A Rejoinder to Cllr. Tiawan Gongloe “Evolving Trouble Capitol Building – A Threat To Our Collective Security”
Opinion by Worlea-Saywah Dunah
We have on numerous occasion enjoyed the legal mind of Cllr Gongloe yet when on September 2, 2016, a day after Rep Tyler formally acceded to the Resolution of Plenary, in the Frontpage newspaper he chose to label the House of Representatives’ disciplinary action as a threat to collective society and equated it to treason, it became an imperative to point out that both assertions are farfetched and have no constitutional and legal backing. There is equally no contemporary, historical, foundation in legislative work to wit.
What it represents amount to a restatement of Rep Tyler’s ill-founded self-delusionary pronouncement that attempts by peers to enforce its Code of Conduct by calling for his recusal would bring crisis in Liberia; that Rep Tyler’s hyper-inflated egoism find manifestations in that article rather indicates a ploy to mislead a largely illiterate and dominantly ill-informed populace.
It is an inarguable and universally accepted fact that legislative leadership contestations are non-justiciable matters and hence falls under the political question doctrine; and its sine qua non is control of the floor. When you lost the floor, you lost the gavel and your mandate. You lost legitimacy. Is that not why in parliamentary democracies like the United Kingdom, etc when a Prime Minister lost the majority he resigns or calls for a new elections?
I also freely opine here that it is critical for the public to understand why the decision to compel the recusal of the indicted speaker is backed by our Rules and Constitution. The Constitution in Articles 33 &38 established the quorum to be called Plenary and gives it powers to make and adopt its own Rules. Our Rules in Chapter 12, Code of Conduct, particularly Rule 42 & 44 imposes a duty to maintain the dignity of that body and to fight corruption. Let me quote these two:
Rule 42.1 Every member shall, at any place, keep the prestige and dignity of the House and refrain from undesirable acts.
Rule 44.1 Members are expected to fight corruption effectively by being free from corrupt practices and opposing corruption and set example in any anti-corruption struggle.
We are convinced that the Code of Conduct in our Rules as quoted above in part gives the Plenary the power to enforce the recusal of the indicted presiding officer because that is as verbatim “A GOOD EXAMPLE IN ANY ANTI-CORRUPTION STRUGGLE”!
Interestingly this entirely Article 38 power of enforcing order within the ranks of members is being described as commission of an ultimate crime against the state as per Article 76(5) is strongly condemned because it simply represent nothing other than creative ambiguities of logic and interpretation. It attempts to give legal color to the governing logic on which the recused speaker used thugs to insults peers and locked access to all meeting places within the Houses’ Wing.
Indeed numerous paid professional talk show hosts and callers, tea shops analysts, pseudo-intellectual and aspiring intelligentsia, and self-anointed authority of all ilk and kinds as well as highly respected persons have in the main opined in various modes on this matter.
In fact some of them have resorted to the employment of newer innovative invectives to explain the focus of the textual absolutism of Article 49 which says a two thirds Resolution is required to remove a speaker. Yet in all of that rush to convict the Plenary of constitutional violation, they tend to overlook the most elementary of things that stand to point that the constitution is a framework which the statutes, regulations and rules etc come to fill up.
Truly Articles 38 & 49 set the conditions for the ultimate punishment, which is removal for members and the officers but does that mean that the constitution framers considers that there will be no other forms of wrong doing and therefore no appropriate lower degrees of punishment? What is a fact is that the constitution set two conditions for the exercise of the powers to enforce order by the legislature which are: to go by due process and to use two third resolutions when removing an officer or expelling a member.
Therefore the use of resolution to discipline a member or enforce order as per Article 38 is introduced in the same Article 38 and 49 as a tool in legislative working. It is consistent with our Rules that a simple majority of members, called quorum/plenary, to discipline for minor infringement of our Rules as was done in this case.
The Legal Conundrum of Mandamus and Treason
The author next offered free legal advice to Rep Tyler to sue for the writ of Mandamus to compel the Plenary to go under his gavel having failed miserably when his thirty-five count petition was thrown from the high chambers into the bottom of the Soniwhen cesspool where it legally belonged.
Well, it is common fact that a Resolution based on Article 38 was adopted enforcing the order of recusal on Rep Tyler on August 11,2016. The majority quorum as per Article 33 then summoned the next in line, the Deputy Speaker to assume the task of presiding consistent with that instrument. This historic document was communicated to the Senate and to the Presidency. Its legal efficacy was acknowledged by the executive while the challenge of it was rejected by the judiciary; all of these amount to its constitutionality been affirmed.
