JUPICA et al. v NEC et al. [2014] LRSC 62 (13 December 2014)
JUPICA et al. v NEC et al. [2014] LRSC 62 (13 December 2014)
Justice and Public Interest Consortium Africa (JUPICA) of the City of Monrovia, Montserrado County, Republic of Liberia represented by its Case Management Director E. Kartuson Norris 1st PETITIONER, Honorable Edwin K. Martin, a Bona Fide Registered Voter of the Republic of Liberia and Resident of Paynesville City, Monrovia, Liberia, 2nd PETITIONER ANDBlamoh Nelson, J. Emmanuel Z. Bowier, Milton Nathaniel Barnes, Eminent Citizens and Registered Voters and John Ballon, Registered Voter and Chairman of the Movement For Progressive Change (MPC) of the City of Monrovia, Montserrado County, Republic of Liberia, 3rd PETITIONER Versus The National Elections Commission by and thru its Chairman Cllr. Jerome Korkoyah and Members of the Board of Commissioners including all Elections Magistrates, Directors and Supervisors under their control of the City of Monrovia, Liberia, 1st RESPONDENT AND The Government of Liberia by and thru the Ministry Of Justice Represented by the Acting Minister, All Deputy and Assistant Ministers and the Solicitor General of the City of Monrovia, Liberia, 2nd RESPONDENT
MR. JUSTICE JA’NEH CONCURRING IN PART AND DISSENTING IN PART.
I perfectly concur with the majority of the Bench in the first part of today’s decision. My most Distinguished Colleagues, the majority, have determined, and I fully concur, that the pleadings filed by the Concerned Group of Eminent Citizens, the Movement for Progressive Change (MPC) and the Leaders and Civil Society Organizations (CGEC), those by National Democratic Coalition (NDC) as well as the Ministry of Justice, shown to have violated the laws applicable, be stricken as a matter of law. I find myself in perfect harmony with the conclusion reached by the majority that the pleadings legally entertainable by this Court are those filed by Justice and Public Interest Consortium Africa, (acronym JUPICA) and Edwin Martin as well as the returns by the National Elections Commission, as First Respondent. To disagree with the majority will also be not tenable in the imposition of appropriate penalty on the lawyer as the Counsellor is one of long practice and experience. It strikes me that members of our Bar would elect, as in the instant case, to disregard basic rules, procedures and laws regulating practice in this jurisdiction. I find it rather indefensible that a member of this Bar will file improperly verified pleadings before this High Court or elect inexcusably to brush-off and shun the time directed by the Chambers Justice for filing responsive pleadings and thereafter summon the comfort of sleep in the quietude of his room. I am in agreement that where such conduct has been demonstrated, those pleadings be stricken as the law applicable directs. I also believe that the imposition of fines on the member of this Bar who has more than once been derelict in the practice of law equally warranted. I perfectly concur in the majority conclusion and decision on these procedural matters.
Notwithstanding, I have taken a great deal of time to reflect soberly on the substantive questions raised in the pleadings before this Court. Consequently, I find it simply unfathomable to shut my eyes to the important constitutional questions raised by the contending parties as my Esteemed Colleagues have conveniently chosen to do. The majority of the Bench has rather expediently termed the only pivotal question before the Highest Court of the land as a political question. By the majority decision to dismiss petitioners’ petition on that primary ground, the Supreme Court, in my judgment, has woefully failed to rise up to its constitutional duty, irrespective of the parties involved, to say what the law is. I differ on this fundamental point; hence, my dissent on that segment of the majority decision.
The rights to life and liberty as well as the protection, preservation, enjoyment and defence thereof, are the forerunner amongst the fundamental rights guaranteed both under the Liberian Constitution (1986) and its predecessor organic instrument of 1847. Article 11(a) of the Liberian Constitution, inter alia, provides:
All persons are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty, of pursuing and maintaining the security of the person
It worth noting that the Supreme Court of Liberia, in the case, Begbah v. Republic of Liberia, decided far back in 1906, recognized the distinctiveness and irretrievability of the gift of life. The Court, in that case, held:
Nothing is or can be dearer to man than his life, hence, no other man nor a legal tribunal has the right to dispossess one of life, except by due process of law backed by unequivocal evidence. For this potent reason, this Court, the dearer resort of justice, is slow and careful in weighing facts and evidence to the dispossessing of man of that life not given by man but given by God. Id. 1LLR 472.
It is well to state with emphasis that the right to vote in public elections and referenda is amongst the fundamental rights enshrined in the Liberian Constitution. The exercise by every Liberian Citizen of majority of the right to vote without any undue hindrance is constitutionally guaranteed. Article 77 (b) of the Liberian Constitution, in relevant part, states:
“All elections shall be secret ballot as may be determined by the Elections Commission, and every Liberian citizen not less than 18 years of age, shall have the right to be as a voter and to vote in public election and referenda under this Constitution”
Unarguably, the protection of the citizen’s fundamental right to life and the right to vote rank utmost amongst the sacred duties of every government. In Harmon et al. v. Republic of Liberia[1924] LRSC 7; , 2 LLR 480 (1924), Mr. Justice Johnson, quoting Mr. Justice Story of the United States Supreme Court, said: “The fundamental maxims of a free government, seemed to require that the rights of personal liberty and private property should be held sacred.” Id. 482.
