Monrovia - The Supreme Court of Liberia Monday witnessed heated legal arguments between lawyers for and against some provisions of the Code of Conduct law passed by the National Legislature and signed into law by the President in 2014.
Law passed by the National Legislature in 2014 as the high court reserved ruling for a later date
Five lawyers; three representing the state and two against took to the stage in the chambers of the Supreme Court Monday making legal arguments on one of the hottest talking points in recent days with major implications on the 2017 Presidential and legislative elections, the Code of Conduct
By 10 am local time the chambers of the Supreme Court was already flooded with lawyers, judges, politicians, lawmakers and interested parties as preparations were underway for legal arguments on the what has now become a controversial law, a petition for declaratory judgment filed by Bong County Superintendent Selina Polson Mappy against specifically section 5.2 of the Code of Conduct.
“Why did your client come to the court when she could have gone through the President? She could have even gone to the lawmakers from her county to exhaust all the remedies before coming to this court” - Another Associate Justice Sie-A-Nyene Gyapay Yuoh
Section 5.1 states: “All Officials appointed by the President of the Republic of Liberia shall not: a) engage in political activities, canvass or contest for elected offices; b) use Government facilities, equipment or resources in support of partisan or political activities; c) serve on a campaign team of any political party, or the campaign of any independent candidate”.
The succeeding section, 5.2 also states “ 5.2 Wherein, any person in the category stated in section 5.1 herein above, desires to canvass or contest for an elective public position, the following shall apply; a) Any Minister, Deputy Minister, Director-General, Managing Director and Superintendent appointed by the President pursuant to article 56 (a) of the Constitution and a Managing Director appointed by a Board of Directors, who desires to contest for public elective office shall resign said post at least two (2) years prior to the date of such public elections; b) Any other official appointed by the President who holds a tenured position and desires to contest for public elective office shall resign said post three (3) years prior to the date of such public elections; c) However, in the case of impeachment, death, resignation or disability of an elected official, any official listed above, desirous of canvassing or contesting to fill such position must resign said position within thirty days following the declaration by the National Elections Commission of the vacancy”.
Cllr. T. Nagbalee Warner, representing the petitioner, argued that his client is seeking the Supreme Court to declare the contested provision of Code of Conduct unconstitutional because it is discriminatory.
“Your honours this provision is discriminatory and it is contrary to the constitution. It should apply to all public officials; those who make the law set themselves aside”.
Cllr. Warner told the full bench of the Supreme Court that the provision of Code of Conduct is a board restrain on political competition as the lawmakers excluded themselves from the Code thereby making it discriminatory.
“The law is reasonable but limiting others is discriminatory…. especially for people to not use public resources but it must be applicable to all”, argued Cllr. Warner.
Added Cllr. Warner: “Is the law constitutional in the face of discrimination? Your honours, my client is seeking that this court ensures the protection of her constitutional rights”.
Associate Justice Kabineh Ja’neh, in questioning the legal argument of Cllr. Warner inquired whether it will be a wise idea to have lawmakers who desire to contest election to also reign two years prior to the specific election thereby creating vacancies at the National Legislature.
“If you say this law should apply to all, how much more money do we have to spend when several lawmakers have to resign two years like Presidential appointees? Justice Ja’neh questioned.
The Associate Justice also questioned on the restrain on judges from participating in political activities.
“Judges do not go for political party activities or take part in political campaigns so, what do you say about us? Justice Ja’neh also insisted.
Questioning Legislators’ Wisdom
Associate Justice Ja’neh also raised the point that the petitioner’s lawyer argument is clearly questioning the wisdom of the legislature which the Associate Justice said is not the work of the court.
Another Associate Justice Sie-A-Nyene Gyapay Yuoh, questioned why the petitioner, a superintendent did not complain to the President who signed the law rather than running to the court.
“Why your client came to the court when she could have gone through the President? She could have even gone to the lawmakers from her county to exhaust all the remedies before coming to this court”, said Associate Justice Youh.
In response, Cllr. Warner argued that local and administrative remedies are used at the available level but because the issue is constitutional, his client can only seek remedy through the high court.
Disagreement in Executive?
Chief Justice Francis Korkpor quizzed the petitioner’s lawyer whether there is an ongoing disagreement within the Executive Branch of Government where a junior officer is seeking remedy against a law signed by her boss, the President.
“The President signed the law and a junior officer is going against her boss, is there no agreement in the Executive with a junior officer going against the President? Justice Korkpor stated.
Cllr. Warner insisted that his client has rights as provided by the constitution and as such, she is seeking the court to give judicial interpretation of the Code of Conduct, indicating that the President is not the court.
Taking the stance, Solicitor General Betty L. Blamo argued that the Code of Conduct is constitutional.
UP Gbarnga Convention surfaces
SG Blamo argued that the petitioner’s lawyers are insisting that section 5.2 of the Code of Conduct is unconstitutional because they are not reading the Code in context.
