Should the court interfere giving the political Question Doctrine and Separation of Power Doctrine?

Introduction

Any attempt to interpret Article 33 of the Constitution of Liberia to mean that the Supreme Court can “compel the attendance of absent members” of the House of Representatives for quorum purposes would be contrary to the plain language of Article 33. It would also violate basic constitutional principles of separation of powers. Moreover, it would involve the court in an internal political dispute between members of the House in contravention of the Political Question Doctrine, which requires court to abstain from deciding matters whose resolution should be left to the political branches of government.

Analysis

Article 33 provides that “a simple majority of each House shall constitute a quorum for the transaction of business, but a lower number may adjourn from day to day and compel the attendance of absent members…’’ First, there is nothing in the plain text of Article 33 that suggest any intend of the framers to grant the court power to compel attendance by House members. If the framers wanted to grant the court such power they would have expressly stated so. They did not.

Indeed, there is no reference in the text to the court nor is there any language in the text that gives anyone the right to ask the court to compel attendance by House Members.

The most reasonable interpretation of Article 33 is that attempts to “compel’’ attendance by absent House Members must be based on the Rules of the House, and the court has no role in promulgating those rules.

To the contrary, Article 38 of the constitution leaves the promulgation of such rules exclusive to the House, as it expressly provides that “each House shall adopt its own rules of procedural, enforce order, and with the concurrence of two third of the entire membership, may expel a member for cost…”

The argument that attempt to compel attendance by absent House Members must be based on the Rule of the House finds support in the US Constitution as well as the 1847 Constitution of Liberia.

Those constitutions are not the laws of Liberia, but because the current constitution is based in many respects on those two documents, we can look to them for guidance as to what the framers had in mind when they drafted the provision of Article 33 regarding compelling the attendance of absent House Members.

Article II, section 5 of the United States Constitution provides, in relevant part that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own members, and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn for day to day and may be authorized to compel the attendance of absent members, in such Manner, and under such Penalties as each House may provide. “(Emphasis added)

The 1847 Constitution of Liberia also makes clear that attempts to compel attendance by absent House members must be done in such manner and under such penalties as provided by the House and its rules and not based on decision by the court. Article 2, section 8 of the 1847 Constitution of Liberia, just like the US Constitution, provides that: “Each branch of the legislature shall be the judge of the elections, returns and qualifications of its own members. A majority of each shall be necessary to transact business, but a less number may adjourn for day to day and compel the attendance of absent members. Each House may adopt its own rule of proceedings, enforce order, and with the concurrence of two third, may expel a member.” (emphasis added.)

The clear reading of this provision of the 1847 Constitution is that attempts by the House to compel attendance of its members must be based on “its own rules of proceedings” and its power to “enforce order”.

As previously stated above, why both the US Constitution and the 1847 Constitution of Liberia do not have the force of law in Liberia, there is no doubt that both documents informed the drafting of our current constitution. Therefore, if the framers of the current constitution wanted to depart from the practice of having the house use its own rules to compel attendance by members and instead vest the court with the power to compel attendance, they would have expressly stated so in Article 33. However, as we have previously started, there is nothing absolutely in the plain language of Article 33 that comes close giving the court such power.

Additionally, any interpretation of Article 33 to mean that the court may compel the attendance of house Members would amount to a constitutionally impermissible intrusion by the court in the affairs of another branch of government in violation of settled principle of separation of powers that the court has recognized in a long line of cases, including Wolo v. Wolo, 5LLR 423 (1937)

Even more, any attempt to ensnare the court in a purely political dispute between members of the House would violates the Political Question Doctrine, which requires the abstention of the court in matters that are non-justiciable and should thus be left to the political branches of government. The court may this point unambiguously clear in Massaquoi V. The Republic, 3LLR 41 (1933) when it said:

“Matters which are by the nature solely political should be confined within the realm of politics. There is a vital difference between justiciable matters and matters political. Courts of Law are instituted for the purpose of deciding only such question as are susceptible of determination by the application of well recognized rule of law of equity by which they can be decided.

The only rule applicable to their judgement of such question is the rule of conciliation or compromise; and when a court of law embarks on such turbulent seas, it immediately losses it office as a judicial tribunal and abdicates its forum where pettifogging politician resort to ventilate their little minds. Any verdict based upon non-justiciable matters is therefore illegal.”

If there is any matters that is non-justiciable and hence should be left to the political branches, it is one that involves the right of House Members to decide who should be their speaker.

This same Supreme Court in the impeachment trial of justice Jan’eh served a writ of prohibition on the 54^th House of Representatives, to our surprise the Speaker who is a member of the Supreme Court Bar and was than serving as chair on the Houses’ Committee on Judiciary, advised the plenary of the House to reject the writ of prohibition and instructed the chief clerk to write the communication below to the justice in chamber.

“August 18, 2018

Her honor

Justice in Chambers

RE: PURPORTED WRIT

Your Honor:

I present compliments and by directive of the plenary of the Honorable House of representatives of the 54^th Legislature (IN SESSION) have the honor, to inform you that it is in possession of a paper served on it, entitled Writ of Prohibition, by Your Honor Justice in Chambers Sie-A-Nyene G. Yuoh. The plenary of the House of Representative has instructed me to inform for reasons set out below, that the House of Representatives does not intent to honor the terms and condition of the writ.

The house thinks that the writ violates Article 3, Separation of Powers clause, Article 42 immunities clause, article 43 impeachment powers and a long of cases and precedents in this jurisdiction and its progeny.

You are therefore advised in the interest of our constitutional democracy and consists with the separation of power and checks and balances to vacate this writ and avoid embarrassment to the secret institution of the Supreme Court.

With the above communication I am left wondering, why will the speaker run to the same court he refused in 2018 to honored or obey for protection at this time.

In the same Jan’eh’s Case, ruling on the issue – whether or not prohibition will lie against the House of Representatives? This same court answered the question in the negative. The court said prohibition will not lie against the House of Representative because there is a settled law in our jurisdiction which says, “Prohibition will not lie where the act complained of is not wrong or illegal, and is within the scope of authority of the person or office complained against.”  Komai v. The minister of Justice and Public Works.” LRSC 40; 36 LLR 518, 522 (1989).

“This court has also held that the writ of prohibition will not lie or be disallowed where it is shown that it is intended to prevent, prohibit or obstruct an administrative agency of government from exercising its lawful and administrative duties and responsibilities. “ Wesseh V. Tubman (1979) LRSC 1; 28 LLR 3, 12

Conclusion

For all the reasons stated above, it is our considered opinion that any attempt to involve the court in compelling the attendance of House Members would be unconstitutional, a violation of the political Question Doctrine and Separation of Power Doctrine and should be rejected by the court itself. 

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