In the scheme of our republican form of government contemplated under Article 3 of the Liberian Constitution, it would appear as though the duty to protect constitutional and inalienable rights is primarily rested in the courts. Historically, the Judiciary has always been recognized as the anchor which holds stabilized government in balance; without it, vested interest might suffer, sacred rights be violated constituted authority be challenged; and in fine, administrative chaos could result. In re C. Abayomi Cassell, Counsellor-At-Law, Respondent[1961] LRSC 22; , 14 LLR 391, 404 (1961), Branly v. Vamply of Liberia, Inc., [1973] LRSC 83; 22 LLR 337, 352-3 (1973).
Speaking for this Court, without dissent in the Abayomi Cassell case, referenced herein above, Mr. Justice Pierre highlighted this historical function of the Liberian court as stated: “The rights of individuals in Liberia as they are exercised under the Constitution by the citizens, have always been guarded by the courts; and in so far as the State’s right to infringe them has been challenged, there is no instance where a final determination of any particular case on the highest judicial level has not afforded ample redress to every aggrieved litigant, even against the State.”
It was therefore no surprise that the constitutional mandate of the Judicial Department of the State has been reinforced under the current Organic Law (1986). By its current exceptional assignment, the Constitution has immortalized the Supreme Court under the powers of judicial review to serve as the guardian of our inalienable rights to life, to living in security and to safeguard our democracy. By these powers, the Supreme Court is authorized to declare as unconstitutional any edict, regulation, law, devised by the Legislative, Executive and Administrative Agencies as well as pronounce any conduct in execution thereof, not in conformity with the fundamental guidelines set forth under Chapter II of the Liberian Constitution (1986).
It would appear that the framers of our Constitution learnt from our turbulent past that enshrining guiding principles in the Constitution to direct the governance of the State was commendable, those principles alone proved to woefully inadequate to protecting the sacred rights of the individual person. To cure this historically costly inadequacy, the framers recognized a dire need a and therefore granted to the Supreme Court what is clearly a novelty in constitutional construct.
Unlike its predecessor 1847 Constitution which provided no such express authority, Article 2 of the new Liberian Constitution (1986) expressly and unequivocally grants the Supreme Court the power of judicial review: In proper exercise thereof, the Supreme Court may declare as void and of no legal effect [a]ny laws, treaties, statutes, decrees, customs and regulation found to be inconsistent with it (Constitution)”. Said differently, it is the express constitutional mandate of the Honourable Supreme Court of Liberia to pronounce as unconstitutional” any conduct, action, regulation, law or order which the Court finds to be inconsistent with any provision of the Liberian Constitution. It is important to further observe here that the writers of our Constitution, under Article 66 of our organic instrument, have expressly placed within strict constitutional prohibition the enactment of any law which seeks to divest the Supreme Court of any of its powers. These include the extra-ordinary constitutional powers of judicial review.
It is in recognition of these powers vested in the Nation’s Highest Court that Petitioners in these proceedings fled to the Supreme Court as the final arbiter of all constitutional questions. Petitioners have come seeking relief from the conduct of the Legislative and Executive Departments, alleging that the conduct of these two political departments is inconsistent with the rights guaranteed under the Constitution; hence this Court should so declare and prohibit.
The substance of Petitioners’ contentions, detailed in the majority opinion, is as follows:
“That he (that is, Second Petitioner Honourable Edwin K. Martin) feels threatened and completely defenseless and lives in utter fear and a state of shock and dismay that the holding of senatorial elections by the 1st & 2nd Respondents which is characterized by campaigns, huge public gathering and in which crowds will rub against each other, will not only violate the procedures set in place to fight Ebola but will further exacerbate the current Ebola crisis and will lead to new Ebola cases at an alarming rate which could lead to more premature and untimely deaths of Liberian citizens across the country;
That he feels vulnerable and is deeply frightened that as horrific as the projection for the astronomical rise in new Ebola cases is, and could reach an alarming proportions, based on the forecasts from the Center for Disease Control (CDC) and the World Health Organization (WHO), the 1st and 2nd Respondents have disregarded or are openly advising people to flagrantly disregard all of the fundamental safety measures put in place against huge public gatherings, over-crowdedness simply to hold elections for 15 Senators at the expense of the innocent life of 2nd Petitioner and his fellow compatriots;
That 2nd Petitioner lives in horror and is deeply distressed in that despite the fact that all schools, hospitals and major economic institutions have dosed down and all foreign investors have fled the Republic of Liberia and their return is contingent upon the defeat of the killer Ebola virus, the 2nd Respondent has not mobilized or set aside sufficient precious economic and financial resources to fight the deadly Ebola virus; instead, it is only interested setting aside huge financial resources to hold Senatorial Elections which could exacerbate the spread of the killer Ebola virus, thus, 2nd Petitioner harbours the fear that schools, hospitals and economic institutions will remain perpetually shut down because there is a likelihood for more new Ebola cases from 10,000 at the end of November 2014 to 1.4 million (One Million four hundred thousand) by Mid-January 2015, according to both CDC and WHO, which could lead to alarming death rate of more citizens most of whom are relatives, friends and fellow compatriots of 2nd Petitioner;
That 2nd Petitioner fears that the future of his little sons and daughters, including the children of Liberia, who are the “precious jewels” and future leaders of our country are gambled and trampled underfoot in violation of Article 6 of the 1986 Constitution by the continued closure of educational facilities as a result of the deadly Ebola virus and the 2nd Respondent being the custodian and protector or defender of the sovereign rights of Petitioner and all Liberians, specifically with the power to protect life and property has done nothing or is showing no sign that it cares or is worried about the danger that the Ebola virus poses to the stability of the Liberian State and the happiness of its people;
That 2nd Petitioner fears that the 2nd Respondent has lost focus in the war on Ebola for the fact that it is interested in conducting elections for 15 Senators rather than intensifying the war to eradicate Ebola thus, its actions at the detriment of Petitioner, the lives of millions of Liberians, is not only self-serving but is counter-productive to the peace and security of all Liberians”.
