The members and leadership of the Alternative National Congress of Liberia (ANC) view with great concern President Ellen Johnson-Sirleaf’s request for a broad and sweeping grant of emergency powers—powers that would make her the sole judge and jury when it comes to depriving Liberians of basic rights guaranteed by the Constitution in the name of fighting Ebola.
As a threshold matter, the ANC believes that the initial declaration of a state of emergency is constitutionally dubious. Article 86(b) of our Constitution provides that a “state of emergency may be declared only where there is a threat or outbreak of war or where there is civil unrest affecting the existence, security or well-being of the Republic amounting to a clear and present danger.” None of the conditions specified in Article 86(b) for the declaration of a state of emergency is met under the present circumstances. We do not face a threat of war or an outbreak of war. We similarly do not face any civil unrest, let alone a civil unrest that affects the existence and security of our country. What we face is a health crisis or emergency. The plain language of the Constitution shows that the framers did not contemplate a health emergency or crisis, even one as serious as the current Ebola outbreak, as a basis for invocation of a state of emergency or the grant of emergency powers to the President.
Even assuming that the current Ebola health emergency may justify the declaration of a state of emergency, we believe that the powers the President now seeks under the state of emergency are simply too broad and sweeping in scope. Moreover, as we have learned all too well from our history, such concentration of powers in the hands of one person or institution is inimical liberty and justice.
Below, we examine each of the grants of emergency powers the President seeks and we set forth the reasons why we are opposed to giving her such powers:
- Power to Take Private Property Without Compensation
Under the emergency grant of power the President seeks, she will have the power to summarily take away private property for the use of the State without compensating the owner. In fact, in her letter to the Legislature, the President expressly asks for the power to “appropriate any private property or prevent the use thereof in order to protect the public health and safety during the state of emergency without payment of any kind or any judicial process.” While we understand that there may be instances where the government may be forced to use private property as it fights Ebola, we believe that the owner of any property so used is entitled to just compensation. To do otherwise, would violate one of the most basic tenets of our constitutional scheme as guaranteed in Article 24 of the Constitution: “prompt payment of just compensation” by the government to anyone whose property is taken or used by the State.
- The Power to Deny Free Speech Rights of Liberians
The President also seeks powers to deny citizens of Liberia their free speech rights. Again, the President makes clear in her letter the extent of the powers she seeks in this regard. She expressly requests the power to use “proclamation or executive action” to “prevent any citizen, group of citizens or any entity…from making any public statement in person, by print, or electronic, which may have the tendency of undermining the state of emergency.” The scope of the power the President seeks to deny free speech rights guaranteed by Article 15 of our Constitution is simply breath taking. Under the powers she seeks, she alone may determine whether speech is likely to undermine the Ebola fighting efforts and thus curtail such speech. She alone will be empowered to determine what constitutes speech that threatens the Ebola fighting effort. A person denied free speech rights will have no recourse to the courts to determine whether in fact the denial is constitutional. Moreover, what she seeks to engage in is “prior restraint.” That is, the power to restrain or prohibit speech even before it is made. Such an infringement on free speech rights is viewed as among the greatest threats to liberty because the speaker is not allowed to speak at all for it to be determined whether what he has said is a threat to public safety or order. He is denied the right to speak even before he utters a word. We agree that there may be circumstances under which certain speech may hamper our efforts to fight Ebola. But the ultimate judge as to whether such speech hampers our efforts and should be curtailed is the court. We can implement an expedited court hearing regime in which the Supreme Court can decide on a fast track basis, literally in hours, whether challenged speech should be curtailed.
- The Power to Deny Liberians the Right to Peaceably Assemble
The President also seeks to infringe on the right of the people to “freely assemble” as guaranteed by Article 17 of the Constitution. What is scary is that the President seeks to “limit the right to free assembly for any reason.” We agree that it is conceivable that it may be necessary as we fight Ebola to discourage and prohibit mass gatherings of people in settings where the disease is likely to spread. However, granting the President the power to deny people their right to assemble “for any reason” is simply to broad a grant of power that has the potential for abuse. Moreover, the President already has tools she can use to limit assemblies of people that might likely lead to the spread of Ebola. Under our laws as they exist now, the government may impose reasonable time and manner restrictions on public gathering. That is why the government may require that citizens obtain a permit before holding large gatherings.
- The Power to Alter the Dates of Elections
The President seeks the power to alter the dates prescribe in our constitution for the holding of elections. We believe that there may be legitimate reasons to postpone the senatorial elections currently scheduled for October 15. However, we are a little wary of vesting the President, who herself is a partisan, with the exclusive authority to make decisions regarding the postponements of elections. We believe that the decision as to whether to postpone elections should be made by the National Elections Commission (NEC), which has the expertise to make such a decision, in consultations with the President and the Executive branches of government as well as the various political parties. Leaving the decision to the NEC will help to remove any suspicion that postponements of elections were meant to serve the political interests of particular individuals or groups.
- The Power to Suspend the Prohibition Against Forced Labor
The President seeks to effectively suspend Article 12 of the Constitution, which forbids subjecting any person in the country to “forced labor.” Anyone casually familiar with our history is aware that this provision in the Constitution represents a national rebuke to the practice of forced labor made famous by the Fernando Po Crisis, when certain Liberians were forced to work for little or nothing in the what is today Equatorial Guinea. Despite, our well documented history of the negative impact of forced labor on our society, the President seeks the power to “procure certain labor or services during the state of the emergency.” And she wants the power to do so by simply issuing a “proclamation.” We are aware that Article 12 contemplates that “work or service which forms part of normal civil obligations or service exacted in cases of emergency or calamity threatening the life or well-being of the community shall not be deemed forced labor.” However, given the potential for abuse inherent in the use of labor under such circumstances, we believe that individuals should have the right to interpose a judicial challenge to the forced use of their labor to determine, for example, whether it is being used in the fight against Ebola and not for the unjust enrichment of others.
- The Powers to Impose Restrictions on Religious Practices
The President also seeks the power to unilaterally restrict people from engaging in the practice of their religion to the extent such practice “endangers the public health and contributes the spread of Ebola.” Again, we understand the thinking behind the view that restricting certain religious practices may help in the fight against Ebola. But this is extremely sensitive territory, the right to freedom of religion being a cardinal principle of our system of government. We believe that given the sensitivity involved here, the decision to ban certain religious practices should be one that is ultimately made by the courts. This way, the public will have faith in the decision. The government can now quickly ask the Supreme Court to issue a writ of prohibition prohibiting those religious and other practices that it thinks contribute to a spread of the disease. All parties opposed to such a writ will have the opportunity to make their case to the courts. The courts can issue a temporary injunction upholding the President’s request, while it decides the merits of any challenge to the religious practice ban the President seeks. This way, the public will be assured that there is a neutral third party (the courts) that is deciding what practices are banned. The end result is that we will engender public support and faith in the fairness of the decision reached than if it was just made by one person—the President.
We at the ANC believe that we face a serious fight against Ebola and that we have to do all we can to defeat the disease. We believe doing all we can to defeat Ebola requires taking some extraordinary measures that may impinge on some of the rights we enjoy under our Constitution. However, we believe that any deprivation of rights in the name of fighting Ebola must be done in a manner that breeds faith in our system of government and as much as possible involves the courts as the final arbiter. The President’s request for emergency powers in her letter to the Legislature does not meet this test. The ANC thus vehemently opposes the grant of emergency powers the President seeks.