Associate Justice Philip A.Z. Banks last Friday publicly clarified that the Supreme Court’s opinion (Judgment) did not address section 5.9 of the controversial Code of Conduct.
He said the court, however, managed to deal with sections 5.1 and 5.2 respectively.
Section 5.9 provides that, “Any public official, after due process, who is found guilty of violating any provision of this section shall be immediately removed from the position or office held by him or her, and thereafter, no part of the funds appropriated by any laws for such position or office shall be used to pay compensation to such person.”
It can be recalled that the Supreme Court on March 3 declared the Code of Conduct constitutional, with two of the justices against and three in favor of it.
Associate Justices Banks and Jamessetta Wolokollie were the two justices that voted against the affirmative decision of Chief Justice Francis Saye Korpor and the two other Associate Justices.
At a ceremony to admit five new Attorneys-at-Law into the Montserrado County Bar Association, Justice Banks said their mistake not deliberating on section 5.9 was brought to his attention by a person he described as a “young child.”
“As you know, we recently dealt with the Code of Conduct, and I was one of the justices who had dissenting (contrary) opinion. But as we had concluded this matter, we taught it was now behind us,” Banks explained.
Justice Bank said, the child met him and congratulated his and Justice Wolokollie’s dissenting views on the Code of Conduct.
“The young child said he has read my opinion, but in the entire judgment, all five justices left-out 5.9, and we only dealt with 5.1 and 5.2, and all of these were part of the same chapter,” Justice Banks quoted the child, adding, “I went back and looked at our opinion, and I said to myself, ‘how come we did not reference 5.9’ because it was very important to our opinion.”
Banks reminded his audience, among them the newly admitted attorneys, that they should
see the profession as a continuous learning process.
“Our experience on the Code of Conduct should tell you that the law is a continuous learning process for all of us; and for those who are still debating our opinion, go and read 5.9,” Banks told the young lawyers.
The controversy surrounding the Code of Conduct came about when Bong County Superintendent Selena Mappy-Polson filed a “Petition for Declaratory Judgment” claiming that sections 5.1, 5.2 and 5.9 are unconstitutional.
Meanwhile, section 5.1 states that “All officials appointed by the President 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.”
And 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 followings 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 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 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 90 days following the declaration by the National Elections Commission of the vacancy.”
The aforementioned sections are compulsory commands and every aspect of them was expected to be followed by the framers. In spite of the fact that it took the Legislature more than 28 years to pass into law the Code of Conduct, in and of itself a further abuse of the Constitution, the Legislature was without a choice to make the Code not applicable to Liberians. Any deviation, as was couched in the Code, making Sections 5.1 and 5.2 applicable only to members of the Executive, with the exclusion of the president and vice president and their staff (and definitely by the exclusion of the legislators), rendered the Code, even without referencing the equal protection clause of the Constitution, discriminatory and hence unconstitutional.