An Op-Ed By Tiawan S. Gongloe
The purpose of this article is to provide public education on what is happening at the House of Representatives and its implication for our collective security. It is the desire of the author to provide a clear legal perspective and thereby contribute to preventing a further deterioration of the situation at the Capitol Building.
For a weeks now the Legislature has not been able to function. The situation evolved from a position taken by some members of the House of Representatives that Speaker Alex Tyler should recuse himself from functioning as Speaker because of his indictment by the Grand Jury of Montserrado County for bribery. The speaker in reaction to the request for his recusal took the position that he was innocent and that consistent with the Liberian Law that says that an accused person is presumed innocent until proven guilty, he would not recuse himself. Members of the House of Representatives who were advocating for him to recuse himself then decided not sit under his gavel and vacated the chambers for the regular meeting of the House to another location of the Capitol Building. As a result this evolving confusion in the House of Representatives, our budget and other important proposed acts, one of which is the Land Rights Act, are not being acted upon by the Legislature. The situation exists because one house of the legislature cannot act for the entire legislature. Therefore, the failure of one house to act, ultimately leads to a failure of the Legislature to act.
A failure of the legislature to perform its function as is happening, currently, bears a potential for undermining our collective security. The current draft budget, for example, contains proposals for taking care of the army, the police, the immigration, the fire service, road construction, food production, the holding of the 2017 national elections and health services, amongst other needs of the nation. It is obvious that the failure of our government to provide these basic needs for the people of Liberia could lead to restlessness and thereby undermine our ability as a people to sustain the peace and maintain our collective security. Therefore, what is happening at the House of Representatives should not be seen as a matter that members of House should be left alone to solve for themselves. Elders, religious leaders, heads of fraternal organizations and everyone in the Liberian society with any degree of influence over the contending sides in the standoff should persuade them to return to status quo ante, doing the people’s business in the manner in which they were proceeding before the request was made by some members of the House for Speaker Tyler to recuse himself. For such persons, it is necessary to understand the legal context of the growing confusion at the House.
First it important to understand how the House generally conducts its business. In this regard, it is important to look at relevant provisions of the Constitution of Liberia and the Rules Governing the House of Representatives. The Constitution of Liberia provides, at article 33 that “A simple majority of each House shall constitute a quorum for the transaction of business, but a lower number may adjourn from day to day and compel the attendance of absent members…” This means that for the House of Representatives to conduct any legislative business, at least a simple majority of its members must be present at meetings of the House. However, if the number of members present at a meeting do not constitute a simple majority, then those in attendance must keep attending meeting and compel the other members who are absent to attend. The question is how can those members of the House who are in attendance compel those who are absent to attend the next meeting of the House. Can they use physical force individually or collectively to bring absent members of the House to attend the next meeting of the House? Can they use the Sergeant-at- arms to do so? The answer to these two questions are in the negative. The compulsion that the Constitution directs that a lower number than simple majority of members each house of the Legislature may pursue should be guided by the law. In other words, the Constitution is mandating any of the house of the legislature that finds itself in such an odd situation to use the law to compel members who are absent to attend for the purpose of constituting a quorum to transact legislative business.
One legal method of compelling absent lawmakers to attend a meeting is to file a petition before the Justice in Chambers of the Supreme Court for a writ of mandamus to compel the absent legislators to perform their official duties. The Civil Procedure Law of Liberia at section 16.21.2, provides, “Mandamus is a special proceeding to obtain a writ requiring the respondent to perform an official duty.” To attend a meeting of the House convened by the Speaker is an official duty of a member of the House of Representatives because all decisions of the House of Representatives are taken at meetings of the House of Representatives, both at the level of the committees and at the level of the plenary. Therefore, members of the House can be compelled by the Supreme Court of Liberia, through a petition for mandamus filed before the Justice in Chambers of the Supreme Court of Liberia to attend meetings of the House.