On the strength of these allegations, petitioners prayed the Court to issue the Alternative Writ of Prohibition ordering a stay of all proceedings, and subsequently make permanent said orders by the issuance of the Peremptory Writ of Prohibition to prevent any further abuse and violations of petitioners constitutional rights.
Resisting the petition, Respondent, The National Elections Commission, filed its returns substantially contending as follows:
And also because as to the entire petition, 1st Respondent says that it has acted pursuant to Law. Under Article 35 of the Constitution of the Republic of Liberia when the Resolution of the Legislature is approved by the president as in this case, said resolution then have the full force and effect of the Law. 1st Respondent says that pursuant to the Resolution approved by the President is Legal and therefore prohibition will lie;
And also because as to the entire petition, 1st Respondent says that the Legislature is empowered to enact the Elections Laws and that the performance of that duty and the subsequent compliance therewith cannot be construed as illegal, arbitrary and contrary to Law. Prohibition therefore will not lie. The Honorable Supreme Court in the case Ware V. Republic decided March Term 2012, Justice Banks speaking for the Court said: “This Court has held that prohibition is the proper remedial process to restrain administrative tribunal from taking action in the case over which it has no jurisdiction or where it acts beyond its jurisdiction” 1st Respondent says that this not being the case, prohibition will not lie;
And because as to action 13 of the petitioners’ petition, 1st Respondent says that consultations were held and the parties in recognition of the impossibility of complying with Article 33 of the Constitution agreed and had reaffirmed their commitment to the holding of Elections to advert any Constitutional crisis which could roll back the progress in maintaining our democratic values. Please see hereto attached a statement reaffirmation signed by the parties and marked as Exhibit R/2 in bulk.
Clearly, the parties in these proceedings have respectively urged the Supreme Court to pass on several important questions. However, it is trite law in this jurisdiction, and we must here seize this opportunity to emphasize, that the Supreme Court has no duty to deal with all the questions raised by parties before the Court. It is within the exclusive authority of the High Court to limit itself to, and deal with only those issues the Court has determined to be germane and dispositive of the case before· it. Halaby v. Cooper. Messrs. Import-Export Company, 41LLR 136, 146 (2002); Scanship (Liberia) Inc./LMSC v. Flomo, [2002] LRSC 21; 41 LLR 181, 190 (2002); Knuckles v. The Liberian Trading and Development Bank, Ltd. (TRADEVCO) [2000] LRSC 6; 40 LLR 49, 53 (2000); Messrs C. M. B. Transport of Belgium v. Messrs Textile Center, [1995] LRSC 29; 38 LLR 49, 54 (1995); Lamco J. V. Operating Company v. Verdier, [1978] LRSC 9; 26 LLR 445, 448 (1978).
Consistent with this principle, the majority of this Bench elected to address the following two critical questions combined:
“Whether or not by setting the election date under Joint Resolution of the House of Representatives and the House of Senate which Joint Resolution was signed by the National Legislature and the President were in violation of the Constitution?
And:
“Whether or not the decision to schedule the elections while the EBOLA virus is still present in Liberia is in violation of the Constitution? Assuming the answer to this question is in the affirmative, does this present a justiciable issue which can be determined by this Court”?
The majority decision, delivered by our Distinguished Colleague, the Chief Justice, recounted the sequence of occurrences leading to the filing of the petition and the returns thereto. The opinion also detailed government’s response to the killer Ebola virus and cited extensively various provisions of the Liberian Constitution in support of the majority decision. The opinion majority concluded thus:
“it is important to note that the Joint Resolution was passed by the Legislature and signed into law by the President when the state of emergency was still in effect. We hold that because the Joint Resolution was passed by the Legislature and signed into law by the President when the state of emergency was still in effect, the said Joint Resolution constitutes a modification of the measures taken by the President pursuant to the state of emergency.
