By Lewis G. Brown
This seems like a simple enough answer. However, the simplicity shields a delicate constitutional dance of power which is anything but simple.
This writing is informed by the arrest of a political activist, Mr. Manikpakei Dumoe, for a post to FaceBook, I would not make. The Solicitor-General used the occasion of Manikpakei’s detention to warn Liberians that freedom of speech was suspended on account of the existence of a state of emergency which was declared to fight the invading Coronavirus. Mr. Dumoe was subsequently released but the question concerning freedoms and rights in emergencies lingers.
Unarguably, by design and the reinforcing construct of the Liberian Constitution, the framers intended that Liberia be a free and democratic nation. Even while providing for the existence of emergencies, they established procedures to ensure that the centrality of all power, including emergency power, being inherent in the people (Article 2), is never compromised. They broadly, specifically and severally maintained the country’s democratic aspirations, as well as structured the Republic and its distribution of power to three separate and coordinate branches, so as to continuously uphold the foundational principles of checks and balances sine qua non to democratic governance.
Importantly also, the framers went to meticulous lengths to ensure that even in emergencies, no singular branch of the government can arrogate any power not specifically delegated, or assume to possess and exercise any power of the people, whether for or against their interests, that are not specifically given by the people through their direct representatives – at least not for more than ten days – should the exigency of a presenting emergency require same.
Without undermining the ability of the nation to resolve emergencies, the Constitution permits the orderly as opposed to arbitrary curtailments and enjoinments of rights and freedoms during emergencies, only for the purpose of dealing with the presenting emergency. It would border on the absurd to think that having severally reinforced the democratic structure and nature of the Republic, the framers would set themselves a second task to undermine our democracy by creating an imbalance in the established democratic power structure, in the name of an emergency.
So what does the Constitution specifically say about freedom of speech during emergencies? Cited in its entirety, Article. 15(a) reads:
Every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution. (emphasis mine)
On first glance, it seems disingenuous – at least to me – that the framers would commit sixteen articles to Fundamental Rights, and rank it so highly in the Constitution – placing it in Chapter III, after defining the Structure of the State (Chapter I), laying out the General Principles for National Policy (Chapter II), and before declaring Citizenship (Chapter IV) – only to will away a basic human right as freedom of expression, merely on the existence of an emergency.
Then I realized the genius of the framers!
Freedom of expression cannot be curtailed, restricted or enjoined except it is done (a) by government, (b) during an emergency, (c) unless such emergency is declared, and (d) the declaration is done in accordance with the Constitution. Such is the impressive safeguard the Liberian Constitution places on every person’s right to free speech that it is not enough that one of the four conditions be present for that right to be curtailed or restricted. All conditions must be present to qualify a restriction or curtailment of free speech as constitutional during an emergency.[B]y government, the first condition, seems simplistic. And yet, therein lies the profound. As it will come to be revealed later, the Constitution is especially clear about the roles of the various branches of the government during an emergency assigning the duty to the President to declare the emergency and actions to be immediately taken; the Legislature is to ultimately decide the continued existence of the emergency as well as approve, modify or revoke any measure to be taken to deal with the emergency, not more than ten days after the presidential declaration; and the Judiciary is to remain open.
Therefore, by government, as opposed to by the President, signifies the highest level of coordination and agreement that must be achieved between the Legislature and the Executive for the performance of this delicate constitutional duty, should same be required beyond at most ten days. It follows that no President can singularly curtail, restrict or enjoin free speech, as a measure to deal with an emergency, for more than ten days from the date of the presidential declaration, without the concurrence of the Legislature, the direct representatives of the people, whose freedoms are affected.
