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THE SELENA MAPPY-POLSON’S OPINION AND THE FUTURE OF THE CODE OF CONDUCT

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The case, Selena Mappy-Polson v. The Government of Liberia (Supreme Court of Liberia Opinion decided March 3, 2017) grew out of a Petition for Declaratory Judgment at the Ninth Judicial Circuit Court for Bong County, Republic of Liberia; heard by the Honorable Supreme Court of Liberia on July 18, 2016 and subsequently decided by the High Court on March 3, 2017. The Petitioner challenged the constitutionality of Sections 5.1 and 5.2 of the Code of Conduct Act of 2014; which constrained the Honorable Supreme Court of Liberia, to articulate three distinct, significant, and fundamental principles of law, in our opinion.


The fundamental principles of law enunciated by the High Court in the Mappy-Polson’s opinion are not only germane to our contemporary body politic, but sin-qua-non to the development and elevation of our jurisprudence. Amongst them are 1) that the Code of Conduct Act of 2014 is constitutional, 2) that the right to vote is a fundamental right, though not explicitly recognized under Chapter three (Fundamental Rights) of the 1986 Constitution of Liberia and 3) that appeals emanating from the Office of the Ombudsman must be taken to the Honorable Supreme Court en banc.

In delineating the constitutionality of the Code of Conduct Act of 2014, though a tight decision by the High Court (3 in favor and 2 against), His Honor, Justice Ja’neh speaking for the majority bloc of the Supreme Court held that ‘in the wisdom of the Legislature, the inclusion of Sections 5.1 and 5.2 in the Code of Conduct Act were compelling necessity to ensuring curtailment of wanton abuse of public resources and misuse of public offices or positions to acquire undue electoral advantage. Not having been able to find any law upon which we could rely to question the wisdom of the Legislature in this regard, we hold that the Code of Conduct Act, whether in whole or in part, does not violate the Liberian Constitution’.Selena Mappy-Polson v. The Government of Liberia, opinion of the Supreme Court of Liberia, decided March 3, 2017.

The petitioner went on to make another strong argument that the code of conduct violates her equal protection rights under the Constitution of Liberia and as such, the code should be declared unconstitutional.

In disposing of her argument on Equal Protection, the Supreme Court relied on Article 11 (c) of the constitution of Liberia. The court said ‘this Court must emphasize that the organic law of this land guarantees equality and equal treatment of all persons under the law. Article 11 (c) of the Liberian Constitution (1986), assuring this sovereign guarantee, speaks the following language: ‘All persons are equal before the law and are therefore entitled to equal protection of the law’. Article 18 of the Constitution also directs: all Liberian citizens shall have equal opportunity for work and employment regardless of sex, creed, religion, ethnic background, place of origin, or political affiliation, and shall be entitled to equal pay for equal work.

Citing the constitutional provisions supra, the court also relied on two case laws to quash the Petitioner’s argument. The court relied on a landmark opinion delivered by Former Chief Justice Gloria Musu-Scott’s Bench captioned Republic of Liberia versus The Leadership of the Liberian National Bar Association, et al (40 LLR 635 , 2001) and harmonized a definitional standard set by the United States Supreme Court on Equal Protection in the Miller v. Johnson case, 515 U.S. 900 (1995).

In elucidating Equal Protection in the Republic of Liberia versus The Leadership of the Liberian National Bar Association’s case, the court stated that: Equal Protection of the law means that no person shall be subjected to any restriction in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness which do not generally affect others; that no person shall be liable to others or greater burdens and charges than such as are laid upon others; that no greater or different punishment is enforced against a person for a violation of the law.

Consistent with the General Construction Law, Title 15 of the Liberian Code of Laws Revised or the Reception Statute, in citing the Miller v. Johnson’s opinion delivered by the Federal Supreme Court of the United States of America, the Supreme Court of Liberia referenced the case and stated that equal protection guarantee is the guiding principle that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and in the liabilities imposed.