The position we have taken is supported by Article 29 of the Constitution, which provides: “The legislative power of the Republic shall be vested in the Legislature of Liberia which consist of two separate houses: A Senate and a House of Representatives, both of which must pass on all legislation. The enacting style shall be: “it is enacted by the Senate and House of Representatives of the Republic of Liberia in Legislature assembled” and Article 35 of the Constitution, which provides: Each bill or resolution which shall have passed both Houses of the Legislature shall before it becomes law, be laid before the President for his approval. If he grants approval it shall become law. If the President does not approve such bill or resolution, he shall return it, with his objections, to the House in which it originated. In so doing, the President may disapprove of the entire bill or resolution or any item or items thereof. This veto may be overridden by the re passage of such bill resolution or items thereof by a vote of two thirds of the members in each House, in which case it shall become law. If the President does not return the bill or resolution within twenty days after the same shall have been laid before him it shall become law in like manner as if he signed it, unless the Legislature by adjournment prevents it return”.”Consistent with these constitutional provisions, the House of Representatives and the House of Senate on October 14, 2014, passed a Joint Resolution authorizing NEC to conduct a special senatorial election to replace those Senators whose terms of office expire on January 16, 2015. That Joint Resolution was subsequently signed into law by the President and printed into Handbill by the Ministry of Foreign Affairs. This being the case, the Resolution became a law of this Republic that is not only binding on the National Elections Commission, but also a law that is binding on all citizens of this nation. We hold therefore, that both the President and the National Legislature having performed acts within the pale of the law, did not violate the Constitution.
The Petitioners content that consistent with the quoted constitutional provision, this Court has judicial power to determine the issue raised in their petition, namely, “that Petitioners say that as a result of the current Ebola crisis although said to have been significantly reduced, notwithstanding, still present and prevalent and killing more peaceful citizens, a group of wise and eminent Liberian citizens headed by the venerable social commentator and political activist Blamoh Nelson, Mother Mary Brownell and others wrote the 2nd Respondent who is the principal of the 1st Respondent to see reason to defer the pending senatorial elections to a later date consistent with the provision of Article 1 of the 1986 Constitution until after the Ebola crisis but the 1st and 2nd Respondents viewing themselves as ‘Bosses’ rather than ‘Servants’ of the people have arrogated unto themselves the power and authority delegated to the people of Liberia under Article 1 of the 1986 Constitution and have therefore decided to flout or abuse the Constitution by setting their own elections date of December, 2014.”
In challenging the authority of the President and the Legislature to set the elections date the petitioners rely on Article 1 of our 1986 Constitution, which provides:
“All power is inherent in the people. All free governments are instituted by their authority and for their benefit and they have the right to alter and reform the same when their safety and happiness so require. In order to ensure democratic government which responds to the wishes of the governed the people shall have the right at such period, and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments”.
They contend that consistent with this constitutional provision, it is only the people and not the Legislature and/or Executive Branch of Government who have the power to convene a conference at which a new election date must be set for Senators. They therefore request this Court to issue the extraordinary Writ of Prohibition to restrain, prohibit and enjoin the President and the National Legislature from setting an election date and NEC from conducting any election until the people convene a conference at which the people may set a date for senatorial election. This contention of the petitioners raises two basic questions: (a) what exactly does this provision of the Constitution mean? (b) What kind of power is “inherent in the people”?
We are of the considered opinion that Article 1 of the Constitution cannot be construed as conferring the power on the people to administer the affairs of the nation on the body politic as a whole. This is a misguided view of that Article. We hold that when Article 1 refers to power being inherent in the people, it means the right of the people to decide the leadership of the nation through elections organized by those who are charged with the responsibility of conducting elections consistent with the Constitution. The power of the people therefore can be and is exercisable by those who have been elected by the people to represent their interest. It is inconceivable to argue, as the petitioners do, that the drafters of the Constitution intended Article 1 of the Constitution to be construed as proposed by them. The text of Article 1 itself supports this conclusion, otherwise, how would the people “have the right at such period, and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments. Who shall organize and supervise such election if the entire body politic, including those seeking public office, have the power to decide when elections are to be had? Clearly, the entire population of this nation was not intended by the framers of the Constitution to have and exercise such power. Instead, it is intended that someone or group among the body politic would be responsible for organizing and conducting an orderly election”.
Addressing the second issue, whether the decision to conduct the Senatorial Election amidst the EBOLA Virus Disease presents a justiciable or political question, our Distinguished Colleague, Mr. Chief Justice Francis S. Korkpor, Sr., speaking for the majority, said:
“In our opinion, the determination sought by the petitioners in their challenge to the conduct of the 1st and Respondents is one which this Court, being the head of the Judicial Branch of our Government cannot make because of the doctrine of separation of powers enshrined in our Constitution and also because of the political question doctrine. The political question doctrine recognizes the principle of separation of powers, which is inherent in our Constitution and therefore excludes some disputes from judicial determination.
