By Daniel Juol Nhomngek
January 11th 2019 (Nyamilepedia) – The above title arose from this question by Dr. James Okuk on my recent Article on which I commented on the works of Dr. Lam Akol and Dr. Santino Ayuel Longar. The question Dr. James Okuk puts to me is: CAN A LAW, EVEN IF AMENDED OR PASSED BY A PARLIAMENT OR EXECUTIVE WITHOUT THE REQUIRED PROCEDURES, BE REGARDED AS VALID LAW?
Instead of responding to him in person, I decided to answer him in form of Article as follows: I am very pleased with the above question which is the true legal question that requires legal answers. It is rather simple at the face of it but very complicated to answer since it is tricky. But since jurisprudence or philosophy of law is one of the subjects or topics I love in law, let me try my jurisprudential knowledge to answer Dr. James Okuk.
To begin with, I would like to say that what Dr. James Okuk needs to note onset of this discussion is that like any other jurisprudential questions, it may not get the direct answer he is seeking from me, which is yes or no, but it may take me time to give him critical analysis by going down in the history of law and illegality and how the two relate and how their intermarriage and interplay may lead to the law itself which means that illegality gives birth to legality.
Of course, many people shy away from openly admitting that a valid law may come from invalid procedures or illegal procedures. This may be due to the public policy which states that no person is allowed to benefit from his or her or their crimes. At the end of this discussion, Dr. James Okuk and others who may be interested in this question will realize that illegal procedure can lead to legal product.
In order to comprehensively discuss the question above, I will go deep down into the memory lane of legal history and then relate it to the current turmoil process of law making in South Sudan. In that Dr. Okuk will understand that the political and legal crises we are facing in the country today is a normal process of legal or constitutional transformation which other countries ever underwent in the past. I will do this by digging into the history of English law as our Constitution and other laws in South Sudan have English legal root.
Having English root makes our laws to acquire some values that are incompatible with our values which is also a source of injustice to the local people. Most of our lawyers and other intellectuals do not understand this as their desire is to see the law enforced in the way they understand in the Western countries. This expectation becomes the source of anxiety in the social and legal system and eventual ultimate source of conflict between the law and those who obey the law: the citizens.
The citizens disobey the law not directly but indirectly by sticking to the traditional customs and this is why there is pluralism in legal system not only in South Sudan but in different countries that were colonized by the West. The politicians then take advantage of the legal discrepancy to disobey the statutory laws and side with the citizens who are operating outside the modern legal system.
We, who are educated in the modern legal knowledge and have understood Western ways of dealing with the law, which informs our understanding of what ought to be done constantly blame politicians for breaking the law as well as acting illegally. But to tell the truth, they do not know that what they are doing is either against the law or they find staying under the modern law more difficult than breaking it to free themselves from legal colonialism.
In most cases, we hear politicians accusing human rights activists of being agents of the West simply because what those activists are preaching to them is foreign; they do not understand it in actual sense. The law will only be obeyed by the citizens and politicians if they understand it in their contexts. Thus, looking at the law in context we can discover that the application of law in South Sudan may be different from the West. The same point was clearly stressed in the case of Nyali Ltd v Attorney-General  1 QB 1.
In that case, the Kenyan and British authorities agreed for the building by the plaintiff of a bridge supported by the imposition of tolls. British military were exempt from payment. At the time of the agreement there was only one unit of military, but as time went on more troops arrived, and the bulk of the traffic was exempt. The bridge owner challenged the arrangement in Britain. The Court after hearing the case held that—
The term ‘military’ included all soldiers of the Queen and was not restricted to the original detachment. It remained a military vehicle when driven by a military driver on duty. However, construing the agreement, a toll became payable in certain limited circumstances. The task of making qualifications to English law to suit the circumstances of overseas territories called for wisdom on the part of their judges. This was a ‘wise provision.’— ‘Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England.’
