THE ABC’S OF A STATE OF EMERGENCY By ANC
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Given the big
debate now underway in Liberia about the state of emergency, and the
President’s powers under a state of emergency, we provide below some basic
information about what a state of emergency is, how it is declared or revoked,
the powers the President has under a state of emergency, and the role of the
Legislature in approving and revoking a state of emergency or modifying actions
the President takes under a state of emergency. Drawing on the legal
expertise of our members, we undertake this effort as a public service and hope
it contributes positively to the current national debate about the legal,
constitutional, and political issues pertaining to a state of
emergency. If having read this you
have any questions, we will be happy to answer them.
1.
WHAT IS A STATE OF EMERGENCY?
A state of
emergency exists when the president declares that the country faces a serious
problem such as a war, threat of war or civil unrest and that he or she needs
certain powers not granted to the President in the Constitution to deal with
the problem the country faces. Article 86(b)
2.
HOW DOES A STATE OF EMERGENCY BEGIN?
A state of
emergency can begin simply by a declaration by the President that there is a
state of emergency. The Constitution says the President “may” make the
declaration of a state of emergency in “consultation with the Speaker of the
House of Representatives and the President Pro Tempore of the Senate.”
Article 86(a)
3. SO DOES THE PRESIDENT NEED THE SPEAKER AND THE
PRESIDENT PRO TEMPORE OF THE SENATE TO AGREE BEFORE A STATE OF EMERGENCY IS
DECLARED?
No, the
Constitution does not say the President needs their approval.
All the President has to do is consult or inform them.
4. WHAT HAPPENS AFTER THE PRESIDENT DECLARES A STATE OF
EMERGENCY?
After the
President declares a state of emergency, he or she can begin to suspend or
limit certain rights that individual Liberians enjoy under the
Constitution. The President can also exercise or use powers that the
Constitution does not give him but that he believes are necessary to deal with
the problems that caused him to declare the state of emergency. Article
86(a)
5. WHAT ELSE HAPPENS AFTER THE PRESIDENT DECLARES A
STATE OF EMERGENCY?
No later than 7
days after the President declares a state of emergency, she is required to call
members of the Legislature (the Senate and the House of
Representatives) together to explain to them why she decided to declare a
state of emergency. Article 88.
6. WHAT HAPPENS AFTER THE PRESIDENT CALLS THE
LEGISLATURE TOGETHER AND EXPLAINS WHY SHE DECLARED A STATE OF EMERGENCY?
No later than
seventy-two hours after the President calls the Legislature together to explain
why she declared a state of emergency, the Legislature must vote to decide
whether to approve the declaration of the state of emergency. Article 88.
7.
HOW MANY MEMBERS OF THE LEGISLATURE NEED TO APPROVE
THE STATE OF EMERGENCY?
Two thirds
of the members of each house of the Legislature need to vote to approve
the state of emergency. The Senate has thirty members (two from
each of the 15 counties). Two thirds of thirty is twenty. Therefore,
at least twenty members of the Senate will have to vote for the
emergency. The House of Representatives has seventy-three members.
Two thirds of seventy-three is 48.6. Therefore, at least forty-nine members of the House of
Representatives will also have to vote to approve the state of emergency.
Article 88
8. WHY DOES THE CONSTITUTION REQUIRE SUCH A HUGE
MAJORITY OF THE MEMBERS OF BOTH HOUSES OF THE LEGISLATURE TO APPROVE A STATE OF
EMERGENCY?
The constitution
requires not a simple majority (which is anything more than 50%) but what
is called a supra majority (a big majority) to approve a state of emergency
because, like we stated above, when the President declares a state of
emergency, she can take away certain rights that individual Liberians have and she
can also exercise powers that the Constitution does not give her.
So the Constitution does not want to make it easy for the President to
have such powers.
9. WHAT RIGHTS CAN THE PRESIDENT TAKE AWAY AND WHAT
KINDS OF POWERS CAN SHE EXERCISE DURING A STATE OF EMERGENCY?
The best way to
answer this question is to look at what the Constitution says the President
cannot do during a state of emergency. That is what rights the President
cannot take away and what powers she cannot exercise during a state of
emergency.
10. OK. WHAT RIGHTS CAN THE PRESIDENT NOT TAKE
AWAY AND WHAT POWERS SHE CANNOT EXERCISE DURING A STATE OF EMERGENCY?
The Constitution
says that during a state of emergency, the President cannot take away the writ
of habeas corpus. Article 87
11. WHAT IS THE WRIT
OF HABEAS CORPUS?
A writ is a
summons or an order from a court requiring that a person does something or
refrain from doing something. Habeas is Latin that means “to have.”
