Supreme Court Grants Constitutional Power to the President to Appoint City Mayors—A Bad Omen

 

By

Charles Walker Brumskine*

In the case,

CDC and Liberty Party v. The Executive Branch of Government, decided

January 11, 2008, the Supreme Court of Liberia by a narrow majority declared that the

President of Liberia has the constitutional authority to appoint city mayors! Chief Justice

Lewis, Justices Johnson and Wolokollie signed the Majority opinion of the Court

construing Article 54(d) of the Constitution of Liberia (the “Constitution”), granting the

President enlarged constitutional power and authority by implication. Justices Korkpor

and Ja’neh dissented.

I could not disagree more with the reasoning and holding of the Majority opinion!

There can be no disagreement that the Constitution is the supreme and fundamental law

of the land and that any other law found to be inconsistent with the Constitution, to the

extent of the inconsistency, should be declared by the Supreme Court as void and of no

legal effect. (Article 2, Constitution)

Pursuant to this settled constitutional principle, the Court ruled that the Act Regulating

the Time and Election of City Mayors is unconstitutional and that Section 2.9 of the

Elections Law, as far as it relates to the election of city mayors, is also unconstitutional.

The Majority held that Article 54(d) of the Constitution, which states that “The President

shall nominate and, with the consent of the Senate, appoint and commission:

superintendents, other county officials and officials of other political subdivisions

(

emphasis mine) is offended by the statutes that provide for the election of city mayors.

How did the Majority opinion arrive at this conclusion?

The Plain Meaning Rule

The Majority held “that any provision of the Act, which is opposed to the plain terms of

any provision of the Liberian Constitution (1986), was repealed by implication at the

adoption of the Liberian Constitution (1986), and its effective date of January 6, 1986.”

By that, the Majority was invoking the

Plain Meaning Rule—a rule used to interpret

statues, which says that the court will interpret words in the statue according to their

usual or “plain” meaning as understood by the general public.

It should be noted that rules applicable to constitutional construction are the same as

those applied to statutory construction, except that the former are given a broader

construction due to their more permanent character.

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The Majority mistakenly construed “other political subdivisions” to mean or at least

include cities. Hence, the conclusion that the President has the constitutional authority to

appoint city mayors! In determining the meaning of a constitutional provision, the court

must first undertake to ascribe to the words, the meaning which the people understood

them to have when the provision was adopted. See,

State v. Cason, 507 S.W.2d 405, 408

(Mo. Banc 1973)

. The meaning conveyed to the voters is presumptively equated with the

ordinary and usual meaning given thereto.

To ascertain the meaning of the words used in the Constitution, one must consider the

meaning of the word at the time of use when the Constitution was drafted. In a

concurring opinion, Justice Clarence Thomas of the United States Supreme Court

recognized both the importance of having a precise definition of one’s terms and the need

to look to materials from the period when a provision was placed in the Constitution to

avoid modern changes in meaning. Justice Thomas said, “words have different meanings

in different time periods; if today’s scholars and politicians are allowed to assume that

words in the Constitution mean what they believe now, they would apply a fundamental

law that no one ever ratified.” See,

United States v. Lopez (514 U.S. 549, 131 L. Ed. 2d

626)

It was not the drafting of Article 54(d) of the Constitution that introduced the word

“subdivision” in relation to a political unit of Liberia, or the phrase “political

subdivisions”; the word “subdivision” is contained in Liberia’s procedural law—a daily

guide for most Liberian lawyers. Section 5.18 of the Civil Procedure Law (1LCLC

Revised) reads thus: “The Republic of Liberia, its

subdivisions, agencies, and officers,

and

municipal corporations chartered by the Legislature …” (emphasis added.)

Obviously “subdivisions” in the statute that predates the Constitution refers to counties

and not cities (municipal corporations) or else municipal corporations would not have

been separately mentioned.

