Monrovia – Today June 18, Associate Justice Philip A.Z Banks turns 70-year-old, and at this age, he’s set to retire from the bench of the Supreme Court of Liberia.
Report by Bettie K. Johnson-Mbayo, [email protected]
But he will leave the high court still pondering a lot about Liberia’s justice system. His education and experience give him the legal wisdom to also predict challenges and remedies for a system that is considered porous by many.
Justice Banks was appointed by President Ellen Johnson Sirleaf after Associate Justice Gladys Johnson retired.
In a recent exclusive interview with FrontPageAfrica, he predicted legal gaps in the legal system of the country.
He said the statute of the laws are clear, but part of the difficulties in the legal sector is since the occurrence of the coup of 1980, which brought to power a military junta, there have been lags in the codification of the country’s laws.
He recalled that it was not very lately a few Liberians came together including him to look at the system and see where there is a difficulty.
“There were hardly recent laws available for courts to follow; the last time the Supreme Court opinion was published in any codify form was in 1978 and it was until these group of Liberians was able to update it by 20 years.
“So they brought it from 1979-1999 and then that was supplemented 2003 and when I was at the Law Reform Commission, we were able to manage to put up volume 42 that took it to 2004 and since that time we have a gap of 14 years that our Supreme Court opinions have not been published,” he explains.
The retiring Associate Justice said the situation creates difficulties for the court because it means that every time an issue develops, lawyers have to take 14 years of opinion that are in loose-leaf form to work through those opinions to see if they are principal that were enunciated at any particular term of the court.
“So that we do not contradict ourselves and that is a big problem for us. We have a similar difficulty with our statutes, the last time there was a publication in any form of our statues was 1998-1999, so we have 20 years of acts been passed by the Legislature but they have not been brought together in codify form and it creates a problem for the entire society,” he said.
He said it is difficult for people to know what the laws are if the laws are not available to them.
“The court may be unaware of the law since there is no publication and codification, this is when the Law Reform and Ministry of Justice have the responsibility to ensure that these laws are passed and approved that they are published and codify and available to the courts and relevant agencies.”
He said all opinions read by him for the court, he took the initiative to photocopy at least 70 copies and distribute it to circuit court judges, specialized court judges, major magisterial courts and relevant agencies based on the opinion.
“This was at least to have them inform on the recent decision by the Supreme Court but unfortunately I had to discontinue because it ran my own budget to deficit and we could not afford it anymore,” he said.
But the risk, once the circuit judges are not aware of the opinion, they might decide contrary to the opinion because they are not aware, Justice Banks added.
He then questioned the Ministry of Justice and the Law Reform Commission neglect of the codification of Liberian laws; something he said is a challenge and must be tackled.
“I don’t think it requires over significant skills, if you don’t have laws codify for the last 20 years then what are you doing, what we did when I was there was we had a liaison who collected the acts not only the current ones but to go in their record rooms to bring up to date and inform the people.”
Improvement in Sector
Banks, who also served as Justice Minister, Chairman of the Law Reform and later at the Judiciary, says there have been “lots of improvements” but more need to be done.
He named the greatest challenge the system has now is “commitment and desire to follow the rule of law,” stating that there has been deviation from the rule of law.
“It has created some problems for us. People must follow the rule of law; it may be that people are not familiar with lots of the laws so that difficulty exists. The constitution makes it compulsory for the constitution and laws to be disseminated to every area.”
He recommends that teaching the laws in the schools would curb some of the problems, adding, “I am not quite sure that the target is to develop and simplify the laws in schools; (because) we noticed that many of the deviations are done by our kids.”
Lack of Knowledge of the Law
Justice Banks added that the biggest challenge is the lack of availability or and the lack of knowledge of the law.
He revealed that after his retirement, he will help Liberians familiarized themselves with the law.
“I need them to be familiar with the law and if they speak they will be speaking from the fountain of knowledge of the law rather than speculating on what the law is.”
Regret as Justice
Retiring Justice Banks told FPA that he has been proud of most of the decisions that the court has taken, but he singled out the referendum decision which he said has eased economic burden on the country.
“Previously, the constitution provided that if one does not have a majority vote an absolute majority you will have to go for the second round and an amendment was made to the constitution.
“So now you need a simple majority and the basis for that proposal and the change was that there was a financial burden created on the government now every time you went for a vote if there is not a majority vote then you have to go for the second round and yes it created tremendous economical strain on the country.”
“But I guess one needs to know whether the current system, why if you have 20 persons running for a position and the vote of that constituency was divided amongst those 20 persons in a lot of instances someone may win by a mere 10 percent or 12 percent and the question is; if somebody wins 9,10, 12 percent of the total votes do they really represent the people if you have the constituency of 60,000 persons and someone won with 8,000 people the question is do they really represent the whole constituency?
He continued, “Do they have the incentive to move about such that they can familiarize itself with all the people rather than just a small part of the constituency that may have voted for them, for me I think there is problem but again that is the wishes of the people?”
