Debunking The Falsehood And Legal Flaws In The Liberian National Bar Association President’s Response To The Opening Address Of The Chief Justice Of The Honorable Supreme Court Of Liberia
On the Second Monday of March A.D. 2019, the Chambers of the Honorable Supreme Court of the Liberia, in keeping with Section 2.5 of the Judiciary Law, which states, “The Supreme Court shall hold two terms annually, commencing on the Second Monday of October and on the Second Monday of March and continuing as long as the business before the Court may require. They shall be known as the October and March Term respectively.”, housed members of the Supreme Court Bar, Government Officials, members of the Diplomatic Corps, developmental partners and cross-section of the general public to witness the Chief Justice and Associate Justices of the Supreme Court discharge their statutory obligation consistent with law.
The opening ceremony of the Honorable Supreme Court is a solemn occasion and not a symposium or workshop, needless to say, a
It can be recalled that during the Opening of the March Term A.D. 1996, the Chief Justice, His Honor James Garrison Bull stated, “Recently, the Dean of this Bar and the President of the National Bar Association, who are privileged to respond to the Chief Justice’s address have used the occasion to criticize the court’s opinion, to take issue with the court regarding its deliberations and even to ridicule this Court. The occasion of the opening of the Terms of the Supreme Court is not intended to invite
As a Counsellor-At-Law, I quite remember the ceremony that occasioned my admittance to that esteemed Bar of the Honorable Supreme Court to include my oath before the Court, which states, “DO SOLEMNLY SWEAR, THAT, I will always demean myself as a gentleman and a respectable and honorable citizen of the Republic of Liberia, and will support and uphold the Constitution, and uphold the laws of my country; and the Rules of all courts of my country; and those governing the conduct of lawyers.
I will at all times give that due respect to the courts of my country and will recognize the judicial and other offices thereof and their authority and will do nothing to impugn the dignity and undermine the authority of the courts…” Now, let me state for the record that both in comportment and oratory, the President of the Liberian National Bar during the opening of the March 2019 Term of the Honorable Supreme Court was not only sad
It is worth noting unlike many associations in Liberia, the formation of the Liberian National Bar was overwhelmingly embraced and endorsed by the three branches of our Government. History shows that the inaugural meeting of the National Bar Association took place in the Senate Chamber on January 2, 1907 and the second annual meeting took place in the Executive Mansion on February 5, 1908. Hence, the importance and significance of the LBNA to the Liberian society cannot be overemphasized. Its role must never be dwarfed to the whims and caprices of any one lawyer or leader at any given time, as we are gradually beginning to see.
Having laid the premise on the matter, let me kaleidoscopically analyze the “speech” delivered by Counsellor Gongloe at the opening of the March 2019 Term of Court of the Supreme Court of Liberia and expose not only his hidden agenda but a litany of contradictions and flawed legal arguments. Here are a few excerpts from his “speech.”
- “We are aware that the bar is meaningless without the bench and we have no doubt that the Bench is equally aware that without the bar, the bench cannot effectively function. With this symbiotic relationship between the Bench and the Bar, mutual support, cooperation and respect are necessary conditions that both the bench and the bar must remain mindful of at all times.”
By this assertion, our President tends to draw a line of equipoise between the Supreme Court and the LBNA, to the effect that he opines that the effectiveness of the Court depends on the Bar. This is quite unfortunate to say the least! To the contrary, it has and continues to be the Supreme Court supporting the Bar not only through moral and financial support, but makes and promulgates rules that compare lawyers to support the Bar.
Article 75 of the Constitution of Liberia gives the Supreme Court the right to make rules of court and prescribe code of conduct for lawyers. For instance, Rule 5 of the Rules of Court states, “the deadline for lawyers and law firms to obtain annual licenses to practice law and to operate law firm is the Second Monday in March of each year. After this date no lawyer who has not obtained his/her annual license for the year shall be permitted to practice before any court, or before any administrative tribunal, or any agency of government directly or indirectly, nor will a lawyer who has not paid his/her annual dues of the Liberian National Bar Association up to the Second Monday in March of each year be permitted to practice before any court of the Republic of Liberia.”The LNBA is a creature of the Supreme Court and cannot in any parity of reasoning be equated to its creator. The LNBA is not a parallel Court, nor is its President the sixth Justice of the Supreme Court of Liberia. History has shown that the Supreme Court of Liberia existed more than fifty years before the establishment of the Bar. We have yet to see, where in history where a National Bar procreated a Supreme Court. Hence, the demand of mutual respect and cooperation is not only disrespectful, but can be likened to a suicidal mention, where a mouse will naively challenge a cat to a brawl.