No justice can consider a petition for lawmakers who are absent to be compelled by law to perform their official duty of attending meetings of the legislative body to which they belong, a political question. Political questions relate to matters that are purely discretionary. It is not a discretionary decision on the part of a legislator to attend a meeting of the legislative body to which he belongs, just as it is not discretionary on the part of a cabinet minister to decide not to attend a cabinet meeting, or for a justice or judge not to be present in court at the times mandated by law.
An alternative way to deal with this issue is for either of the sides to the conflict in the House of Representatives to file a petition for declaratory judgment in the Civil Law Court of Montserrado County, for the court to declare their rights under article 33 of the Constitution of Liberia and the relevant rules of the House of Representatives. A declaratory judgment is provided for under Section 43.1 of the Civil Procedure Law. It provides, “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment. The power granted to the court under this section is discretionary”
The second important information that the people need to know is how the House of Representatives is administered. In other words who is the head of the House of Representatives? According to the Constitution of Liberia the Speaker is the head of the House of Representatives. He presides over meetings of the House, when that body meets. At article 49 of the Constitution of Liberia, it is provided, “The House of Representative shall elect once every six years a Speaker who shall be the presiding officer of that body, a Deputy Speaker, and such other officers as shall ensure the proper functioning of the House. The Speaker, the Deputy Speaker and other officers so elected may be removed from office for cause by resolution of a two thirds majority of the members of the House.” It should be noted that the Constitution did not use the indefinite article “a” when referring to the Speaker as presiding officer. Instead it used the definite article “the” when referring to the Speaker as presiding officer of the House. This means that under the Constitution of Liberia, there can only be one presiding officer. The Constitution provides for a Deputy Speaker and not an alternative speaker. Therefore, the Deputy Speaker cannot concurrently perform any of the duties of the Speaker of the House. He is the deputy to the Speaker as the nomenclature of the position clearly states.
In order to have a deeper understanding of the roles and authorities of the Speaker and Deputy Speaker, it is important to look at the Rules of the House of Representatives. These rules were made by the House of Representatives, consistent with article 38 of the Constitution of Liberia, for the conduct of its business. The rules relevant to the dispute that is the focus of this article are rules 7 and 8 of the Rules and Procedures of the House of Representatives. For clarity, these rules are herein quoted verbatim as follows:
7.1 The Speaker shall perform the following duties:
7.2 Call the Honorable House of Representatives to order at the commencement of each day’s session and shall proceed to business in manner prescribed in these rules.
7.3 Preserve order and perfect decorum and shall decide all questions of order subject to an appeal to the Honorable House of Representatives. The Speaker shall see that members conduct themselves in a civil and orderly manner. When necessary, the Speaker may order the Sergeant-at-Arms to clear the aisles and compel members to take their seats.
7.4 Appoint the Chairpersons and Co-chairpersons of Statutory Committees.
7.5 Appoint members of Statutory Committees in consultation with the House’s Leadership.
7.6 Appoint Chairpersons, Co-chairpersons and Members of Standing Committees in consultation with the House’s Leadership.
7.7 Transmit all directives of the Honorable House of Representatives to the Chief Clerk.
7.8 In appointing the chairpersons, co-chairpersons and members of each Standing Committee, the Speaker shall take into consideration the partisan composition of the House, professional knowledge, expertise or experience of the individual appertaining to the functions of the committee to which he or she is appointed.
7.9 Represent the Honorable House of Representatives at all public and official functions whether or not the Honorable House of Representatives is in session.
7.10 Sign all bills, resolutions and addresses after they have been enrolled and also approve transactions after the account department, Ways, Means, & Finance and the Deputy Speaker shall have initialed them.
7.11 The Speaker shall carry out other duties assigned to him by plenary.
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.
8.2 The Deputy Speaker shall assist the Speaker in the discharge of his/her functions, and he/she shall perform such duties as the Speaker shall delegate or deem appropriate and shall also initial any financial and other transactions prior to the approval of the Speaker.
