ANALYSIS By Alfred H. W. Brownell is a Writer, an Environmental Sustainability Researcher, and a Concern Citizen
By a majority of 4-1, the Supreme Court held that the actions and sittings of the self-styled majority bloc was unconstitutional because it was inconsistent with the articles 33 and 49 of the Constitution. They illegally removed the speaker by purporting to extinguish any rights of members of the legislature which they did not have.
Since the ruling there has been diverse perspectives including the Pyrrhic Victory which painted a bleak and paralysing picture of the impasse within the House of Representatives and the role of Speaker Koffa following the Supreme Court’s ruling, however; it failed to distinguish legal idealism from the operational realities of good governance.
Indeed, the Supreme Court reaffirmed that the actions and sittings of the Majority bloc were ultra vires that is beyond the scope of lawful authority. However, that alone does not collapse the legitimacy of ongoing governmental functions, nor does it retroactively render all state expenditures, including that of the judiciary, ipso facto illegal or refundable grounded in the core doctrines of constitutional law, administrative necessity, and the preservation of continuity.
What most of these perspectives failed to understand is that the law is not void of mechanisms, collateral doctrines and procedures that keep it from behaving as badly as it sometimes exhibits to preserve public trust at the time constitutional crisis.
For example, IN RE: The Constitutionality of Several Actions taken by Members of the House of Representatives (2024) where the House of Representative was hit by a constitutional deadlock on the basis of violation as enshrined in article 33 and 49 of the constitution, the doctrine of necessity has historically been invoked to preserve the continuity of the State. This doctrine was first articulated in the Southwest Africa cases (Ethiopia v. South Africa); and later in (Liberia v. South Africa) which relate to the continued existence of the mandate for Southwest Africa and the duties and performance of South Africa as Mandatory thereunder, were instituted by Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960.
In that case the International Court of Justice drew a distinction between the “conduct” and the “special interests” of the League of Nations members. On 20 May 1961, the ICJ made an order finding Ethiopia and Liberia to be in the same interest and joining the proceedings each had instituted. South Africa filed four preliminary objections to the Court’s jurisdiction. In the Judgment of 21 December 1962, the ICJ rejected these and upheld its jurisdiction.
In our context, the Supreme Court’s ruling was a declaratory judgement of unconstitutionality, which means it did not invalidate every consequential act of the majority bloc ab initio. The Justices exercised the jurisdiction conferred upon the Supreme Court grounded in Chapter VII (Articles 65 to 75) of the Constitution and Title 17 of the Judiciary Act, specifically Chapter 2 section 2.1.
What most of these perspective especially those who think Supreme court was wrong are implying is the application of the doctrine of utter nullity where unconstitutional action confers no rights; imposes no duties; affords no protection; creates no office; and all actions considered inoperative as though it had never been approved under the law.
Further, supporters of the government including Representative Prince Aquency Toles of District 8 Montserrado County argued, it was unfair the Supreme Court to have granted the Bill of Information declaring the actions and sittings of the majority as ultra vires, unconstitutional, and unlaw when it was this illegal majority of the House of Representative that passed the budget that funds the Supreme Court. Rep. Toles argued in any case, the ruling would invalidate legislations also passed by the majority, while former Comptroller General and Montserrado County Representative Hanson Kiazolu noted the illegal budget was used to fund gas slips, appropriations and allowances of the judiciary
If these doctrinal arguments were to be systematically applied rigorously then the attending consequences upon the Supreme Court declaration that the majority bloc passage of the budget was unconstitutional would be dramatic and disastrous.
Thankfully legal doctrines exist which operate to produce very different results. One of those is the de facto officer doctrine which validates that official acts of bodies which are unconstitutionally created or staffed operate to curb the complete nullity based on the common law of our jurisprudence.
This doctrine protects certain forms of official activity from the risk of possible invalidity as a result of a subsequent declaration by the Supreme Court which were previously considered unconstitutional to curb the thrust of unconstitutionality retroactively. Alternatively, if the Supreme Court wanted to declare the budget unconstitutional, it would not have opted for prospective declaration which it did on the basis of procedural fairness by acknowledging the unconstitutional sittings of the majority bloc but cautiously preserving the institutional function of the state without annulling previous actions.
This officer de facto is a theoretical creature only, not members of the majority bloc but erected by the law, in order to answer the ends of justice and equity under particular circumstances and in this case, it is the impasse at the house of representative.
So, the doctrine effectively addresses the concerns relating to the validity of budget passed by members of the majority who appear to be clothed with official authority but who at the time the budget was enacted had no legal authority to do so. What the Supreme court actually did as a solution to this budget problem was to make the passage of the budget valid dependent upon the legality of the Speaker office which was filled by the purported speaker at the time the budget was passed and signed by the president into law on Monday, January 6, 2025, totalling 880,661,874 United States dollars.
