Monrovia – Arguments surrounding the Code of Conduct which was constitutionalized by three of the five justices of the Bench are eagerly awaiting the office of the Ombudsman to settle the dust.
Report by Lennart Dodoo – [email protected]
The Code of Conduct has always been a piece of controversial legal instrument before and even after its passage, although it lingered on the shelves of the Legislature five years before its final passage in 2014.
It among other things, seeks to guide public officials and employees of government to exhibit high moral character and integrity; be law-abiding and committed persons who show proper care for public assets, behave ethically and discharge his or her duties and responsibilities impartially, efficiently and effectively with diligence and dignity;
But of key controversy in the Code of Conduct is Section 5.1 and 5.2 which states:
5.1 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.
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;
The Code of Conduct met its first major resistance and was sought to be declared unconstitutional by former Superintendent of Bong Count, Madam Selena Mappy-Polson, who wished to contest the upcoming the October elections.
In her petition for declaratory judgment, Mappy-Polson raised a number of constitutional challenges, contending with forensic eloquence that Section 5.2 of the Code of Conduct Act offends the letter and spirit of the Liberian Constitution.
According to her, the referenced provisions are (a) discriminatory; (b) that they disregard the equal protection clause of the Constitution, and (c) that they are arbitrary, wicked and capricious.
She further claimed that there is no compelling reason for the Code of Conduct Act’s grave interference with, and its crushing imposition on free exercise of the fundamental rights of public officials. She strongly urged the Supreme Court to particularly declare said Section 5.2 of the Code of Conduct Act unconstitutional and of no legal effect.
Further, she urged this Court to declare that the sanctions listed under Section 15.1 of the Code of Conduct Act, for breach including violation of Section 5.2, to be complete, exclusive and to further declare that no other penalty would apply to violator beyond the clear legislative language of said section 15.1.
The former Bong Superintendent in her petition contended that as a citizen of Liberia, she has the right to desire and/or decide to canvass or contest for any elective office for which she is qualified, and to take as much time as is necessary to make a decision before the deadline published or to be published by the National Elections Commission for declaration of candidacy because the Constitution of Liberia, especially Article 81 thereof, guarantees her “the right to canvass for the votes for any political party or candidate at any election”.
According to her, her constitutional rights to “desire” and/or “contest” any elective post for which she is otherwise qualified and also “to canvass for the votes for any political party or candidate at any election” are challenged, undermined and violated by Sections 5.2, 14.1 and 15.1 of the Code of Conduct of 2014, which arbitrarily and discriminatorily requires, contrary to the guarantee, letter and spirit of the Constitution.
The Legal Questions of the Court
In the 3-2 ruling after entertaining arguments of the pros and cons in the matter, the Bench positioned itself to determine:
Whether Section 5.2 of the Code of Conduct which requires prior resignation of Presidential appointees desiring to canvas for elective public offices is an unconstitutional expansion and imposition of eligibility requirement on Presidential appointed public officials?
Whether Section 5.2 of the Code which requires a selected category of Presidential appointees, but does not require another category of Presidential appointees, to resign prior to contesting elections for public office is discriminatory and thus violates the Equal Protection Clause of the Liberia Constitution?
Whether the right to vote or be voted for is a fundamental right that requires compelling reason to justify its impairment; or does the Code of Conduct Act constitute a broad restraint on political competition that restricts the options of candidates available to the electorates?
Do Sections 14.1 and 15. 1 of the Code provides the exclusive and exhaustive range of sanctions for violation of the Code, including its prior
resignation eligibility requirement?
Does Section 5.2 which requires prior resignation of Presidential appointees desirous of canvassing for elective public offices constitute an expansion of the eligibility requirement imposed by the Code of Conduct Act on public officials appointed by the President?
This Court concurred with the Mappy-Polson that the Legislature is without authority to amend any provision of the Liberian Constitution by the passage of an Act or a Statute. It also accepted that any undertaking intended to amend the Liberian Constitution must adhere to, and be in scrupulous compliance with the steps, procedure and schedule as provided under Article 91 of the Constitution by following the mandatory steps.
These steps include:
Voting on the proposed amendment by two-thirds membership of both Houses of the legislature, and the ratification thereafter in a national referendum by two-thirds votes of the registered voters conducted not sooner than one year after the Legislative action.