Corpus is also from the Latin and it means the “body.” So the writ of habeas
corpus is a summons or an order from a
court that is directed to a person, usually a police officer or the warden of a
jail, that says “you have the body of Saye Johnnie, and you are required to
bring the body of Saye Johnnie to the court and to show the court why you
should continue to hold Mr. Saye Johnnie or to keep him in jail.”
12. WHY SHOULD THE COURT FORCE A POLICE OFFICER OR
A JAIL WARDEN TO BRING THE BODY OF A PERSON IN JAIL UNDER THE WRIT OF HABEAS
CORPUS?
A long, long
time ago, governments, could jail someone simply because they did not like the
person and just keep the person in jail without charging them with breaking any
law. Of course, they could not charge the person with breaking any law,
since they jailed him not because he broke the law, but just because they do
not like him or because he criticized them, or because he is their political
opponent. Therefore, under our Constitution, anyone arrested
or detained must be charged and brought before a court within forty-eight hours
(two days) after his arrest or detention. See Article 21(f). If the
person is not charged and brought before a court, then the person’s lawyer can
ask the court to issue a writ of habeas corpus to force the government to bring
the person before the court and show what crime the person committed and
why he should continue to be in jail. See Article 21(g). If
the government cannot say what crime they believe the person committed, then
the court will order them to free the person immediately. So you see the writ
of habeas corpus is a very important thing that prevents the government from
just jailing its opponents or people who criticize it or people it just does
not like. That is why the Constitution says the writ cannot be suspended
even during a state of emergency.
13. OK. WHAT ELSE THE PRESIDENT CANNOT DO DURING A STATE
OF EMERGENCY?
The Constitution
says that during a state of emergency, the President cannot do the following
things: (1) he cannot suspend or abrogate the Constitution; (2) he cannot
dissolve the Legislature; (3) he cannot suspend or dismiss the Judiciary;
and (4) there can be no constitutional amendment. See Article 87(a)
14. WHY DOES THE CONSTITUTION PUT THESE RESTRICTIONS ON
THE PRESIDENT DURING A STATE OF EMERGENCY?
The Constitution
recognizes that the President may need lots of powers to deal with the problems
the country faces during a state of emergency. But the Constitution does
not want the President to be a dictator during a state of emergency so that is
why it puts some of these restrictions on the President during a state of
emergency.
15. PLEASE EXPLAIN HOW EACH OF THESE RESTRICTIONS MAY
PREVENT THE PRESIDENT FROM BECOMING A DICTATOR?
Ok. Let’s
begin with the one that says the President cannot suspend or violate the
Constitution during a state of emergency. As we just pointed out, the
Constitution puts certain restrictions on the powers of the President even
during a state of emergency. If the President could suspend the
Constitution during a state of emergency, then the President will be able to do
those things that the Constitutions says he cannot do during a state of
emergency, such as to suspend the writ of habeas corpus.
16.
NOW EXPLAIN THE NEXT ONE. WHY DOES THE CONSTITUTION
SAY THE PRESIDENT CANNOT SUSPEND THE LEGISLATURE DURING A STATE OF EMERGENCY?
Well, as we
stated above, no later than 7 days after she declares a state of emergency, the
President has to call the Legislature together to approve the state of
emergency. If the President could suspend the Legislature when she
declares a state of emergency, then there will not be a separate body that can
vote on whether the President was right to declare the state of emergency in
the first place. Also, the Constitution gives the Legislature
the power to revoke a state of emergency at any time or to modify the measures
the President takes under the state of emergency. See Article 88. If the
President could suspend the Legislature during a state of emergency, then the
Legislature will not be able to revoke the state of emergency if the
Legislature thinks it is no longer necessary nor would the Legislature be able
to modify the measures the President has taken if it does not agree with them.
17. GOOD. PLEASE TELL US ALSO WHY THE CONSTITUTION
SAYS THE PRESIDENT MAY NOT DISSOLVE OR SUSPEND THE JUDICIARY?
The judiciary
includes the courts that can decide whether the government is acting
properly. For example, as we stated earlier, during a state of emergency,
the President may not suspend the writ of habeas corpus, and a person detained for more than 48 hour without a
charge can ask the court for a writ of habeas corpus to force the government to
tell the court why they have the person in jail. If the judiciary or the courts
were suspended during a state of emergency, then people will have nowhere to go
when the President exercises powers that is not given her by the Constitution
during a state of Emergency, or takes away rights, such as the right to a writ
of habeas corpus, that the Constitution says she cannot take away during a
state of emergency.
18. FINE. NOW, PLEASE EXPLAIN WHY THE CONSTITUION SAYS
THERE CAN BE NO AMENDMENT TO THE CONSTITUTION DURING A STATE OF EMERGENCY?
