Ask any Liberian whether given the choice he would prefer constitutional democracy and the rule of law to autocracy and rule of powerful men – the people’s lords, the self-serving barons who often steer the inexactness of some constitutional provisions to their own benefits.

The answer will invariably be the former: democracy and the rule of law. So, it goes without saying that majority Liberians generally prefer the system of government they have.

That assumption, though, has been put to the test by the Supreme Court of Liberia this week when it ordered the reinstatement of the “suspended” President Pro-Tempore of the Liberian Senate, Isaac Nyenabo.

The question many are asking in view of that order is “With some senators brandishing the internal rules of the Senate and the recent ‘no confidence vote’ of Senate Plenary will men or constitutional law rule?

In other words, will Senate internal rules take precedence over the dictates of the Constitutional of Liberia?” With political and legal observers, The Analyst Staff Writer has been pore poring over that question.

High Court Injunction

“YOU ARE HEREBY COMMANDED to notify the Honourable Liberian Senate, represented by Senators Abel Momolu Massalay, Lahai Lasana, Jewel Howard Taylor, Gbezohngar Findley, Adolphus Dolo, Prince Y. Johnson, Mabutu Nyepan, Daniel F. Neetahn, and other Senators acting under their control, the Clerk of the Honourable Liberian Senate or his designee, Monrovia, Liberia, RESPONDENTS in the above entitled cause of action to appear before the FULL BENCH of the Honourable Supreme Court of the Republic of Liberia, in the Supreme Court Room, Temple of Justice, on the 4th Day of October 2008, at the hour of 9:00 a.m. to show cause why PETITIONERS’ PETITION as prayed for should not be granted, and ....

“YOU ARE HEREBY COMMANDED to instruct the RESPONDENTS to restore the PETITIONER, Isaac W. Nyenabo, Senate Pro Tempore, to his position as of the date of the issuance of this Writ and pending the hearing and determination of this matter by the Supreme Court en benc.

“YOU ARE FURTHER COMMANDED to instruct the RESPONDENTS herein to file their RETURNS to this Writ in the Office of the Clerk of this Honourable Court on or before the said 4th Day of October 2008…”

With these words yesterday, the Associate Justice in Chambers of the Supreme Court of Liberia, Cllr. Jamesetta Wolokolie, officially and constitutionally ordered the provisional reversal the action taken by Senate Plenary in August this year to suspend Senate President Pro-Tempore, Isaac Nyenabo, for six months, and replace him with Bomi County Senator Lahai Lassanah.

The high court’s reinstatement order came in the wake of a writ of prohibition filed with the Chamber Justice last month by the Acting Chairman of the National Democratic Party of Liberia (NDPL) in protest of what the party called Senator Nyenabo’s unconstitutional and unprecedented suspension from office without the backing of the law.

Shortly after the NDPL prayed Chamber Justice Wollokolie to stay the Senate’s action, she immediately issued an injunction ordering the staying of all further actions regarding the suspension of the President Pro-Tempore and the holding of election for his replacement.

The stay order was to last up to the first of this month and pending the outcome of a consultative meeting between the high court and the Senate’s respondents.
While it is not clear whether or not the September 1, 2008 consultative meeting the court scheduled was ever held, there are suggestions that it must have indeed been held to qualify the scheduled October 1, 2008 appearance for the “hearing and determination of this matter by the Supreme Court en banc.”

The Debate

Some say that a consultative meeting was held may hold water, standing on its own as a reasonable probability, but they say it raises more questions than it provides answers.

“If the consultative meeting was held, what were the contentions that necessitate the October appeal to the full bench of the Supreme Court of Liberia. If there was a contention or contentions, were they about jurisdiction, interpretation of competing provisions of the Constitutional of Liberia, or simply to get the opinion of the remaining four justices of the Supreme Court?

If there are contentious questions, how will they adjust to the Chamber Justice’s reinstatement order?” observers say, are questions that lead current debate on the issue.

While these questions beg answers, they say, any attempt to snub the Supreme Court’s reinstatement order will not only put Liberia’s infant constitutional democracy to the test, but that it will also raise the once enduring question that confronted Liberians prior to the 2005 presidential and general elections: “Will men or the law rule?”

Or in this case, “Will the Senate’s internal rules take primacy over the dictates of the Constitution of Liberia as expressed by the Supreme Court of Liberia or one of its justices?”

Whether it is jurisdictional question or appeal to the constitutional doctrine of “Separation of Powers”, they say, what Liberians look up to in the end of this hullabaloo is victory for the rule of law over the parochial interpretation of the law for self-aggrandizement.

But analysts say that expectation raises yet another question: “Whose version of the rule of law will stand since all involved in the Nyenabo debacle are appealing to the rule of law?”

For instance, they say, the some pro suspension senators hold that the internal rules they used to suspend the President Pro-Tempore are based on Article 38 of the Constitution of Liberia.

Article 38 states: “Each House shall adopt its own rules of procedure, enforce order and with the concurrence of two-thirds of the entire membership, may expel a member for cause.” Then as if to preempt the current situation, it adds

“All rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution.”

The Constitution says the due process of the law requires that the accused is guided to appear before a court of competition jurisdiction with his counsels to face his accusers. It is not clear whether Mr. Nyenabo was accorded the due process of law when his colleagues decided to suspend him for the alleged breach of their trust.

But the Constitution insists at Article 20 (b) that even if the due process of the law was applied leading to Sen. Nyenabo’s suspension, the suspension is subject to review by the Supreme Court of Liberia.

