A Tale of Two Constitutional Interpretations on State of Emergency as a Precursor for Recalling of Parliament: Textualism v Pragmatism

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Abstract

There is a debate over whether parliament failing to do its constitutional function to pass a bill before its dissolution is an emergency. Perhaps the failure to pass the bill leaves unaddressed constitutional, political, and social problems that have led this country into political and security with a bearing on economic development. The discussions extend to whether in the circumstances, a declaration of state of emergency as a precursor to recalling parliament does not amount to a legal pretext of an essentially political act in abuse of emergency powers. This essay sets to examine the State of Emergency regarding recalling of Parliament on two seemingly contradictory constitutional interpretations: Textualism and Pragmatism. These two modes of constitutional interpretation will be applied where the alleged emergency upon which the state of emergency is predicated does not necessarily occur unexpectedly during the period between the dissolution of parliament and holding of general elections. This curiosity is ignited by the recent dissolution of parliament before the promulgation of the proposed 11th Amendment to the Constitution into law. This has polarised public opinion on whether it is constitutionally permissible to recall parliament under the pretext of emergency to complete the work it failed to pass even during the wash-up period.

Apart from the inordinate delays which characterised the reforms process, this tragedy has brought to the fore the need to invoke constitutional interpretations either to add salt to the injury or rescue the situation. Of particular interest is the basis of relying on one interpretation on which recalling parliament will be sustained or rejected. It is contended that the constitutional issues surrounding the possible recall of parliament under the guise of emergency, are novel to our judicial debates as regards common modes of constitutional interpretation.

Further, would it not violate the doctrine of separation of powers when the King acting on the advice of the Council of State “apparently instructs” parliament to reconvene to pass a certain bill which parliament in its wisdom did pass before dissolution? With that said, this essay discusses what the terms “emergency” and “state of emergency” mean. With assistance from legal scholars, jurists, and other commentators the essay traverses and demonstrates the application of textualism and pragmatism as tools for interpretation of the constitution. Again, a general overview of the various arguments in support of, and in opposition to, the use of such methods and tools of constitutional interpretation is undertaken. The essay then concludes and advances recommendations.

Introduction

In his characteristic eloquence, the late Mahomed AJ described the Constitution as “a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government’.” It is this well-articulated characteristic that stands against popular sovereignty in favour of constitutional morality, emphasising the supremacy of the constitution over any decision. This simply means that the constitution is a yardstick by which all other actions and decisions will be measured. However, one of the most fundamental questions of constitutional law scholars, and jurists has been how to interpret this supreme document which is a mirror reflecting the national soul.

While being generally a mirror, interpretation of the text of the constitution in issues bordering, inter alia, on political question doctrine has proven to be a highly controversial exercise. Some constitutional provisions are drafted in general terms creating space for flexibility in cases of unforeseen change and possibility of alternative interpretations. James Madison “Father of the United States Constitution” also delved into the debates on visions on proper constitutional interpretation. As asserted by Professor Michael Stokes in “The Relevance and Irrelevance of James Madison to Faithful Constitutional Interpretation” “it has thus become commonplace to assert that the Constitution itself contains no discernible rules or instructions concerning how it is to be interpreted.”

In the words of Professor Jefferson Powell in “Constitutional Conscience: the Moral Dimension of Judicial Decision” “in almost every controversial decision, the judge will confront interpretative choices, many of which have multiple resolutions that can be justified by craftsman argument.” In such cases judges, lawyers, jurists, or scholars are called upon to recognise overt ambiguities and uncertainties present in constitutional issues. Conditional on the circumstances, even textually clear provisions often raise alternative interpretations as the constitutional questions cannot always be resolved by purely linguistic formulae. In various cases, constitutional theorists, lawyers, legal scholars, philosophers of law and judges are faced with cases which cannot only be handled with linguistics and semantics hence deviating from forcing mechanical constructs on the facts at hand.

Constitutional interpretation is not only the exclusive domain of the court albeit it exercises a fundamental adjudicative role in the tripartite governmental design. Political actors and other government officials often make decisions on constitutional questions based on constitutional interpretations from lawyers in the elected branches of government because, sometimes, the law masks and sanitises politics in a negative sense. These officials and political actors are presented with choices among numerous plausible constitutional interpretations of a constitutional text or provision. Just as the courts, sometimes these actors must make decisions on constitutional circumstances remote from those contemplated by its original drafters, requiring the exercise of discretion and the weighing of consequences. This withstanding, ultimately, the courts have judicial authority (not supremacy) in matters of constitutional interpretation originating in politically controversial situations.