But, if we are to extrapolate the meaning of “political subdivisions” in the Statute to

Article 54(d) of the Constitution, we must account for the “other political subdivision”

phrase in Article 54(d), which was the source of confusion for the Majority. The other

political subdivisions, for which the President would appoint officials, had to have been a

political unit like a county; they were called “Territories.” One would recall that the

National Constitution Commission (NCC) was commissioned by the PRC Government

on April 12, 1981, and the Constitutional Advisory Assembly (CAA) submitted the

Revised Draft Constitution to the Government in 1984. At the onset of the constitutional

drafting process, there were nine counties and six

other political subdivisions, namely,

River Cess, Kru Coast, Sass Town, Marshall, Gibi, and Bomi territories.

To justify its conclusion, the Majority disregarded the meaning and usage of the phrase

“political subdivision” as have been defined in the statute and used in this jurisdiction

long before the Constitution was adopted, and instead found solace in Black’s Law

Dictionary to find “the plain meaning” of the phrase ‘political subdivision.”

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Although it is true that the ordinary and commonly understood meaning of a word is

usually derived from the dictionary, Black’s Law Dictionary contains words, phrases, and

principles of common law, as evolved over the years. And the Dissenting opinion rightly

reminded us that in this jurisdiction, statutes take precedence over the common law. That

is, where a Liberian statute provides a remedy, the comon law remains silent; where the

usage of a word or phrase is settled in Liberia’s statutory lexicon, we never go to

common law to a find a “plain meaning.”

Expressio Unius Est Exclusio Alteries

The Majority invokes the famous legal maxim, “

expressio unius est exclusio alteries”—a

maxim of statutory interpretation, meaning that the expression of one thing is the

exclusion of another. The Majority then proceeds to reason that because the Constitution

did not provide for the election of city mayors, it “… withheld that city mayors shall be

elected.” But the Majority missed the point! The provision of the Constitution being

construed was Article 54(d), which deals with presidential appointment, not election of

city mayors. The real issue before the Court, which the Majority also concedes, was

whether the Constitution gave the President the right to appoint city mayors.

The Constitution is absolutely silent on the issue of city mayors, whether they should be

elected or appointed. But then the document is a constitution, which by definition, sets

out broad principles, leaving the details to be brought out by the Legislature, in some

instances by enabling legislation. The drafters, realizing that every pre-existing statute

could not be embodied in the Constitution, opted for Article 95(a), which provides for the

continuous validity of every law that is not inconsistent with any provision of the

Constitution.

The maxim is used as an aid to constitutional and statutory interpretation; it is not a rule

of law. It has been said that it is a valuable servant, but a dangerous master. See,

Monson

v Carver

, 928 P.2d 1017 (Utah 1996) The maxim appropriately applies only where in the

natural association of ideas the contrast between a specific subject matter which is

expressed and one which is not mentioned leads to an inference that the latter was not

intended to be included; and it is subject to the limitation that, like all other mere rules of

construction applied to ambiguous words, it must yield to proof of surrounding facts and

circumstances which satisfactorily demonstrates that the meaning intended was different.

Id.

The Constitution lists the officials that are to be appointed by the President, and no where

does it say that the President may appoint a city major. Therefore, pursuant to the maxim,

the power to appoint city mayors is clearly withheld from the President. What the

Majority opinion has done is to apply the maxim inversely. Application of the maxim

does not create a presidential power because it is not mentioned, it excludes the power to

appoint city mayors because the power to appoint others is mentioned and it is not.

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The Majority has allowed the President power, which the Constitution clearly did not

grant. The decision of the Majority is contrary to the settled principle of constitutional

law that a grant of enlarged power by a constitutional provision should not be rested upon

doubtful implication arising from the omission of a previous expressed limitation; unless

it appears that the omission and its significance were called to the attention of the people.

See, 16 Am Jur 2d, Sec. 68.

There is also the “

ejusdem generic,” a canon of construction, which provides that where

general words follow the enumeration of particular classes of things, the general words

will be construed as applying only to things of the same general class as those

enumerated. For example, in the phrase

horses, cattle, sheep, pigs, goats, or any other

farm animal, the general language

or any other farm animal — despite its seeming

breadth — would probably be held to include only four-legged, hoofed mammals typically

found on farms, and thus would exclude chickens. See,

Black Law Dictionary, Eight

Edition, Digital Version

.

