Seizing the Teachable Moment
By Isaac W. Jackson, Jr.
Over the last few days, while exposing the intellectual dishonesty and legal travesty of pretentious Michael Diggs, I have received e-mail messages from many sources, including those from professional legal colleagues, asking me to explain Article 17 of the Liberian Constitution in relation to Article 25. I take these requests in good faith as well-intentioned while little Michael hopscotches all over the map from argument to argument merely to save face from the public whipping he received intellectually.
Ultimately though, it must be said that the Supreme Court is the final decider of constitutional questions. Given the protection offered Oldman Joe Boakai in the Magisterial Court, one can surmise what the Ruling of the Supreme Court might be on this important matter. Suffice to say, however, that reasoning is the soul of the law. Absent constructive and objective reasoning, the law is meaningless. I should also add that no provision of a constitution should be read or interpreted as being in contradiction with another because together they make up the constitution. Therefore, each article reinforces the other.
Cited in full, Article 17 of the Liberian Constitution states: “All persons, at all times, in an orderly and peaceable manner, shall have the right to assemble and consult upon the common good, to instruct their representatives, to petition the Government or other functionaries for the redress of grievances and to associate fully with others or refuse to associate in political parties, trade unions and other organizations.”
Cited in full, Article 25 states: “Obligation of contract shall be guaranteed by the Republic and no laws shall be passed which might impair this right.
Both are found in Chapter III, under the heading, Fundamental Rights. It follows therefore that both convey rights to Liberians and “all persons”, where applicable.
What then is the right granted under Article 17? In essence, Article 17 grants two and not one right in relation to association. The first is the right “to associate”, while the second is the right “to refuse to associate”. By use of the word “or” to distinguish the two rights, the framers determined that both rights cannot be exercised at the same time. The exercise of one amounts to not exercising the other, at the same time. Let me explain this further.
A universal law is that two things cannot occupy the same space at the same time. Put more socially, one cannot be married and single at the same time; although many may pretend to be. And so, one cannot exercise the right to “associate”, and at the same time, exercise the right “to refuse to associate”. Therefore, the first important element of Article 17 to note is that it offers the right to choose “to associate or refuse to do so.”
Secondly, the right “to refuse to associate” is not the same as the right to disassociate. This perversion in interpretation is at the heart of the misunderstanding of Article 17. As a matter of fact, there is no constitutional right “to disassociate”. To disassociate implies one must already be in possession of an association membership. To “refuse to associate” implies that one has no previous membership or has not taken on an association membership so that the rules of the association is applicable to him or her. Hence, disassociation (interchangeably used with withdrawal of membership) is necessarily dependent on the rules governing the membership of the association for which one may choose to associate.
The question then is when can the right “to refuse to associate” be exercised without legal encumbrances? Differentiated from a so-called right to disassociate, the fundamental (inalienable, if you will) right “to refuse to associate”, for which no obligation or penalty for such refusal can be assessed against all persons, can be reasonably exercised prior to taking on an association membership. As already explained, one cannot reasonably exercise the right “to refuse to associate” without the burden of obligations due to association membership, when one is already bound by the rules of association to which one previously exercised their fundamental right of association.
So, does this mean one cannot leave an association to which one holds membership and must die therein? Definitely not! The right not to continue in association is a recognized universal human right. However, one’s disassociation (withdrawal, if you will), must be within the rules of the association, and in respect of the obligations to which one entered because of one’s membership. Absent this, society will be chaotic and lawless. Therefore, for instance, while one may have the right to divorce (withdraw from or leave a marriage, such withdrawal does not willy-nilly exonerate one from obligations encumbered by the marriage association which one entered voluntarily.
The right “to associate” also confers and extends to one’s acceptance to be bound and governed by the association rules. Therefore, when four parties decided to bind themselves under the umbrella of CPP, the National Elections Commission (NEC) accepted and entreated them as such by respecting the rules, they agreed to be governed by so that, among other things, they were allowed to field candidates as CPP, as they agreed to be associated, and not in their individual names.
The simplistic analogy comes to mind: One cannot choose to be a member of a susu club, eats their “hand”, announce their withdrawal after doing so, and cite Article 17 for reliance. The only reliable outcome of your action is that you will likely end up in common jail.
When by association one takes on a legal obligation and benefits thereby, it is the duty of the law to enforce that legal obligation upon you. Enters Article 25. Included under Fundamental Rights, Article 25 also confers a right that is central, at a minimum, to all persons in the Republic, and further enjoins the Republic and all its agencies, to uphold the rights of Liberians and Liberian organizations to enter into agreements and contracts.
Instructively also, Article 25 enjoins all agencies of the Republic not to impair the right to contract. This means the Legislature cannot pass a law to impair the rights of Liberians and other persons to enter contracts; nor can executive agencies or the courts act and decide matters so that a precedence is established to impair the rights of contracts and its enforceability. This is essential to human interaction and societal cohesion.
As a reinforcement to Article 17, Article 25 simply insists that when persons or groups enter an association and or contractual obligations with others, the Republic, through all its agencies, has a duty to enforce such obligations on the parties unless legal reasons abound for which such enforcements cannot be reasonably obtained. This is not to suggest that in the case of the UP it is being forced to continue in membership with the CPP. Article 25 does not insist on compelling association membership. It merely insists on the enforcement of obligations incurred by one’s exercise of one’s fundamental right “to associate”.
To go back to the simple susu analogy, Article 25 insists that when you join a susu club and eat your hand, even if you announce your withdrawal, you will be made to pay your obligations to the susu club.
As a commitment to the rule of law, it is preposterous to argue that it is “unconstitutional” to hold the Unity Party to its obligations which it imposed upon itself, and benefited from, for nearly 2 years, in association with others in the CPP. What is unconstitutional and will set our society on a destructive course toward lawlessness, according to Article 25, is not to hold the UP to its obligations. Unless the UP can judicially prove that it entered such obligations fraudulently, merely claiming “fraud” is not a ground for setting aside its obligations. Fraud must be judicially proven to become a legal basis to excuse the UP from its obligations to the CPP.
Article 17 is therefore not an excuse for lawlessness and irresponsible behavior. The framers of our constitution could not have intended that at all because at its core, laws are meant to inspire responsible citizenship, predictable orderliness, and reasonable cohesion in society.
As we go to elections in 2023, the question we must conscientiously consider is what kind of leadership commitment to the rule of law are we supposed to get from the UP, if it is perversely objecting to the enforcement of contracts and compliance to association rules, to which for nearly 2 years, it participated in, benefited from, and operated thereby? Oh, let me guess: Cummings hid the Framework Document from the UP at the NEC!!!!
Liberians, we will not change our country for the better until we hold each other accountable – friend, and foe, alike! Hence, it’s needless to chase Michael Diggs down the rabbit hole.