PART II: A Tale of Two Constitutional Interpretations on State of Emergency as a Precursor for Recalling of Parliament: Textualism v Pragmatism

*Mokitimi TÅ¡osane

In the Dead or Tranquilised? The Recall of Dissolved Parliaments Asanka Welikala correctly states that the underlying rationale for recalling a dissolved parliament during an emergency is to ensure accountability – fulfilling the requirements of legislative oversight of the executive (including the exercise of any emergency powers) and to approve appropriations of public funds for government expenditure.

He further emphasizes that the quality that distinguishes constitutional democracy from every other system of government is accountability. As one political analyst, Mr Thuso Mosabala, rightly states as regards accountability of institutions: institutions of government should be horizontally accountable through checks and balances, and vertically accountable to the citizens through processes of good governance among other things.

From the text of the constitution to the statutes available, there is a clear recognition that the duty to respond to states of emergencies, crises, and/or disasters in their various facets rests with the executive arm of government. It is a bit odd that Lesotho has defied history and the texts of the statutes to declare a state of emergency when parliament failed to pass a bill at its dissolution.

The text of the constitutions and laws governing emergencies, particularly those in the Commonwealth, did not fathom a situation where parliament failing to pass a bill will be an emergency justifying recalling the same parliament to either force or instruct it to pass the same bill. While on it, without passing any judgement, it is hard for this essay to find a justifiable rationale behind recalling parliament to force it to pass a bill without encroaching on sacrosanct principles on separation of powers as coined by French jurist Montesquieu in “The Spirit of the Law” in the 18^th Century, vigorously advocated by James Madison in the “Federalist Papers” and numerous court precedents.

Textualism

It is worth noting at the start that textualism will be interpreted in terms of the common legal meanings of “emergency” and “state of emergency.” The conditional logic applied is in the context of emergency as an “unexpected, and potentially dangerous situation requiring immediate action” and “state of emergency” as that declaration to address that particular “present or imminent, exceptional, concerns the entire population, and constitutes a threat to organized life of the community”. As a result, this essay adopts an interpretation that restricts and confines emergency to the period between dissolution and holding of elections or at worst, a perpetual existing state of emergency before the dissolution of parliament.

The text of the constitution is written in logics of conditionals dealing with inferences involving sentences of the form “if A, (then) B”. In terms of the text of the constitution, a conditional recalling of parliament can only be assertable provided there exists, in reality, the truth of its antecedent being either state of war or state of emergency making a relevant difference to that of their consequent.

Under the circumstances, the validity of recalling parliament is predicated on the existence of an emergency for which a state of emergency may be declared. For this emergency to be unexpected it should at least have happened between the dissolution of parliament and the holding of general elections – such that there really exists an emergency for which a statement of emergency may be declared in between the two events justifying recalling of the dissolved parliament.

Otherwise, an ongoing state of emergency which persists beyond the dissolution might suffice for recall of parliament where necessary.

The text of the constitution limits the recalling of parliament conditional only to the emergence of the two events within a specific period and nothing else. Therefore, where there is no emergence of an emergency for which a state of emergency can be declared during the period between the dissolution of parliament and the holding of elections, then recalling parliament is flawed and cannot be validated or premised on a non-existent state of emergency. This simple conditional logic is at the core of the treatment of the text of the constitution conditional with “material implication” in the two-valued propositional framework. This understanding of the constitutional conditional has considerable virtues of simplicity, and in that regard, the conditional analysis provides a basis for any textualist interpretation of the constitution. Easily asserted, the validity of the recalling of parliament is a function of the validity values of antecedent and consequent.

The conditional provision being section 23(8) read with section 84(2), in natural language is not limited to indicative conditionals (“if there is an emergency and a state of emergency declared during the period between the dissolution of parliament and the holding of general elections, then parliament will be recalled”), but also include subjunctive conditionals used to express counterfactual hypotheses (“if there is an emergency and a state of emergency had been declared between the dissolution of parliament and holding of an election, parliament would have been recalled”).

To comprehend the text of the constitution which is written in conditional logic terms, serious attention should be placed on the interplay of grammatical language important to understand the logic of conditionals. The validity of the consequent rests on the validity of the indicative conditional and in this case is the existence of an emergency on the basis of which the state of emergency is declared.

Pragmaticism

This involves weighing or balancing the probable practical consequences over the other interpretation where the other interpretation would give absurd outcomes. It is an interpretation which may be resorted to given that the strict textual interpretation may not yield favourable results. Pragmaticism weighs in future costs and benefits of an interpretation to the society on political branches selecting the interpretation that may lead to the best-perceived outcome.

In the context of the reforms, for a start, the pending constitutional reforms preceding reforms in other thematic areas present a favourable outcome intended to revise and unwind the course and the volatile environment in the country exists in. This volatility has not been economically beneficial to the country as far as foreign direct investment and development are concerned.

It is worth noting that the abuse, misinterpretation, and misconception of the laws have placed the country in a state of crisis. Under the current legal regime, the country has experienced a political and security crisis having a bearing on the peace, order, and stability of the country. As such, politically active security institutions and political upheavals have been the order of the day for the longest time. Among the problems identified were the legal frameworks governing and regulating these institutions.