According to the political question doctrine, a subject matter is inappropriate for judicial resolution where it is exclusively assigned to the political branches of our government or where the political branches are better-suited than the judicial branch to determine the matter. Hence, the political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the Legislative or Executive Branch of our Government. In order for this Court to determine whether the 1st and 2nd respondents were or are constitutionally required to comply with the Joint Resolution passed by the Legislature which was signed into law by the President consistent with the Constitution. This we decline to do. Many years ago this Court recognized the political question doctrine and refrained from delving into questions which fall within the realm of politics. In the case: Massaquoi v. The Republic, 3LLR 41 (1993) this is what this Court said:
“Matters which are by their nature solely political should be confined within the realm of politics. There is a vital difference between justiciable matters and matters political. Courts of Law are instituted for the purpose of deciding only such questions as are susceptible of determination by the application of well recognized rules of law of equity by which they can be decided. The only rule applicable to the adjustment of such questions is the rule of conciliation or compromise; and when a court of law embarks on such turbulent seas, it immediately loses its office as a judicial tribunal and abdicates its forum where pettifogging politicians resort to ventilate their little minds. Any verdict based upon non-justiciable matters is therefore illegal, and the appellate Court shall remand the cause to be tried de novo”.
I have dissented from this holding by the majority. For the disposition of the basic controversy at bar, it is my considered view that these proceedings present one pivotal question:
“Are the conditions which compelled the imposition of the State of Emergency and the suspension of the right to vote in the scheduled October Senatorial Elections no longer a clear and present danger to life and the enjoyment thereof as to allow the free exercise of the constitutional right to vote in free, fair and transparent public elections contemplated under the Liberian Constitution”?
Posed otherwise,
Under the current state of EBOLA Liberia, does the holding of the Senatorial Election directed by Joint Resolution NO. 003/2014, infringe on the right to life, and to trample on the right to freely vote in public elections as envisaged under the Liberian Constitution?
In addressing this question, I take judicial cognizance of the events which took place in Liberia between the period February and November, A. D. 2014. During this period interval, the happenings were of such notoriety as not to be a basis of rational debate. This method is supported by the law extant. Civil Procedure Law, Rev. Code 1:25.1 provides: “Every court of the Republic of Liberia shall, without request, take judicial notice of the constitution and of the public statutes and common law of the Republic”. The Supreme Court has further elaborated on this principle in a litany of opinions. See: Super Cold Service v. Liberian-American Insurance Corporation, [2000] LRSC 21; 40 LLR 189, 196 (2000); Lamco J. V. Operating Company and The Ministry of Labour v. Garmoyou et al.[1988] LRSC 16; , 34 LLR 712, 723 (1988). In the Lamco J. V. Operating Company case, this Court held that every judge shall of his own motion, take judicial notice of public historical facts that are so well known as not to be a subject of reasonable doubt.
The facts I find to be essential to understanding the case and also to aid in appreciating the conclusion reached in this dissent are summarized as follows:
Sometime in February, A. D. 2014, there was an outbreak of an extraordinarily unfamiliar killer virus disease called EBOLA. Principally, due to the killer disease being widely unknown to the Liberian people, hundreds of persons contracted the EBOLA virus and died. By August, A. D. 2014, more than two hundred (200) EBOLA infected persons had perished. The number of confirmed cases was more than five hundred. The Nation and its resources were overwhelmed as the EBOLA waged, reducing us to literally a hopeless Nation. Deeply rooted cultural practices such as shaking hands, hugging, washing dead bodies, heretofore the order of the day, contributed significantly to the spread of the killer virus.
Amidst this terrible state of unprecedented health epidemic, and in discharge of government’s cardinal duty to protect lives, the President of the Republic, on August 7, A. D. 2014, declared a “State of Emergency” pursuant to the powers granted under Article 86(a) and (b) of the Liberian Constitution. Her declaration of the State of Emergency throughout the Nation was subsequently approved by the Legislature of Liberia.
In the communication, the President not only did she accurately present the ghastly picture of the danger posed by the EBOLA Virus Disease to the lives of the Liberian people, but she also described the EBOLA virus as clear and present danger to the wellbeing of the Nation. The relevant part of the Chief Executive’s communication is hereunder quoted:
“To date, [that is August 7, A. D. 2014] over 930 citizens and foreign residents in our three countries [Liberia, Sierra Leone and Guinea Conakry] have already fallen to the disease. In Liberia, we have recorded over 516 EVD cases (121 suspected, 252 probable and 143 confirmed) and 282 deaths. Because of combination of factors, including some citizens’ belief that EVD is not real, patient denial of EVD symptoms and a distrust of government and its international health partners, the virus has continued to spread faster than the Government of Liberia (the “Government”) can respond. Along with the sheer number of lives EVD has taken and is continuing to take, the EVD outbreak has had the following negative effects on Liberia.
The epidemic has placed enormous strains on our health care, and the high number of deaths among health care professionals is making the fight even more difficult. There have been a total of 65 suspected, probable and confirmed cases among health care workers with 34 deaths. This is especially troubling since our healthcare systems are already significantly under resourced and we simply cannot afford to lose anymore health care providers.
