Justice Minister Didn’t Transgress Any Law

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Recently, attorney Kate Chang wrote an article in response to the contempt charges levied by the Supreme Court of Liberia against Justice Minister Christiana Tah for the compassionate leave of Mr. Rodney Sieh.  In essence, attorney Chang appears to be making the case that the Supreme Court is acting outside of its judicial powers and encroaching on the bounds of separation of powers as the statute in question specifically granted/vested sole authority to administer the rules and regulations concerning compassionate leave in the minister.  I would like to make the following six salient points in response to said article by attorney Kate Chang pertaining to the aforementioned.   

1) §34.20(1) of the Liberian Criminal Procedure Code states the following:

1) “The Minister of Justice shall formulate rules or regulations governing compassionate leave from institutions and, in accordance with such rules and regulations, may permit any prisoner to leave his institution for short periods of time, either by himself or in the custody of an officer, to visit a close relative who is seriously ill, to attend the funeral of a close relative, to return to his home during what appears to be his own last illness, or to return to his home for other compelling reasons which strongly appeal to compassion. The rules or regulations shall provide for the manner in which compassionate leave shall be granted, for its duration, and for the custody, transportation, and care of the prisoner during his leave. They shall also provide for the manner in which the expense connected with such leave shall be borne, and may allow the prisoner, or anyone in his behalf, to reimburse the State for such expense.” (emphasis added)

The Constitution of the Republic of Liberia, Chapter III, Article 11(c) and Article 20 (a) respectively state that “[a]ll persons are equal before the law and are therefore entitled to the equal protection of the law” and “[n]o person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in  accordance with due process of law.” (emphasis added).   Furthermore, the Constitution of the Republic of Liberia Chapter III, Article 21 (d) states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.”  (emphasis added).   Generally-speaking, a high court usually and/or customarily affirms with and agrees with the legal tenet that the bar of a citizen’s constitutional rights should be the ceiling, i.e., the more rights and freedoms granted/afforded the citizen, the more in conformity such action is within the metes and bounds of the constitution.  Thus, the fact that Mr. Sieh was granted compassionate leave as opposed to denied compassionate leave would be considered an expansion of his constitutional rights as opposed to a restriction of same.  Moreover, said compassionate leave is consistent with and in conformity with the exhaustion of due process and equal protection for all citizens as guaranteed under the Constitution of Liberia.

2) While the plain language of  §34.20(1) and legislative intent appears to have exclusively granted the minister the right to establish administrative rules and regulations including granting or refusal to grant compassionate leave, in carrying out said duties, it is not unheard of that the minister’s actions still be subjected to judicial oversight and review but such intervention is usually/typically in instances to ensure equal protection and due process for the citizen as opposed to stepping in and rendering a holding which effectively restricts and limits the constitutional rights of the citizen.  However, as it does not appear to be the case that §34.20(1) or any other rule, law or statute granted any authority to the Supreme Court to make a final determination as to whether or not a particular citizen should be granted compassionate leave or not, the Supreme Court of Liberia should be relegated to its more typical role, i.e., judicial oversight and review of purportedly unjustly applied laws and/or unconstitutional application of the law.  That is, the Supreme Court of Liberia ought to only intervene in such cases where for example there is an issue of arbitrary application of the law and/or uneven application of the law which has the propensity to negatively impact due process and equal protection (i.e., a reduction of constitutional rights (race to the floor) as opposed to an expansion of constitutional rights (race to the ceiling).

3) I Liberian Code of Law Revised, Subchapter C §44.71(2)(e), Subchapter C §44.71(2)(e), provides:

§ 44.71. Methods of enforcement.   

2. Judgments enforceable by imprisonment if execution not satisfied. Judgments in any of the following actions shall be enforceable by execution, but if the judgment debtor cannot or will not pay the full amount of the judgment together with interest and costs, the sheriff shall arrest him and the court shall order him imprisoned for a period sufficiently long to liquidate the full amount of the judgment, interest, and costs at the rate of twenty-five dollars per month:

(a) Adultery;

(b) Seduction of wife or child;

(c) Illegally taking away or harboring a wife or child or ward under twenty-one years of age;

(d) Enticing an incompetent away from his legally appointed trustee or guardian; or

(e) Injury to the reputation when the words spoken or written are actionable per se. (emphasis added).  

This seemingly archaic civil law statute effectively allows the potential long-term imprisonment as punishment for failure to satisfy a monetary judgment.  In theory such monetary judgment has the potential to impose imprisonment-in-perpetuity and/or until death if one cannot satisfy the judgment.   Although imprisonment in civil cases may be imposed for failure to pay monies such as sometimes in child support cases for example in the USA, imprisonment is often much more associated with criminal proceedings as most/many debtor courts have become relics of the past.  Thus, although the Sieh case was that of civil proceedings, one can proffer a strong argument that the highly probable long-term imprisonment of Sieh (as it does not appear that he had sufficient assets to satisfy the judgment) morphed into and became tantamount to and/or equivalent to a criminal punishment.  In my opinion, because of the above, Minister Tah was well within her rights to make a determination as to whether or not to grant compassionate leave of Mr. Sieh under 34.20(1) of the Liberian Criminal Procedure Code.  Based on the aforementioned set of circumstances, in keeping with its more cherished /critical/fundamental role as guardians of equal protection and due process for all, the Supreme Court of Liberia should not have held the minister in contempt of the Court.

