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sankalanka
270 Posts |
 Posted - 09 Nov 2010 : 16:45:30
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"Cons- 231 (1) Where any power is conferred by this Constitution to make any proclamation, order,
powers regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same."
Nyari,
Your argument is brilliant and lawyerly, but is it also true that what is not expressed explicitly by the constitution can also be implicit in other provisions of the constitution that may have a direct bearing in its implications?
I do not have any legal training, nor do I know much about the law, but I have the gut feeling that the revocation of the membership of a nominated member of parliament by the president, which is not explicitly stated as you argued in the list of the conditions that have to be satisfied before a member is removed from parliament, could also be implicit in the powers that are conferred on the president by 231 (1). If it is not stated it can also be implied.
All the powers that are implicit in 231 (1) also takes into cognizant what is explicitly stated and what is not in the list of the conditions that have to be satisfied before a member is removed from parliament. That is why it is stated that the president is relying on the powers conferred on him by section 231 (1). And among these powers is the power to nominate a member of parliament as well as the power to revoke the membership of a nominated member to parliament.
Therefore, if revocation of nominated membership to parliament is not explicitly stated in the list, it is implied since 231 (1) has given the president the power not only to nominate but to revoke such a nomination.
And is there a principle in law that says that what is not stated can be implied? I guess that is why lawyers argue a lot among themselves.
Nyari, could there be any merit to what I have stated above?
Rene |
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njucks
Gambia
1131 Posts |
Posted - 09 Nov 2010 : 22:06:16
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quote:
Originally posted by sankalanka
.......... Where any power is conferred by this Constitution to make any proclamation, order,powers regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same."
lol
Nyaling
indeed you have done what most lawyers do and that is to decide to inteprete it differently albeit incorrectly and persistently.
unfortunately, the power to revoke the nomination is simply apparent, and well stated, as to designate is to nominate. it can have that meaning in common english both as a verb and noun (designation/nomination)
the Executive does have the power to revoke under Sec 231. A previous Designation is being revoked.
i think an Oxford Dic would help us all.
njucks |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 10 Nov 2010 : 00:02:16
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quote:
Originally posted by mansasulu
Nyari, I think we will all have to agree to disagree on this one...
Mansasulu, I entirely agree with you for there is no harm in agreeing to disagree.
Njucks have raised an important point which I suspected would be raised. I will come back later to give a full response to that. This is due to time constraint.
Rene, thanks for your points and compliments. I will endeavour to touch on them too when I come back
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 10 Nov 2010 00:04:00 |
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kobo
United Kingdom
7765 Posts |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 11 Nov 2010 : 03:30:06
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Fellow Contributors [Njucks, Mansasulu & Rene],
The issue is whether or not the President has the power to revoke the nomination of a sitting nominated member of the National Assembly.
The Facts
In my first posting, I indicated that although the President has power under Section 88 of the Constitution to nominate five people to the Assembly, the power so conferred does not have a concomitant right/power to revoke such nominations. In other words, the president does not have the power to revoke the nomination of any nominated member of the National Assembly. However, this was dissented to by Njucks who opined that under Section 231[1] of the constitution, power is conferred on the president to revoke any such nomination. Two other contributors namely; Mansasulu and Kondorong, concurred with him. Some form of approval was also accorded to his position by Rene albeit not very assertive. This is what Section 231[1] states;
'Where any power is conferred by this Constitution to make any proclamation, order, pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same.'
In my second posting, I asserted that Section 231[1] cannot be applicable to Section 88 because the power conferred thereto, i.e. the power to nominate, is not contained in the exhaustive list of powers provided under Section 231[1]. I further asserted that for Section 231[1] to be applicable to the power prescribed under Section 88, it must have listed that power using the same operative language or word [nominate] as in Section 88 of the constitution.
I also asserted that under the doctrine of separation of powers enshrined in the preamble of the constitution, no other grounds can be used to remove a member of parliament, whether nominated or elected, from office except for those prescribed under Section 91 of the constitution.