The presence of EVD is also having a chilling effect on the overall health care system in our county. As this is the rainy season, malaria, typhoid and common colds, while prevalent, are going untreated because (i) these illnesses have symptoms similar to those exhibited by EVD patients in the early stages of the disease and health practitioners at smaller community clinics and large hospitals, such as JFK and Redemption, are afraid to treat patients for fear of inadvertently catching EVD and Honorable Legislators, the scope and scale of the epidemic, the virulence and deadliness of the virus, make it clear that the mission to contain EVD now exceeds the capacity and statutory responsibility of any one government agency or ministry. The Ebola Virus disease, the ramifications and consequences thereof, now constitute an unrest affecting the existence, security, and well-being of the Republic amounting to a clear and present danger. The Government and people of Liberia require extraordinary measures for the very survival of our state and for the protection of the lives of our people. Critical to this, is the containment of the Ebola virus, prevention of new cases and administering proper health care to the afflicted and most importantly, the protection of our health care workers from contracting the virus and from physical attacks in affected communities”.
The President followed the referenced communication with the issuance of a “Proclamation” in which she further emphasized:
“In order to combat the deadly and dreaded Ebola Virus affecting our Nation and its people and to eradicate the virus from the Republic, the President of Liberia, on August 6, 2014, acting pursuant to the powers vested in her under Article 86(a) and (b) of the Constitution of the Republic of Liberia, declared a State of Emergency throughout the Nation, which action was subsequently approved by the Legislature of Liberia as stipulated under Article 86 of the Constitution”.
The President, in proper exercise of the powers vested in the presidency, proceeded “to suspend, during the period of the State of Emergency, any and all rights ordinarily exercised, enjoyed and guaranteed to citizens and residents of the Republic in normal periods, limited only by specific exceptions stipulated by the Constitution”.
The Proclamation is hereafter quoted in part, word for word, to drive home the point:
“WHEREAS, the continued spread of the Virus, with enormous loss of lives, human tragedies, and impairment of the health, safety and security of citizens and residents of the Republic, and the grave risk posed to the existence and sovereignty of the nation, thereby necessitating, under the mentioned State of Emergency, the suspension by the Government of rights, inclusive of the right of freedom of movement, certain rights of assembly and large public gatherings which would involve person to person contact, the closure of schools and public entertainment centers whose activities could impair efforts at effectively combating the Virus and in fact aid the spread of the virus;
WHEREAS, as a consequence of the measures taken by the Government under the State of Emergency to contain the spread and eradicate the virus, the continued prevalence of the Virus, and other self-surviving measures taken by the people in restricting their travel and contacts, necessary of a free, open and transparent political atmosphere, the National Elections Commission, the Institution clothed with the authority to conduct elections in Liberia, has informed the Government that it has been unable to undertake several of the processes that are prerequisites to conducting the pending 2014 Senatorial elections, including the deployment of staff in the field to conduct civic/voter education, the recruitment and deployment of the required polling staff at polling centers, the importation of basic, essential and sensitive electoral materials due to the suspension of flights to Liberia, the requisite campaigning by senatorial candidates and the monitoring of the process and activities by the NEC to ensure that there are no violations of the Elections Law and that violations are adequately addressed
WHEREAS, the Government is convinced that the conduct of elections in this period of the Ebola Virus crisis would not only be inimical to the nation and to its people, but would create greater problems for the stability of the nation and a lack of credibility in the results of such elections by the people and the international community under the current crisis situation.
NOW, THEREFOR£ by virtue of the power and authority vested in me, both by the Constitution and the Declaration of the State of Emergency under authority of the Constitution, I, Ellen Johnson Sirleaf, President of the Republic of Liberia, do order and declare that the October 14, 2014 Senatorial Elections and all the voting rights associated therewith and connected thereto are hereby declared suspended.
The National Elections Commission, the agency of Government authorized to hold general and special elections, is directed to immediately commence consultations and discussions with all recognized and accredited political parties, independent candidates, and civil society organizations and other stakeholders, as well as national and international health authorities on a new date for holding the Special Senatorial Elections.
May God bless us all and save and preserve our great nation!
GIVEN UDNER MY HAND AND SEAL OF THE REPUBLIC
OF LIBERIA, IN THE CITY OF MONROVIA,
COUNTY OF MONTSERRADO,
THIS 4TH DAY OF OCTOBER, IN THE YEAR OF OUR LORD 2014.
ELLEN JOHNSON SIRLEAF
PRESIDENT OF THE REPUBLIC OF LIBERIA
BY ORDER OF THE PRESIDENT
AUGUSTINE KPEHE NGAFUAN
MINISTER OF FOREIGN AFFAIRS:
The Legislature concurred with the President in her declaring of the State of Emergency. It approved the measures therein outlined. Those measures, according to the President in her communication to the Legislature, were by no means exhaustive. There was one notable measure announced by the President in her “Proclamation”; i.e., the suspension of “voting rights”. In the turn of events, the Legislature also adopted Joint Resolution #002/2014, in their words, “endorsing and approving a Proclamation issued by the President of the Republic of Liberia declaring the suspension of the election exercises of the Senatorial Election scheduled on October 14, 2014; and all the voting rights associated therewith and connected thereto….”