- “… But what makes it more challenging this time, is that the bill of impeachment on which Justice Ja’neh is being tried is a product of defiance by some members of the House of Representatives, of the alternative writ of prohibition issued by a Justice of the Supreme Court sitting in Chambers, acting under the authority of law. It is also challenging because the full bench of the Supreme Court did not consider this defiance of the presiding Justice’s order as a defiance of the entire Bench.”
One tends to wonder what parity of reasoning is this? Is the President of our esteemed Bar telling me, as a Counsellor-at-Law and those that attended the opening of the March Term A. D. 2019, as well as, the general public that a Chamber Justice is equated to the Supreme Court full bench? I vehemently reject this lazy argument for the following reasons to wit:
i). It is erroneous to state that the full bench of the Supreme Court was not concerned about the action of the Honorable House of Representative in ignoring and refusing to appear before the full bench of the Court. The records will show that a writ of summons was served on the Honorable House of Representatives on August 21, 2018, requesting that they appear on August 22, 2018 for the hearing of the matter, and give reasons why they think that the alternative writ of prohibition should not be granted just four (4) days after the defiance of the Honorable House of Representatives of the order of the Chamber Justice.
The records further show that the matter was heard and an opinion was rendered by the Supreme Court, quashing and vacating the alternative writ of prohibition and the peremptory writ of prohibition prayed for denied. Now, if the argument of the Bar President is that the respondent, House of Representative did not file brief but wrote a flippant letter to the Chamber Justice, the law in our jurisdiction extant, “…If one party appears, and non-appearing party has not filed a brief, the non-appearing counsel shall be given forty-eight (48) hours to file a brief and appear for hearing of the case; and the party shall be simultaneously informed of the non-appearance of this counsel and the postponement of the hearing for forty-eight (48) hours. If, when the case is again called for hearing, the party or counsel again fails to appear or file a brief, the Court shall proceed to hear the argument of the appearing party and rule thereon.”
There is no law in our jurisdiction that says that when a party fails to appear, the court should rule against them, or in favor of the present party without hearing the argument of the party that file. In all cases, our law requires that a prima facie case should be made. Hence, to say, because the impeachment grew out of a defiant action, therefore the petition for prohibition should have been granted without the petitioner proving and convincing the Court is laughable.
- “Further, the proceeding is challenging because the history of Liberia will record that the Chief Justice whose bench was disrespected by some members of the House of Representatives chose to preside over an impeachment proceeding which was based on a total disregard for the authority of the Supreme Court.”
Did I hear the President of the Bar using the phrase, “chose to preside”? Did the Chief Justice choose to preside or the Constitution of Liberia mandates him to preside? Article 43, states, “… When the President, Vice President or Associate Justice is to be tried, the Chief Justice shall preside…” What I find very disturbing, is that the President of the Baron the one hand is suggesting the adherence to the rule of law while on other the hand, pleading for the flagrant abuse of the rule of law. Do you need to be a lawyer to know that a refusal of the Chief Justice to have presided over the impeachment proceeding could have been a blatant violation of Article 43, thus a ground for impeachment or constructive resignation? One is left to wonder, what the President of the Bar is seeking or planning? But in all fairness, laws do not vary based on persons. If you sincerely condemn unconstitutional actions, you should also condemn any unconstitutional means to address an unconstitutional action.
- “Further, the proceeding is troubling because the presiding officer over the impeachment proceeding rules on some issues and on others, he refused to rule on the ground that he lacks the authority to do so. A better procedure was what Chief Justice Rehnquist adopted at the impeachment trial of President Bill Clinton. For example, Chief Justice Rehnquist referred the motion to dismiss to the members of the Senate who denied same by a vote of 56 to 44. In this case, the very important motion was not referred to the Senate to decide whether or not the case should be proceeded with.”
