THE ABC’S OF A STATE OF EMERGENCY

THE ABC’S OF A STATE OF EMERGENCY By ANC

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.