WHY THE ANC BELIEVES A CONSTITUTIONAL CASE HAS NOT BEEN PRESENTED FOR POSTPONEMENT OF SENATORIAL ELECTIONS

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Like many Liberians, the Alternative National Congress (ANC) and its members are closely watching the case currently before the Supreme Court regarding postponement of the senatorial elections.  We believe that the Constitution provides no support for the arguments asserted by those seeking to postpone the elections. Below we address each of those arguments and show why they are completely lacking in any constitutional basis.  Accordingly, we are of the firm belief that the Court will deny the various petitions to postpone the elections and allow the Liberian people to exercise their right to vote on December 16, the date currently set for the senatorial elections:

1. One of the major arguments asserted before the Court by those seeking to postpone the elections is that the Legislature and the Executive Branches of Government did not have any powers under the Constitution to change the date (October 16) set forth in the Constitution for the holding of elections in Liberia.

The ANC believes this argument is without merit because the October 16 date set forth in the Constitution for holding elections was changed pursuant to the President's legitimate exercise of emergency powers duly granted her under the Constitution.  Articles 85-88 of the Constitution provide that the President may exercise emergency powers when she secures the approval of the Legislature to do so.  There is no dispute that, in keeping with the Constitution, the President sought and obtained legislative approval for the exercise of emergency powers as a result of the Ebola crisis. There is also no dispute that pursuant to the legislative grant of emergency powers to the President, the senatorial elections scheduled for October 16 were postponed.

Those challenging the constitutionality of the decision to change the election date have presented nothing to show that the President did not act in accordance with her legitimate grant of emergency powers.  The emergency powers Chapter of the Constitution expressly gives the President broad discretion to "suspend or affect certain rights, freedoms and guarantees contained in this Constitution and exercise such other emergency powers as may be necessary and appropriate to take care of the emergency, subject, however, to the limitations contained in this Chapter."  See Article 86 (emphasis ours).  

Article 87 then sets forth the limitations on the President's exercise of emergency powers or those things the President may not do when she exercises emergency powers.  In particular, Article 87 expressly states that the President may not do the following when she  exercises emergency powers: She may not a) suspend the Constitution; b) dissolve the Legislature; c) suspend or dismiss the Judiciary; or d) suspend the writ of habeas corpus.  Significantly, the postponement of elections is not listed among those things a President may not do when she exercises emergency powers.

Two conclusions can be drawn from the crucial fact that the Constitution expressly says what the President cannot do when she exercises emergency powers but does not include the postponement of elections amongst the things she cannot do.  The first conclusion we can reach is that the framers of our constitution knew how to put limits on the President's exercise of emergency powers–they knew what rights the President could not curtail and what other actions she could not take when she exercises emergency powers and they clearly listed those rights she could not curtail and actions she could not take.

The second conclusion we can reach is that because the framers knew how to put limits on the President's exercise of emergency powers, they would have included changing the election date specified in the Constitution amongst the things the President could not do when she exercises emergency powers if they intended to deny her the power to do so. But they did not do so.  Accordingly, the conclusion is inescapable that the framers of the Constitution did not intend to limit the powers of the President to postpone elections when she legitimately exercises emergency powers.

We therefore submit that, for the reasons set forth above, the argument that there was no constitutional basis to change the October 16 election date specified in the Constitution is simply without merit and must be dismissed by the Court.

2. Another argument put forward by those challenging the decision to change the election date is that the change amounted to an amendment to the Constitution.  Therefore, they argue that only another amendment can alter this change.

The argument that the postponement of the senatorial elections constitutes an amendment to the constitution simply does not hold water. Articles 91-92 set forth the procedure for amending the Constitution. That procedure requires the approval of a petition to amend by two-thirds of both houses of the legislature and ratification by two-thirds of registered voters in a referendum. Further, amendments represent permanent change to the constitution that can only be undone by subsequent amendments.  The postponement of the senatorial elections does not satisfy any of these requirements for an amendment. There was no ratification of the postponement by the people. Also the postponement is a onetime thing, meant only to deal with the Ebola crisis, and not a permanent change to the constitution.

Moreover, Article 87 (a) provides that “no constitutional amendment may be promulgated during a state of emergency.” As we have already noted, the postponement of the senatorial elections was done pursuant to the President’s exercise of emergency powers.  Accordingly, per Article 87(a)'s prohibition of amendments during a state of emergency, the postponement, which was done during a state of emergency, cannot constitute an amendment.

3. Relying on Article 1 of the Constitution, which provides that power is "inherent in the people," those seeking to cancel the elections now scheduled for December 16 also contend that only the Liberian people and not the Legislature can set a new election date.

We believe this argument is seriously flawed.   Article 29 of the Constitution expressly provides that the “the legislative power of the Republic shall be vested in the Legislature of Liberia.” Accordingly, the Legislature is the only body clothed with constitutional authority to enact laws.  Therefore, given the postponement of the senatorial elections as a result of the Ebola crisis and pursuant to the legitimate exercise of emergency powers by the President, only the Legislature has the authority to enact a law setting a new date for those elections.

The language in Article 1 of the Constitution that all power is inherent in the people simply provides no support for the argument that only the Liberian people and not the Legislature can set a new election date.  When the Constitution speaks in Article 1 of all power being "inherent in the people," it does not mean that we have a direct democracy in which all 4 million people in Liberia make laws. Instead, as the Constitution expressly recognizes in Article 3, our "form of government is Republican," meaning we have a representative democracy in which the people elect their representatives who make laws and a president who enforces the laws. The elected representatives of the people (members of the Senate and the House of Representatives) have enacted law setting a date for elections which were postponed pursuant to the President's legitimate exercise of emergency powers.

There is another crucial flaw in the arguments advanced by those seeking to postpone the elections.  They argue that because the Constitution vests supreme powers in the Liberian people, what they describe as "stakeholders” representing the people should set new date for elections. To the extent the so-called stakeholders are not the elected representatives of the Liberian people, they have no legitimacy, no constitutional authority to make laws that set new date for election, as the power to make laws reside only with the duly elected representatives of the people.  Indeed, we would be turning the principle that power is inherent in the people on its head were we to allow unelected so-called stakeholders, rather than the duly elected representatives of the people, to set the date for the postponed senatorial elections.

Finally, we recognize and deeply appreciate the legitimate concerns about how the ongoing Ebola crisis may affect the holding of elections.  The ANC and its members believe, however, that the World Health Organizations and other health agencies have set forth guidelines that will allow us to hold legitimately free and fair elections without contributing to the spread of Ebola. We call on the Ministry of Health and other responsible government agencies to implement and educate Liberians about those guidelines and thus ensure we have our scheduled elections and show the world that our young democracy is strong and alive despite an unfortunate health crisis.

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