“You need to read the statute in context, the law cannot list all the names of those to be affected so, in section 5.1 it says all appointed officials so section 5.2 is just a continuation of the 5.1”, said SG Blamo.
According to the SG the law applies to ambassadors, assistant ministers and all officials appointed by the President but it is not possible to list all of them in the law, therefore they are referred to as “all”
Associate Justice Philip A.Z. Banks questioned the Solicitor General why some cabinet ministers recently violated the Code of Conduct during the Unity Party Convention in Gbarnga.
“Why the President allowed cabinet ministers to violate the code?, Associate Justice Banks asked. The Associate Justice questioned why the President affixed her signature on the Code of Conduct and allowed its violation in Gbarnga.
In response, SG Blamo said that she did go to Gbarnga and does not know what occurred in Gbarnga.
“I did not go to Gbarnga and cannot say who violated the law, what occurred in Bong County is a form of political activity”, the SG declared.
The Solicitor General also told the Supreme Court that it is better to follow the intent of the law and not the plain meaning of its content.
Chief Justice Korpkor also questioned on the penalty for violation of the law, seeking answers from the Solicitor General on when any violation is handled by the Executive.
“Is it for the President to act or your opponents will contest it to the National Elections Commission, when is sanctions applied? The Chief Justice questioned.
SG Blamo responded that those who violate the law appropriate actions are taken but the Chief Justice again raised the issue of whether the law is now in effect especially with the Ombudsman Office as provided by the Code of Conduct to be established to look into violations of the Code not in place.
“Your honours, the law is in effect but the office of Ombudsman is yet to be established. We will look into that”, said SG Blamo.
Associate Justice Ja’neh insisted that it is not prudent to pass laws when the appropriate offices to deal with violations are not put in place.
“The office of ombudsman is not established than to come to court, do not sit down and pass laws without looking at these things; it is the issue of rights”.
Part XII: of the Code of Conduct provides for the establishment of the office of ombudsman.
Section 12.1 states “The Office of an Ombudsman is hereby established as an independent autonomous body which shall be responsible for the enforcement, oversight, monitoring and evaluation of the adherence to the Code of Conduct”.
Chief Justice Korkpor also indicated that the Legislature is aware of the financial implications of such law especially the establishment of the office of Ombudsman.
“The law will not be complete until it is empowered to be implemented, the forum has not been established and it is a problem”, the Chief Justice said.
He said such issue is also taking place with the establishment of the Claims Court which is provided by law but yet to be established leaving people to go to the Civil Law Court with Claims when such court has general jurisdictions.
Curbing undue advantage
In concluding the argument for the state, Justice Minister Cllr. Frederick Cherue said the Code of Conduct is intended to stop undue advantage in political processes.
“To tell you, this law is meant to stop undue advantage, for example the Finance Minister sits there and wants to be Senator, you tell me what will happen to public resources”, the Justice Minister said.
Cllr. Cherue argued that taking part in politics is a process and as such there are gateways to preventing those who violate the Code of Conduct.
“Your honours hold the Code of Conduct as constitutional”, said Minister Cherue.
Also concluding his argument, Cllr. Warner said the provision of the Code of Conduct in unfair as it is like tying an individual hand and asking to engage them in a fight.
“We tie your hands before you come to contest against us. This is discriminatory”, said Cllr. Warner.
Chief Justice Korkpor announced that after hearing the argument of both parties the court reserved ruling into the matter for a later date.
A decision by the Supreme Court will be a landmark decision as it will have huge ramifications on the 2017 general and Presidential elections. It will not only be a ruling for Superintendent Mappy but several other individuals grappling with similar situation.
Once the Supreme Court passes on this complaint it will help to settle the confusion of others and will set a precedent for further rulings and decisions on the Code of Conduct.
There are individuals including former Central Bank of Liberia Governor Dr. J. Mills Jones, Cllr. Jallah Barbu and many others.
The Supreme Court has already ruled in a similar case on the basis of procedure.
Few weeks ago the Supreme Court ruled on the basis of procedural issues on similar case brought before the court by a Civil Society organization with the court insisting that the organization was not the rightful party to file such petition.
The Citizens Solidarity Council (CSC) through its Chairman, James Brooks filed a petition before the Supreme Court against the Government of Liberia by and thru the Ministry of Justice and Attorney General of the Republic of Liberia, contesting the constitutionality of a provision of the Code of Conduct.
After the writ was filed, the Ministry of Justice filed a response against the writ to the Supreme Court, asking the court to dismiss the writ as the group, through its Chairman Brooks, has no capacity to file such a lawsuit against the government.
Following lengthy legal review of the petition, the Supreme Court voted 3 consenting and 2 dissenting in throwing out the petition.
The court ruled that the Civil Society organization did not prove what injury its members will suffer as a consequence of the Code of Conduct.
Justice Banks in his dissent stated that the high court did not dwell into the substantive issues of the case.