Liberia: “Very Bad Precedent”

Exercising its power to determine the constitutionality of government actions, the Supreme Court  developed a large body of judicial decisions, or "precedents," interpreting the Constitution. 

But the court's recent precedent used to decide the controversial issues on the restatement and amendment made by the Legislature to the Liberia Anti-Corruption Commission (LACC) Act of 2008 has prompted debate over whether the Court should follow rules identified in prior decisions or overrule them.

For Cllr Peter Bonner Jallah, the treatment of the LACC case raises longstanding questions about how the court can maintain stability in the law by adhering to precedent under the lawmaking power of the Lawmakers, while leaving the substantive legal issues of ex post facto argument by the Executive Chairman of the LACC, Cllr Edwin K. Martin.

"This is wrong, and a bad precedent is being set by the Supreme Court. The petition was not about lawmaking power of the legislature, it was about enacting a new law while there is still an existing one, which is a violation of our constitution," Cllr Jallah, who served as minister during the reign of President Charles Taylor, argued during the Kool FM phone-in program.  

Though his argument cannot change the unanimous decision of the Supreme Court, he argued, Article 21, states that “no person shall be made subject to any law or punishment which was not in effect at the time of the commission of an offense, nor shall the Legislature enact any bill of attainder or ex post facto law.”

This, according to Cllr Jallah, was the contention raised by Cllr Martin, which he believed was on which the Supreme Court justices should have based their precedent opinions, but fall short of it.

In its unanimous decision delivered by Chief Justice Sie-A-Nyene Yuoh, the Court ruled that the Legislature has the unquestionable power to amend, modify, or abolish the LACC as deemed expedient in the interest of the state and that its action cannot be said to violate the Constitution.

However, Cllr. Martin's argument was that the 2022 amendment of the 2008 LACC Act amounts to a breach of contract as the government was in error to dissolve his tenured position and recreate the same.

He further argued that the old LACC Act, in Section 6.8, provides that a commissioner “shall hold office upon good behavior and should be removed from office by the President for any gross breach of duty, misconduct in office, or any proven act of corruption.”

This was not the case, according to Martin, who stated that the statute should be repealed since it impedes the efforts of the LACC and other integrity organizations to discover corrupt officials.

Martin also argued that Sections 16.1 and 16.2 of the restated LACC Act were not in conformity with the principles and doctrine of ex post facto law as enshrined in Article 21 of the Constitution.

“It contains provisions that are not applicable and, if allowed to hold, would be a gross violation of the principle and doctrine of the ex post facto law as enshrined in the  Constitution,” Martin argued. “The new act seeking the immediate removal of the LACC chairman and other commissioners is illegal.”

The court further ruled that the LACC is the creation of the legislative branch of government while Martin and other commissioners, who sought the unconstitutionality of the new act, still occupied and maintained their respective positions and, enjoying all of the associated benefits and immunities, cannot be said to have been removed from office, as the transitional tenure provisions of Sections 16.1 and 16.2 are futuristic.

Because of these, Justice Yuoh said,  “the petitioner's petition is prematurely filed. However, should it become necessary to terminate the services of the petitioner and others similarly situated before the expiration of their contractual rights, the sanctity of contract as enshrined in the constitution should be given due consideration.”

“That no public official has vested rights to a public office except for those officers or offices that are clearly and expressly protected by the Constitution, which is not the case in the present petition,” the justices noted in the unanimous decision.

The case arose from a petition filed by the LACC's Executive Director, Cllr. Edwin Kla Martin, asking the Court to declare sections 16.1 and 16.2 of the amended and reinstated LACC Act unconstitutional.

The case reached the full bench of the Supreme Court after the then Chamber Justice, Yussif D. Kaba, forwarded it without ruling on the merits of the case. 

It is Kaba's legal view that the arguments propounded by Martin need the interpretation of the Supreme Court since they border on constitutional issues.

The restated law has been slammed by civil society organizations, opposition senators, and Martin, who called it “dangerously repealed” with the intent of undermining strides being made at LACC to expose alleged corrupt officials.

However, President George Weah and proponents of the Act then lauded it as a long-overdue reform that broadens the area of operation and provides the new LACC direct and immediate prosecution power, which the existing LACC has, albeit with limitations. They claim that it was a broader effort to improve the fight against corruption in the country, but critics of the new act argued it was intended to undermine the then gains that was being made by Cllr Martin and his colleagues in exposing corruption in the government, particularly the executive. 

However, the Ministry of Justice, during the argument, refuted the assertion, asking the Supreme Court to reject the lawsuit on the grounds that it questioned the legitimacy of the legislature's ability to pass and change laws without limitation – and that any decision to the contrary would establish a dangerous precedent.

The Ministry of Justice's position was countered with the claim that the legislative enactment of the LACC Act was approved without any proven or legitimate cause, which “clearly violates petitioner’s rights to due process of law as provided for under Article 20(a) of the 1986 Constitution.