BY JEROME J VERDIER
COUNSELLOR AT LAW & CHAIRMAN OF THE FORMER TRC OF LIBERIA
LIBERIA: SUPREME COURT FLEXING CONTEMPT POWERS WITH UNCANNY ABUSE
Press Freedom Is a Right
Easy prey for the Supreme Court contempt powers are lawyers and the media. Lawyers inevitably swallow their pride and concede the indignities of Supreme Court contempt powers to uphold the "dignity of the fraternity" or be "on the good side of the court" that peddles justice. However, the media is different. The media lives with and is reminded of how the devastation of historical power abuse in Liberia destroyed Liberian society and bred dictatorship and patronage that silenced independent voices.
Freedom of expression, speech and of the press in Liberia was a battle won with a heavy price, and the media, more than any other institution, is aware of this bitter struggle. The media therefore considers its primary responsibility to safeguard this freedom as second only to the courts, which are mandated to protect universal freedom and civil liberties. Freedom of speech and of the press is GOD-given and inalienable. The increasing independence of the media is giving voice to ordinary people and exposing corruption in government. The "usual suspects"—corrupt officials of government who bleed the public treasury to death—are threatened by the mere existence of the independent media, and thus, seek the destruction of reputable media outlets and institutions. The media must never surrender its civic and constitutionally guaranteed right by cowing to submission and intimidation of the courts, or the Honorable Supreme Court.
The Nature of the Court-It has no Power!
The Honorable Supreme Court is a creature of the Constitution of Liberia. It therefore derives all its powers from the consent of the people and earns its trust, respect and dignity from society based on how it dispenses justice without fear, favor or vested interest. The high standing and noble stature of the Court is protected by society based on the Court's morality and integrity. The Court has no police force or military power to protect itself or enforce its actions or judgments. The power and authority of the Court rests squarely on its moral force and the perception of society that it is an independent, unbiased umpire in all controversies and disputes brought before it, as the foremost guardian of civil liberties and human rights.
A closed society of corrupt elites that is obsessed with and abuses naked power to shield their crimes and perpetuate impunity is never amenable to "media pluralism" or the fruits thereof—namely tolerance, greater awareness, active civil society and diminished respect for corrupt public officials. Indeed, such corrupt elites will stop at nothing to destroy the media and its societal impact. The Supreme Court, instead of strengthening constitutional and legal safeguards to protect the free media against unwarranted governmental control and interference, is unfortunately leading the campaign to destroy this indispensable pillar of democracy. The Court's unwarranted challenge of the free media is indicative of the decline in the rule of law for the rule of men in Liberia. This decline breeds inequity and discontent of the sort that leads to disruption of the orderly progress of our society, lest we forget!
Power of Contempt is Extraordinary; It Should Not Be Abused!
The power of contempt—that is, the power of the Court to prevent any person (natural or artificial) from interfering with either the administration or enforcement of justice— is the only legal power and authority the Court has to protect its unassailable integrity. This is an extraordinary power and therefore must not only be used sparingly, but also with extreme caution and discretion founded on public policy. Criminal contempt occurs when committed in the presence of the Court or even outside of its presence if the act is clearly designed to embarrass the Court or retard the pursuit of justice. In short, criminal contempt arises when there is interference with the work of the Court, in which case the charge against a citizen must be balanced against his constitutionally protected right to free speech. Civil contempt occurs when there is disobedience of the Court's orders. In neither of these instances does there exist a proper case for contempt against the Frontpage and the two other newspapers.
This is classical abuse of public office and power.
By Jerome J. Verdier, Sr.
This is classical abuse of public office and power.
Abuse of public office, I remember, was one of the reasons the coup makers of April 12, 1980 set as justification for the military takeover.
The contempt power granted the Court must never be the subject of abuse, as it frequently is in cases brought against the free press. The free press is not a member of the Supreme Court and therefore not subject to the rules and ethical regulations pertaining to contempt, as are lawyers. When utilized properly, the power of contempt promotes respect for the Court and protects its integrity. When abused, it undermines the Court's integrity and corrodes the very public trust and confidence that such power was intended to protect and uphold.
Unfortunately, there is no contempt law in Liberia known to the author, the free press or the general public. This power, defined only by judicial history, is very often the subject of abuse based on the broad provisions of the Constitution of Liberia and the whims and unbridled discretion of judges, especially the Supreme Court which has a narrow parochial view of itself as a super structure above society and immune from public scrutiny, criticism and probity.
Is the Court Immune From Scrutiny?