One point needs to be emphasized for reason of its critical importance to the core question before this Court. It should be remembered that in her “Proclamation” to the Liberian people, the Chief Executive succinctly warned that the conduct of election during the EBOLA virus crisis would pose material danger and exacerbate present risk to lives. But this was not the only warning. As if to recreate a picture of the Nation’s troubled past when elections were conducted and the results therefrom were generally seen, considered and treated by the Liberian people as not credible, the “Proclamation” further cautioned the Nation in the following words:
“the conduct of elections in this period of the Ebola Virus crisis would not only be inimical to the nation and to its people, but would create greater problems for the stability of the nation and a lack of credibility in the results of such elections by the people and the international community under the current crisis situation”.
It is common knowledge that public elections are essentially intended to provide the electorates the opportunity to know and interact with persons seeking public office. Public elections are basically about affording the citizens the opportunity to form opinions and to make informed choices. Such elections are ordinarily crowd pullers. In the context of Liberia, these elections also trigger unusual mass movements of the electorates across the Nation. Rallies, congregating voters and parades and commuting persons from place to place seem a necessity in the conduct of free, fair, transparent and credible democratic elections. As seen in the last week of November 28, A. D. 2014, notably in Montserrado and Nimba Counties, there were huge assemblies of people which proved to be but a license to violation of literally every health measure now in place. Didn’t the Nation watch this just the other day on November 28, A. D. 2014, in Monrovia, Montserrado County? Evidently, those campaigns and rallies paid little if any heeds at all to health measures.
The experiences gathered from the past campaigns, provide a conclusive public evidence to convince the most skeptic that the holding of public elections while in the midst of the Nation’s battle against the deadly EBOLA virus is inimical to the wellbeing of the State. This situation as witnessed reinforces clear and present danger to life, which precious gift is the primary duty of every government to protect, ours being no exception.
But in what appears to be a disregard to the advice contained in the “Proclamation” that it will be “inimical” to the Liberian State and its people were public elections conducted amidst the EBOLA crisis, the Legislature proceeded to adopt Resolution #002/2014. On October 13, 2014, according to the records, “Joint Resolution #002/2014” was approved by the Chief Executive, notwithstanding her own advice to the contrary, thereby vesting same with the full force of the law. According to law, a joint resolution acted on by the Legislature and approved by the Chief Executive, as in the instance of Joint Resolution 002/2014, becomes a law, for all intents and purposes. Garlawolo et al. v. The Elections Commission et al.[2003] LRSC 6; , 41 LLR 377, 387 (2003); Williams et al. v. Smith et al.[1983] LRSC 21; , 30 LLR 633, 635 (1983).
The “Joint Resolution” directed the National Elections Commission to commence immediate consultations and discussions with all stakeholders. These were to include accredited political parties, independent candidates, civil society organizations, as well as national and international health authorities.
It is worth noting that in obedience to the directive to conduct wide range consultations, the National Elections Commission held same and reported to the Legislature the substance of said consultations. Captioned “Report from Public Consultations with Stakeholders to set a New Date for the Conduct of the 2014 Special Senatorial Election”, in summary, stated:
1. That the National Elections Commission (NEC), pursuant to Resolution #002/2014 has completed consultations as mandated listing many institutions consulted. The list of consulted institutions included Political Parties and Independent Candidates, Civil Society Organizations, Inter Religious Council of Liberia, (National Muslim Council of Liberia and Liberia Council of Churches), National Traditional Council of Liberia, The Press Union of Liberia, Youth and Student Groups (Federation of Liberian Youth and Liberian National Student Union}, National and International Health Experts (Ministry of Health World Health Organization (WHO) and Centre for Disease Control (CDC), Representatives of International Development Partners (African Union Economic Community of West African States (ECOWAS), European Union (EU), United Nations Development Programme (UNDP) and United Nations Mission in Liberia (UNMIL), and United States Ambassador to Liberia.
2. That the NEC additionally consulted local and traditional leaders across the country.
3. That the International Partners and Friendly Governments and Organizations, though not opposing the conduct of the Special Senatorial Election nevertheless emphasized the public health factor.
4. That the representatives of the Ministry of Health for Social Welfare (MOH)/ Center for Disease Control (CDC) and World Health Organization (WHO), in separate presentations/ each underscored that the Ebola Virus is “bending the curve” signalling a decrease in the spread and attending consequences.
We quote some relevant parts of the NEC report:
“When asked for advice on whether or not the Commission should proceed to conduct the Special Senatorial Election in December health experts did not present a definite position. As public health practitioners, they instead preferred to emphasize the fight against Ebola.
The Center for Disease Control (CDC), however advised that if it becomes imperative to hold the election, the following preventive measures among others, should be observed·
1. That voters on election-day be advised to stand at least three feet apart;
2. That mass migration of voters be restricted and;
3. That the NEC be very careful with the participation of sick people in the election·
The WHO for its part advised that public health situation be prioritized Clarifying on previous projection on the increase of the virus, the Ministry of Health maintained that the projections were based on figures generated at the time the prevalence of the virus was at its height and on condition that the various interventions would not be made”.
Quoting further, the report stated as follows:
“Meanwhile, stakeholders recommended, among other things, that the 53rd Legislature provide the necessary legal framework that in case of an upsurge of the Ebola Virus in a particular county at the time of election, the election in the affected county be deferred and treated as by-election as provided for under Article 37 of the Constitution of the Republic of Liberia”.