Now under our constitution an action of the legislature in rule making can be challenged at the Supreme Court, however, this Resolution remains uncontested to date; even the author who plies his trade at the high court has not acted. Rule 42.1 and Rule 44.1 are the real basis for the recusal order and therefore all works done by a Plenary which the author acknowledged as meeting the requirement of the constitution under the gavel of the next in line as per Article 49 and Rule 8 & 10 are constitutional and holds valid.
Let me quote the entire Rule 8.1: “In the absence of the Speaker, the Deputy Speaker of the Honorable House of Representatives shall preside over the sitting of the August Body and shall exercise all rights and powers assigned to the Speaker.”
And so with the passage of the disciplinary Resolution automatically the Deputy Speaker assumes the role and the underlined portions applied. That also means that whatever meetings by the Rep Tyler and group were unconstitutional. So here is plenary meeting as per Article 33, working and moving state matters; now how can you apply for a Mandamus for an official who is already functioning? And how can the discharge of a constitutional duty amount to treason?
I am reminded of the case that President Taylor government had against my former editor Joseph Bartuah of the News Newspaper who with his assistant were incarcerated without bail in 2002. Their crime was publishing in their daily that the Police Helicopter was out of spare parts and could not work an action for which they were charged with espionage, sabotage, and sedition. Their lawyer accused government of ‘wild extrapolation of the intent of the law and comical enlargement of the parameters of these grave charges’. He openly questioned in court how one can commit espionage by publication?
I agreed with that lawyer then and still hold that view; but I cannot agree with his interpretation and application in this case. His current views now that the gavel of the Speaker is the determinant factor of “Quorum” and that any contrary legislative action amounts to treason follows unfortunately the same logic that landed his clients in jail at that time. The Speaker is simply ‘elected first amongst equals’. This enlargement is as unconstitutional as it was in the Bartuah case; and for the record the government abandoned the case. Rep Tyler has since too abandoned his argument as futile.
Furthermore, the analogy of the cabinet and the justices to members of the legislature cannot hold water as the disparity are too obvious. While the three branches were all born in the same Article 3, members of the legislature are elected in equal manner as the one who is chosen to be the presiding; on the other side in the executive it is only the President who is elected and given the power to appoint his assistants who serve at her will and pleasure- Articles 50,54 & 56(b) while the Judiciary is appointed by the President but independent and operate by majority as per Article 67. The Judiciary also makes it own Rules unlike the executive.
And so it follows that one cannot go to court to question the removal of a cabinet member by the president neither can one go to court to compel members to sit under a presiding who they have passed judgment on based on Article 38 powers. As for the judiciary it is clear that decisions are by majority, the gavel is to coordinate and cannot compel a justice to agree to an opinion. I need not go any further but state that all three branches have their exclusive inherent powers which no other branch can delve into; and for the legislature, leadership is one and it is non-justiciable, it a is a political question.
Integrity of Public Servant Urgently Needed
We must all agreed that when the framers of the constitution in Article 90(c ) requires the legislature to pass a Code of Conduct for all public officials it was that recognition that our economic underdevelopment and conflict historically are rooted in the lack of character and integrity in public places. The legislature in their Rules from the inception of the 1986 constitution always have a Code of Conduct , in the current Rules of the House of Representatives it is in Chapter 12, portion of which are quoted above.
I am inclined here in view of the foregoing to lastly say that while the article in the main is contradictory, the author’s admission that even “a cloud over the integrity of a public figure” is enough reason to resign represents the true meaning of our Chapter 12 Code of Conduct and that the use of Resolution is an Article 38 and 49 instrument for legislative self-regulations and rule enforcement. And would urge him and others to frankly demand the resignation as was done in the cases he quoted in his article; in that way we help to set a high standard and bring integrity to the core of our government.
Agree with me or disagree me, that is the only pillar on which our country can make progress and provide a better life for the millions suffering in this land of plenty. And to stressed a point for posterity that public office is an opportunity to help society advance but not a means to amass wealth at the expense of the millions suffering people..
And if you ask me when it starts and where, I say now; and wherever you find yourself, Liberians demand integrity and accountability. That action, within the framework of the constitutional powers granted the legislature, can rather be an example against corruption and not treason. And that the Speaker has finally accepted the Resolution means the good example has become a precedent forever in the legislature of Liberia.