A Statute which requires prior resignation as an eligibility requirement, as in the instance of the Code of Conduct Act, is tantamount to amending provisions of the Liberian Constitution.
No Shred Of Uncertainty
According to the three justices of the Supreme Court, a scrupulous review of the Liberian Constitution left no shred of uncertainty that the geniuses of the Constitution intended to and clearly granted extraordinary powers to the Legislature to make laws regulating matters of public governance, including elections and referenda.
These, according to them, include the authority to set eligibility requirements for candidates as the Legislature may deem compelling to further overriding State interest and to enhance public policy probity.
Under the circumstance, to propose as the petitioner has done, that the Legislature is prohibited from conscripting new and additional eligibility requirements for candidates vying for public offices, or that the Legislature, by inclusion of Section 5.2 in the Code of Conduct Act, amended the Constitution, is absurd.
They contended in the light of the broad authority and powers the forbearers and the crafters of the Constitution have vested in the Legislature, this Court, such contention must be rejected.
The Legislature, they said, acted properly in exercise of the powers and authority granted to it by inclusion of the prior resignation eligibility requirement.
In the wisdom of the Legislature, the majority said, the inclusion of Sections 5.1 and 5.2 in the Code of Conduct Act were compelling necessity to ensuring curtailment of wanton abuse of public resources and misuse of public offices or positions to acquire undue electoral advantage.
Not having been able to find any law upon which they could rely to question the wisdom of the Legislature in this regard, they held that the Code of Conduct Act, whether in whole or in part, does not violate the Liberian Constitution.
Also, the Code of Conduct neither enlarges nor contracts any constitutionally protected rights. The conduct of the Legislature, to prescribe additional right or to set new eligibility requirements seeking both to enhance protection of, and to prevent abuse and waste of public resources, is a proper exercise of legislative authority, pursuant to Article 90 (c) of the Liberian Constitution. Can this be said not to be a matter of compelling State interest?
The Flip Side
In his dissenting opinion, Associate Justice Phillip A. Z. Banks wrote in the opening paragraph:
“Today I have, as I believe have most Liberians, shared tears for Liberia, for by the decision of the majority colleagues of this Court, some of the most sacred rights of the people and the most sacred provision of the Liberia Constitution have been shredded and placed into a waste vent, and by the Act the Constitution has been turned upside done on its head…”
He shared this view with Associate Justice Jamesetta Wolokollie.
Justice Banks referenced the majority of the Court to Citizen Solidarity Council Opinion in which he and he and Justice Wolokollie again dissented, “Because we believe so very strongly that the decision made today by our majority Colleagues is wrong, is violative of the Constitution and the very core of legal and judicial principles, endorses what we believe to be the infringement and trampling of some of the most sacred and fundamental rights granted by the Constitution, subordinates the Constitution to the statute laws of the nation, is not consistent with our core valued beliefs and principles, injures the very basis of the principles and ideals set out in the Constitution, and affect, in the ultimate, the core of our conscience, fundamental values, and belief in the supremacy of the Constitution, we have refused to affix our names and append our signatures to the judgment of the Court.
So that there is no disputing the implications and far-reaching repercussions of the decision of our majority Colleagues, let us state upfront what the decision means for the Liberian Constitution, the Liberia nation-state, the Liberian people and the fundamental rights they so dearly fought and died for.”
Banks Summarizes Majority Ruling
As per his interpretation of the majority ruling, Banks said that the Article 11 provision of the Constitution that guarantees to all Liberians the equal protection of the law doesn’t really accord and was never meant to accord equal protection to the people and that equal protection applies only to certain Liberians.
According to him, it also means that the Legislature may declare a certain act to be criminal and therefore punishable by a penalty but that the act does not apply to legislators, which means that members of that body are free to commit a conduct, a crime under the law passed by the Legislature, but that members of that body are free to commit that crime and be immune from being charged with or punished for the commission of that crime.
Their decision by his judgment also means that the Article 7 and 8 provisions of the Constitution setting forth that there shall not be discrimination do not apply to laws passed by the Legislature and which specifically set forth that it will apply to other citizens, but not to the Legislature, and that certain citizens can be singled out for discrimination simply because of the position which they hold; and also permits members of the public may be excused to abuse public office with pomposity.