I see this as either a deliberate attempt to distort history, or a clever attempt to mislead his listeners; whatever reasons the LNBA President may have elected does have a toll on the integrity of his office as President of the LNBA. First and foremost, Chief Justice Rehnquist did not adopt any procedure at the impeachment trial of President Bill Clinton; it was the Senate Resolution 16 that provided, “at the end of the question and answer period, the Senate would consider separately a motion to dismiss and a motion to subpoena witness and to present additional evidence not in the record.” So let our esteemed LNBA President get his facts straight if and only if he is not aware. Second, it is an established principle of law that two scenarios and or circumstances should be analogous to desire the same results. How then can our learned LNBA President say that the Senate amended Rule 63 that adopted the Criminal Procedure Law as the procedure covering the impeachment proceedings will opt for jurors, who are Trier of facts, to pass on motion to dismiss? Is this what our Criminal Procedure Law says? Certainly not! This is a foreign practice of law not applicable to this jurisdiction and to even reference that is sad.
- “Further, the ongoing impeachment hearing is challenging because this court avoided, refused, failed and neglected to interpret article 43 of the Constitution of Liberia regarding the procedure for impeachment.” I can clearly understand now why Chief Justice Pierre said, “In the performance of our duties as judges, we should expect critical criticisms of those too weak morally to abide by the rules which govern our political society; we should expect condemnation from those who do not like the decisions we make. But… we have no right to seek approval for the decisions we render… because we swore only “to defend, protect, and observed the statute, and laws of Liberia.” In the performance of our duties, we are under no obligation to please anyone.”
How can anyone, especially Cllr. Gongloe make such an assertion that the Court avoided, refused, failed and neglected to interpret Article 43 when in fact he was counsel for the party that filed an In Re Constitutionality of Amendment of the Senate Rules 63 to provide for Impeachment. It is worth stating that one of the counts in that petition was the interpretation of Article 43. Sadly, your error, Cllr. Gongloe, as counsel for Commany B. Wesseh, et’al in the In Re case against some senators denied the Liberian people the opportunity of hearing the Supreme Court opinion on Article 43. The honorable thing to do is to take the blame for those simple and elementary legal mistakes that you made than to state that the Court avoided, refused and reneged to address the matter. For the benefits of those who are not lawyers, let me list your elementary errors that you have yet to allude and admit to:
a).You failed to file an action against the Liberian Senate, but elected to file it against individual senators who do not have the authority to represent the Honorable House of Senate.
b). That having been told your error by others with a luxury of time at your disposal, you refused to withdraw your petition and re-file naming the Honorable House of Senate as a party, but sought a short cut by seeking a joinder at the level of the Supreme Court, which is not backed by law and a strange practice within our jurisprudence. For those who are not lawyers, our law extant that “Parties may be added by order of any court except the Supreme Court on motion of any party, or on its own initiative at any stage of the action on any terms that are just.” See Section 5.54 of the Civil Procedure Law.
C). You sought to make, by your motion of joiner, the Liberian Senate both plaintiff and defendant/petitioner and respondent in the same case, contrary to the practice of law in this Country. I think in all fairness, you must seize your unwarranted attacks on the Supreme Court, as well as, projecting it as being inept and unqualified, contrary to what the Court is and focus on the challenges facing the Liberian National Bar Association. I maintain, as stated in the media, that your comments against the Supreme Court during the opening of the March 2019 Term was inciting, inflammatory and demagogic with the ulterior motive to bringing the Court to public disrepute, which cannot in any way represent the LNBA.
Finally, Mr. President, I do agree that justice delay is justice denied. But it appears that we have contrasting views on the understanding of this legal maxim. For you, as evidenced by your “speech”, delays are squarely at the feet of the courts in rendering judgment. But, you will not disagree with me that we too, as lawyers contribute immensely to the delays also with the filing of frivolous and unmeritorious motions before court, as well as frolicsome summary against judges before Chambers Justice, whenever it becomes convincingly clear that our clients do not have a case with a simple objective to delay judgment. So, let us muster the professional courage and avoid these negative acts that are delaying and denying justice and stop putting the blame squarely at the feet of the Court. Second, your predecessor left us on a positive trajectory aimed at establishing Appellate Courts to help solve some of these challenges facing the Supreme Court of Liberia, may I suggest to you that you begin to move on from where your predecessor left off by engaging the Legislature and other stakeholders in legislating the requisite laws that will lead to the establishment of these Appellate Courts than your unwarranted criticism against the Court as a remedy.
THESE COMMENTS ARE SOLELY MINE AND I HAVE ABSOLUTELY NO REPROBATION FOR EXPRESSING THEM IN THE FORM AND MANNER I DID.
About the Author:
Cllr. Jonathan T. Massaquoi
A Graduate of the Louis Arthur Grimes School of Law
Partner/Director of Litigation
International Law Group (ILG), LLC