduct judicial business in the Republic.

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Respectfully written and published by,

Frederick A.B. Jayweh, B.A., LL.B., LL.M.

Counselor-At-Law & Member Liberian National Bar Association (LNBA) And

Executive Director of the Association of Liberian Lawyers in the Americas (ALLA)

And Executive Director Center for Immigrants and Immigration Services (CIIS)

4111 Odessa Street, Suite 2

Denver, CO 80249

E-mail: fjayweh@hotmail.com

Website: www.liberianlawyers.org

Website:www.ciisdenver.org

Phone: 303-355-0611

Phone: 303-656-6057