Since the dissolution of parliament on the 14th July 2022 pending elections on the 7th October 2022, legal scholars, jurists, lawyers and political actors were confronted with a serious legal dilemma on the constitutionality of recalling parliament on the basis of a state of emergency. This dilemma bore to the fact that at least two strong arguments could obtain from well-crafted lawyerly interpretations from either side of the seriously disputed constitutional question – textualism or pragmaticism. In these circumstances, the Council of State might find it necessary to either advise the King based on the linguistic text of the constitution or the alternative pragmatic interpretation weighing political, legal, economic, and social consequences. In all these interpretations, the quest would be to foster stability and promote the “general public good”. This essay passes no verdict on whether opting for either textual or pragmatic interpretation of the relevant provision would breed absurd and terrible results not promoting “general public good”.

Therefore, this essay attempts to advance two contradictory interpretations to the meaning of provisions on recall of parliament on state of emergency within the period of dissolution of parliament and holding of elections. This essay further discusses two of the most common modes of constitutional interpretation – textualism and pragmatism. Furthermore, this essay demonstrates the application of these two modes of interpretation and advances an overview of the various arguments in support of, and in opposition to, the use of these methods of constitutional interpretation.

Constitutional Provisions

23. Declaration of emergency

Section 23(1) states that:

In time of war or other public emergency which threatens the life of the nation, the Prime Minister may, acting in accordance with the advice of the Council of State, by proclamation which shall be published in the Gazette, declare that a state of emergency exists for the purposes of this Chapter.

Section 23 (8) reads as follows:

The King may summon the two Houses of Parliament to meet for the purposes of this section notwithstanding that Parliament then stands dissolved, and the persons who were members of either House immediately before the dissolution shall be deemed, for those purposes, still to be members of that House, but, subject to the provisions of sections 61(4) and 63(4) of this Constitution, neither House shall, when summoned by virtue of this subsection, transact any business other than debating and voting upon resolutions for the purposes of this section

84. General elections

Section 84(2) of the constitution reads as follows:

If, after a dissolution of Parliament and before the holding of a general election of members of the National Assembly, the King is advised by the Council of State that, owing to a state of war or of a state of emergency in Lesotho, it is necessary to recall Parliament, the King shall recall the Parliament that has been dissolved and that Parliament shall be deemed to be the Parliament for the time being (and the members of the dissolved Parliament shall be deemed to be the members of the recalled Parliament), but the general election of members of the National Assembly shall proceed and the recalled Parliament shall, if not sooner dissolved, stand dissolved on the day immediately preceding the day fixed for such general election or, if more than one such day, the first of such days.

What is an “emergency” and “state of emergency”?

The phrase “state of emergency” appears in the constitution. In order to declare the state of emergency under section 23, , there has to be an emergency. This essay will discus albeit at a basic level, the logics of conditionals which underly the construction of sections 23 and 84(2) of the Constitution. At this point, it is apt to define what the terms emergency and state of emergency mean.

The constitution does not expressly define neither “emergency” nor “state of emergency”. This essay stands to be corrected but as far as it can tell, the courts have not ruled precisely upon their meaning. However, the court has on various occasions been seized with issues involving an “emergency” though emergency was not an issue for contention before them: ABC & Others v The Prime & Others (2020); and David Mochochoko v The Prime Minister & Others (2020). The only case which challenged the declaration of state of emergency is Kabelo Ntitsane v The Prime Minister & Others (2022). Unfortunately, the judgement has not been delivered in the matter. Be that as it may, in the matter, the court was not required give an exhaustive definition to either emergency or state of emergency.

Before delving into the literature on what is a state of emergency, it is apposite to define an emergency. As defined by the Concise Oxford Dictionary, an emergency is defined as “a serious, unexpected, and potentially dangerous situation requiring immediate action.” It is imperative to highlight that the “emergency” must be unexpected and

require immediate action. As regards the case in Lesotho, was it unexpected that parliament was to be dissolved on the 14th July 2022 by operation of the constitution? Is it an emergency when parliament fails to pass a bill which took months and months on its desk before it was dissolved? Was it unexpected to the executive (the Right Honourable Prime Minister and his Cabinet) that if parliament failed to pass a bill until it is dissolved, then such a bill would collapse with it?