The language

other political subdivision applies only to political units similar in nature

and character to counties. These are territories and not cities, as explained above. In

Liberia, counties and territories have superintendents, commissioners, national revenue

collectors, supervisor of schools (county or territory education officer), medical officers,

among other officials; cities do not have such officials.

Historical Considerations

Prior to the adoption of the Constitution, were city mayors elected in Liberia or appointed

by the President? What were the conditions in Liberia that gave rise to a new

constitution—what ills was the constitution designed to remedy?

In discussing the “recess appointing power” of the President of the United States of

America, the United States Court of Appeals for the Ninth Circuit held that a careful

examination of the records and writings of the period when the U.S. Constitution was

drafted, led the court to conclude that the framers did not intend to allow the

housekeeping provisions of the recess appointment clause to impinge on their paramount

concern for judicial independence. “The experience of the Framers with the colonial

judiciary had not been a happy one.” See,

U.S v. Woodleay, 726 F.2d 1328 (9th Cir.

1983)

It has been said that in placing a construction on a constitution or any clause or part

thereof, a court may look to the history of the times and examine the state of things

existing when the constitution was framed and adopted, in order to ascertain the prior

law, the mischief that the new provision sought to correct, and the remedy. This is

especially important where the court has been presented a choice of interpretations or

with plausible alternative readings of a particular word, phrase, or section of a

constitutional provision. The United States Supreme Court has frequently followed this

procedure by making reference to historical materials, both before and after adoption of

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the United States Constitution and the amendments thereto, and to practices and usages in

the United States at that time, as aids in the interpretation of particular constitutional

provisions. See, 16 Am Jur 2d Sec. 90.

Every constitution has a history of its own which is likely to be more or less peculiar; and

unless interpreted in the light of this history, the constitution is likely to be construed as

supporting purposes which were never within the minds of the people agreeing to it. A

constitutional provision must be presumed to have been framed and adopted in the light

and understanding of prior and existing laws and with reference to them. And, like a

statute, is properly expounded in the light of conditions existing at the time of its

adoption, the general spirit of the times, and the prevailing sentiments among the people.

An understanding of the meaning of constitutional language makes appropriate a review

of the background and environment of the period in which that constitutional language

was fashioned and adopted. Id.

The Supreme Court of Liberia has held that “Every statute must be construed with

reference to the object intended to be accomplished by it. In order to ascertain this object

it is proper to consider the occasion and necessity of its enactment, the defects or evils in

the former law, and the remedy provided by the new one; and the statute should be given

that construction which is best calculated to advance its object, by suppressing the

mischief and securing the benefits intended

. For the purpose of determining the meaning,

although not the validity, of a statute, recourse may be had to considerations of public

policy, and to the established policy of the legislature as disclosed by a general course of

legislation. See,

Roberts v. Roberts, 7 LLR 358/361; and, Van Ee v. Gabbidon, 11 LLR

65/71.

Following the basic principle of construing what the law is, let us consider the

Constitution in light of what Mr. Justice Tubman said in the

Roberts case, and Mr. Justice

Davis said in the

Gabbidon case. Abrogating a nation’s constitution and replacing it with

a new one is an extraordinary event—the Liberian Constitution of 1847 was suspended,

later abrogated, and replaced by the Constitution. What did the people of Liberia intend

to accomplish by substituting one constitution for another? What were the defects and

evils in the former constitution for which remedies are provided in the current

constitution? In any case, the Supreme Court of Liberia is duty-bound to give a

construction to provisions of the Constitution which would best advance the overall

objective of the Constitution.

The Majority should also have taken cognizance of public policy and the declared policy

of the entire Constitution. The declared policy of the Constitution is that, “All power is

inherent in the people” and “to ensure democratic government which responds to the

wishes of the governed.” The people “have the right … to cause their public servants to

leave office and to fill vacancies by regular elections and appointments.” Liberia’s form

of government is Republican. (Constitution, Articles 1 & 3.)