In his second reply, Njucks maintained that the President has the power under Section 231[1] to revoke nominations since, in his view, the ‘power to designate’ which is contained in the exhaustive list under Section 231[1], is the same as ‘power to ‘nominate’ as the two operative words are of the same meaning. He cited the Oxford Dictionary as an authority and went on to accuse me of deliberate misinterpretation with persistence. He also included in the posting at least two funny caricatures intended to ridicule my position [or perhaps myself-I don’t know].
The analysis
First of all, Section 231[1] does not confer power of any nature on anybody. It merely defines the nature of powers listed there under but which are actually conferred by other provisions of the constitution. That is why it is subtitled; 'Construction of Various Powers'. It is therefore wrong to state that Section 231[1] confers power on the president.
Secondly, there are three main terminologies normally used in the field of recruitment in relation to hiring, depending on the process involved. They are listed below alongside their Oxford Dictionary meanings;
1. Appoint [verb]- give a job or role to someone
2. Designate [verb] - officially give a particular status or name to:-[adj.] appoint someone to a particular job.
3. Nominate [verb]-put someone forward as a candidate for a job.
It is clear from the definitions above [Oxford Dictionary Standard] that ‘designate’ is synonymous to ‘appoint’ but not ‘nominate’, and to suggest otherwise would be a stretch of the English Language to an utter breaking point. I am sure Njucks doesn’t want to go that far.
Thirdly, the power prescribed under Section 88 is a ‘power to nominate’, not to ‘appoint’. Therefore, the use of the word ‘designate’ under section 231[1] cannot be taken as implying ‘nomination’ since the two words are not of the same meaning as proven above. Therefore, unless Section 231[1] is amended to include the ‘power to nominate’, it is not applicable to Section 88 of the constitution.
Fourthly, the constitution provided for separation of powers as the framework of political governance, with the legislature and the Judiciary totally independent of the Executive arm of the state saved for where there is an overlap of functions. In that respect, it would be a total defeat of the spirit of the constitution for any of its provisions to be interpreted as conferring direct powers on the head of the Executive arm of the state to literally sack certain members of National Assembly. Any such conclusion would be inconceivable and totally outlandish.
Conclusion
It is obviously clear from the analysis above that Section 231[1] does not confer powers but merely provided a construction of the powers listed thereunder. It is also clear that the word ‘designate’ even by Oxford Dictionary standard does not have the same meaning as ‘nominate’ and therefore cannot be taken as the operative word that made Section 231[1] applicable to section 88 of the constitution. On that basis, I once again maintain that the power to nominate under Section 88 of the constitution does not give a concomitant right/power to the President to revoke the nomination of any sitting nominated Member of the National Assembly.
My kindest regards to all.
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 11 Nov 2010 13:18:22 |
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kobo
United Kingdom
7765 Posts |
Posted - 11 Nov 2010 : 13:18:41
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Thanks Nyanrinkangbanna as you gave it 100% detail analysis and got this one right! Well done!
Halifa Sallah's/Foroyaa editorial summarised your points under these quotations;
1. "No democratic country exists in the world where the executive is empowered to remove a Speaker of the National Assembly. Speakers are supposed to be elected and removed by the members of the National Assembly. In the Gambia no provision exists for the removal of a Speaker by the President. This should be clear to all Gambians and we challenge any member of the executive to prove us wrong. This is why the executive is using an indirect way to remove speakers. The question now arises: What is the indirect way of removing a Speaker?"
2. "The executive relies on the notion that it could remove nominated members from the National Assembly. Hence when that is done the person who was elected Speaker would automatically be removed. This is why section 231 is always referred to as the basis of removing a nominated member. However, if a nominated member is a fully fledged National Assembly member, the provisions which should apply for their removal should be the ones applicable to all National Assembly members. Any other interpretation of the constitution which makes them vulnerable to the executive is alien to democracy and good governance."
