By Atty. Worlea Saywah Dunah (former Representative, Nimba County)
Yekeh pursued all these years a despicable career of spewing mischief on the national scene without regards to our culture, religions, traditions and laws. Truly, a sad thing happened here: elected to be a statesman, the former child soldier chose to be the epitome of lawlessness embarking on a career of spewing insults on all, a perverted career that has now truly come to the logical end he coveted.
The expulsion of the errant former representative brought to finality the worse career in the entire legislative history of Liberia as the legislature exercised its inherent constitutional power to police itself. However, the matter of the attempt by the judiciary branch via a statutory writ of prohibition to stop the House of Representatives in the discharge of its constitutional powers resurrects the recurring debate that portends to invoke a corrosive interbranch conflict since the Speaker Snowe removal saga in 2007 went to the judiciary.
The critical inquiry here is this: can the judiciary use the statutory prohibition power to stop the exercise of a Constitutional Powers by another branch of government under our Constitution?
I have always said no and in recent times the very Supreme Court has affirmed that constitutional powers are absolute and that statutory powers are at lower tier of laws in Liberia in two seminal cases. In the tray of the debate of the tenure officers’ cases, the current Attorney General reminded the Supreme Court that in the exercise of the President’s constitutional powers as the Chief Administrator the judiciary cannot interfere. The court has agreed by its refusal to intervene when the President subsequently suspended tenured officers for administrative causes at the Liberia Telecommunication Authority and the Governance Commission.
The court has used the Attorney General’s argument as well in the disposal of the uncultured Prophet Key contempt case where in the exercise of its inherent constitutional powers the Supreme Court acted both as the court of first instance and the court of last resort. Of course, the Supreme Court of Liberia is both a constitutional court and the highest court therefore it exercises powers over certain constitutional issues directly without it coming out of an appeal from a lower court.
In Article three the three branches are called ‘separate coordinate branches and the caveat follows immediately that no person holding office in one branch shall exercise the powers granted to another branch.
Out of this caveat comes the rule that the President cannot pardon Prophet Key as that will be an intervention with the exercise of the Supreme Court inherent powers same as the Supreme Court cannot dictate to how a president remove appointed officials; and also too, the two branches cannot within this same constitutional scheme intervene in the rules making processes and the self-policing powers of the legislature.
Now it follows that the Writ of Prohibition derives out of a statute; then can a statute be used to set aside the result of the exercise of constitutional powers? In terms simple can the statutory Writ of Prohibition be legally used to stop or intervene where the legislature is exercising its inherent constitutional powers of self-policing its members as granted in Article 38? I am sure that a judicial officer who seeks to use the statutory writ of prohibition to intervene in the legislature use of its inherent constitutional powers would be upending our jurisdiction as the constitution is the supreme law.
The framers of our constitution to avert usurpation of the other branches’ power in Article 66 says the legislature shall not use their law-making power to make laws that deprives the Supreme court of its constitutional powers; now can the Supreme Court on the flip of this and under the principles of Article 3 make or render decisions that subvert or deprives the legislature of its constitutional powers or frustrate the exercise thereof?
I have diligently traversed the Constitution of Liberia, 1986 but I am yet to see the text that grants the Supreme Court the powers as a coordinate branch to interfere with the other branches use of their constitutional powers. Clearly the Article two power of judicial review is merely the power to declare a law or an action of the other two branches as unconstitutional.
How does such review transformed into a power to halt or interfere with the forbidden fruit of Article three I am yet to be convinced.
On the other hand, many self-anointed pundits, professional talk shows callers and pseudo-policy experts, and even the yanna boys have continuously regurgitate the fallacy of circular logic saying that the due process clause and multiple opinions of the supreme court provide legal foundation to intervene in the legislature use of its constitutional powers. But their vicious tautology founders on the craggy steels of the Article two caveat – it is required to be explicit textually granted power in the constitution to be constitutional.
It is not constitutional because it allegedly espouses or is constructed on a constitutional ideal. Not only that, if for argument’s sake we extend their argument, in other words they are positing that the Supreme Court can sua sponte amend the constitution and grant themselves power that was never given neither contemplated under the Sawyer-Wonsehleay gavel; obviously that would amount to a blatant violation of the constitution amendment clause.
Absolutely, the ultimate end of the Article 38 powers to police itself, a pure political power, has ended with expulsion and a vacant seat is declared thereby in the legislature. I am interested to see from whence the executive or the judiciary can obtain the constitutional power to overturn the result of the exercise of a constitutional power as such because in this jurisdiction the constitution is the supreme law and it overpowers all.
Or are we to see the promulgation of a new constitutional provision  that will say that the statutory powers will overpower the textual, explicit, inherent, unshared-monopolistic power of the legislature to police itself?
Well, for me, as much as Prophet Key serves his six months at the notorious south beach as the result of the direct use of the inherent constitutional powers by the judiciary, the errant Yekeh has similarly been dishonorably retired as the direct use of the legislature inherent constitutional powers.
