Liberia Judiciary System Not Independent -Says Judge Smith

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A Liberian Circuit Court Judge has spoken of how political interference has undermined the independence of the Liberian Judiciary and he is calling for this practice to stop, as Garmah Never Lomo reports. Judge George W. Smith of the 15th Judicial Circuit Court in the southeastern River Gee County raised the issue in his charge recently delivered during the opening of the November Term of court. And his statement comes ahead of the inauguration of the incoming President Joseph Boakai in January 2024 and the seating of the 55th National Legislature, after the 2023 presidential and legislative elections. He said political interference in the Judiciary undermines the administration of justice and obstructs the upholding of the rule of law in the democratic system. The Circuit Court Judged delivered his charge under the Theme: “The Liberian Judiciary, The Chief-Pillar Upon Which Our National Government Rests – The Foundation Cornerstone of National Economic Development and Prosperity.” Judge Smith’s assertion comes over a week after theJudge of Criminal Court “B” in Monrovia, Nelson B. Chineh acknowledged and concurred with public criticisms that the Judiciary branch of government is corrupt and has to battle against political and other interferences. Corruption And Political Interference Have Ruined Liberia’s Judiciary- Says Judge Chineh – News Public Trust Judge Smith added that Judicial impartiality is fundamental to the rule of law. BELOW IS JUDGE George W. SMITH’S CHARGE: In view of the importance (US) President Washington and Justice Stewart attached to the judiciary and the administration of justice – yes, the rule of law and its impact on national economic development and prosperity,  I dedicate this Charge to the January 2024 inaugural Presidency and the 55th National Legislature. In order for a country and its people to enjoy national economic development and prosperity, that nation should have an independent judiciary. According to Judge George W. Smith, An independent judiciary or judicial independence is the ability of judges to freely do their work as provided by law – to administer justice, decide cases impartially without improper external interference or influence from sources like the legislature and/or executive.   “The principle of judicial independence also means judges’ freedom from internal influences from sources like superior judges, as well as freedom from vulnerability to judicial corruption. Judicial independence is cardinal to judicial impartiality. “  The rule of law is a foundation cornerstone of a peaceful and an orderly society wherein individuals adhere to the rule of law in resolving their disputes rather than resorting to private vengeance and self-help or lawlessness.  Justice, peaceful and orderly society are desiderata of a friendly business climate for the ease of doing business and thus encouraging business investments in a country because investors are assured that their business interests will be protected by the courts. Ultimately, business investments lead to national economic development and prosperity.  And this is why President George Washington and Justice Stewart spoke of the judiciary essentially “as the chief-Pillar upon which our national Government must rest” and “The Administration of Impartial Justice: The Cornerstone of a Nation.”   They were speaking of judicial independence. According to the South Carolina Supreme Court: “Judicial independence is not for the protection of judges …. The principle of judicial independence is designed to protect our system of justice and the rule of law, and thus maintain public trust and confidence in the courts. With judicial independence, the winners are everyone.”  3 President Washington and Justice Stewart’s description of government and judicial independence is likened to a house and a triangle. We start the construction of our houses from strong foundations and pillars up to the roofs in order to support the whole structures of the buildings.