In relation to the present discussion, the holding in the case above should guide us on the way we apply the law in terms of legal procedures and validity of the law. It is also a pointer that we who are educated should be able to live in the realities of our nation. The law is only believed to do justice when the people it is serving have greed or feel so not those who have expertize knowledge in how the law is ought to operate. Coming to the question, CAN A LAW, EVEN IF AMENDED OR PASSED BY A PARLIAMENT OR EXECUTIVE WITHOUT THE REQUIRED PROCEDURES, BE REGARDED AS VALID LAW?
First of all, before I answer this question, I would like to say that the Executive do not have any power to amend or make the law. If by any chance the Executive purports to make the law, that law is void ab initio. This may however lead you to asking me the question in respect to 32 States that if that is the case then why should I endorse the law enacted by the President who is a member of the Executive? This is not true, the President did not make the law creating 32 States. The instrument that created 32 States was enacted by the Parliament. The question that comes in is how? Articles 57 and 59 of the TCSS, 2011, provide for the functions of both houses of Parliament of South Sudan. Their main work as provided in these two articles is to make law or enact legislation or amend it. This means that whatever law they have agreed on by endorsing it through votes, they own that law even if it was initiated by a third party which might have been done contrarily to the legal procedures involved in it making.
If even the Parliament voted on it in the ignorance of or deliberately ignored the rightful procedures then the argument whether the law is legal or illegal does not bypass the Parliament who are the right owners of that law irrespective of who initiated it. Challenging the legality of that newly passed law will only be directed towards the powers and procedures the Parliament followed to pass it. In my opinion based on the provisions of the Constitution, the law passed by the Parliament in contempt of the procedures may be made legal by the virtue of article 93 of the Constitution. This represents the right argument which most of the opponents of 32 States overlook in the discourse concerning these States.
As I have pointed out in the above paragraph, the fact is that 32 States were not created or declared legal by the President but the Parliament legalized them when it amended the Constitution to increase the number of the States from 28 to 32 States in 2015. This is based on the reason that once the President invokes the powers of the Parliament to approve his decree or decrees at that point, the President only becomes initiator of a law and whatever law that comes out of that procedure is enacted or amended by the Parliament is the law made by the Parliament. It means that the amendment of the Constitution that led to the creation of 32 states was initiated by the President under Order 9 but they were legally established by the instrument of the Parliament in the 2015 Constitutional Amendment increasing number of States in South Sudan.
The question that immediately follows the conclusion of the above paragraph is whether the power to initiate instrument alterating and increasing the States is within the powers of the President under Article 101 (f) read together with Article 161(1), (3) and (4). The answer is not. Article 161 of the Constitution provides— (1) the territory of South Sudan is composed of ten states governed on the basis of decentralization.… (3) State boundaries shall not be altered except by a resolution of the Council of States approved by two-thirds of all members. (4) Names of states and their capital towns shall not be altered except by a resolution of the Council of States approved by a simple majority of all members on the recommendation of the relevant State Assembly.
The use of the phrase —-shall not be altered except by a resolution of the Council of States approved by two-thirds of all members under Article 161 (3) makes it illegal for any other body including the president to initiate the increase of ten states except by the resolution of the Council of States approved by two-thirds of all members. Thus, the initiation of the creation of 32 States by the President was illegal but the question that follows this conclusion again is, should the 32 States be declared so if that is the case? Of course not. Initiating the amendment of the Constitution is a matter of procedure which the Constitution under Article 93 condones or overlooks. Article 93 provides for the validity of the Proceedings of the National Legislature provides—
No court or any other authority shall call into question the validity of any proceedings of the National Legislature or any of its two Houses on the basis of violation of its Conduct of Business Regulations. A certificate duly signed by the appropriate Speaker shall be deemed to be conclusive evidence of the validity of the said proceedings. By the virtue of Article 93, the validity of proceeding of the Council of States in the process of amending the Constitution to increase the number of States to 32 in violation of Article 161(3) cannot be called into question once the Speaker produces the Certificate certifying the Proceedings.
