– My Point of View on the Code of Conduct Act and the Supreme Court’s Opinion
By Cllr. Frances Johnson Allison
The framers of the Constitution of Liberia entrusted to the Supreme Court of Liberia the awesome and sacred responsibility of safeguarding the sanctity of the supreme and fundamental law of the land which guarantees citizens fundamental rights and civil liberties. Article 2 paragraph 2 of the Constitution states: Any laws, treaties, statutes, decrees and regulations found to be inconsistent with it (the Constitution) shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court pursuant to its power of judicial review is empowered to declare any inconsistent laws unconstitutional (emphasis supplied).
On October 23, 2015, Selena Mappy-Polson, a citizen of Liberia who also happens to be the Superintendent of Bong County, filed a petition for Declaratory Judgment before the Resident Circuit Judge of the ninth Judicial Circuit for Bong County praying the Circuit Court to declare certain provisions of the Code of Conduct Act unconstitutional, particularly Section 15.2. Petitioner Mappy-Polson’s reasons for her request for a judgment of unconstitutionality of Section 15.2 are as follows:
- That Section 15.2 of the Code of Conduct is patently because it is discriminatory and therefore violative of the equal protection clause of the constitution;
- That Section 15.2 is arbitrary and void of any compelling reason for interfering or restricting the fundamental right to canvass or contest for elective public office;
- That Section 15.2 is also anti-competitive contrary to the provisions of Article 77 of the Constitution, declaring “the essence of democracy is free competition of ideas expressed… by individual as well as political parties and groups;
- That the legislature is without authority to modify the eligibility requirements for elective offices as established by the constitution for any elective office, bearing in mind that the legislative power to enact the Elections Law is limited by Article 84 of the Constitution, which states that the Elections Laws to be enacted by the Legislature “shall not be inconsistent with any provisions of the Constitution.”; and
- Finally, that Section 15.2 of the Code of Conduct Act is inconsistent with the provision of the Constitution requiring the Legislature to enact laws “promoting national unification and the encouragement of all citizens to participate in government” as provided in Article 5 (a) of the Constitution.
In my view, the issues raised by Petitioner Mappy-Polson in her petition are tangible and substantive. State Lawyers, however, sought to have Petitioner Mappy-Polson’s Petition dismissed on ground that the circuit court lacks jurisdiction to hear same because it raised constitutional issues. But Judge J. Boima Kontoe denied the Motion of the State for want of legal merit and instead referred the matter to the Constitutional Court (the Supreme Court) to determine the constitutional issues raised in the petition.
On March 3, 2017, the Supreme Court, the final arbiter of Constitutional issues (see Article 66 of the constitution) delivered its opinion in the Mappy-Polson’s case which has claimed the attention of interested persons and sparked animated debates in the society. But what exactly did the Supreme Court say? Of the many issues raised by the petition, the high court elected to dwell on four and they are:
- Whether section 15.2 of the Code of Conduct, which requires prior resignation of presidential appointees desiring to canvass for elective public offices is an unconstitutional expansion and imposition of eligibility requirement on presidential appointed public officials.
- Whether section 15.2 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 Liberian Constitution?
- Whether the right to vote or be voted for is a fundamental right that requires compelling reasons 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? And do sections 14.1 and 15.1of the code provide the exclusive and exhaustive range of sanctions for violation of the code, including its prior resignation eligibility requirement?
- Regarding issue number one (1), the Supreme Court said:
“A scrupulous review of the Liberian Constitution leaves no shred of uncertainty that the geniuses of the constitution intended to and clearly granted extraordinary powers to the legislature to make laws and regulating matters of public governance including elections and referenda. These 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 the inclusion of section 15.2 in the Code of Conduct Act, amended the Constitution, is absurd. In the light of the broad authority and powers our forbearers and the crafters of the Constitution have rested in the legislature, such contention must be rejected.”
There is no disputing the fact that the crafters of the Constitution granted the lawmaking function to the legislature as per the separation of powers arrangement. So can it be said that the writers of the Constitution intended this delegation of power as a carte blanche to the legislature to enact just about any law as would even undermine the very essence and principles of the supreme law. Again, I doubt whether the Liberian people who in a referendum (1985)adopted the Constitution in order to bring to an end military rule and return the country to constitutional democratic rule had any pre-monition that the legislature would turn out to be their nemesis in the enjoyment of the rights guaranteed them under the same constitution. I submit that the legislature has no “extraordinary powers” to enact laws having the propensity to infringe upon the fundamental rights of the citizens and that the prior resignation requirement of section 15.2 of the Code of Conduct does infringe upon the rights of presidential appointees named thereunder. Section 15.2 of the Code undermines the economic strength of the appointees and makes it difficult for them to compete in a capital intensive process as elections are. That could have been their intent. Sadly, section 15.2 of the code runs counter to some fundamental principles of the Constitution including unity, liberty, peace, stability, equality, justice, human rights and participation amongst others. By the inclusion of section 15.2 in the Code of Conduct, the Lawmakers ignored Article 4 of the Constitution under Chapter II “General Principles of National Policy” which provides:
Article 4: The principles contained in this chapter shall be fundamental in the governance of the Republic and shall serve as guidelines in the formulation of legislative, executive and administrative directives, policymaking and their execution.”
