Supreme Court Grants Constitutional Power to the President to Appoint City Mayors—A Bad Omen
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any provision of the Liberian Constitution (1986), was repealed by implication at the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.
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
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,
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.”
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
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,
, 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.
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.
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
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.
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.
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
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
Roberts v. Roberts, 7 LLR 358/361; and, Van Ee v. Gabbidon, 11 LLR
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.)
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
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
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
, 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.”
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.”
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 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.
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.