The implication of Article 93 is not yet subjected to debate as many of those who oppose 32 states do not read the Constitution as a whole. They on concentrate on powers of the President yet if they could analyze Article 93 in relation to the other Articles that provide for the legislating procedures in law making, they will understand that the Parliament of South Sudan was the one that increased the number of States not the President. The reason being that the President surrendered his law making powers to the Parliament to approve his law or the decree, which the Supremacy of Parliament emerged and the powers of the President and its effect becomes subordinate to that of the Parliament. Whether self-executing or not, the decree ceases to have legal effect at that point and it will not create the legal instrument unless approved by the Parliament.
Those who oppose 32 States should therefore avoid speculation based on the argument that even if the Parliament decided otherwise, the President would still have gone ahead to establish 28 States and then 32 States later. This is a mere speculation or fishing expedition in law that should not be entertained since it has not happened. The whole argument should only concentrate on the powers of the Parliament to make law. This should be argued and scrutinized in line with the English Law or the Common Law as our Constitution enshrines those values.
Under the Constitution, the functions of Parliament matters a lot as it has overriding effect over any other powers in the Constitution. This conclusion brings us to the question of illegality and the law making process as the subject of this discussion. The rule is that even if the procedure of making the law was illegal but if the Parliament endorses it, then it becomes legal through that simple vote of the majority. This is what we call the Parliamentary sovereignty (read more about: The supremacy of Parliament – The Independent https://www.independent.co.uk › News › UK › UK Politics). Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. This is the concept in the UK and other countries whose elements are found in our constitution.
The Parliamentary sovereignty holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent. According to Wikipedia, in some countries, parliamentary sovereignty may be contrasted with separation of powers, which limits the legislature’s scope often to general law-making, and judicial review, where laws passed by the legislature may be declared invalid in certain circumstances. In wider sense, sovereignty means that Parliament can make laws concerning anything.
The sovereignty or the root of powers of the Parliament to make laws goes back to the English Civil War but it was not until the Glorious Revolution and the Bill of Rights (1689) that stemmed from it that the concept of parliamentary sovereignty really took root. The recognition by the Monarch and the courts of Parliament’s legislative supremacy was developed in a series of cases during the 17th century. LawTeacher online cited the Case of Proclamations  12 Co Rep 74; 77 ER1352, in which Chief Justice Coke stated that he doubted the King’s legislative supremacy since he has only the prerogative that the law allows, he is also unable to create a new offence in law.
However, in R v Hampden (1687) 3 State Tr 825 and Godden v Hales(1686) 11 St Tr 1166 it was argued that the King’s prerogative allowed him to levy tax without parliamentary consent in contradiction to Parliament’s Petition of right. In Dr Bonham’s Case (1610) 8 Co Rep 114, Chief Justice Coke also argued that it was the common law as developed by the judiciary which was the ultimate legal protection for the people. In Day v Savadge(1614) Hob 85, it was held that an Act of Parliament would be invalid if it were ‘made against natural equity’. But in British Railways Board v Pickin  AC 765 Lord Reid stated that since the Revolution of 1688, the law of God, or nature or of natural justice could not overrule an Act of Parliament.
In M v Home Office and another  1AC 377, Lord Templeton at 395, from the 17th century Parliament established its supremacy over the Crown, over the executive and over the judiciary. K Swinton, Challenging the Validity of an Act of Parliament: the effect of enrolment and parliamentary privilege  14(2) Osgoode Hall Law Journal, 345, 363; the principle of Parliamentary Sovereignty evolved though the struggles between Parliament and the Crown in the 17th century.
Jennings (I. Jennings the Law of the Constitution (5th edn, London University Press, 1959) asserts that Parliamentary Supremacy is rooted in the legal rule that courts accept legislation that Parliament enacts as law. Whereas Dicey (A.V Dicey, Introduction to the Study of the Law of the Constitution, 1885) maintained that Parliamentary Sovereignty is contained within the common law.