Article 66 states in that regards: “The Supreme Court shall be the final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a country is a party. In all such cases, the Supreme Court shall exercise original jurisdiction.

The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court or any of the powers granted herein.” Legal observers say this constitutional provision negates any argument that the internal rules of the Senate are sufficient basis for the removal of the President Pro-Tempore.

They say while the provision did not render illegal the Senate’s action that is based on the constitutional requirement that the “President Pro Tempore and other officers so elected may be removed from office for cause by resolution of a two-theirs majority of the members of the Senate”, it also did not preclude the Senate’s decision from a Supreme Court oversight.

What this means, they say, is that whatever action is taken according to the Constitution or according to a rule derived from the Constitution of Liberia such as the Senate’s internal rules for conducting legislative business or imposing punitive action against any of its members, is subject to review by the Supreme Court.

This, some political observers say, takes the debate to another level, the constitutional doctrine of the Separation of Power: “Should the law be interpreted to mean that the Supreme Court, the central authority of the Judicial branch of government, has oversight jurisdiction over the Legislature, the first branch of government?”

The say the question was necessary in light of the current debate, lest the Supreme Court lose sight of the “equal and coordinate” clause of the Constitution.

But analysts say while there was a need to keep an eye on the bounds of authority, the checks and balances clause attached to the separate and coordinate principles indicated that the Supreme Court was acting appropriately.

“The Supreme Court is not taking on the Legislature; it is seeking to review an action taken by some members of the Upper House of the National Legislature in keeping with the same Constitution that set standards for intra-branch interaction in order to uphold the rule of law and not the rule of men,” said one analyst.

But it is not only observers, using the Constitution, that believe that the suspension of Senator Nyenabo and the subsequent election of Senator Lasana to replace is a political faux pas that must be reversed.

Prior to the election that brought Bomi County Senator Lahai Lassanah to the now hotly contested post, Maryland County Junior Senator, Gloria Scout, questioned through an exception note she addressed to the Senate Plenary and the President of Liberian Senate, Vice President Joseph Boakai, the legality and propriety of unseating the Senate President Pro-Tempore in a by-election.

“In my considered view and opinion, it will be not only unlawful and illegal to elect an Acting Pro-Tempore, but that such an act will also bring into disrepute and ridicule the credibility and image of the Honorable Liberian Senate of the 52nd Legislature of the Republic of Liberia”, said the former Chief Justice of Liberia in the note dated August 19, 2008.

She contended that the position of President Pro-Tempore was a constitutional position and that there were constitutional provisions, laws and rules of the Liberian Senate that govern this it.

While the Latin phrase “pro tempore” means temporary, she noted, the rules of the Senate, as anchored by the Constitution of Liberia, clearly assigned to the position a tenure term and a process of succession.

“The Liberian Senate took a vote which resulted into the suspension of the pro tempore. In my view, a suspension is an enforced temporary incapacitation and there is no precedence in our Common Law jurisdiction where an election is held to fill a temporary vacancy created by a temporary incapacitation,” the veteran legal practitioner further told her Senate colleagues.

She said even though it was indisputable that the National Legislature was widely considered a house of politics where number determines the outcome of legislative impasse, senators were under sworn duty to play the game of politics and exercise their votes with due regards for established laws and precedence.

This, she said, should not only be within the republic but also within the Common Law jurisdiction adopted by Liberia.

“By doing anything without regards for the foregoing, we will not only bring this institution to disrepute, but we will also trivialize our votes, functions and works,” she emphasized.

The former chief justice then warned her colleagues of the dangerously unfolding legislative trend on Capitol Hill in which many legislators were unsuspectingly giving in to the magic of majority rule and paying little or no attention to the laws of Liberia.

“And indeed we have done any and everything outside of the law because the majority said so,” she said.

She gave no examples of actions the Senate took outside the law, but the Maryland County senator said the sidelining of the law was undermining the citizen’s confidence in the governance system and that these discouraged Liberians were seeking citizenship in other countries.

She said there was no question that mistakes were made in a number of Senate deliberations in the past and that it was unthinkable that the Upper House would continue down that road.

“If we do proceed to elect an acting Pro Tempore for a short period of five months, the signal or impression we will sent is that we have no intention of doing things right in the Liberian Senate and our expression of grievances were not done in good faith but just to further justify the continue down-sliding of the Liberian Senate,” she said.

Senator Scott then implored the senators to do the right thing by reconsidering their decision to elect an acting Pro Tempore because the decision was “wrong and has no basis in law or precedence”.

“My experience over the years has taught me that when you are role-model or someone the community has due regards and respect for, that creates the duty and obligations on you to conduct yourself in your office or in private in such a way that you will give direction, counsel and hope to people; by this I mean you will contribute to the respect of rule of law, procedures, processes, and the restoration of values and norms which will engender a stable and ordered society,” she said.

She said it was incumbent upon the Senate, for the reasons she state, to return to the spirit and intent of the standing rules of the Liberian Senate and the laws of Liberia.

Incidentally, the senator’s caution fell on deaf ears – the by-election went ahead, given a push by 20 out of the 30-member Upper House – a strong case of the rule of the majority.

Analysts say with the Supreme Court standing up for the rule of law, the rule of the majority seems unlikely to prevail this time around.

This is because, they said, majority of the senators would like to see Senator Nyenabo go are anything but unwilling to submit to the rule of law or unwilling to let the crisis past in favor of Senate unity and the good of Liberia.