One of the key principles of the constitution is the principle of equality, which is captured succinctly under Article 11 (c) as follows: “All persons are equal before the law and are therefore entitled to the equal protection of the law.”
To have singled out certain presidential appointees desiring to contest public elective offices to resign their posts two and three years respectively prior to the election is discriminatory and repugnant to the ideals of the constitution. I therefore beg to differ with the holding of the Honorable Supreme Court “that the Code of Conduct Act, whether in whole or in part, does not violate the Liberian Constitution.”
Notwithstanding, the Supreme Court’s holding that the Code of Conduct is not violative of the organic law, the Court concurred and accepted that the language of Section 15.2 of the Code of Conduct Act suffers a grave language or textual deficit and that is why the Court concurred with the petitioner that the language of Section 15.2 is troubling. The Court then attempted to repair the damage by including all other presidential appointees under Article 56 (a), i.e.: “all Cabinet Ministers, Deputy and Assistant Cabinet Ministers, Ambassadors, Ministers and Consuls, Superintendents of counties and other Government Officials, both military and civilian, pursuant to this Constitution…” The Court rationalized that in its considered opinion, the intent of the legislature was not and could not have been to exclude any of the public officials appointed by the president pursuant to Article 56(a). Interestingly, this holding of the Supreme Court does not cure the equality defect in the Code of Conduct Act, in that, the list of presidential appointees under Article 56(a) of the Constitution is not exhaustive. Article 54(c) also names the Chief Justice, Associate Justices of the Supreme Court and Judges of subordinate courts as presidential appointees.
Besides, the constitutional mandate to the legislature contained under Article 90(c) for the enactment of a Code of Conduct is not restricted to presidential appointees but also include selected public officials. Because of this fatal defect, I believe the Code of Conduct Act should have been declared unconstitutional in part, particularly section 15.2 thereof.
My view is not intended in any way to subtract from the important and necessary objective of protecting the resources of the Liberian State from abuse by public officials desiring to contest in public elections, howbeit belated. My aim is to point out that the powers granted to the legislature to make laws under the Constitution are not “extraordinary” or absolute per se but are circumscribed by the purposes and principles articulated in the Constitution (see Article 4 of the Liberian Constitution).
In addressing the issue of whether the right to vote or be voted for is a fundamental right that requires compelling reasons to justify its impairment, the Supreme Court opined inter alia: “Chapter VII, Article 77(b) of the Constitution categorically grants every citizen of the Republic, “not less than 18 years of age”…” of the right to be registered as a voter and to vote in public elections. Yet Article 77(b) of the Constitution similarly further authorizes and empowers the legislature to make laws “indicating category of Liberians who shall not form or become members of political parties.” In my view, the provisions of Article 77(b) granting to every citizen the right to vote while at the same time authorizing and empowering the Legislature to make laws “indicating the category of Liberians who shall not form or become members of political parties” are not in conflict with each other because one does not have to be a member of a political party in order to qualify to vote. The language of Article 77(b) is clear and unambiguous and it states among other things: … “and every Liberian citizen not less than 18 years of age, shall have the right to be registered as a voter and to vote in public elections and referenda under this Constitution.”
Having said that, I am in agreement with the Supreme Court that to be voted to public office is a privilege and a bestowal of public honor and not a right.
On the issue of whether or not sanctions for violation of the Code of Conduct are limited to those listed under Section 15.1 of the Code of Conduct, it would be disingenuous not to mention the other sanctions under Section 14.1 which include “the disciplinary processes as contained in the standing Orders of the Civil Service, and other relevant rules, regulations and laws in force” as the Supreme Court has pointed out. The only problem though, with the inclusion of the sanctions of Section 14.1, specifically “disciplinary processes as contained in the standing Orders of the Civil Service”, is that presidential appointees are not civil servants and are therefore not subject to processes of the civil service. Moreover, apart from the Code of Conduct, I am not aware of any rules, regulations or laws in force that require a presidential appointee to resign his/her position two or three years before engaging in political activities, with corresponding sanctions for the breach thereof.
Finally, while the intent behind the code of conduct is good, unfortunately, it is now being used as a political tool to suppress political competition.
Cllr. Frances Johnson Allison is former Chief Justice, former Minister of Justice and Attorney General and former Chairman, National Elections Commission, Republic of Liberia