As soon as there is an emergency, if necessary then there arises a need to declare a state of emergency. The state of emergency may arise inter alia from situations as diverse as an armed action against the state by internal or external elements, a natural disaster, civil unrest, an epidemic, a pandemic, a financial or economic crisis or a general strike etc. States of emergency are not uncommon occurrences, particularly in dictatorial regimes where the state of emergency may endure as long as the regime lasts. Other terms for referring to emergency situations are state of exception, state of alarm and state of siege.

The state of emergency is an application of a common law doctrine of exceptionalism developed and refined through the years to form an essential part of our constitutional jurisprudence. It presupposes that the legal system exists to protect fundamental values of society. However, there may arise exceptional circumstances that rrquire that in order to maintain the legal system, extra-ordinary measures that are beyond the system itself may be resorted to in order to preserve those fundamental values of society made possible by the legal system.

The power to declare this was historically a prerogative of a sovereign. It is today, an act of the people in so far as it draws its legitimacy from a legal instrument. The contemporary concept of the state of emergency traces its origin from the historical Roman Dictator, a temporary officer appointed to provide ad hoc leadership in a national emergency or tumultus.

Using the comparative jurisprudence from the European Commission of Human Rights in Lawless v. Ireland (1961. The European Commission of Human Rights laid down a test now famously known as the Lawless Test to define what constitutes a public emergency or as the case may be, a state of emergency. The Commission held that a public emergency is a danger or crisis that is –

(a)Present or Imminent

(b)Exceptional

(c)Concerns the entire population, and

(d)Constitutes a threat to organized life of the community.

Given the elements, would there genuinely and honestly be a conclusion that parliament failing to pass a bill satisfy this criterion? Would legal, security, and political crises historical in nature dating as far back as independence or 30 years ago qualify as something which was unexpected? Can these historical crises be interpreted to create an emergency such that a parliament which had months and months with a bill can be recalled to pass the same bill under the provisions of emergency? It is worth highlighting at this point that when parliament sat for the first time on the 14th July 2017, the date, and time for its dissolution were automatically set by operation of the constitution.

Rationale

In the Dead or Tranquilised? The Recall of Dissolved Parliaments Asanka Welikala correctly states that the underlying rationale for recalling a dissolved parliament during an emergency is to ensure accountability – fulfilling the requirements of legislative oversight of the executive (including the exercise of any emergency powers), and to approve appropriations of public funds for government expenditure. He further emphasizes that the quality that distinguishes constitutional democracy from every other system of government is accountability. As one political analyst, Mr Thuso Mosabala rightly states as regards accountability of institutions: institutions of government should be horizontally accountable through checks and balances, and vertically accountable to the citizens through processes of good governance among other things..

From the text of the constitution to the statutes available, there is a clear recognition that the duty to respond to states of emergencies, crisis, and/or disasters in their various facets rests with the executive arm of government. It is a bit odd that Lesotho has defied history and the texts of the statutes to declare a state of emergency when parliament failed to pass a bill at its dissolution.

The text of the constitutions and laws governing emergencies, particularly those in the Commonwealth, did not fathom a situation where parliament failing to pass a bill will be an emergency justifying recalling the same parliament to either force or instruct it to pass the same bill. While on it, without passing any judgement, it is hard for this essay to find a justifiable rationale behind recalling parliament to force it to pass a bill without encroaching on sacrosanct principles on separation of powers as coined by French jurist Montesquieu in “The Spirit of the Law” in the 18th Century, vigorously advocated by James Madison in the “Federalist Papers” and numerous court precedents.

Textualism

It worth noting at the start that textualism will be interpreted in terms of the common legal meanings of “emergency” and “state of emergency.” The conditional logic applied is in the context of emergency as “unexpected, and potentially dangerous situation requiring immediate action” and “state of emergency” as that declaration to address that particular “present or imminent, exceptional, concerns the entire population, and constitutes a threat to organized life of the community”. As a result, this essay adopts an interpretation that restricts and confines emergency to the period between dissolution and holding of elections or at worst, a perpetual existing state of emergency before the dissolution of parliament.

