-Says ‘Holding by-election not discretionary, but constitutional’
After waiting for weeks to get results from its quest for a Writ of Mandamus against the House of Representatives, the National Elections Commission, and the Executive Branch of Government, the Supreme Court on Thursday, October 29, 2020, said the holding of a by-election is “Not discretionary but a constitutional right.”
In addition to the mid-term election for 15 of the 30 Senators in the Legislature, the country has two by-elections to conduct to replace Sinoe County District #2 Representative Nagbe Sloh, and Montserrado County District #9 Representative Munah Pelhem Youngblood who virtually died together a few months ago.
The CPP had earlier petitioned the court for a writ of Mandamus praying the court to compel the National Elections Commission (NEC), the House of Representative and the Executive Branch of the government to conduct the Representative by-election in both Montserrado and Sinoe Counties on or before October 28, 2020.
Article 37 of the Constitution states that: “In the event of a vacancy in the Legislature caused by death, resignation, and expulsion or otherwise, the presiding officer shall within 30 days notify the Elections Commission thereof. The Elections Commission shall not later than 90 days thereafter cause a by-election to be held; provided that where such vacancy occurs within 90 days prior to the holding of general elections, the filling of the vacancy shall await the holding of such general election.”
Denying the CPP’s request, Justice Jamesetta Wolokollie, who read the court’s opinion said: “The alternative Writ of mandamus is squashed and the preemptory Writ is denied.”
Before the court’s opinion, members of the House of Representatives had argued that the doctrine of the separation of power as in keeping with Article 3 of the 1986 Constitution, the court lacks the jurisdiction over the person and the office of the Speaker and members of the National Legislature (in session) for the reasons that formed the basis of the CPP petition.
In their petition, the CPP argued that the Legislature’s disregarded the country’s constitution to notify the NEC of the death of Sloh on September 10, 2020, seventy–two (72) days after his death, while in the case of Rep. Youngblood, NEC was notified on September 10, sixty-four (64) days after her death, instead of notifying NEC within 30 days of the vacancies as mandated by Article 37 of the 1986 Constitution.
In a counter-argument, the House of Representatives said there is an exception to the rule of law that the court, pursuant to its interpretation, review and declaratory power as keeping with Article 2 of the Constitution, can only review, declare, or interpret the action performed and activities carried out by the Legislature when they are found to be absolutely repugnant to the 1986 Constitution, or when they are fundamentally found to be in violation of the tenet to due process, which they claimed is not in the case of the CPP request.
“This is a recipe for a constitutional crisis and the CPP knows it and had the reason to know the court is constitutionally limited both in scope and character to mandate, compel, or instruct the House of Representatives to perform its duty and yet chose to file the petition against it,” the House lawyers said.
The NEC argued that the Writ of Mandamus cannot lie against it because it set the by-election time of December 8 that is within the 90-day timeframe prescribed by the Constitution after the NEC received notification from the presiding officer of the House of Representatives as mandated by the Constitution.
In agreement with the NEC, Justice Wolokollie ruled that the setting of the December 8 date for the conduct of the by-election does not violate the Constitutional period of 90 days because the House of Representatives informed the NEC on September 10 about the vacancies created by the death of Representatives Sloh and Youngblood.
Justice Wolokollie further ruled that pursuant to its constitutional power of Judicial review, the Supreme Court has jurisdiction in cases, whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies, or any other authority.
“The Legislature shall make no law to create any exceptions as would deprive the Supreme Court of any of the powers granted to its under the Constitution,” she said.
She added that consistent with the foregoing, “This Court has jurisdiction to hear and determine these mandamus proceedings against the legislature and executive branch of government; that in the exercise of its jurisdiction, the court or its Justice sitting in Chambers may cite, summon, mandate, order it instruct party litigants to do or refrain from doing any act, including the issuance of the alternative Writ of mandamus directed to the Legislature and Executive branches.”
Justice Wolokollie further ruled by saying, “notwithstanding our position that mandamus will not lie, we take note. However, that the delays in the conduct of the by-election to fill vacancies in the Legislature negatively impact or undermines the exercise of the Right of the people to representation in the governance of the country, a right enshrined in the Constitution of Liberia, therefore, institutions of government are obliged to strictly adhere to timelines set by the Constitution and other laws for the conduct of By-election.