He added that the decision takes away from citizens the guarantee of the Constitution that all citizens have the right to freedom of association, to associate with any political party, to canvass for any political candidate or party, attend any meeting of any political party or candidate even if it is done with one’s own time and with one’s own personal resources.
He further amongst other things pointed out that at a close examination, such act by the Court is tantamount to endorsing the Legislature amendment of the Constitution without submitting the amendment to a referendum by the people.
If the Court feels that the legislature can do this to the Constitution, imagine what it will say the legislature can do to the people, as it has done in the instant case in prohibiting on certain citizens the right to associate with or participate in the political process for the determination of the nation leadership under the guise that it is designed to prevent the abuse of public resources but which excludes the Legislature and the approving executive from the ambit of such abuse of the public resources.
“So, in the face of all that has been said above, where does that leave the Constitution since the decision of the majority members of this Court, both by the words used in the Opinion and by the content of the opinion, elevate the Legislature, a body created by the Constitution, to a level superior to the Constitution and similarly elevates the Supreme Court, also a body created by the Constitution, to a level superior to and above the Constitution. All that the majority feels they have to do in accomplishing that goal is to subject the Constitution and the Code of Conduct Act to what may be characterized a “judicial fiat”
Legislature Stronger Than Supreme Court?
Justice Banks also opined that the decision further states that although the Constitution vest the legislative powers of the republic in the Legislature, the supreme Court has the authority to exercise that legislative power, thus superseding or overriding the Constitution, both on the powers of the Supreme Court and on the separation of powers, so that even where the Legislature specifically state the categories of persons who are prohibited from certain acts, and excludes others, the Court can expand that list of persons by the inclusion of other persons who the Legislature clearly did not intend to cover, even if by such act the Court not only violates the Constitution but also the basic constitutional and statutory principle that what the law does not grant it withholds.
Additionally, the act of the Court is tantamount to amending the Act passed by the Legislature.
That the Supreme Court has the authority to prohibit the exercise of vital and fundamental rights granted by the Constitution, including the right to vote and to determine by the voting franchise who the leadership of the country should be rather that who the people believe the leadership of the country should be, the Court believing that it can inflict such deprivation even in the absence of the declaration of any state of emergency, either by the President or by Act of the Legislature on request of the President.
The decision of the majority also, while stating that the Act is constitutional, in effect endorse the action by the affected members of the Executive, apparently with executive approval, of the open violation of the Act by engaging in every conduct prohibited by the Act and incurring no sanction for the violation. While my position is that the challenged section of the Act is unconstitutional, for the position taken by the majority of the Court, the actions by the affected executive personnel renders contradiction in the position today taken by the Court, especially given the Court’s further pronouncement that the acts of such executives are not susceptible to sanction, including that the “must resign” provision of the Act is not effective or enforceable.
A reading of the Opinion leaves the impression also that the “geniuses of the Constitution”, as the majority refers to the framers of that sacred document, did not mean what they said in the document or that they did not know what they were saying in the document, or that neither they nor the members of the Constitutional Advisory Assembly, which reviewed and endorsed the document, and indeed the entire Liberian people who adopted the document in a national referendum were incapable of appreciating or understanding what was said in the document and hence that they cannot know when the Legislature and the Supreme Court have transgressed the provisions contained in the document.
Justice Banks: “I believe that my majority colleagues, in deciding as they did, missed an appreciation of the full range of the Act.
The Act doesn’t just preclude the use of the public resources by certain Executive Branch appointees; instead, it deliberately deprives them of every political and social guarantee under the Constitution—from the right to assemble and consult, including the right to meet with their political representatives on the common good of the nation; to the right of association, including with political parties; to the right of free speech and expression, including the right to question or subscribe to a political ideology of a candidate for public elective office; to the right of equality under the law, equal protection of the law and equal opportunities under the law; to the right to be registered as a voter and to vote for the political candidate of one’s choosing; to the right to canvass for a political party or candidate, including expressing a preference for a particular party and candidate; to the right to contribute funds to a political endeavor, party or candidate—unless they resign their appointed positions.”