For the legal reasons cited, the Supreme Court of Liberia held that ‘ in this jurisdiction the Supreme Court of Liberia cannot and will not declare an Act of the Legislature as unconstitutional unless the Court is convinced beyond the slightest uncertainty that the legislation is patently in conflict with the constitution’.Selena Mappy-Polson v. The Government of Liberia, opinion of the Supreme Court of Liberia, decided March 3, 2017.

On the second fundamental principle of law expounded by the Honorable Supreme Court of Liberia in the Selena Mappy-Polson’s opinion, the court held that the right to vote is a fundamental right, though not explicitly recognized under Chapter three (Fundamental Rights) of the 1986 Constitution of Liberia.

In making a determination of this sacred fundamental right, the court said ‘as important as the right to vote is, the Liberian Constitution (1986) does not specifically list the right to vote under those expressly listed as fundamental. Id. This is evidenced by the omission of the right to vote from Chapter 3, Articles 11 – 25 of the Liberian Constitution. Nowhere in the Fundamental Rights Section of our Constitution is the right to vote mentioned. This leaves this Court to wonder, as far as Liberian laws are concerned, whether the right to vote could be a sanctioned fundamental right? By omitting the right to vote from Chapter 3 of the Constitution, one may ponder whether the framers of the Constitution intended or did not intend to recognize right to vote as amongst the fundamental rights in the Republic?

Justice Ja’neh speaking for the court said, we hasten to mention that though not expressly included as a fundamental right in Chapter 3, the right to vote as a fundamental right can and should be implied from the terms of Article 77 (b), which is consistent with rule in varying common law jurisdictions and enshrined in the International Covenant on Civil and Political Rights, already ratified by Liberia’. Id.

The last principle of law laid down by the Honorable Supreme Court in the Mappy-Polson’s opinion is that appeals emanating from the Office of the Ombudsman must be taken to the Honorable Supreme Court en banc.

The Code of Conduct Act did not explicitly touch on appeals from the Office of the Ombudsman. The Office of the Ombudsman is a statutory derivative of Part 12 of the Code of Conduct Act of 2014. The office is to act as a forum of first instant and exercise original jurisdiction in investigating breach of the Code of Conduct Act, consistent with provisions of the code.

In the opinion of the court, the Supreme Court held that ‘all appeals from decisions or rulings entered by the Ombudsman on questions of eligibility, imposition of sanctions, etc., arising from the Code of Conduct Act, shall lie before this Court en banc for hearing and determination as required by law. Selena Mappy-Polson v. The Government of Liberia, opinion of the Supreme Court of Liberia, decided March 3, 2017.

The Supreme Court of Liberia concluded by stating emphatically that, ‘the objective function of the Code of Conduct Law is to divorce the fiduciary duty of trust, integrity and loyalty owed by public officials to the people of Liberia from their personal desires to contest elections at the expense of public resources. The court further said it ‘sees no other least restrictive means of preventing abuse of public resources by public officials than requiring these officials to relinquish access and control of those resources within a reasonable time period of departure from those public offices as a prior eligibility requirement to contest in public elections’. Id.

With all of the controversies and rumors surrounding the Code of Code Act of 2014 and the latest Supreme Court of Liberia’s opinion on the constitutionality of the code, the Supreme Court of Liberia is on the side of the Law of the land, consistent with Article 90 (a, b, & c) of the 1986 Constitution of Liberia.

The opinion in the Selena Mappy-Polson’s case has edified and strengthened the Code on Conduct Act on one hand, and has reinvigorated and resuscitated all of the statutory provisions within the code on the other hand. This opinion has also put our democracy on the right trajectory of an equal playing field and put an immediate end to the grand old ploy of presidential appointees possessing undue advantage over others in the process of competing for elected positions in government by using government resources to support their campaigns.

The future of the Code of Conduct Act is promising and bright, that is why the code has prescribed a reasonable time frame for appointed officials of government to resign either two years (for non-tenured positions) or three years (for tenured positions) if they intend to participate in national elections. But above all, the law is the law; it bends for no man (citizen).

 

BY: ALVIN WEAGAR YELLOWAY

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