On next step to elect new speaker;
1. Foroyaa online news covered National Assembly to meet to Elect New Speaker - National News - Newspaper under http://www.foroyaa.gm/modules/news/article.php?storyid=5615
2. Daily Observer news reports National Assembly to elect speaker tomorrow under http://observer.gm/africa/gambia/article/national-assembly-to-elect-speaker-tomorrow |
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njucks
Gambia
1131 Posts |
Posted - 11 Nov 2010 : 22:25:57
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lol
Nyaling
dont worry about my smilies, they're harmless, merely admiring you're briliant postings.
even if we follow the definitions above, in our system, when one is nominated for a seat in the NA, one simply accepts the nominated and reports to duty, thus one is not really ''put forward as a canditate'' to go through some vetting process by another arm of government, committee or body. e.g as in the nominations to the US Supreme Court.etc
or i'm i worng?
i also dont think its a bad idea in any system that the manner in which one is appointed/nominated is used precisely, to remove one from the same position, all things being equal.
the constitution actually does give the executive these powers.but perhaps like the Kondorong etc i'll agree to disagree but i still think its a question of how we want to inteprete it and not that the action was wrong.
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 12 Nov 2010 : 01:39:33
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Njucks, thank you for your comments.
First of all, Section 231[1] is not concern about procedures but the nature of powers. Therefore, it doesn't matter what procedures follow after the exercise of the power.
Secondly, the power conferred by section 88 is that of 'nomination' not 'appointment', and that is deliberate because it concerns a body that is meant to scrutinize the Executive arm of the state.
Thirdly, the word 'appoint' is very strong and if it had been used, it would have carried a concomitant right of revocation which would be inimical to the doctrine of separation powers between the Legislature and the Executive. That is why 'nominate' is more fitting as it connotes a lesser power. You got to understand the philosophy here to appreciate this.
Fourthly, Contrary to your claim, one doesn't just report to duty after being nominated to parliament. You have to be sworn-in first before you can take part in the business of the House, and this can be prevented if you are deemed disqualified from becoming a member by any reason[s] outlined under Section 90 of the constitution, which deals with disqualification of membership. Therefore, a nominated member can only take up office subject to certain conditions being met.
Fifthly, the term 'designate' in the sense of hiring, is not actually a doing word i.e. a verb, but an adjective that is only describing a noun e.g. Ambassador-Designate, Director- Designate - meaning someone appointed to a job but who haven't taken it up yet. - See Oxford Dictionary- On the other hand, the term 'nominate' is a doing word [verb] and therefore does not connote the same meaning as 'Designate' in any sense and by any stretch of the English Language.
All the above in conjunction to my previous postings have palpably vindicated my position that the power conferred on the president by Section 88 to nominate members to the House does not have a concomitant right or power to revoke such nominations.
I think it is the complexity of the English Language that is failing you here, which is understandable. We all fall into that trap every now and then. Anyway, thanks for your contributions.
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 12 Nov 2010 02:14:03 |
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njucks
Gambia
1131 Posts |
Posted - 12 Nov 2010 : 10:56:33
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Nyaling,
well, its a good learning experience but unfortunately i remained unconvinced by your arguments. obviously you know clearly well that there is a missing link.
in a process with an independent vetting process (seperation of powers), you are sworn in only after passing the test. this is the missing link. e.g. let take justice sotamayor for example: nominated by Obama, vetted/confirmed by Senate, then sworn in. the swearing-in happens last.
this is not the case with the nominated members of the parliament in the NA. you can decide to use designate as a verb or not. but please be informed that it can indeed be used as a verb!
the root of my argument is that a nominated member of parliament, who is unelected, should not have their removal made as difficult as an elected member. if that is the case then everyone should face the electorate and get elected. this is why i said earlier the process that brought them in should simply take them out.
in anycase we remain unconvinced but thanks for the comments, and indeed very intelligent contributions. i've learnt a lot too. and perhaps we gambians need to be more active in understanding our own consitition and that it will be subject to several intepretations. myself included. |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 12 Nov 2010 : 12:39:54
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quote:
Originally posted by njucks
Nyaling,
well, its a good learning experience but unfortunately i remained unconvinced by your arguments. obviously you know clearly well that there is a missing link.
in a process with an independent vetting process (seperation of powers), you are sworn in only after passing the test. this is the missing link. e.g. let take justice sotamayor for example: nominated by Obama, vetted/confirmed by Senate, then sworn in. the swearing-in happens last.
this is not the case with the nominated members of the parliament in the NA. you can decide to use designate as a verb or not. but please be informed that it can indeed be used as a verb!