4) Moreover, though not a “perfect” argument (no argument ever really is to some extent), I am generally in agreement with attorney Chang that “[t]he Supreme Court lacks jurisdiction to punish the Minister of Justice for contempt in a matter independent of any actual proceeding before it.  Sieh’s petition to the Minister, as a representative of the Executive, was extrajudicial to the extent that it was made independent from an active legal proceeding before the court. In the same vein, the Minister’s concession of leave was not as an adjunct of the Judiciary but as an autonomous agent of the Executive, outside the purview of the courts even if relating to an issue which arose out of an act of the Judiciary.”  The only caveat I would add is that even said so-called “extrajudicial” proceedings are still subject to the overall review of the Supreme Court primarily for purposes of ensuring equal protection and due process.

5) Furthermore, in my humble opinion, the Supreme Court’s holding of contempt against Minister Tah is unconstitutional as it has no basis in law for rendering its holding of contempt especially when viewed within the larger and more fundamental context/prism that the Minister’s action actually expanded the civil and constitutional rights (equal protection and due process) of Mr. Sieh as opposed to restricting it.   Potentially holding Mr. Sieh in prison for possibly for the duration of his natural life for failure to satisfy a monetary judgment is both cruel and unjust. None of the amicus briefs submitted in the relevant contempt hearing proceedings negates the fact that Minister Tah’s compassionate leave of Mr. Sieh is in conformity with the most important tenet/principle of the Constitution of the Republic of Liberia, i.e. securing equal protection and due process of the citizen including a respite from the application of cruel and unjustly harsh laws, inhumane treatment and freedom of expression[1].  

6) Instead of being preoccupied with and laser-focused on levying contempt charges against Justice Minister Tah, acting on its own volition, i.e. sua sponte, the Supreme Court of Liberia was duty-bound to address the inherent (implied) and explicit unconstitutionality of I Liberian Code of Law Revised, Subchapter C §44.71(2)(e), especially in view of Liberia’s sordid history of political subjugation, intimidation and marginalization, repression of freedom of the press and the endemic abuse of powers and lack of transparency and accountability by those in positions of authority and public trust.   Like the Supreme Court of Liberia in a ruling concerning an appellant-defendant seeking release from prison after his failure to satisfy a judgment debt warning “[c]ounselors of the Supreme Court not to use the Court system as a tool of manipulation to frustrate the rights of parties’ litigants and thereby render the entire system ineffective thereby bringing it to disrepute and Supreme Court ended its ruling by imposing a fine of L$2,500.00 on counsel for the appellant”[2], the current Supreme Court of Liberia in the Toe v. FrontPage Africa likewise missed a golden opportunity to substantively address the inherent (implied) and explicit unconstitutionality of I Liberian Code of Law Revised, Subchapter C §44.71(2)(e).  The Court’s failure to address the aforementioned more critical and fundamental issues effectively perpetuates the possibility that said relevant statute will be further utilized to unjustly silence and intimidate members of the press, political opposition and commentators including the general public.  Even still, these archaic civil laws/statutes with the potential to impose imprisonment-for-perpetuity and/or until death, must be done away with by the legislative body in Liberia to prevent civil monetary penalties from transforming into the realm of criminal punishment, i.e., potentially long-term imprisonment.  Should the legislative body in Liberia fail to remedy this situation, it will undoubtedly repeat itself as some will seek to harass and intimidate the press, political opponents and commentators including the ordinary citizen seeking to expose improprieties, corruption and the misrule-of law and lack of transparency and accountability, into silence and oblivion by bringing more civil lawsuits asserting injury to reputation or even adultery or seduction of child or wife with the ultimate goal of securing the long-term imprisonment for failure to satisfy huge monetary judgments.   

Brief Bio

 The author, Dr. Harven V. DeShield, Esq., is an intellectual property attorney who resides and works in Chicago, Illinois.  The scope of his legal practice encompasses litigation and counseling encompassing pharmaceutical, biomedical, chemical and life sciences.  Dr. DeShield received a Ph. D. in Biochemistry, a Master of Science in Biological Sciences and a Juris Doctor (equivalent to a Bachelor of Law degree) with a concentration in intellectual property and technology law from the State University of New York at Buffalo.  He received his B.S. degree, with honors, from Appalachian State University in Boone, North Carolina.  He is currently employed with Rackozy Molino Mazzochi Siwik, LLP. 

Disclaimer

 The opinions and analysis expressed in this article are solely the views of Dr. Harven V. DeShield, Esq. and does not reflect the views and opinions of anyone else or any other entity including Rackozy Molino Mazzochi Siwik, LLP or the Daily Observer. 

Constitution of the Republic of Liberia, Chapter III, Article 11; Constitution of the Republic of Liberia, Chapter III, Article 20; Constitution of the Republic of Liberia, Chapter III, Article 15; International Covenant on Civil and Political Rights, Article 19; African Charter on Human and Peoples’ Rights, Article 9.

Houssenini v Jawhary [2005] LRSC 44 (16 September 2005)

 

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