No, it is certainly not. Because judges are public servants, they are not beyond reproach or insulated from public scrutiny, criticism, or even condemnation. Public expectations of the Court are extremely high. Thus, public speech and inquiry about the integrity of the Court are pivotal. The value of public speech that addresses the work of the Court and its functions and opinions by far outweighs the personal and collective concerns of Justices for their high status or respect.
Public Policy and Free Speech
Free speech is as precious as life itself and second only to life. It is indispensable to sustaining democracy and building an open society. It must never be curtailed or subject to unreasonable restraint, unless under extreme circumstances pursuant to public safety and policy. In relation to the Court, free speech of the individual or the press must be (i) balanced as against the real interest of the Court and society to protect and advance the administration of justice and (ii) curtailed in a limited sense only when it is necessary to ensure that the public interest in the free and equitable dispensation of justice is neither hindered nor prejudiced.
By no stretch of the imagination do the requisites for establishing contempt exist here with respect to the actions of these three media institutions. The Honorable Supreme Court is supreme, I agree. But that supremacy doesn't stand alone. It is determined and measured by the extent to which the Court is honorable and willing to dispense justice fairly and judiciously in conformity with time-honored law. In a contempt proceeding involving free speech, it is an indignant act for the Court to try its own case, while simultaneously serve as the accuser, defendant, judge, jury and executioner.
Speech, however effrontery it may be—not bearing on a matter before the Court, or attempting to influence the opinion of the Court, or pitching public opinion against the integrity of the Court on that pending matter—is beyond the Court's reach, especially when the media is not bound by the same ethics or honor codes that govern the actions of lawyers. The free press owes its duty to the State, the consuming public and its profession. If any citizen, including Justices of the Supreme Court, feel injured by the free speech exercised by the media, his or her remedy lies in libel and/or other civil proceedings, rather than the power of "contempt," which may otherwise be misused as a refuge to cover up the truth and protect suspicious wrongdoing.
The Court has been accused. A Trial has commenced. It is the Supreme Court on trial, not the free press. By refusing to heed the wisdom of caution and respect for the free speech rights of the press, the Honorable Supreme Court has put itself on trial. What is the Court's defense? Who is the independent arbiter? Or judge of the facts? Will the Supreme Court exercise original jurisdiction and take evidence contrary to the Constitution of Liberia? If the contempt charge is criminal, why is the matter not turned over to the Attorney General for prosecution? The Court is proceeding wrongly and ill-advised by a sufficiently intimidated cowardice national bar that lost its sense of objectivity in public policy matters many years ago in "unwarranted reverence for and obsequiousness" toward the Court and the extensive parochial interests of individual bar members.
Condemnation for the Court
I agree the Court is supreme but I disagree with its parochial mentality in dealing with the media and the way it abuses its powers of contempt to intimidate, exact parochial loyalty and suppress the free media and free speech generally. I categorically condemn the citing of the media for contempt because of their publication on corruption in the judiciary and the vile threat of the "Chief" that "...we will punish you..."! It is this parochial and demagoguery mentality of our leaders that undermines the growth and development of the public sector and the progress of our society toward exemplified democracy. They assume a "super fly" status that puts them above, not only scrutiny, but society and the law. They feel they are doing us a favor, enjoy impunity without remorse and believe they are "untouchables," because they exercise public authority—not for the good of the public but for themselves. The mentality of public officials stealing from the public treasury and amassing ill-gotten wealth, while the public masses are impoverished, is pervasive and reinforced by this blatant level of parochialism.
How do you fight corruption without a strong robust and independent media? It is the duty of the media to expose corruption in the judiciary, especially the Supreme Court. And, in light of the absence of transparency and the refusal of the Judiciary to submit to an audit, it is the right of the media to speculate, if they may, about corruption in the Honorable Supreme Court, as well as expose every lead the media gathers. The media, by doing this, is performing its "watch dog" duties and doing both the Court and society a favor. The Court's only defense is the truth, which is best established not just by a well-meaning public statement of denial or a contempt trial, but principally by an independent forensic audit of the books, records and accounts of the Honorable Supreme Court. An audit of this nature has never happened in the last seven years during the incumbency of the current Head of State and this regime. Instead of being a partner in the fight for free speech rights against corruption, the Court is exhibiting partisanship on the part of corruption and human rights violations. Notably, neither of the other two branches - Executive Mansion and National Legislature - have demonstrated any inclination to being audited—one ravenous dragon with three heads!