The text of the constitution is written in logics of conditionals dealing with inferences involving sentences of the form “if A, (then) B”. In terms of the text of the constitution, a conditional recalling of parliament can only be assertable provided there exists in reality the truth of its antecedent being either state of war or state of emergency making relevant difference to that of their consequent. Under the circumstances, the validity of recalling parliament is predicated on the existence of an emergency for which a state of emergency may be declared. For this emergency to be unexpected it should at least have happened between the dissolution of parliament and the holding of general elections – such that there really exists an emergency for which a statement of emergency may be declared in between the two events justifying recalling of the dissolved parliament. Otherwise, an-going state of emergency which persists beyond the dissolution might suffice for recall of parliament where necessary.

The text of the constitution limits the recalling of parliament conditional only to the emergence of the two events within a specific period and nothing else. Therefore, where there is no emergence of an emergency for which a state of emergency can be declared during the period between dissolution of parliament and the holding of elections, then recalling parliament is flawed and cannot be validated or premised on a non-existent state of emergency. This simple conditional logic is at the core of treatment of the text of the constitution conditional with “material implication” in the two-valued propositional framework. This understanding of the constitutional conditional has considerable virtues of simplicity, and in that regard, the conditional analysis provides a basis for any textualist interpretation of the constitution. Easily asserted, the validity of the recalling of parliament is a function of the validity values of antecedent and consequent.

The conditional provision being section section 23(8) read with section 84(2), in natural language is not limited to indicative conditionals (“if there is an emergency and a state of emergency declared during the period between dissolution of parliament and holding of general elections, then parliament will be recalled”), but also include subjunctive conditionals used to express counterfactual hypotheses (“if there is an emergency and a state of emergency had been declared between the dissolution of parliament and holding of election, parliament would have been recalled”). In order to comprehend the text of the constitution which is written in conditional logic terms, serious attention should be placed on the interplay of grammatical language important to understand the logic of conditionals. The validity of the consequent rests on the validity of the indicative conditional in this case being the existence of an emergency on the basis of which the state of emergency is declared.

Pragmaticism

This involves weighing or balancing of the probable practical consequences over the other interpretation where the other interpretation would give absurd outcomes. It is an interpretation which may be resorted to given that the strict textual interpretation may not yield favourable results. Pragmaticism weighs in future costs and benefits of an interpretation to the society on political branches selecting the interpretation that may lead to the best perceived outcome. In the context of the reforms, for a start, the pending constitutional reforms preceding reforms in other thematic areas present a favourable outcome intended to revise and unwind the course and the volatile environment the country exists in. This volatility has not been economically beneficial to the country as far as foreign direct investment and development is concerned.

It is worth noting that the abuse, misinterpretation, and misconception of the laws has placed the country in a state of crisis. Under the current legal regime, the country has experienced political and security crisis having a bearing on peace, order, and stability of the country. As such, politically active security institutions and political upheavals have been the order of the day for the longest time. Among the problems identified were the legal frameworks governing and regulating these institutions.

Since gaining independence from Britain in 1966, the Kingdom of Lesotho has experienced repeated bouts of political instability including but not limited to coups, violent unrests, and disputed elections. Following Independence in 1966, all major political wrenches of instability in Lesotho’s political atmosphere were among other things contributed to by the politicians abusing legal powers and influence at their disposal patronising the security institutions.

The advent of the era of hung parliaments and the unstable coalition governments has changed the dynamics of Lesotho’s constitutional democracy. With the change in political dynamics comes a change in the constitutional landscape. The changes are so drastic that the country has experienced crises and instability. During these coalitions, the country has witnessed a prime minister turning a cabinet government into a prime ministerial government where the incumbent attempted what Robert Greene in “33 Strategies of War” term command-and-control strategy. Through this strategy, the prime minister ensures that the management of the key institutions is pliable to his course. Applying the command and control strategy a very strong prime Minister can rule from the grave. Such enormous powers on the prime minister were identified as problematic in the Plenary II Report. In 2014, these enormous powers led to both a political and security crisis.