 The three branches of government – the legislature, executive and judiciary – are a three sided co-equals and coordinate triangle. The left and first side of the triangle represents the Legislature, the first branch of government; while the right and second side of the triangle is the Executive, the second branch of government; and the third line, the base and foundation of that triangle upon which the first and second lines, that is the first and second branches of government, the Legislature and Executive, as well as the whole nation, rest, is the Judiciary, the third branch of government. The whole triangle, the nation, is liable to collapse if the base/foundation of that triangular government, the judiciary, is fragile. Therefore, good governance starts from building a strong national judiciary, the third branch of government – the base, the foundation and pillar – upon which the other two branches of the Legislature and Executive, and in deed the whole nation, rest.  The Judiciary branch supports and sustains the whole structure of the government and nation. Otherwise, the whole government will eventually collapse, like during the Liberian civil war. This means the Judiciary MUST be given financial support before the Legislature and Executive. I therefore charge the incoming Presidency and 55th National Legislature to follow the precedence of the United States and other jurisdictions, where financial support to the judiciary is given priority.   For instance, from 2009 to now, lawmakers in the United States decreased their salaries and declined to adjust and increase same, while they have continued to adjust and increase their judges’ salaries annually.   In fact, as I have stated in this Charge, from the time the US was established up to now, at no time did the US Government reduce their judges’ salaries; and, whenever inflation reduces the money value or purchasing power of those salaries same are adjusted to withstand inflation.  2 The US Government, from whence ours is modeled, prioritizes and supports the judiciary financially because this is a prerequisite to judicial independence, judicial impartiality, the rule of law, justice, peaceful and orderly society, friendly business environment for the ease of doing business, business investments, and ultimately national economic development and prosperity.   The Judiciary sets the stage for national economic development and prosperity – building our infrastructures like roads, schools and hospitals; employment or jobs creation; payment of adequate salaries and benefits to officials of the other branches of government, civil servants, doctors, nurses and all health workers, teachers, the army, police, security, among others; and payment of salaries, goods and services on time, among other things.   Also, the private sector – comprising business enterprises – the higher employer as compared to government, the public sector – booms. Therefore, the judicial independence’s compensation protection clause – Article 72(a) of our Constitution – has a great economic multiplier effect. Evidently, this is why from 1789 when the US Federal Government was inaugurated up to present, even during great economic crises, the dollar amount of federal judges’ salaries had at no time been reduced. For instance, during the Great Depression (1929-1939), in order to balance the national budget, the US Government passed the Appropriation Act of June 30, 1932.4 This Act reduced the salaries of Federal Government officials5, except Federal judges6 whose compensation is constitutionally protected. And in order to preserve inviolate the judicial compensation protection clause of the Constitution, whenever Federal Judges’ compensation is indirectly diminished by inflation – where the dollar value is diminished – same is adjusted to counted inflation.7 The constitutional prohibition against reducing judicial compensation, even during economic crisis, is applicable in this jurisdiction since our Constitution is modeled after the US Constitution, particularly the judicial compensation protection clause of the Constitution, and as continually interpreted by the US Supreme Court.

 8 Therefore, the no-money/bad economy argument – the “no-money syndrome” according to one of our magistrates, for reducing judicial compensation in this jurisdiction is legally groundless.   This argument is a faulty reasoning since it begs the question and appeals merely to pity. In other words, this no-money syndrome argument commits the fallacies of petitio principii (question begging), argumentum ad misericordiam (argument appealing to misery or pity) and loose generalization.   In the public interest, not in the private interests of judges, the framers of the Liberian Constitution, like those of the US Constitution, guaranteed judicial independence in our Constitution, Article 72 thereof, protecting the compensation and tenure of judges in that such compensation and tenure shall not be dependent on the will and pleasure of the Legislature and Executive, thus enabling judges to freely dispense justice impartially without improper external influences.  I will limit myself to Article 72(a) of the Constitution which protects judicial compensation against reduction in that such reduction shall not be dependent on the will and pleasure of the legislature and/or the executive because, according to Alexander Hamilton: “In the general course of human nature, a power over a man’s *or a woman’s+ subsistence amounts to a power over his [or her] will.”9 3 According to the United States Supreme Court, control over the “compensation of judges is incompatible with a truly independent judiciary, free from improper influence from other forces within the government.”