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The Preamble to the Constitution states that “Realizing from many experiences during the

course of our national existence which culminated in the Revolution of April 12, 1980,

when our Constitution of July 26, 1847 was suspended …”

If some of those “many experiences” were a one-party state, the imperial presidency, and

a highly centralized national government, the drafters of the Constitution and those of us

who voted for and ratified it would not have intended to give the President even more

power by having her appoint city mayors.

The Dissent reminded us that Dr. Amos Sawyer was a candidate in the Monrovia city

mayoral election in 1979, and that the election was never held, or at least the True Whig

Party Government did not allow Sawyer to take part in the election. Sawyer subsequently

became Chairman of the NCC. Now, one can just imagine a speech made by a member of

the NCC or the CAA to this effect: “ladies and gentlemen, from our many experiences, a

military junta is ruling our country today because our previous presidents have been too

weak, our government has been too decentralized, and Liberians have, more than

necessary, been allowed to vote for the leaders of their choice. So it is incumbent upon

the people of Liberia at this stage of our history to reverse the trend—we would have this

new constitution empower every future president of Liberia to appoint city mayors; they

must no longer be elected.”

By no stretch of the imagination would one believe that the drafters of the Constitution

and those who voted for, and ratified, the Constitution opted for a President that would be

more lawfully powerful than even post-1955 presidents. Notes of the drafters of the

Constitutional contain comments from the Liberian people during the drafting period

suggesting that the people desired to be accorded more power, a greater role, in selfgovernance.

There were clarion calls for election of county superintendent; I do not

believe anyone ever suggested that city mayors be appointment by the President, the

premise of the Majority opinion.

The Dissenting opinion also reminds us that city mayors have always been elected

throughout the history of Liberia. Justices Korkpor and Ja’neh took us as far back as 1915

when the city mayor and common councilmen were elected for the City of Buchanan. Of

course, recourse to the 1847 Constitution (Article V, Section 3) will show that even

during pre-independence years, municipal corporations existed.

Not only have city mayors been elected throughout the history of Liberia, but also

immediately following the adoption of the Constitution, in 1986 the Liberian Legislature

enacted the Election Law, Section 2.9(q), which provides that the Election Commission

shall be the sole judge of all contests relating to the election and accreditation of city

mayors. Moreover, the very government in whose favor the Supreme Court has ruled,

sponsored and participated in a consultative meeting as late as 2006, to arrange for the

holding of election for city mayors and chiefs. Participants included officials of the

government, the Election Commission, and representatives of the international

community.

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Law writers have said that, “An important application of the principle of acquiescence as

fixing the interpretation of a constitution is found in reference to the exercise of powers.

The general rule is that the exercise of powers and general acquiescence therein for

a long period of years, especially if commencing with the organization of the

government, may be treated as fixing the construction of the Constitution and as

amounting to a contemporary and practical exposition of it, and may be sufficient to

demonstrate that powers conferred by a statute are not inconsistent with the

provisions of the fundamental law.

” (emphasis mine) 16 Am Jur 2d, sec. 86.

The Supreme Court’s use of a doubtful provision to deny the people the right to elect

their leaders, and embolden the imperial presidency of which all have sought to rid the

body politic is a bad omen! The task of the Supreme Court is to find the meanings of

constitutional provisions in the intent of their framers and those who originally voted for

them.

Even if there appears to be some shortcomings, oversight, and inadvertence in the

Constitution, every provision must be construed in a way to suppress the “mischief” and

secure the benefits for the people. It has been held that when an act is equally susceptible

of two constructions (which I do not admit is the case of Article 54(d), but is considered

only for the sake of discussion), one of which will maintain and the other destroy it, the

courts will always adopt the former. A construction which gives some meaning to the

statute, or to an obscure part or clause, will be preferred to one which renders it entirely

nugatory and meaningless. See,

Roberts at 372.

