PHOTO: Members of the current Supreme Court Bench including ailing Justice Joseph N. Nagbe 94th from Left)
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia- It is not yet clear as to whether there is actually a vacancy on the Supreme Court Bench, amid confusion as to whether one of the four Associate Justices, Joseph N. Nagbe has formally resigned or consummated a retirement from the Bench.
The nomination of Justice Minister Cllr Frank Musa Dean has sparked a huge debate in the public and among legal luminaries as to whether the appointment done by outgoing President George Manneh Weah has a legal backing given that Justice Nagbe requested for early retirement.
Some of the debaters said, the early retirement request of Justice Nagbe doesn’t suggest that there is vacancy on the Supreme Court Bench until such retirement ceremony is performed in line with law.
While another debaters are saying, the new Judiciary Law of Liberia has been breached by President Weah.
In the midst of the debate, Unity Party Chairman Rev. J. Luther Tarpeh, National Secretary General Amos Tweh and all other officials of the Unity Party on December 30,2023, filed a sixteen counts Petition for the Writ of Prohibition before the Justice in Chambers Jamesetta Howard Wolokolie on the Liberian Senate by and thru its President Jewel Howard Taylor and President Pro Tempore Albert T. Chie against the confirmation hearing of Cllr. Frank Musa Dean who was nominated on December 26, 2023 by President Weah.
Count four of the petitioner says that on December 18,2023, President George Manneh Weah issued and published a Directive ordering the freeze on employment, borrowings, payments of any amount beyond ten thousand United States dollars (US$10,000.00).
That notwithstanding, the averments continued in count one through four above, President Weah on December 26,2023,about 26 days to the inauguration of President elect Joseph Nyumah Boakai nominated third respondent Cllr. Frank Musa Dean jr. as Associate Justice of the Supreme Court of Liberia to replace Associate Justice Joseph N. Nagbe who has requested early retirement through a letter to the the Chief Justice Sie-A-Nyene G. Yuoh.
While, it is true that Article 54(c) of the 1986 Constitution grants the president the authority to nominate and with the consent of the Senate appoint Chief Justice and Associate Justices of the Supreme Court of Liberia, the Constitution did not envisage that the current president having lost the presidential election at the end of his/her tenure, set up a transitional team for the smooth transfer of power to the president elect and placed moratorium on new employment would appoint as Associate Justice of the Supreme Court of the Republic of Liberia.
Temple of Justice–the seat of Liberia’s Judiciary
Petitioner submits that to hold otherwise would undermine and make invalid Article one of the constitution of 1986 which states
All power is inherent in the people. All free governments are instituted by their authority and for their benefit and they 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.
Accordingly, the nomination of third reapondent(Cllr. Dean) by President Weah to replace Associate Justice Nagbe given the circumstances and timing is certainly against best practice.
That also as to count five above, petitioners say that Section 13.4 (3) of the New Judiciary Law provides conditions under which a justice, judge or stipendiary magistrate maybe retired and paid retirement compensation. The said law provides that a Justice, Judge or Stipendiary magistrate to qualify for retirement must have served continuously for fifteen years or more in any such Judicial Capacity and attained the age of sixty(60) years or has served continuously for ten years or more in any capacity and has been certified after appropriate medical or mental examination by competent medical authority to have become permanently disabled from performing his duties or who has completed at least accumulative Judicial service.
Petitioners submit that Associate Justice Nagbe became Associate Justice in the year 2018, a period less than ten years and has not occupied or served in any Judicial Function to qualify for retirement. Accordingly, the purported request for early retirement and the granting of same by President Weah is void of no legal effect for reason stated herein.
The petitioner contended that on December 21,2023, letter from Justice Nagbe to Chief Justice Sie-A-Nyene G. Yuoh requesting for an early retirement on ground of ill health does not in itself constitute retirement and or create a vacancy on the Supreme Court Bench. Retirement of the Chief Justice, Associate Justices and judges is clearly defined by the Constitution of Liberia (1986). Article 72(b) of the Constitution of Liberia provides that “
- The Chief Justice and the Associate Justices of the Supreme Court and judges of subordinate courts of record shall be retired at the age of seventy; provided, however, that a justice of judge who has attained that age may continue in office for as long as may be necessary to enable him to render judgement or perform any other judicial duty in regard to proceedings entertained by him before the attained that age.”
The petitioner furthered avers that count seven says nine of the laws cited above made provisions for early retirement” which the letter of Justice Nagbe has requested. Petitioner also says that Justice Nagbe having been appointed and commissioned as Associate Justice of the Supreme Court in 2018 does not and cannot qualify for retirement in 2023 as contemplated by our laws. Therefore, Justice Nagbe having not qualified for retirement under our laws remains a seated Associate Justice. Hence, there is currently no vacancy on the Supreme Court to warrant nomination of third respondent (Cllr. Dean) to said vacancy and for the Liberian Senate to honor a request from the outgoing president to hold confirmation of third respondent to fill a non-existing vacancy.
Furthermore, count eight above indicated that petitioners argued that the current Legislature was recalled in Special session by the president for ten days to discuss matters of national emergency as provided by our constitution. The nomination and confirmation of an Associate Justice at this time doesn’t constitute a national emergency because the Supreme Court is currently sitting and deciding cases with five justices with no hindrance in keeping with the constitution, even though Justice Nagbe is ill. The request by Justice Nagbe for early retirement is the beginning of a process and not an event. This means that the Supreme Court still have five Justices in keeping with our Constitution. The nomination and confirmation of Cllr. Dean as sixth member of the Supreme Court Bench will be in violation of the Constitution. Article 67 of the 1986 Constitution of Liberia says The Supreme Court shall comprise one Chief Justice and four Associate Justices.
The petitioner maintained that the letter from Justice Nagbe requesting early retirement is addressed to Chief Justice Sie-A-Nyene G. Yuoh and the not the president and hence the president cannot be responding to same. Petitioner says further that the request for early retirement is pursuant to Article 13 section 13.4 of the New Judiciary Law and the not the Executive Branch.
Wherefore and in view of the foregoing, petitioner prays your Honor for the issuance of the Alternative writ of prohibition against the respondents as follows;
Commanding and ordering the Respondents to say all proceedings in the conduct of confirmation hearing of third respondent (Cllr. Dean) as Associate Justice for the Supreme Court.
Issue the alternative writ of prohibition and appoint a date and time for the respondents to file their returns to show cause if any, why the preemptory writ should not be issued by Honor.
Meanwhile, the respondents in this cause of action has been given January 8,2024 to file their returns and case is scheduled for arguments on January 9,2024 @11:00 am.