By Sherman C. Seequeh
Let me begin, as any citizen who reveres our courts must, with deference to the office. When the Chief Justice of the Republic speaks, the nation is right to listen, and the concern he raises is neither trivial nor imagined. Jury tampering is a real and corrosive evil; a verdict that has been bought is no verdict at all.
His Honour Chief Justice Yamie Quiqui Gbeisay, citing the gross tampering alleged in the Tweah economic-crimes matter and like incidents reported from Nimba to Margibi, has called upon the people, the Legislature, the National Bar Association and the Law Reform Commission to consider abolishing our trial-jury system. His diagnosis commands respect, and he has addressed his call rightly — to the people and their representatives, not to the Bench. But the cure he commends is one the nation must examine with the gravest caution, and, I most respectfully submit, should in the end refuse.
Let me also confess, plainly, what I am and what I am not. I am no lawyer, and I have no wish to masquerade as one. But the law, at its root, is common sense arranged with discipline, and our Constitution was written to be read and understood by the ordinary citizen it governs — not by the learned few alone.
So I come to this debate not with a lawyer’s wig, but with a citizen’s plain reading of our organic law, and with the conviction that any intelligent mind, willing to read carefully, can follow where that document leads. What follows, then, is an antithesis — offered in humility, but without apology.
- A RIGHT TWICE ENTRENCHED
Let us first be clear about the terrain. The right to trial by jury in Liberia is not a statutory convenience that the Legislature once granted and may therefore withdraw at pleasure. It is a constitutional guarantee, and it is entrenched not once but twice within our organic law. Article 20(a) provides that in all cases arising in courts of record, “the parties shall have the right to trial by jury.” Article 21(h) fortifies the guarantee for the criminal defendant, decreeing that the accused “shall have the right to a speedy, public and impartial trial by a jury of the vicinity.”
The framers lodged this right precisely where they lodged our dearest liberties — within the Declaration of Rights, the most jealously guarded quarter of the entire Constitution. A right of that provenance is no candle to be snuffed out by a single hand, however exalted that hand may be.
- A LIBERTY ONLY THE PEOPLE CAN SURRENDER
Let me first render the Chief Justice the justice he is owed. He has not purported to abolish the jury from the Bench; he has issued no fiat. He has done the constitutionally proper thing — he has laid the question before the people, the Legislature, the Bar and the Law Reform Commission. That is the correct avenue, and in truth the only one. For no single organ of the State — not the Judiciary, and not even the Legislature by ordinary statute — may abolish a guarantee lodged in the Declaration of Rights. Article 2 is unforgiving: any law inconsistent with this Constitution is void to the extent of the inconsistency.
The one lawful door is Article 91. To remove the jury, the nation must amend its Constitution — by a proposal of two-thirds of both Houses of the Legislature, or a petition of not fewer than ten thousand citizens concurred in by two-thirds of both Houses, ratified thereafter by two-thirds of the registered voters in a national referendum, and not sooner than one year after the legislative act.
Read that threshold, and read the wisdom folded into it. The framers did not make the removal of a fundamental liberty merely difficult; they made it deliberately, formidably hard. And they did so to guard against precisely this hour — the temptation to wrench a cornerstone out of the Bill of Rights in a season of frustration over a single bruising case.
The jury was given to the people; only the people, two-thirds of them at a referendum, may hand it back. So the question the Chief Justice has rightly placed before the nation is not whether this thing can be done swiftly — it cannot — but whether it ought to be done at all. To that question I now turn; and my answer, with respect, is no.
III. THE CONSTITUTION’S OWN REMEDY: WAIVER, NOT ABOLITION
If what troubles the Bench is that certain cases are ill-suited to a lay jury, the Constitution has already furnished the answer — and it is a scalpel, not an axe. Article 21(h) permits the accused, “with appropriate understanding,” to “expressly waive the right to a jury trial” and submit instead to a bench trial before a judge alone.
Mark well where the framers placed that choice: in the hands of the accused, the holder of the right — not in the hands of the State, and not in the hands of the Court. For the jury is a shield, and a shield belongs to the one it protects. To permit the prosecuting State to strip the accused of his own shield because the State mislikes a verdict would invert the entire logic of the guarantee. The remedy for the difficult case already exists, by consent. Abolition is not needed; it is merely desired.
- A CURE THAT DOES NOT FIT THE DISEASE
“A corrupt jury,” the Chief Justice tells us, “is worse than no jury at all.” It is an arresting phrase. It is not, however, an argument; it is a non sequitur dressed in the robes of a syllogism. The disease he names is corruption — embracery, the ancient crime of tampering with jurors. But the cure for corruption is to punish the corruptor and protect the juror, never to abolish the institution corrupted.