It should therefore be understood that the Basis of Legal Sovereignty’ is that the courts are constitutionally required to give effect to the most recent expression of parliamentary intention whenever the new and the Old Acts conflict. Thus, it is always possible for Parliament to enact legislation that leads to some or all of an Act being repealed expressly. If Parliament contradicts existing legislation with a new law, it is still the courts’ constitutional duty to disregard the older law in relation to the inconsistency between the two and the older Act is repealed by implication.
In relation to the present discussion, the question is: CAN A LAW, EVEN IF AMENDED OR PASSED BY A PARLIAMENT OR EXECUTIVE WITHOUT THE REQUIRED PROCEDURES, BE REGARDED AS VALID LAW? My answer is yes based on the rule that even if the procedure of making the law was illegal but if the Parliament endorses it, then it becomes legal through that simple vote of the majority. This is what we call the Parliamentary sovereignty. This means that even if the procedure was not followed but if the parliament voted on it, then it becomes law which is reflected under Article 93 of the Constitution.
However, there is persisting argument about the Presidential Order No 36/2015, Order 1 Paragraph 2 of the Order which provides that this Order shall enter into force 30 days after the signature by the President. Accordingly, Order 10 paragraph 1 provides that this Order shall not be amended save by another Order by
the President. Therefore, the legal effect of Order 1 and 10 of the Presidential Order No 36/2015 creating 28 States and later 32 states is that it is a self-standing and self-executing Order and not an amendment to the Transitional Constitution and therefore it is unconstitutional since the Presidential Order No 36/2015 is not and cannot be establishing instrument on its own for creation of 28 and later 32 States in South Sudan.
As I have already pointed out in this article most of those argue that the 32 States are illegal based their arguments on the powers of the President to make law ignoring the fact that there was additional proceedings that took place after the decree was issued. The argument of those people is always based on self-standing and self-executing Order, which they say that in such cases the President does not have a power to amend the Transitional Constitution. In my understanding, when we talk of self-executing instrument, this is an instrument that is self-standing which is formulated in such a way that one can deduce that it was the purpose to create law that citizens can invoke directly in the courts. In that respect, they do not require to be transformed into law by additional procedure. It is binding as such and national judges can apply it as such, as if it was the law made by Parliament.
In that light, the argument on Self-executing and self-standing does not stand if that instrument is presented to the Parliament for approval and the Parliament deliberates on it by subjecting it to scrutiny and then after that it approves, which at that point, it loses its self-standing and self-executing power. This means that the Parliament was the one that created 32 States but not the Presidential Order No 36/2015 as many argued. Importantly, after the Parliament approved it became an amendment proposal to the Transitional constitution. Another issue that has been brought forward is the issue of quorum of the sitting to approve the decree that led to the creation of 32 States. I cannot respond to this argument as it is a matter of evidence that must be presented in Courts of law to rule over it. However, as things stand now, it is overtaken by events as the issue of 32 States is part of the Revitalized Agreement, 2018 and awaits for referendum which is the position of the Agreement currently after the IBC failed after 90 days. So the whole argument becomes academic exercises without practical impact.
In summary, the law can be valid even if the procedure was not followed as long as the Parliament was properly constituted.
Daniel Juol Nhomngek is a lawyer by profession holds LLB from Makerere University in Kampala, Uganda. He’s currently working with M/S Ibaale, Nakato & Co., Advocates, P.o Box 26781, Kampala, Uganda. His research, he is interested in teaching and law practice in the areas of criminal law, international human rights law and the law of armed conflicts, public international law, administrative law, Equity and Trusts, constitutional law, Jurisprudence or political philosophy, legal methods and theory, legislative drafting and judicial practice; and law & public policy. For any comment please reach the authority through any one of the these email addresses: firstname.lastname@example.org ;or email@example.com
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