Under the current legal regime, the judiciary has not been accorded as much independence as it should – financial and functional. The independence and autonomy of public institutions like the Police Complaints Authority, Directorate on Corruption and Economic Offences among a host has been an ongoing issue. Essential institutions like the Human Rights Commission have not been set up and this has been a course for concern over the years since around 1995 when the government only chose to introduce the Human Rights Unit in the Ministry of Justice and Law. Issues of standing in public interest cases in court has been a serious cause for concern as the courts have often adopted restrictive private interest standing in public interest litigation. The office of the Attorney General which should protect public interest has not been fulfilling this constitutional duty. The impartiality, independence of the office of the Director of Public Prosecution has also been on the radar of the reformists as well. The parliament, public service, the media and all these major institutions have contributed to the crises this country has endured.

The volatility in the legal, political, social, and economic spaces over the years has arguably placed this country in a perpetual crisis. As such, there has existed a need to remedy the situation starting with the supreme law which carries the essential constitutional morality which has to outweigh public/ popular morality. This supreme law is basically the grund-norn and the social contract from whose authority all power is derived. In the circumstances, a pragmatist would conclude that cumulatively, the legal, political, economic, social, and economic crises that endure place the country in a precarious and volatile environment that can explode at any time. The aim is also to create legal certainty and increase the chances of stability post general elections scheduled for 7 October 2022. A pragmatist stance would be that society stands to benefit from the passage of the mega-constitutional bill whose aim is to recreate the legal front mitigating the existing political, economic, and social maladies deriving from inefficient and flawed legal frameworks.

Conclusion

Having traversed the legal debates on application of textualism and pragmatism as tools for interpretation of the constitution, the essay passes no judgment on whether there really is an emergency for which a state of emergency can be declared as a precursor for recall of parliament. As seen in the essay, pragmatism encompasses consideration of pragmatic outcomes which may inject politics into the law subverting the law to justify essentially political decisions. This is sometimes necessary as law exists in a larger political, economic and social context. On the other hand, there is much predictability, and objectivity in pursuing a textual interpretation to a constitutional provision. It is clear that where the result from the textual interpretation would be absurd, it permissible to use other modes of interpretation which would produce favorable outcomes. In the circumstances, if the textual interpretation is applied as proposed in the essay, then the supremacy of the constitution even over use of public power by the Prime Minister would be affirmed. If pragmatism is favored, then the state stands to benefit from the passage of the constitutional bill with 90 amendments with wide implications on the fundamental human rights, and i good governance among a myriad of issues.

Perhaps, this issue is ripe for the Attorney General as the protector of public interest and the Law Society of Lesotho to take to the High Court sitting as the Constitutional Court for proper interpretation to this solemn covenant. In fact, Lesotho is not necessarily a positivist state where the word of the government goes without scrutiny but a constitutional democracy. Paying heed to the advice of Justice Andrew Peter Napolitano in “Constitution in Exile” every controversial decision by the government should pass the constitutional scrutiny lest the constitution be exiled.

This essay opines that the development of a constitutional jurisprudence depends on the courts making determination on issues of this magnitude. While this essay is of an opinion that the High Court in its constitutional jurisdiction should be given advisory powers on constitutional issues, it is of a considered opinion that the current issue under the radar is live and the court would not be undertaking an academic exercise.

However, this essay is cognisant that sometimes the courts use relics like judicial deference, constitutional avoidance, restrictive rules on standing in public law issues, and other technicalities to avoid making critical judgements involving the other branches of government. As indicated at para 7 of the recent decision in Democratic Congress and Another v. Independent Electoral Commission and Others (2022), the High Court sitting as the Constitutional Court affirmed the jurisdiction over constitutionality over exercise of public power. In the end, the essay avoided a too legalese approach for ease in reading for those without any legal background.

About The Author

Mokitimi Tšosane is an admitted advocate in the courts of Lesotho working as the Judicial Activism and Public Interest Litigation Officer at the Transformation Resource Centre (TRC) in the Human Rights and Access to Justice Department. He is also a member of the Public Interest Litigation Committee of the Law Society of Lesotho. ORCID:

http://orcid.org/0000-0003-2760-2290

NB: This essay does not in any way whatsoever reflect or represent the position or views of the Transformation Resource Centre on this issue.


Disclaimer: The views expressed herein are those of the author; they do not necessarily reflect the views of Selibeng.com

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