Days after Cllr. Arthur Johnson threatened to petition the Supreme Court to place a stay order on the Council of Patriots, organizers of the upcoming June 7 protest, Atty. Kunkunyon Wleh Teh has seriously questioned his colleague’s decision.
Atty. Teh, who just returned from the US where he obtained a Masters Degree from Emory University School of Law, in Atlanta, Georgia with emphasis in General Practice, Ethics and Professionalism, and Constitutional Law said, the Constitution gives government powers and places limitations on such powers by giving individual rights.
The Court’s role.
Teh also explained that it is not for the Court to place restrictions on the right to protest, stressing, “Placing restrictions on the right to protest is basically a lawmaking function.”
He said the doctrine of separation of powers limits the Court to only interpret or say what the law is. See the Constitution of Liberia, Article 3. In other words, the Court can determine the constitutionality of any restrictions that may be placed by the political branches – be it a statute, regulation or executive order. Therefore, the constitutional authorization to place restrictions on protest is for the political branches to exercise, but generally subject to judicial review by the courts.
The Court power of judicial review or its power to say what the law is, is not in dispute here, according to Teh.
Quoting, the very Supreme Court opinion, Teh said, “The Supreme Court of Liberia held that, “standing […] is a legal doctrine which holds that a party’s ability to bring a lawsuit in court is or must be based upon the party’s stake in the outcome of the case. A party seeking to demonstrate standing must show the court sufficient connection to and harm from the law, action or inaction challenged; otherwise, the party lacks standing to bring the lawsuit.” Citizen Solidarity Council v. R.L. LRSC 20 (27 June 2016).
He added, “one cannot just rely on a fantasy or illusory argument to have standing. The legal requirements must be met to have standing. This is the principle used to decide whether something is a case or controversy. There must be a dispute between parties or adverseness must exist for the Court to hear questions presented before it. A party commencing a case must be sure of three things to assert standing: injury; causation, and redressability. “
The constitutional lawyer explained that the right to protest is a manifestation of the constitutional rights to freely assemble, associate, and to freely express.
The Constitution of Liberia, Article. 15, 17. Several international treaties acceded to, and subsequently domesticated by Liberia also contain clear articulations of the right to protest, and one of such is the 1966 International Convention on Civil and Political Rights.
“Therefore, as a practical matter, the right to protest can be demonstrated through freedom to assemble; freedom to associate, and freedom of expressions,” Atty. Teh further said.
Can a protest be restricted?
Teh said that the liberty and personal responsibility are inseparable.
Article 15 (a) provides that, “[e] very person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government, save during an emergency declared in accordance with this Constitution.”
The expressed text is clear, the Constitution expressly imposes full responsibility upon any person making free expressions for any abuse of that right, according to Teh.
Historically, the lawyer said, the first part of Article 15 (a) – every person shall have the right to freedom of expression, being fully responsible for the abuse thereof – usually provokes interesting debate amongst legal scholars and practitioners, while the second part – this right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution – further intensifies the basis for such debate.
“The common debate is usually centered on whether or not the Constitution only authorizes the government to regulate speech or expression during a declared emergency,” he indicated.
To tell whether an act of government is constitutional or not, one must first determine whether the Constitution “authorizes” or “prohibits” that act. An authorization or prohibition may be expressed or implied, the constitutional lawyer noted.
The expressed text of Article 15 (a) appears to suggest that government can only regulate or restrict protest (free speech or expression) during an emergency declared in accordance with the Constitution – but I disagree.
The adjoining phrase “being fully responsible for the abuse thereof,” in my mind, gives government implied authorization to regulate speech or expression not only during an emergency declared in accordance with the Constitution. Protest and restrictions on protest have lasted as long as governments have.
“To what extent? We will need to defer to the Court for interpretation based on the text of the Constitution, the intent of the framers,” Atty. Teh asked.
Meanwhile, persuasive judicial precedents show that courts have upheld certain legislation or government restrictions on the right to protest by protecting the right to protest and allowing certain limited restrictions. “It must be emphasized that restriction or injunction that may be placed on protest or speech by government during emergency declared in accordance with the Constitution is “per se” constitutional, and arguably not subject to judicial review,” Teh said.
The Constitution of Liberia also limits government powers to deny a person’s right to protest through peaceful assembly and to hold consultations. It provides that, “[a]ll persons, at all times, in an orderly and peaceful manner, shall have the right to assemble and consult upon the common good, to instruct their representatives, to petition the Government or other functionaries for the redress of grievances and to associate fully with other or refuse to associate …” However, the right to protest through assembling or associating with others is not absolute.
Because the Constitution only authorizes “orderly and peaceful” assembly, he explained “Protest is not violent, and violence is not constitutionally protected. This means that the government always has a viable interest to regulate protest to ensure it conforms to the Constitution.”
He said that government interest to regulate the “place” and “manner” in which a protest held are usually upheld. Such interest justifies constitutionality of a notice statute or regulation, but not a permit statute or regulation. Therefore, it is true that while the government may not deny a person’s constitutional right to peacefully protest, government may regulate the “place” and “manner” in which the protest is conducted.
Protest and Constitutional Democracy
Teh narrated that the Liberian Constitution guarantees protest as an expressed fundamental right. The right to protest is so intrinsic to the ordered sense of liberty consistent across free societies. Our Constitution limits government powers and permits protest that has the character of positively supporting a democratic and constitutional order. Protest and democracy are like teeth and tongue. “Hence, the right to protest and express oneself freely is an important element of our democracy, which is deeply rooted in Liberian traditions and values, and enjoyed since the birth of this Nation,” he added.