Code of Conduct Controversy
When the code of conduct opinion was read, Justice Banks dissented on grounds that the majority was in the wrong.
When asked about the controversy whether the Supreme Court should review the code of conduct since he dissented, Justice Banks said under the legal system the opportunity is always there for the court to take a second look at the issue.
“If someone came with a controversy that surrounded the code of conduct, the court has an obligation to look at it and it may be that it could be depended on the individuals who sit on the court and that the court will take another look at it and make some new determinations,” he noted.
He said the laws provide for the Supreme court to recall any of its opinions and that could be in the case of the code of conduct but it’s only possible if new case is file in relation to the code of conduct.
Expectations high to Retire
Speaking on his age, Justice Banks said he wouldn’t wait for the clock to tick him 70.
“I will expect that anytime from that period onwards the process will be put in place for me to retire; I know there is a provision of the constitution that says that at 70.”
“But that you should be able to wind up all of the assignments that have given you and any work that is unfinished when you concluded those they will retire you, I am hoping that once I turn 70 it should not take long to retire me from the position.”
He said there are lots of things he can do outside the government to help not specifically the legal profession but the country.
“I think there are many issues that need to be addressed is not been address, there are many unfolding problems that I will love to speak to those problems, to share my ideas both with the private and the Government.”
“Problems are unfolding every day, I don’t want to get into details of any of those problems, because in our line of works we can’t speak to real or live issues because they may be presented before the court and it will be concluded that you form a view before a controversy is presented before the court and you will have to recuse yourself,
“I will love the opportunity that I will continue the process before I retire, but I can assure you that I have been looking at some of the issues that are confronting our society and that as soon as I retire I will begin to put out my views on those issues, my view will come straightly from a professional and intellectual perspective, it will not be an attack but will be an analysis and recommendation on solving the issues,” he noted.
International Reports on Judiciary
The experience legal luminary said in spite of the international reports that are critical of the judiciary, there are challenges that the sector faces.
“We have some serious challenges. One of the greatest challenges is that we may not be sufficiently developed but we have to be more progressive in developing legal culture, our people must advance themselves so that they can be good representative of the Government.”
He revealed that there is a dire need to do that, “I like to boast that several of the justices including myself are offering free services to the law school and they don’t pay us anything but because we have interest in trying to develop higher scales at the law school and I am willing to continue making that contribution.”
“If we continue to expose our people to these kinds of challenges we will find that our people will be competitive in the world like other people regardless of where they from. It is just about exposing our people and developing their skills and the Supreme Court will play that role.”
Building Capacity Internationally
He has recommended to the Supreme Court to start sponsoring some of the best students to go abroad and have specialty.
“I know locally they are sponsoring students at the law school, who have skills and can, make contributions to the judiciary. I am hoping that they will mount a program so that we send out smart lawyers to get advance and specialized studies so that they can help in promoting the rule of law.”
“We can always do more I am not the person who believes that you must be satisfied with what you have done or what you’re doing. There must always be room for more, most specifically the judiciary particularly the Supreme Court plays a lead role in sustaining the democracy process and I feel proud of that.”
“I think the world is always proud of that we were able to provide direction for sustaining the peace in the country.”
“Most of the time we cry that we don’t have the resources but I think the problem is we have to address not just in terms the resources, but how we set our priorities.
“Because those will effect whatever we do with the resources and if we can properly prioritize what may be important for the country I think we can have tremendous progress.”
Rewriting sections of the constitution
He told FPA that during the writing of the constitution he was one of those that drafted the document.
“I was not a member but I had an insight of the constitution because I was a member of the drafting committee.”
Justice Banks said a portion of the constitution that grants immunity to members of the People Redemption Council (PRC) must be review and remove from the constitution.
“I say this because the PRC insisted that we have pledged to go back to civilian rule, part of the condition of going back you will not come back to prosecute us for the things we did and these were provisions that were included and when they went to referendum they didn’t like it but said we have to transition from military to civilian rule and If that means we have to adopt this we will adopt it and at some point if the need arises to adopt and changes will be made in the future.”
He said there has been no time for such portion to be removed from the constitution.
“Unfortunately, there has not been an opportunity to take another look at the constitution and see the provision that is relevant and those that need to be amended I hope we do that in piecemeal.
Dual citizenship and Land Rights
Justice Banks says such amendment should not be done in piecemeal but rather jointly, adding that dual citizenship and land rights are intellectual issues and will give his view when he retires.
“It will not be done as a single item but that it will be part of the review project, we must not do it in pieces because land rights and Dual Citizenship is an intellectual thing… There are lots of things that need to be studied so that it would not be in contravention, there are statutory laws and there is a Constitution.”
War crimes Court
He declined on speaking about an establishment of a war crimes court saying, “I don’t have a view of it because there must be an issue that would involve and matters might come before the court.”