Article 56(a) of the Constitution says that “All … superintendents of counties and other

government officials … appointed by the President pursuant to this Constitution shall

hold their offices at the pleasure of the President.” As a result of the Majority opinion,

city mayors now hold their offices at the pleasure of the President. Would the city council

also be appointed by the President? To whom then would city mayors now report, the

President or their respective city council?

Important National Principles

The Constitution is a living document which must recognize the collective experience of

the nation and reflect those values to which we aspire. An expansive reading of the

Constitution could not have yielded the results crafted by the narrow Majority. The Court

missed the opportunity to enshrine in Liberia’s fledgling democracy the principle that in

democracies, election is the preferred manner by which people cause their public servants

to leave office and fill vacancies. Read as the Majority would want us to, Article 54(d)

becomes inconsistent with the entire body of the Constitution and the principles under

which it was designed.

Even if we are to assume that the “political subdivision” language of Article 54(d) could

arguably include a city corporation, the Supreme Court should have realized that

important national principles were at stake, which had to be vindicated—a fundamental

right of the people versus enlarged power of the presidency; participatory democracy

versus autocracy. The most recent history of Liberia has been one of political violence,

unconstitutional changes of government, wars and deep national divisions based upon the

kinds of behavior now being exhibited in the exercise of presidential power: the attitude

that presidential power is unlimited and often exercised to the exclusion of the governed.

When such principles are at stake, the constitutional court of a nation rises to the task and

harmonizes the constitution with democratic principles. See,

Brown v. Board of

Education

, 347 U.S. 483 (1954), in which the US Supreme Court held that the longstanding

constitutional doctrine of separate but equal would not be allowed to apply to

school districts. See also,

Roe v. Wade 410 U.S. 113 (1973), where the U.S. Supreme

Court read a right of privacy in the Constitution of the United States to allow a woman

the right to keep or terminate a pregnancy. These decisions, among many others,

symbolize that in democracies, the courts play a higher democratic role than just deciding

who’s right or who’s wrong.

The duty of the Court is to give full effect to the bedrock principles upon which

constitutional democracy and the republican form of government, as embedded in

Articles 1 and 3 of the Constitution, are based: that election is the most preferred manner

in which people select and replace their leaders. Due regard should have been given to

the primary objective of Article 54(d), the provision at issue, as viewed in harmony with

all related provisions of the Constitution, considered as a whole. By doing this, the

fundamental purpose of constitutional construction would have been accomplished—

giving effect to the intent of the voters who adopted the provision.

Closely allied to the doctrine of the equitable construction of statutes, and in pursuance of

the general object of enforcing the intention of the legislature, is the rule that the spirit or

reason of the law will prevail over its letter. This is especially applicable where the literal

meaning is absurd or, if given effect, would work injustice, or where the provision was

inserted through inadvertence. Words may accordingly be rejected and others substituted,

even though the effect is to make portions of the statute entirely inoperative. So the

meaning of general terms may be restrained by the spirit or reason of the statute, and

general language may be construed to admit implied exceptions. If the purpose and well

ascertained object of a statue are inconsistent with the precise words, the latter must yield

to the controlling influence of the legislative will, resulting from the whole act. See,

Massaquoi v. David

, 6 LLR 320/322-323.

In the case, Shannon v. LTC, 23 LLR 66, the Supreme Court of Liberia had to interpret

Section 2501 of the Labor Practices Law. The Section provides as follows:

“ … The amount of pension paid annually to an employee shall be at least forty

percent of the average monthly earnings for the last five years immediately

preceding his retirement. One twelfth of such amount shall be paid each month

from the time of retirement until the death of the employee.”

9

The appellant had sued the appellee, his former employer for his retirement pension. The

employer contended that from a literal reading of the statute, the appellant was entitled to

a monthly retirement pension of one-twelfth of forty percent of his average monthly

earnings of the last five years of his employment. This would have worked out to about

3.3% of the employee’s average monthly earnings computed on an annual basis for the

said five year period, instead of the 40%, as intended by the legislature.