It would appear that the legislature did not see the wisdom in awaiting the outcome of the consultations. For reason/s not explained in the instrument, the Honourable legislature proceeded to further direct the Elections Commission to hold the suspended Senatorial election of October, 2014, not later than December 20, 2014, “pending the approval of the Legislature”. “Joint Resolution 003/2014” was later passed approving December 16, A. D. 2014, as the new date for the holding of the 2014 Senatorial Elections. Said “Resolution 003/2014” having also received Presidential approval became law.
In view of the facts narrated herein and also articulated in the opinion of the majority, we can now address the cardinal question in these proceedings: Are the conditions which heretofore constituted clear and present danger to life and compelled the suspension of the constitutional right to vote on October 14, 2014, sufficiently removed to allow for the conduct of free, fair and transparent democratic elections, envisioned under the Liberian Constitution (1986)?
In addressing this question, it is appropriate to consider two fundamental points. To begin with, the Liberian Constitution (1986) provides for an d jealously protected all fundamental rights conferred on the Liberian citizen . Basic amongst these rights is the sacred right to life. In this respect, the State 23 carries an incessant, never-ending constitutional duty to protect, and preserve the life of every citizen. In this context, it is the duty of the State to remove, contain and ultimately eradicate every clear and present danger to human life .and the unhindered enjoyment thereof. This duty of protection on the Liberian State is yet to be fully and satisfactorily executed.
Over the last ten (10) months, the EBOLA Virus Disease has proven sufficiently qualified as a clear and present danger to life. According to World Health Organization’s “situation Report”, covering the week up to November 23, A. D. 2014, there were sixty-seven (67) confirmed EBOLA cases in Liberia. Forty (40) of these confirmed cases were reported from Montserrado County. During recent campaign rallies, this part of the country witnessed the biggest gatherings of people, felt even by the visually impaired. I wonder how many could have been victims of touching and hugging by carriers of the deadly virus! For the same period under reference, Grand Cape Mount County recorded twelve (12) cases, while Bong County recorded ten (10) confirmed cases. World Health Organization (WHO) statistics also shows two (2) confirmed EBOLA cases each in Bomi and Margibi. Grand Bassa reported one (1) confirmed EBOLA case during the same reporting period.
These figures, highlighted herein, speak to clear and present danger to life and the well-being of the Nation. Few months ago, it took just one EBOLA case to spread across the country resulting to the deaths, burials and cremations of hundreds of our fellow compatriots. This being of recent vivid memory, it would be a position totally void of logic to contend that the existence of dozens of confirmed EBOLA cases is not a clear and present danger to life and the wellbeing of the State.
I disagree with the majority that the legislation, i.e., “Joint Resolution 002/2014”, authorizing the conduct of public elections amidst the EBOLA clear and present danger to life, cannot be a proper subject for judicial scrutiny. It is my considered opinion that a legislation mandating the holding of public elections while EBOLA Virus Disease poses clear and present danger to life, a duty of government to protect and preserve at all times, violates both the constitutional right of the citizen to life and his the right to vote freely without hindrance in public elections. Where such violations of constitutional rights have been properly alleged, and the records so show to be the conduct of the two political departments, Legislative and Executive, the Judiciary is legally unjustified in failing to deal with this issue hiding its lack of courage under the pretext of political question doctrine. I hold the view that under circumstances narrated, the Supreme Court has a duty to say whether or not the two political branches of government exceeded their law making authority as granted by the Liberian Constitution of Liberia. This duty cannot be properly relegated under the political question doctrine, as the majority of the Bench decided today. In other words, where the President has acted by suspending the citizen’s rights to vote, to assemble in large gathering, and the Legislature acted in approbation thereof, questions raised against such conduct, as the petitioners did in the case at bar, could no longer be confined solely to the domain of the political question doctrine, in so far as that action rests on constitutionally guaranteed rights. I believe that this is precisely the case before us; hence it cannot be legally claimed, as the majority opinion has done, that the Supreme Court will be embarking in unknown domains if it were to address this vital issue. Clearly, the Legislature, acting in concert with the Executive, operates without constitutional authority when it legislates or conducts itself in a manner infringing on rights guaranteed and protected by the Constitution.
The majority Opinion has further maintained that the question as to the proper time to conduct the suspended October A. D. 2014 Senatorial Election is a political question and therefore not justiciable. I cannot most vehemently disagree. There exists, undeniably, a Ministry of Health in Liberia manned by competent medical experts. It is public information that the Ministry of Health, since the outbreak of the EBOLA Virus Disease, has been closely working with internationally recognized health authorities around the world: WHO- World Health Organization, Center for Disease Control, etc. Collaborating with these international organizations, our Health Ministry has, in my judgment, the competence to declare that EBOLA virus has been contained and that Liberia has become free thereof. Working together, these competent authorities – are properly placed to declare that the EBOLA virus no longer poses a clear and present danger to life. The question therefore as when is the proper time to said public elections is justiciable.
It is for these reasons, both factual and legal, that I have been unable to concur in the majority Opinion in its entirety. I therefore hereby file this Opinion, concurring in part, and dissenting in part, so that same can be filed in the archives of the Supreme Court.