Fight against corruption in Liberia is a rap for the West and backers of the predatory regime in Liberia.
Mere words, no deeds! Is anyone asking questions, such as where did the Head of State's son get his millions to construct "private" works in impoverished urban communities? Is anyone asking what happened to the estimated US$20 million reportedly paid by Chevron to this incurably corrupt regime? How complicit is the Court? Was the US$1.2 million referenced by the newspapers the Court's part of the bounty under the guise of the "development fund for the judiciary"? Were the proceeds budgeted?
It is this parochial mentality and corrupt inclinations of public servants in Liberia that makes them heartless oppressors who, without compassion, are out of touch with the realities of the country and the needs of the people. Despite massive international investment and financial assistance exceeding a total of US$1billion over the last six years, by conservative estimates, it is this mentality that places Liberia's performance at its lowest ebb in modern history. Liberia has either dramatically dropped or failed to make significant improvement according to every major international performance indicator. The indexes for economic freedom, corruption, transparency, human development, poverty, infant mortality, maternity care, general health, water and sanitation, education and security are all very poor.
Not only is Liberia listed as one of the three poorest nations in the world, but Liberia is also internationally known to be one of the most corrupt nations compelling the United States Government to freeze the "money" accounts of the Liberian Embassy in Washington due to questionable monetary transactions. We hope there will be a forensic investigation and auditing which will reveal, without doubt, unlawful transactions and corruption that will trace close relational ties between embassy officials and the highest level of government executives.
Recently, the reputed Freedom House in its "Freedom in the World 2012" Report designated Liberia as "Partly Free." The other two designations are "Free" and "Not Free." Liberia shows no ranked improvement on a "Freedom Status" scale of 1 - 7 with 7 being the lowest or worst case. Liberia is ranked 3 for political rights and 4 for civil liberties.
Freedom House's definition of "a Partly Free Country," which is quoted below, generally suits Liberia. And, the latest action of the Supreme Court against the free media only exacerbates the situation and exemplifies the national assault on civil liberties most especially those belonging to the free press, as the "watch dogs" of society.
"A Partly Free country [Liberia] is one in which there is limited respect for political rights and civil liberties. Partly free states frequently suffer from an environment of corruption, weak rule of law, ethnic and religious strife, and a political landscape in which a single party enjoys dominance despite a certain degree of pluralism".
This is true for Liberia except that ethnic and religious strife does not apply to Liberia. The free press must be defended. A free and responsible press strengthens democracy and exposes the ills of society, excesses of government and corruption. It likewise helps to keep government in check, gives a voice to the public and increases public access to vital information. The free press exposes the ignominy of public officials, thereby removing the undeserved reverence these officials enjoy from the mass public. For this reason, the media, operating in an environment of pervasive and permissive corruption, will be the subject of attacks and strategic litigation put forth by the very same public officials the media could potentially expose.
I am inclined to re-emphasize that instead of the Honorable Supreme Court leading efforts to strengthen constitutional and legal safeguards to protect the independent media, it is headstrong on leading a crusade of its own to persecute and intimidate the free media, suppress its independent reportage, force it into self-censorship, overwhelm it with legal liabilities and eventually destroy the independent media, which is already struggling for business in Liberia. While the media's primary audience is also out of Liberia, it is feared by corrupt elites, because it documents history and remains, perhaps, the only evidentiary source for future references.
The media and freedom of speech has been under attack in a perverse society under a weak rule of law regime that needs protection from its self. Free media practitioner Mae Azango is reported to be in hiding with no guarantee of protection from the Ellen Regime. Three media institutions are now fighting for their lives under the cloak of Supreme Court contempt.
The Supreme Court on Trial
Were this trend to continue, the Honorable Supreme Court would exercise sweeping powers of contempt making it impossible to criticize the Court however well-meaning the speech may be. Moreover, any comment or speech that might impute improper motives or conduct to a judge would be deemed contemptuous even if the speech were true. This is wrong and improper. The Honorable Court is the aggrieved party making the complaint and at the same time is also the supposedly injured party, judge, jury and executioner. If the three newspapers already did or in the future request that the financial records of the Supreme Court be made available as a matter of right in a fair trial, will the Court oblige their request and yield to their demand for an audit?
What standard or test is the Court employing in making a determination that the conduct of the defendant media institutions was in the nature of contempt given that there is no case pending before the Court with which the media interfered? There is no order of the Court directed at these free media institutions that the institutions knowingly or willfully disobeyed or with which they failed to comply. Still further there is no allegation that these institutions conducted themselves in an effrontery manner that disturbed, interfered with or obstructed the proceedings of the Court, or maliciously misbehaved in the presence of the Court, subjecting the Court to disrespect or public ridicule.
