Article 38 of the Liberian Constitution provides, “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. Each House shall establish its own committees and sub-committees; provided, however, that the committees on revenues and appropriations shall consist of one member from each County. All rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution”
Without a formal charge or due process, there is an attempt to cast a vote on the speaker's removal. Can they do so? Can this attempt be constitutionally challenged?
In this situation, several constitutional principles and legal doctrines come into play, including due process, the separation of powers, the political question doctrine, and judicial review.
Let's explore the issues and how a legal challenge might unfold, addressing the constitutionality of the speaker's potential removal without formal charges or due process.
- Due Process and Article 38 of the Liberian Constitution
Article 38 of the Liberian Constitution clearly states that each house of the Legislature may expel a member for “cause,” with the concurrence of two-thirds of the membership. However, it also mandates that “all rules adopted by the Legislature shall conform to the requirements of due process of law.”
In this case, the removal attempt appears to be initiated without a formal charge or adherence to due process, which is constitutionally problematic.
Due process requires notice of the charges, an opportunity to respond, and a fair procedure for determining the matter. A vote on the speaker’s removal without these procedural safeguards would likely violate Article 38, as the “for cause” provision implies a need for legitimate grounds for removal that must be demonstrated through a fair process.
The speaker could challenge the removal attempt on the basis that due process rights are being denied. Precedents from other jurisdictions suggest that actions taken by legislative bodies must adhere to their own established rules and procedures, particularly when constitutional rights like due process is involved.
- Political Question Doctrine and Separation of Powers
The political question doctrine holds that certain issues are inappropriate for judicial review because they fall under the purview of the other branches of government. However, the doctrine is limited in its application and does not shield all legislative actions from judicial scrutiny—especially when constitutional violations are at stake.
In this case, while the legislature has the authority to regulate its internal procedures and discipline members, the courts may intervene if constitutional rights, such as due process, are violated. Courts are generally hesitant to interfere with internal legislative matters, but when a clear constitutional violation (such as the denial of due process) is alleged, the judiciary has the power to review and potentially overturn legislative actions.
The speaker’s removal without a formal charge or due process could be challenged in court under the principle that constitutional guarantees supersede internal legislative procedures. Separation of powers does not insulate the legislature from complying with the Constitution, and courts retain the authority to ensure that constitutional protections are upheld.
- Judicial Oversight and Review of Constitutional Issues
Liberian courts, like those in many other legal systems, have the power to review legislative actions to ensure compliance with the Constitution. In Perry v. House of Representatives (Liberia), the Supreme Court ruled that the judiciary could review internal legislative actions when they implicate constitutional issues, such as a violation of due process or a fundamental right.
If the speaker were to challenge the removal attempt, the court could review whether the legislative body’s procedures violated Article 38’s due process requirements. The judiciary has a constitutional duty to protect fundamental rights, and if the speaker’s removal process lacks transparency, fairness, or valid cause, it could be struck down.
- Precedents in the Removal of Former Speakers
Precedents involving the removal of former speakers of the Liberian House of Representatives could guide the court’s decision. For instance, in Snowe v. House of Representatives, a case involving the removal of former Speaker Edwin Snowe, the Supreme Court of Liberia intervened when the removal process was conducted without following established procedural rules. The Court ruled that the speaker’s removal was unconstitutional because it lacked due process and failed to follow the house’s own rules.
Similarly, in this case, the absence of formal charges and a due process hearing could provide a strong basis for challenging the speaker’s removal.
- Legal Challenge the Speaker May Interpose
The speaker can raise the following legal challenges:
Violation of Article 38: The speaker could argue that his removal without formal charges or due process violates Article 38 of the Constitution, which requires adherence to due process in legislative actions.
Separation of Powers and Political Question: While removal from office might seem like a political question, the speaker could argue that the judiciary must intervene to ensure that the Constitution’s due process requirements are upheld, as established in cases like Perry and Snowe.
Judicial Review: The speaker could request judicial review to ensure that the legislature’s actions conform to constitutional standards. Given past cases, courts are likely to intervene if constitutional violations are apparent.
Even if the rules provide for removal in the manner being attempted, the rules itself can be challenged because Article 38 requires the rules to be unconformity with the constitution. That a member may be expelled for cause also implicates that the Speaker should be removed for cause.
More, Article 20(a) states “No 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.” The speaker is also accorded these protections.
There may also be public policy considerations. Public policy demands that the office of the speaker be protected to ensure the impartial and effective administration of legislative duties, free from arbitrary or capricious political attacks. The integrity of legislative processes depends on stable leadership that can act independently of partisan pressures.
Public policy strongly favors adherence to the rule of law and due process in all governmental actions, including within the legislative branch. The removal of the speaker must be based on clear, justifiable grounds, and conducted in a manner that respects procedural fairness and transparency. Arbitrary removal would violate the constitutional requirement of due process, as articulated in Article 38 of the Liberian Constitution, which requires cause for expulsion and conformity with due process principles.
Conclusion
The attempt to remove the speaker of the House without formal charges or adherence to due process can be constitutionally challenged. Due process is a fundamental right enshrined in the Liberian Constitution, and any removal that fails to meet these standards is subject to judicial review. The courts would likely find the removal attempt unconstitutional based on established precedents and Article 38.
Furthermore, while the political question doctrine often shields legislative processes from judicial interference, constitutional violations such as the denial of due process fall within the judiciary’s purview, ensuring that legislative bodies operate within constitutional bounds.
Caveat: This does not represent legal advice. The analysis may be inaccurate based on the author’s inaccurate understanding of the problem.
Cllr. Aloysius Teah Jappah is a member of the New York State Bar Association and the Supreme Court Bar Association of Liberia
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The Problem
The speaker of the house orders the GAC to audit the house to the consternation of it’s members. A bloc is leading an attempt to remove the speaker.