Since gaining independence from Britain in 1966, the Kingdom of Lesotho has experienced repeated bouts of political instability including but not limited to coups, violent unrests, and disputed elections. Following Independence in 1966, all major political wrenches of instability in Lesotho’s political atmosphere were among other things contributed to by the politicians abusing legal powers and influence at their disposal and patronising the security institutions.

The advent of the era of hung parliaments and the unstable coalition governments has changed the dynamics of Lesotho’s constitutional democracy. With the change in political dynamics comes a change in the constitutional landscape. The changes are so drastic that the country has experienced crises and instability. During these coalitions, the country has witnessed a prime minister turning a cabinet government into a prime ministerial government where the incumbent attempted what Robert Greene in “33 Strategies of War” term command-and-control strategy.

Through this strategy, the prime minister ensures that the management of the key institutions is pliable to his course. Applying the command and control strategy a very strong prime Minister can rule from the grave. Such enormous powers of the prime minister were identified as problematic in the Plenary II Report. In 2014, these enormous powers led to both a political and security crisis.

Under the current legal regime, the judiciary has not been accorded as much independence as it should – financial and functional. The independence and autonomy of public institutions like the Police Complaints Authority, Directorate on Corruption and Economic Offences among a host has been an ongoing issue.

Essential institutions like the Human Rights Commission have not been set up and this has been a course for concern over the years since around 1995 when the government only chose to introduce the Human Rights Unit in the Ministry of Justice and Law. Issues of standing in public interest cases in court have been a serious cause for concern as the courts have often adopted restrictive private interest standing in public interest litigation.

The office of the Attorney General which should protect the public interest has not been fulfilling this constitutional duty. The impartiality and independence of the office of the Director of Public Prosecution have also been on the radar of the reformists as well. The parliament, public service, the media and all these major institutions have contributed to the crises this country has endured.

The volatility in the legal, political, social, and economic spaces over the years has arguably placed this country in a perpetual crisis. As such, there has existed a need to remedy the situation starting with the supreme law which carries the essential constitutional morality which has to outweigh public/ popular morality.

This supreme law is basically the grund-norn and the social contract from whose authority all power is derived.

In the circumstances, a pragmatist would conclude that cumulatively, the legal, political, economic, social, and economic crises that endure place the country in a precarious and volatile environment that can explode at any time. The aim is also to create legal certainty and increase the chances of stability post general elections scheduled for 7 October 2022. A pragmatist stance would be that society stands to benefit from the passage of the mega-constitutional bill whose aim is to recreate the legal front mitigating the existing political, economic, and social maladies deriving from inefficient and flawed legal frameworks.

Conclusion

Having traversed the legal debates on the application of textualism and pragmatism as tools for interpretation of the constitution, the essay passes no judgment on whether there really is an emergency for which a state of emergency can be declared as a precursor for recall of parliament.

As seen in the essay, pragmatism encompasses consideration of pragmatic outcomes which may inject politics into the law subverting the law to justify essentially political decisions. This is sometimes necessary as the law exists in a larger political, economic and social context. On the other hand, there is much predictability and objectivity in pursuing a textual interpretation of a constitutional provision.

It is clear that where the result from the textual interpretation would be absurd, it is permissible to use other modes of interpretation which would produce favorable outcomes. In the circumstances, if the textual interpretation is applied as proposed in the essay, then the supremacy of the constitution even over the use of public power by the Prime Minister would be affirmed.

If pragmatism is favored, then the state stands to benefit from the passage of the constitutional bill with 90 amendments with wide implications on fundamental human rights, and good governance among a myriad of issues.

Perhaps, this issue is ripe for the Attorney General as the protector of public interest and the Law Society of Lesotho to take to the High Court sitting as the Constitutional Court for proper interpretation of this solemn covenant.

In fact, Lesotho is not necessarily a positivist state where the word of the government goes without scrutiny but a constitutional democracy. Paying heed to the advice of Justice Andrew Peter Napolitano in “Constitution in Exile” every controversial decision by the government should pass constitutional scrutiny lest the constitution be exiled.

This essay opines that the development of a constitutional jurisprudence depends on the courts making a determination on issues of this magnitude. While this essay is of an opinion that the High Court in its constitutional jurisdiction should be given advisory powers on constitutional issues, it is of a considered opinion that the current issue under the radar is live and the court would not be undertaking an academic exercise.

However, this essay is cognisant that sometimes the courts use relics like judicial deference, constitutional avoidance, restrictive rules on standing in public law issues, and other technicalities to avoid making critical judgements involving the other branches of government. As indicated in para 7 of the recent decision in Democratic Congress and Another v. Independent Electoral Commission and Others (2022), the High Court sitting as the Constitutional Court affirmed the jurisdiction over constitutionality over the exercise of public power. In the end, the essay avoided a too legalese approach for ease in reading for those without any legal background.

 *   •   Mokitimi TÅ¡osane is an admitted advocate in the courts of Lesotho working as the Judicial Activism and Public Interest Litigation Officer at the Transformation Resource Centre (TRC) in the Human Rights and Access to Justice Department. He is also a member of the Public Interest Litigation Committee of the Law Society of Lesotho. ORCID: http://orcid.org/0000-0003-2760-2290

NB: This essay does not in any way whatsoever reflect or represent the position or views of the Transformation Resource Centre on this issue.