8.3 The Speaker and Deputy Speaker shall serve as Ex-Officials of all committees.”
It should be noted that Rule 8.1 states clearly that the Deputy Speaker shall preside over the House in the absence of the Speaker and Rule 8.2 states, “The Deputy Speaker shall assist the Speaker in the discharge of his/her functions and shall perform such duties as the Speaker shall delegate or deem appropriate…” Without the absence, suspension or removal of the Speaker or a delegation of duties by the Speaker to the Deputy Speaker, he cannot legally perform any of the functions given by the Constitution of Liberia to the Speaker. In this regard the holding of meetings of some members of the House under the gavel of the Deputy Speaker is unconstitutional.
This conclusion has nothing to do with whether or not the right thing for Speaker Tyler to do was to recuse himself. Many persons, including this author hold the view that whenever there is a cloud over the integrity of a public figure, such as Speaker Tyler, the most honorable thing to do is to recuse himself/herself. For example, not long ago, the Prime Minister of Iceland, resigned his post when his name appeared in the Panama documents. He did not wait for a conclusion of the investigation to say whether he was guilty or innocent. But, this high standard held by public office-holders in other parts of the world is, unfortunately, not a common practice in Liberia. The common practice is for a public official to provide justification for not resigning.
The other question that members of the public have been struggling with is whether one in a position of trust can be asked to recuse himself/herself. The issue of recusal of one presiding over an issue is more common to the court than other areas of government. It is intended to deal with conflict of interest. For example if a family member or relative of a judge appears in court before him/her as a party to a case, it is ethically required for that judge to recuse himself/herself. This action on the part of the judge concerned is usually voluntary. However, if the judge is not honorable enough to recuse himself/herself, the other party to the case may ask the said judge to recuse himself/herself and if he/she refuses to do so, a higher judge may compel him/her to recuse himself/herself. Therefore, recusal can be voluntary or involuntary. This point is important because many persons have been arguing in the print and electronic media in Liberia, over the past weeks, that recusal can only be voluntary. In the case of the Speaker, for the members of the House opposed to him to compel him to recuse himself, they would have to do so in a legally constituted meeting of the House by a two thirds majority vote.
In the light of what have been discussed in this article, it is the view of the author that it is unconstitutional for any member of the Government of Liberia, acting in his or her official capacity to do business with the group of members of the House of Representatives that is meeting under the gavel of the Deputy Speaker. The action of this group of lawmakers is not different from a group of cabinet ministers to meeting under the gavel of the Vice President, because they and the Vice President are opposed to certain action or a failure of the President to take certain action. Similarly, the action of the members of the House meeting under the gavel of the Deputy Speaker is like two justices of the Supreme leaving the Chief Justice and a justice sitting in the Chambers of the Supreme Court, which the official courtroom of the Supreme Court, to conduct hearings in another part of the Temple of Justice. Three justices holding the same opinion on a case can decide a case because they constitute the majority and the Chief Justice and another justice may dissent, but both the majority opinion and the dissenting opinions are delivered in the same place under the gavel of the Chief Justice of the Supreme Court of Liberia. This is what is meant by a country of law and not of men. We Liberians must not encourage or accept any attempt by our leaders to depart from leading us by respecting the Constitution and statute laws of Liberia. It must be noted that it is an act of treason to attempt to undermine the Constitution by any other means. Article 76(5) provides, “Treason against the Republic shall consist of abrogating or attempting to abrogate, subverting or attempting or conspiring to subvert the Constitution by the use of force or show of force or by any other means which attempts to undermine this Constitution.” Note that the Constitution states that attempting to subvert or abrogate the Constitution by the use or show of force or to undermine it by any other means is treason. Under the Constitution of Liberia Governance must be by the rule of law. Therefore, let us call, in loud voices, upon all of our leaders to always follow the law, under all circumstances, such as in the current situation that exists in the House of Representatives. We must not gossip and whisper about serious issues affecting our country. We should speak to our leaders, truthfully, and fearlessly in order to preserve the peace and dignity of our country.