Follow the learned reasoning to its terminus and observe where it deposits us. A corrupt judge is surely worse than no judge — shall we therefore abolish the Bench? A corrupt policeman is worse than no policeman — shall we disband the constabulary? A corrupt legislator is worse than none — shall we padlock the Capitol? Reductio ad absurdum. We do not burn down the house to be rid of a single rat. Where corruption infects an institution, the law’s historic answer has been accountability, not amputation.
And the instruments of accountability lie ready to hand: the sequestration of jurors; anonymous and protected panels; a searching voir dire; the swift and exemplary prosecution of embracery and of contempt; robust witness and juror protection; and the removal and punishment of any officer of the court found complicit. Every one of these may be had without laying a finger upon Article 20(a) or Article 21(h).
- WHY TWELVE LAYMEN STILL MATTER
We should also weigh carefully what we are being invited to surrender. The jury of the vicinity — the jury de vicineto, drawn from the community where the wrong was done — is among the most venerable guarantees of liberty in the entire common-law inheritance. Blackstone called it “the glory of the English law” and “the sacred palladium of our liberties.”
It interposes twelve ordinary citizens between the crushing power of the State and the solitary individual in the dock. It is the one chamber of our government in which the common man exercises sovereign power directly, rendering judgment in the name of the people themselves.
Now consider the alternative the abolitionists leave politely unspoken. Strip away the jury, and the whole power to convict collapses into a single pair of hands — a judge, appointed by the Executive, confirmed by the Senate, and subject through promotion, assignment and tenure to the steady gravitational pull of the political branches.
In a Republic still labouring to build an independent judiciary, that concentration is the greater peril, not the lesser. And here the Chief Justice’s own premise turns against him: if jurors can be bought, quis custodiet ipsos custodes — who shall guard the guardian? A lone judge can be reached far more quietly than twelve strangers, and with no eleven others in the room to dissent, to deadlock, or to tell the tale.
- THE APPEARANCE WE CANNOT AFFORD
A word, finally, upon the hour at which this proposal arrives — for a constitutional jurist must weigh not only the law but the legitimacy of its administration. The call to abolish the people’s jury comes hard upon a jury’s acquittal in a prominent economic-crimes prosecution the State was keen to win, followed by an allegation of tampering that remains unproven and is itself entangled in a question of double jeopardy — autrefois acquit — now pending before the courts. I prejudge none of it: an acquittal is not proof of a clean jury, and an allegation is not proof of a corrupt one.
But the maxim is old and wise — justice must not only be done, it must manifestly be seen to be done. When the demand to dismiss the referee follows so closely upon a verdict the State disliked, the appearance (and in the law of public confidence, appearance is itself a kind of substance) is that we would abolish the jury because we mislike its judgment.
That perception, and not the jury, is the true threat to the credibility the Chief Justice rightly seeks to defend. The jury’s singular virtue is precisely that it belongs to the people and not to the State; of all our institutions it is the least susceptible to the charge of political capture. To remove it in this moment is to trade a shield for a suspicion.
VII. A WORD ON THE CANONS
And here, with the same respect, one question of judicial propriety must be raised — gently, but it must be raised. The canons that govern judges the world over, and which our own Judiciary embraces, draw a careful line.
On the one side, a judge is perfectly free to speak for reform: the Bangalore Principles of Judicial Conduct, at clause 4.11.1, expressly permit a judge to “write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice.” A call to improve our courts is, in the abstract, well within a Chief Justice’s liberty, and I do not fault him for raising the subject at all.
But the same canons draw the other side of that line just as sharply. Clause 2.4 instructs that a judge “shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome… Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.” There, as I read it in plain language, is the difficulty.
The trouble is not that the Chief Justice spoke of reform; it is that he tied the call to a living, named case — pronouncing upon tampering in a matter whose appeal could yet climb to the very Court he heads. Reform argued in the abstract is one thing. Reform argued through a case still warm on the docket is quite another — and it is the second that gives a careful mind pause, for it is the surest way to invite, tomorrow, a motion that the Chief Justice himself step aside from the case.
VIII. REFORM, DO NOT REPEAL
Let me close where comity requires. The Chief Justice has rightly named a wound in the body of our justice; for that the Bar owes him thanks, not scorn. But the Constitution he is sworn to defend does not permit the amputation he proposes, and sound jurisprudence does not recommend it.
Protect the juror. Prosecute the tamperer. Reform the procedure. And if, after all of that, the nation should still wish to reconsider the institution itself, let the question travel exactly where the Chief Justice has rightly pointed it — to two-thirds of the people, at a referendum, under Article 91. My submission is simply this: asked that solemn question, the people should, after sober reflection, decline.
For the jury is not the Chief Justice’s to abolish. It is not the Legislature’s, nor the President’s. It is the people’s palladium. And a palladium, once surrendered, is seldom returned.
