By Cllr. Kanio Bai Gbala,
Assistant Professor of Law, Louis Arthur Grimes School of Law
Alfred Brownell’s recent article in The Liberian Investigator raises thought-provoking concerns about perception, legitimacy, and judicial independence in light of the President’s appointment of magistrates, including the Chief Justice’s son. While commendable for its passion, Brownell’s argument ultimately collapses under the weight of conflating morality with legality, perceptions with law, and comparative jurisprudence with constitutional reality in Liberia.
This rebuttal seeks to clarify the legal standards at play, highlight the limits of moral reasoning in judicial discourse, and re-affirm the constitutional framework that governs judicial appointments in Liberia.
- The Limits of Legislating Morality
Brownell concedes that no legal wrong was committed but insists that the issue is one of morality and perception. This position is problematic for two reasons:
Law vs. Morality: It is a settled principle of jurisprudence that the law cannot always legislate morality. As Lon Fuller and H.L.A. Hart debated in their seminal exchange, morality is inherently subjective and context-specific. To reduce law to mere moral expectations is to undermine legal certainty.
Liberian Principle: In Kromah v. Republic of Liberia (Supreme Court Opinion, 2010), the Court reaffirmed that “the judiciary is bound to interpret the law as it exists, not as society may wish it to be.” Thus, morality may inform lawmaking in the Legislature, but judicial actors and constitutional appointers remain confined to codified rules.
- Perception May Be Reality, But Law Governs Decisions
Brownell invokes the popular phrase “perception is reality.” Philosophically attractive, yes, but dangerous if allowed to dictate judicial conduct.
Judicial Duty: Under Article 65 of the Liberian Constitution, “The judicial power of the Republic shall be vested in a Supreme Court and such subordinate courts as the Legislature may from time to time establish.” That power is to be exercised within the limits of statute and constitution, not fluctuating perceptions.
Practical Necessity: Judges are daily confronted with perceptions from litigants, communities, or the press. Yet they are required to rule based not on “what appears right” but on “what the law requires.” Anything less would compromise predictability and the rule of law.
- Misapplication of Lord Hewart’s Maxim
Brownell quotes Lord Chief Justice Hewart’s famous dictum: “Justice must not only be done but must be seen to be done.” However, this principle has been misapplied.
In context, Lord Hewart was speaking about judicial decisions in live cases, not administrative recommendations by a Chief Justice in a presidential appointment process.
Liberian Constitutional Context: Under Article 54(c) of the Constitution, the President appoints judges of subordinate courts, subject to Senate confirmation. The Constitution does not render the judiciary an “advocate” for public perceptions but a constitutional interpreter of law.
Thus, Hewart’s maxim cannot be stretched to invalidate constitutionally sanctioned executive actions.
- The Real Issue: Was a Legal Wrong Committed?
My original argument, contrary to Brownell’s reading, was never solely about the qualifications of the Chief Justice’s son. Indeed, precedent exists for law students to serve as associate magistrates under supervisory authority. The crux of my analysis was:
- a) Did President Boakai commit a legal wrong under Article 54(c)? No.
- b) Did the Chief Justice breach any constitutional or statutory duty? No.
- c) Was the process outside the Judiciary Law (Title 17)? No.
Without evidence of a legal wrong, charges of nepotism are more political rhetoric than constitutional violation.
- On Judge Nancy Sammy’s Concerns
Brownell portrays the Chief Justice’s response to Judge Nancy Sammy as an attack on gender. This is a distortion.
The exchange occurred in a professional judicial forum where openness and frankness should be encouraged.
Addressing concerns directly in such a setting demonstrates transparency, not bias.
To reduce the matter to a “gender silencing” narrative trivializes the substantive legal debate and undermines the principle that arguments should be weighed on their merit, not the gender of the speaker.
- Comparative Jurisprudence: Lessons, Not Dictates
Brownell cites Nigeria, Ghana, Sierra Leone, and Kenya, arguing that “appearance of bias” should disqualify candidates. While persuasive in moral discourse, this line of reasoning is flawed when transplanted uncritically into Liberia.
Due Process Principle: Under Article 20(a) of the Liberian Constitution, “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 consistent with due process of law.”
To disqualify an individual merely for the appearance of bias without evidence of actual misconduct would violate their right to fair process and employment.
Comparative precedents may inspire reforms, but they cannot override Liberia’s binding constitutional protections.
- Legitimacy vs. Legality
Finally, Brownell argues that “legitimacy” must supplement legality. But legitimacy is, by its nature, subjective. What is legitimate to one group may be illegitimate to another.
Legal Positivism: As the Supreme Court of Liberia emphasized in Republic v. Korkoya (2017), legitimacy flows from compliance with law, not from shifting perceptions of fairness.
Risk of Chaos: To make judicial appointments subject to “legitimacy tests” based on public moods would destabilize governance and politicize the judiciary.
The Chief Justice cannot be said to have breached a “non-delegable duty” that does not exist in Liberian law. Unless evidence emerges of ulterior motives or personal gain, the appointments remain within the boundaries of legality.
Conclusion
Alfred Brownell’s rejoinder raises important philosophical concerns, but philosophy cannot substitute for law. The President acted within Article 54(c) of the Constitution. The Chief Justice, by recommending qualified individuals, committed no legal wrong.
The danger of Brownell’s approach is that it elevates subjective morality and perceptions above objective legality. This risks plunging our fragile democracy into governance by feelings rather than law. As Justice Minister Henry Reed Cooper once observed, “The rule of law is not the rule of sentiment.”
Therefore, while the debate on ethics in public service remains valuable, it cannot nullify constitutional prerogatives. In this case, legality prevails, and no charge of nepotism can stand.