The Supreme Court conceded that, “At first flush it would seem that the Act does provide

an annual pension in twelve monthly payments of forty percent of the monthly average

for the last five years of employment. When one looks at the Act more carefully,

however, one wonders whether the language clearly coveys the intent of the Legislature.”

Id. 79.

The Court stated that “We feel that some construction or interpretation of the language of

the Act of May 1, 1963, should be made in an attempt to clarify this point. Admittedly, in

doing this we are treading on delicate ground, because courts must be careful in

construing the acts of the Legislature, to avoid even the appearance of attempting to

legislate. … But, however, careful we may desire to be, we cannot avoid the duty of

construing legislative enactment.” Id. 80.

The Court realize that it had a duty to ascertain the true meaning where adherence to the

strict letter of the statute would lead to injustice, absurdity or would be at variance with

the policy of the legislation as a whole. The Court indicated that the real meaning of the

law is to be ascertained and declared, even though it seems to conflict with the words of

the statute

The Court, therefore, held that the literal reading of the statute notwithstanding, the

appellant was entitled to receive a monthly pension equal to forty percent of the average

of his monthly earnings over the last five years. The Court reasoned that “… courts are

not always confined to the mere letter of the law, or to the literal or strict meaning of

statutory terminology. It often happens that the true intention of the lawmaking body,

though obvious, is not expressed by the language employed in a statute when that

language is given its literal meaning. In such case, the carrying out of the legislative

intention, which is the prime and sole object of all rules of construction, can only be

accomplished by departure from the literal interpretation of the language employed.

Hence, it is a general rule that the manifest intent of the legislature will prevail over the

literal import of the words.” Id. 85

The holding of the Majority goes against the weight of other constitutional provisions

such as Article 77(a), which provides that,

Laws, regulations, decrees or measures which might have the effect of creating a

one-party state shall be declared unconstitutional.

Article 95(a), which provides that,

… any enactment or rule of law in existence whether derived from the abrogated

Constitution (the 1847 constitution) or from any other source shall, in so far as it

is not inconsistent with any provision of this Constitution, continue in force as if

enacted, issued or made under the authority of this Constitution.

Article 5(a), which provides that,

…the Legislature shall enact laws promoting national unification and the

encouragement of all citizens to participate in government.

And Articles 1 and 3 discussed above, among others.

Conclusion

The opinion of the Majority now ensures that persons wishing to serve their constituents

would not seek the public favor, but simply lobby the Executive Mansion; that citizens of

Zwedru who have complaints against their city mayor would have to travel to Monrovia

to see the President, because the mayor is no longer accountable to them; that Liberia will

reemerge into a one-party state because for all local appointments only Unity Party

members or Unity Party sympathizers need apply; that national healing and national

reconciliation will be made more difficult as the people become disenfranchised and

alienated from power; that democracy in Liberia will not depend on the rule of law, but

on the whims and caprices of a single individual—the President. Article 77(a) of the

Constitution, which provides that “Since the essence of democracy is free competition of

ideas expressed by political parties and political groups as well as by individuals, parties

may freely be established to advocate the political opinions of the people,” has been

relegated to nothing more than mere political rhetoric.

With a stroke of the pen, the Majority has changed, and I am afraid not for the better,

several years of political, legal, and constitutional history, brought to naught the several

years of blood, sweat, and tears of the many who have struggled to ensure participatory

democracy in Liberia.

The Supreme Court of Liberia would do a great service to our country and a big favor to

all of us, including the President, by recalling the Majority opinion as early as possible.

That would not be the first time in the history of the Court!

 

* The author, B.A., LL.B, LL.M (Corporate/Commercial Law), is a former Assistant

Professor of Law—1983-1985 (Corporate & Commercial Law) and Adjunct Professor of

Constitutional Law—1998-1999, L.A. Grimes School of Law, University of Liberia;

member, Liberia Bar Association, Liberia Supreme Court Bar, New York State Bar,

District of Columbia Bar, U.S Supreme Court Bar.

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