Cited in full, Articles 86(a), 87(a) and 88, under Emergency Powers, reads as follows:
86(a): The President may, in consultation with the Speaker of the House of Representatives and the President Pro Tempore of the Senate, proclaim and declare the existence of a state of emergency in the Republic or any part thereof. Acting pursuant thereto, the President may suspend or affect certain rights, freedoms and guarantees contained in this Constitution and exercise such other emergency powers as may be necessary and appropriate to take care of the emergency, subject, however, to the limitations contained in this chapter. (emphases mine)
87(a): Emergency powers do not include the power to suspend or abrogate the Constitution, dissolve the Legislature, or suspend or dismiss the Judiciary; and no constitutional amendment shall be promulgated during a state of emergency. Where the Legislature is not in session, it must be convened immediately in special session and remain in session the entire period of the state of emergency. (emphases mine)
88: The President shall, immediately upon the declaration of a state of emergency, but not later than seven days thereafter, lay before the Legislature at its regular session or at a specially convened session, the facts and circumstances leading to such declaration. The Legislature shall within seventy-two hours, by joint resolution voted by two-thirds of the membership of each house, decide whether the proclamation of a state of emergency is justified or whether the measures taken thereunder are appropriate. If the two-thirds vote is not obtained, the emergency automatically shall be revoked. 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. (emphases mine)
As opposed to Article 88, which by the use of the word shall, a mandatory duty is imposed on the President and the Legislature, Article 86(a) uses the word may, by which an optional duty – as opposed to mandatory – is imposed on the President. Simply put, no President mandatorily has to consult with the Speaker or President Pro Tempore to declare a state of emergency, nor is a President mandatorily required to suspend or affect certain rights, freedoms and constitutional guarantees to cure an existing emergency.
However, should the President deem the curtailing of specific rights and freedoms to be a requirement to address the existence of a state of emergency – we have already shown by the constitutional use of the word may that this course of action is not mandatorily required – it falls upon the President to include same in the measures to be announced in the presidential declaration, or to be placed before the representatives of the people, immediately or not more than seven days after the presidential declaration. Again, the consistent constitutional purpose is to obtain the consent of the people through their representatives, because all powers, including emergency powers, belong to the people.
Such is the gravity of the suspension of rights and freedoms, or the devolution of people’s powers, should it be required for a state of emergency, that both houses must vote on a joint resolution, not by simple majority of a quorum but by two-thirds of the membership of both houses, to constitutionally sanction the existence of the emergency declared by the President. Furthermore, the Constitution instructs the Legislature to act within seventy-two hours on not just the facts and circumstances presented by the President but also, and perhaps more importantly, the measures taken and or proposed by the President to deal with the emergency.
Neither the Constitution nor the basic tenants of the rule of law permits blindsiding the people in the enforcement of any law or the exercise of any powers, including during emergencies. Notice to the people whose rights and freedoms are to be affected must be duly served. Serving notice is at the heart of the essence of a declaration by the President, and subsequent decision by the Legislature. As such, a declaration by the President and or the subsequent decision of the Legislature must contain all of the measures to be enforced in dealing with the emergency. The measures can be updated and revised. This, too, is why the Legislature remains in session during the entirety of the emergency.
“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” (Article 88, emphasis mine). Herein, again, lies the brilliance of the framers. Firstly, after the Legislature decides upon the existence of a state of emergency, and the measures to be taken to deal with it through a joint resolution, no measure or power can be assumed or exercised that the Legislature did not specifically consent to give. And importantly, no measure of which the Legislature is unaware can be exercised on the people after it has either already approved or modified the measures to be taken.
The Joint Resolution of April 17, which conveyed the Legislature’s decision concerning the existence of a state of emergency in the country, and the approved /modified measures to be taken by the Executive, with which the President is under strict constitutional obligation to carry out in dealing with the existing emergency, does not provide for the suspension of freedom of expression. Accordingly, no restriction, curtailment or enjoinment of freedom of speech has been declared as a measure, by government, in accordance with any of the relevant provisions of the Constitution concerning the declaration and existence of emergencies, beyond the constitutionally prescribed period in which a President may act unilaterally.
Finally, Liberia is a democracy. Even in difficult times of emergencies, the framers intended that we remain a democracy. As such, to arrest anyone only for “irresponsible speech” is to chill free speech for everyone, and thereby undermine the quality of our democracy. When we zealously guard freedoms and rights for all, as the Constitution commands, we enable each other’s rights to be humans.
Too many Liberians died to give us free speech. The least we owe, in honor of their sacrifice, is to always protect, and exercise all freedoms and rights, responsibly.