Justices Banks and Wolokollie’s Dissent on Two Critical Issues: What Next?

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Mr. Justice Phillip Banks and his colleague, Madam Justice Jamesetta Wolokollie, last week dissented against the Opinion of three of their colleagues on the Supreme Court bench.

The case involved a petition against the Code of Conduct which became law after the Senate and the House of Representatives adopted it and it was signed into law by President Ellen Johnson Sirleaf on Monday, May 12, 2014. It was meant to serve as “an integrity check” for employees of the three branches of government and a guide to unwarranted behaviors, especially corrupt attitudes. When she signed the Bill, the President said it was the first of its kind in Liberia and said it would make Liberia “a better country.”

The President could not be more wrong in her perception. Such a law, which this newspaper is on record as deeming unconstitutional, instead of making Liberia “a better country,” would rather be a recipe for conflict—conflict that could lead us back into war.

The Civil Law Court decided that James Brooks, Chairman of the Citizens Solidarity Council, which filed the petition for declaratory judgement against the Code of Conduct, was indeed of legal standing to file the suit. But the Justice Ministry’s lawyers took exception to the Civil Law Court ruling and filed an appeal to the full bench of the Supreme Court.

There were two issues: first, the government lawyers contended that the Chairman of the group did not have the legal standing to bring the case against government. Second, that section 5.1 says 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. The Code’s section 5.2 says, “Wherein any person in the category stated in section 5.1, appointed by the president or by a board of directors, who desires to canvass or contest for an elective public position should resign the post at least two years prior to the date of public election.” Section 5.2 b states that any other official appointed by the president, “who holds a tenured position and desires to contest a public elective office, shall resign said post three years prior to the date of the public election.”

Petitioner Brooks and his colleagues contended that these provisions in the Code of Conduct are unconstitutional.

The government lawyers, on the other hand, argued that the Code of Conduct is not unconstitutional, and that Brooks, who filed the petition, had no legal standing.

In their Dissenting Opinion, Mr. Justice Banks and Madam Justice Wolokollie argued that Petitioner Brooks and his Citizens Solidarity Council do in fact have legal standing to present the case to the Supreme Court; and further that the Code of Conduct itself violates the Liberian Constitution because it affects only certain persons and not others in government. It does not affect the President, Vice President, neither members of the Legislature. So these may remain in power and use government resources to campaign for reelection.

The Chief Justice, His Honor Francis Korkpor, and his two collaborators, their Honors Justices, Kabineh Ja’neh and Sie-a-Nyene G. Yuoh, overruled the decision of the Civil Law Court, and ruled that Mr. Brooks and his group lacked the legal standing to pursue the case.

Because of this, the Supreme Court threw out the entire case, without going into the constitutional merits of the case.

Justices Banks and Wolokollie, in their Dissenting Opinion, argued that Brooks and his group do in fact have legal standing. The dissenting Justices further argued that the Code of Conduct is itself unconstitutional because it only singles out a particular group of people—presidential appointees.

What next, since the Supreme Court’s decision is final?

There are many thinking Liberians who argue that those who are still holding positions in government and who intend to contest the elections may be affected by the Code of Conduct. But those who have already resigned before this Supreme Court ruling are not affected by the Code of Conduct.

The latter group’s most tangible argument is, it is only recently, since their retirement from office that they decided to seek election. Who can hold that against them, and on what constitutional grounds?

If, however, their candidacy is challenged before the Elections Commission, then these former officials who are now running for public office would, according to a prominent Liberian lawyer, have no other recourse, but to run to the Supreme Court. For they, the candidates whose candidacies will have been challenged, would definitely have the legal standing to pursue their case before the High Court.

And such candidates would need to run to the Supreme Court, because time would be of the essence.

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