Amendments to the Constitution are big things because they bring about
changes to our basic and fundamental laws. Therefore, the people
who wrote our Constitution rightfully wanted for any amendment to the
Constitution to be fully debated and for everyone to voice their opinion on any
amendment and for as many people as possible to vote whether or not to approve
an amendment. As we have noted, a state of emergency is declared when the
country faces a major problem such as a war. Also, as we will see,
during a state of emergency, the President may suspend certain rights, like the
right to free speech or the right to travel or to assemble. The
framers of the Constitution believed (rightfully) that because amendments to
the Constitution are such an important things, we should not have them during
an emergency, when people’s rights to speak out against or in favor of the
amendment may be restricted, or when their right to assemble with other people
who share their views about the amendment is restricted, or when their right to
travel to campaign for or against the amendment is also restricted.
19. THANK YOU. SO YOU HAVE TOLD US WHAT
RIGHTS THE PRESIDENT CANNOT TAKE AWAY AND WHAT POWERS SHE CANNOT EXERCISE
DURING A STATE OF EMERGENCY. PLEASE TELL US NOW WHAT RIGHTS THE PRESIDENT
CAN TAKE AWAY AND WHAT POWERS SHE CAN EXERCISE DURING A STATE OF EMERGENCY?
Well, except for those rights that the Constitution says the President
cannot take away (the right to writ of habeas corpus) and the powers the
President cannot exercise (such as powers to suspend the constitution, dissolve
the Legislature, and suspend the Judiciary), the President can suspend most
other rights including the right to free speech, the right to travel, the right
to assemble and petition the government, and the right to freely practice your
religion, etc. However, as stated above, the Legislature has the
power to modify the measures the President takes under a state of emergency.
Therefore, if the Legislature does not agree with the President’s decision to
suspend certain rights under the state of emergency, it can vote for the
President not to continue to suspend those rights.
20. BUT HOW CAN YOU SAY THE PRESIDENT CAN DO ALL THESE
THINGS WHEN THE CONSTITUTION DOES NOT SPECIFICALLY
SAY SO?
We can say so because of something known as “exclusio unius est inclusio
alterius.” This is Latin, which means the “exclusion of one is the inclusion
of others.” It is what lawyers call a “canon” or method
of constitutional interpretation that says if you expressly exclude something, then you mean to include those
other things that you did not exclude . So, since the Constitution
expressly excludes or lists those powers (power to suspend the
Constitution, Judiciary, and Legislature) that it says the President cannot
exercise or those rights (right to writ of habeas corpus) she cannot take away
during a state of emergency, then it means that the rights and powers it did
not exclude or list are included among the rights the President may curtail or
the powers she may exercise.
21. WELL, WE TALK ABOUT HOW A STATE OF EMERGENCY CAN
BEGIN. PLEASE TELL US HOW IT CAN END OR BE MODIFIED OR CHANGED?
Like we said, a state of emergency exists once the President declares it,
but she must call the Legislature together within 7 days to vote to approve or
deny the State of Emergency. You should remember that the President
needs two thirds of the members of each of the two houses of the Legislature
(Senate and House of Representatives) to approve the state of
emergency. So let’s say the President declares a state of
emergency today. Then 7 days later she convenes the Legislature to vote
on it. If the President does not get two thirds vote of each house
approving the state of emergency, then it automatically ends.
Article 88
22. I SEE. BUT WHAT IF THE LEGISLATURE APPROVES
THE STATE OF EMERENGENCY WHEN IT IS FIRST DECLARED BUT LATER WANTS TO REVOKE OR
TERMINATE IT. HOW CAN THEY DO SO?
The Constitution
simply says that “where the Legislature shall deem it necessary to revoke the
state of emergency or to modify the measures taken thereunder, the President
shall act accordingly and immediately carry out the decisions of the
Legislature.” See Article 88. Therefore, it seems
that under Article 88, the Legislature may at any time vote to revoke a state
of emergency or to modify things the President has done under the emergency
powers she assumes when she first declared a state of emergency.
23. WHEN THE LEGISLATURE DECIDES TO REVOKE A STATE OF
EMERGENCY OR MODIFY MEASURES THE PRESIDENT HAS TAKEN THEREUNDER, HOW MANY MEMBERS
OF THE LEGISLATURE NEED TO VOTE TO DO SO?