The burden of proof is on the Court to establish the wrongdoing of the three newspapers. The standard of this burden is satisfied when the Court establishes with particularity that the conduct of the accused newspapers were malicious and patently false as evidenced by six years of audited reports of the financial records of the Honorable Supreme Court supported by a subsequent audit of the funds in question. The Court will have to establish also that it has been scrupulously transparent in all its financial dealings and has accounted properly for all public accounts and has never before been corrupt or suspected of corrupt practices since its incumbency.
The presentation by the so-called amici curiae does not satisfy the burden of the Honorable Supreme Court. The briefs were mostly self-serving, delusional rubbish that cannot withstand the minimum public policy test. Members of the Supreme Court Bar seem to be "scratching each other's back" and betraying the public trust. They exhibited no objectivity, legal candor, savvy or an objective discourse on the fundamental subject of rights and the hierarchy of free speech rights in relation to the contempt powers of the Court which would have contributed meaningfully to the progress of Liberia's jurisprudence. To override a constitutionally-guaranteed right of free speech by a flimsy contempt charge will hurt the integrity of the judiciary rather than protecting it.
By now a contempt statute should have been enacted by the Legislature and the Executive branches of government. Since this has not happened, the Supreme Court's only reliance is the common law, despite that the Constitution of Liberia (1986) charged the Legislature to pass a law stating the punishment for contempt. I need not delve into the political history of this constitutional provision, but suffice it to say, the current practice of the Honorable Court holding media institutions for contempt, because they published allegations of judicial corruption is an archaic practice long rendered obsolete in all modern democratic jurisdictions where the alienable right to free speech is recognized and constitutionally protected as it is in Liberia.
The common law recognizes that contempt exists "to protect the administration of justice, not the dignity of the judges..." Otherwise, "... nobody could publish a true account of the conduct of a judge if the matter published disclosed that the judge had in fact acted from some improper motive. Nor would it be possible, on the basis of facts truly stated, to make an honest and fair comment suggesting some improper motive, such as impartiality or bias, without running the risk of being held in contempt." I say again—the powers of contempt are extraordinary and must be sparingly used with great caution and wisdom.
Without the conduct of a forensic financial audit of the Honorable Supreme Court for the last six or seven years, the Court is exposing itself to public ridicule and disdain by holding these media institutions in contempt for publications alleging corruption at the Court. The Court is now viewed as neither transparent nor accountable. By this, the Court is aligning itself on the side of corruption and exhibiting a serious dearth of appreciation for the political history of Liberia and conflict flash points well embedded in our history.
Corruption in our society is cancerous. Both the Executive Mansion and the Legislature have never been audited. They are consumed by this evil, and The Honorable Supreme Court must spare no efforts to exonerate itself from corruption by ordering a forensic financial audit of its books, thereby distinguishing itself from the corruption prone Executive Mansion and the National Legislature. The Court must insulate itself from corruption, not scrutiny.
Allegations of corruption will always abound when the Court refuses to submit to forensic audit and public scrutiny. As its public duty and obligation to the citizenry, the burden of proof is on the Court to disprove the accounts of the reportage and establish that it is free of corruption. Otherwise, the natural presumption—especially in the face of information released by the media from confidential sources, which the media is under no obligation or duty to disclose—is that the Supreme Court is inherently corrupt.
The Supreme Court, as administrator of the justice system, has neither refuted other allegations of judicial corruption nor assured a disconcerting public that it will clean up the system. It has in fact alluded, one way or another, to rampant corruption in the judiciary. The Court cannot be comfortable with a corrupt system that thrives on death threats and intimidation; nepotism and patronage; corruption and greed; ignorance and poverty; and war and despair.
It is my candid unsolicited advice from afar that the contempt charges against the newspaper be dropped without condition and that the Honorable Supreme Court adopt a standard not to assume original jurisdiction over contempt cases involving or tending to impugn the integrity of the Court or members of the Supreme Court Bench except when the impugned act is committed in the presence of the Honorable Court or for the limited purpose of disobedience or obstruction of the work of the court in the administration of justice.
Upon request, I am prepared and will be obliged to submit a more objective, informative and contemporary amicus curiae brief on the subject of freedom of speech and contempt of the high Court.
By Jerome J. Verdier, Sr.