 10 The judicial compensation protection clause of the Constitution, in addition to promoting judicial independence, judicial impartiality, the rule of law, justice, peaceful and orderly society, friendly business environment for the ease of doing business, business investments, and national economic development and prosperity in our Country, Article 72(a), the judicial compensation protection clause of our Constitution, insures and assures a prospective judge that when he/she abandons private practice of law which is more often lucrative than the judgeship, the compensation of the new post as a judge will not diminish. 11 With that insurance and assurance, able and competent lawyers are attracted to the judgeship “and thereby enhancing the quality of justice”12 in our Country. It must also be noted that the constitutional prohibition against diminishing judges’ compensation serves another important purpose. The Ethics Reform Act of the US limits the ability of federal judges to earn income outside their employment.13 Similarly, Section 13.4(2) of the Judiciary Law prohibits Liberian judges from engaging in the commercial practice of law and Judicial Canons 6 and 31 prohibit them from engaging in commercial business. Therefore, in order to compensate judges for limiting their ability to earn incomes outside the judgeship, the laws in both jurisdictions protect their compensations from being diminished.   Article 3, Section 1 of the US Constitution protects judges’ compensation from being diminished. In Liberia, Article 72(a) of the Constitution, Section 13.4(2) of the Judiciary Law and Judicial Canon 6 protect the compensation of judges from being decreased. The constitutional prohibition against diminishing judges’ compensation is so sacrosanct and cardinal to national economic development and prosperity such that the US Supreme Court has admonished that it is the obligation and duty of all judges to resist any attempt to diminish their compensation, directly or indirectly, in violation of the Constitution.   That resistance is in the interest of an unimpaired administration of justice for the public good, not the judge’s private interest. In the words of the US Supreme Court, speaking through Mr. Justice Sutherland: “There rests upon every federal judge affected a duty to withstand [resist] any attempt, directly or indirectly [to diminish his/her compensation], in contravention of the Constitution, … not for his [or her] private advantage, but in the interest of preserving unimpaired an essential safeguard adopted as a continuing guaranty of an independent judicial administration for the benefit of the whole people.”  14 Considering that economic investment is critical to our national economic development and prosperity, on February 1-2, 2019, representatives of the three branches of the Liberian Government, the Legislature, the Executive, and the judiciary, along with other stakeholders, met in Gompa City, Nimba County, to discuss our Country’s business climate issues.  The aim of 4 that meeting was to find ways of resolving those barriers that hinder business investments in our Country and do those things that encourage business investments. During the meeting, the protection of investors’ business interests by our courts, particularly the enforcement of contractual rights and obligations and resolving insolvency/bankruptcy issues, were recognized as factors critical to encouraging business investments in Liberia.  Consequently, the Executive, through the Chairman of that meeting, the Minister of Finance and Development Planning, the Government promised to support the Judiciary branch financially. In October, 2019, the Government, consistent with Article 72(a) of the Constitution, increased the salaries of judges and magistrates.  Unfortunately, however, in violation of the same Article 72(a) of our Constitution, the Government from October 2019 up to now continues to unconstitutionally withhold judicial allowances expressly provided for by the Constitution. Consequently, the aggregate and take-home net salaries of judges and magistrates have significantly been diminished in contravention of our Constitution, Article 72(a) thereof.   The unconstitutional reduction of judicial compensation in Liberia undermines judicial independence, the rule of law, Liberia’s friendly business climate for the ease of doing business, business investments, and ultimately economic development and prosperity. Besides, the reduction of judicial compensation violates the human rights of judges/magistrates and their families.  This violation is not only of our domestic laws but also international human rights laws.15 “We *judges and magistrates+ are agents of peace.”16 We shall exhaust all domestic legal remedies at our disposal to stop the unconstitutional diminution of our compensation and the refund of our allowances unconstitutionally withheld from October 2019 to present.  Every Liberian judge/magistrate has a duty, to resist, in accordance with law, the unconstitutional reduction of judicial compensation, according to the US Supreme Court, not for his/her private advantage, but in the interest of preserving unimpaired an independent and impartial administration of justice for the public good – judicial independence, judicial impartiality, the rule of law, peace and orderly society, business investments, and national economic development and prosperity. newspublictrust.com

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