The Constitution
is very clear that two thirds of the Legislature has to approve the
declaration of a state of emergency or it is revoked. That means if over
one third of the Legislature votes against a state of emergency, then it are
revoked. See Article 88. The Constitution is less clear on how many
members of the Legislature must vote to modify what the President has done
under a state of emergency. However, the most reasonable conclusion one
can reach from reading as a whole Article 88, the section of the Constitution
that deals with revoking and modifying a state of emergency, is that two thirds
of the Legislature must vote in favor of what the President is doing or else
whatever the President is doing will be modified as the Legislature decides.
To put this another way, if one third of the members of the legislature
plus 1 additional member vote to modify what the President has done under a
state of emergency, then the President must carry out what the Legislature has
decided.
24. NOW, LET’S LOOK AT THE STATE OF EMERGENCY DECLARED
IN LIBERIA. YOU SAID THAT THE CONSTITUTION SAYS THE PRESIDENT MAY DECLARE
A STATE OF EMERGENCY ONLY WHEN THERE IS A WAR, A THREAT OF WAR OR A CIVIL
UNREST THAT CREATES SERIOUS PROBLEMS FOR THE STATE. WE DID NOT HAVE A
WAR. WE DID NOT FACE A THREAT OF WAR. WE ALSO DID HAVE ANY CIVIL
UNREST. ALL WE FACED WAS EBOLA, WHICH IS SERIOUS, BUT IS NOT ONE OF THE
THINGS THAT THE CONSTITUION LISTED AS GROUNDS FOR DECLARAING A STATE OF EMERGENCY.
SO HOW COME THE LEGISLATURE APPROVED THE STATE OF EMERGENCY?
You are quite
right. We faced a health emergency which, by itself, is technically not a
civil unrest. But in her letter to the Legislature informing them
about the need for a state of emergency, the President said the “Ebola virus
disease, the ramifications and consequences thereof, now constitute an
unrest affecting the existence, security, and well-being of the Republic
amounting to a clear and present danger.” The argument can be made
that while the diseases did not constitute a typical case of “civil unrest” it
amounted to some sort of unrest that created a clear and present danger for the
country and the Legislature agreed with the President.
25. WHAT WILL HAPPEN IF THE LEGISLATURE MODIFIES THE
MEASURES A PRESIDENT HAS TAKEN UNDER A STATE OF EMERGENCY OR ROVOKES A STATE OF
EMERGENCY AND THE PRESIDENT DOES NOT AGREE WITH THE LEGISLATURE AND INSIST THAT
THERE IS A STATE OF EMERGENCY OR THAT SHE WILL NOT MODIFY WHAT SHE IS
DOING UNDER THE STATE OF EMERGENCY?
If this happens
then we will be in what people call a constitutional crisis. That is when
the Legislature and the President cannot agree on what the Constitution says
and they also disagree as to who has certain powers under the Constitution.
This is not good for the country because it can cause instability. In
such a case, either the Legislature or the Executive, or both of them may ask
the Supreme Court to decide who is right. The court will then look
at the Constitution and try to determine what it says regarding who—the
President or the Legislature—is correct. Under our system of
government, the Supreme Court has the final say on what the law or the
Constitution says on an issue. So, both the President and the Legislature
will be forced to follow what the Supreme Court says.
26. WHAT IF THE SUPREME COURT REFUSES TO DECIDE THE CASE
BROUGHT BEFORE IT REGARDING WHETHER THE PRESIDENT OR THE LEGISLATURE IS RIGHT?
There is
something called the political question doctrine, under which the Court may
refuse to decide a case involving conflicts between the Legislature and the Executive
branch. The political question doctrine applies when a case raises an
issue that is so political in nature and there is no guidance in the
Constitution on how to resolve the issues raised by the case. In such a
situation, the Supreme Court will decline to hear the case and say that it
should be decided by the political process and not the courts. It
is not likely that the court will apply the political question doctrine in a
case where there is conflict between the President and the Legislature
regarding their respective powers under a state of emergency because the
Constitution clearly spells out the powers of both the President and the
Legislature under a state of emergency. All the court has to do is look
to the plain language of the Constitution and decide the case. If,
however, the Court refuses to decide the case, then we will be in a real
constitutional crisis.
27. WHEN YOU SAY THE COURT MIGHT SAY THE CASE SHOULD BE
DECIDED BY THE POLITICAL PROCESS WHAT DOES THAT MEAN?
That means the
case will be decided say by an election that results in the removal from office
of members of the Legislature who disagree with the President or the removal of
the President herself. The other way the political process may apply here
is by way of the impeachment process. But all of this is also not good
for the country. The next election that could remove the President from
office or the Legislators who disagree with her, could be several years
away. That means that the country will be stuck and doing nothing until
the election is held. Even the impeachment process may take a long time
to complete. It also means that the country will be stuck and nothing
much will happen in terms of the government making critical decisions until the
impeachment process ends.