Therefore, even if the House of Representative budget passage was ultra vires, the enacted budget and administrative functions that relied upon it, including the Executive, Judiciary and the Legislature for the provision of public services, are protected by the constitution from retrospective invalidation under article 21, subsection a, of the 1986 Constitution which states “No law shall be retroactive, nor shall any Bill of Attainder or Ex Post Facto Law be enacted.” However, citizens are entitled to place reliance on the apparent authority of persons who are actually exercising official power. This is what lawyers refer to as ‘legal expediency’ for the general good of the society.
Because the Speaker legitimacy cannot be challenged directly in Quo Warranto proceedings, defective title such as the case of the purported speaker however did not invalidate all official acts that he had been performed during that period.
And again, the Supreme Court at that level cannot sua sponte issues unto itself. The court will only address matters/ issues that are brought before them hence, the matter before the court for determination was the illegality of the action of the purported speaker and the self-styled majority bloc and not the national budget which is a separate legal matter.
In State v. Carroll, Chief Justice Pierce Butler stated “the de facto doctrine in law is a matter of policy and necessity, to protect the interests of the public and individuals without lawful officers. He defined de facto officers as officers whose acts though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid as far as they involve the interests of the public and third persons, where the duties of the office were exercised. The budget though enacted unconstitutionally, represents the interests of the Liberian people on the basis of the ARREST Agenda for Inclusive Development (AAID) as a commitment to achieving sustainable and inclusive growth from 2025-2029 particularly in areas of Agriculture, Roads, Rule of Law, Education, Sanitation and Tourism. Therefore, arguments about the budget is legally and procedurally flawed because the Supreme Court cannot void or compel refund of expended resources for the past seven months as doing so would not only be impractical but lead to a complete shutdown of the government and its functionaries thus violating article 15c of the constitution
Hence, the underlying message from the Supreme Court to us and to the future generation of this Republic is that the preservation of the rule of law provides at least part of the solution to problem of provided in the minority disposition and the respondents returns, not necessarily as a quest to achieve perfection. The court did so perfectly, through corrective and declaratory actions by addressing the unconstitutionality of the self-styled majority bloc without rendering the country ungovernable. They were pragmatic when they invoked the principle of public trust doctrine to address all procedural issues and irregularities under the constitution and the House of Representative rules.
As a way forward, scholarship in comparative constitutional law and constitutional theory have increasingly recognized different forms of constitutionalism. I argue that in the absence of any overwhelming reasons for rejecting a return to the status quo ante by the majority bloc, restoration constitutionalism clearly holds out the promise of a minimally disruptive return to legislative politics. Restoration constitutionalism avoids the need for the new legislature to embark on an extensive process of reconstruction of the impasse including the passage of a supplementary budget.
To argue the Supreme Court judgment is a paralysis of the government function is misreading of the decision and the very essence of protecting the constitution. The Supreme Court judgement is a remedy to restore constitutional order and not an endorsement of chaos, rather it revealed the procedural lapses in the current state of affairs of our laws that undermines efficiency, effectiveness, fairness which unfortunately led to the burning of the capitol building and a breakdown to the rule of law. The law trumps everything, it is to preserve democracy and not unravels it.
It is unnecessary to the present analysis to pursue any of these matters on the budget further. Instead, we conclude that the actions and sittings of the majority bloc were ultra vires and then applying the de facto officer doctrine to prove that some acts taken by the majority bloc though illegal can be recognized as valid until as such time it is declared unconstitutional. By using prospective judgment, the Supreme court protected the purported speaker up until the majority bloc action was declared unconstitutional on April 23rd, 2024, and that Cllr. Fonati Koffa is the de jure speaker defined in articles 33 and 49 of the constitution and not a de facto or purported speaker. It is only the Supreme Court that has the power to interpret the Constitution and to determine the constitutionality and validity of legislation affecting the legislature and its proceedings.
Lastly, Speaker Koffa statement that “he is not unmindful that reconciliation and progress will require that he make the ultimate sacrifice, and that he is not unwilling to pay that price” is welcoming. Similarly, President Boakai acknowledgement that the Supreme Court of Liberia, is the final and highest arbiter of justice, should equally be applauded.
Nevertheless, the president must exercise the highest degree of caution with a high level of care and prudence, especially when working with the quorum that will ensure the full functioning of the government. I’ll add, this quorum must be presided over by the presiding officer as defined in articles 33 and 49 of the constitution and the April 23rd ruling of the Supreme Court on the Bill of Information relating to the ongoing impasse in the House of Representatives.
Anything short of this is lawlessness, a flagrant, deliberate and obvious disregard for the rule of law and a violation of the highest court of our land decision that is entirely unacceptable in the contemporary Liberian legal system.
A lack of knowledge and respect for the Supreme Court judgement would de-legitimise any attempt to protect the justiciability of administrative and judicial decisions. This commentary, in some sense, is a prediction of the future. Only time will tell if the questions, issues, analyses, and conclusions are accurate. The legitimacy and relevance of future decisions of the Supreme Court will be a matter for history and generations unborn to judge.
About the Author
Alfred H. W. Brownell is a Writer, an Environmental Sustainability Researcher, and a Concern Citizen.
Disclaimer: This article is a commentary, intended for general educational purposes only. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any institution or political party, nor the official position of any research institutions in which they are affiliated.