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Njucks, Once again, you are wrong. There are two vetting mechanisms in place in respect of nominated members.
Firstly, before a nominated member is sworn-in, the Clerk of the House would first makesure that he/she is not disqualified from membership by reasons outlined under Section 90 of the constitution.It is only when that hurdle is clear that the person is sworn-in. This means that the president's nominations can be rejected by virtue of the authority vested on the Clerk, and also on the whole House. It seems you have not read my previous posting for I have stated this already.And clearly, there is no missing link here.
Secondly, under Section 5, any person who have reasons to believe that a particular person nominated by the president is not qualified to become a member of parliament by reasons outlined under Section 90 can prevent that person [the nominated person] from becoming a member by seeking a declaration from the Supreme Court to that effect.
Even if these mechanisms are not in place, the term 'nominate' cannot be taken to have the same meaning as 'Designate' in any sense and by any stretch of the English Language.
You said 'Designate' can also be used as a verb-which is true- here is what it means when used as a verb 'officially give a particular status or name to;'-See Oxford Dictionary. Again, I have stated this before. As a reminder, here is the Oxford Dictionary meaning of 'nominate'; 'put someone forward as a candidate for a job.'
In any case, Section 231[1], which you based your claim on, is not concern about the process that follows the exercise of powers-whether vetting or otherwise- but the nature of powers so conferred hence, subtitled 'Construction of Various powers'. Therefore, even if nominations are not subject to certain conditions being met,-in fact they are subject to conditions- that wouldn't make the 'power to nominate' the same as the power to appoint or designate an Ambassador, which is exactly what you are implying. That is a preposterous argument that has no basis whatsoever for the two operative words do not connote the same meaning in any sense and by any stretch of the English Language.
I think you have exhausted your arguments now, and I am sorry to say that they are far from what is spirited in the constitution.
Once again, thanks for your contributions.
Regards
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 12 Nov 2010 13:34:10 |
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kobo
United Kingdom
7765 Posts |
Posted - 12 Nov 2010 : 15:33:04
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Nyarikangbanna it is very clear that you have a strong position but appear to over-react with the provisions of Section 231; in my opinion. We must admit that the Gambia Constitution is not working and the legislature is ineffective or very weak! However the appointment and removal of certain nominated members of parliament; including Speaker follows a protocol of proclamation from The Office of The President. Who make this PROCLAMATION ....is in exercise of the powers vested in him under the provisions of section 231 (1) of the Constitution of the Republic of The Gambia."
Remember "Cons- 231 (1) Where any power is conferred by this Constitution to make any proclamation, order, powers regulation, rule or pass any resolution or give any direction or make any declaration or designation, it shall be deemed to include the power, exercisable in like manner and subject to like conditions if any, to amend or revoke the same."
Furthermore any comments or objections on these two declarations noted from Halifa/Foroyaa editorial, forwarded earlier as follows:-
1. "No democratic country exists in the world where the executive is empowered to remove a Speaker of the National Assembly. Speakers are supposed to be elected and removed by the members of the National Assembly. In the Gambia no provision exists for the removal of a Speaker by the President. This should be clear to all Gambians and we challenge any member of the executive to prove us wrong. This is why the executive is using an indirect way to remove speakers. The question now arises: What is the indirect way of removing a Speaker?"
2. "The executive relies on the notion that it could remove nominated members from the National Assembly. Hence when that is done the person who was elected Speaker would automatically be removed. This is why section 231 is always referred to as the basis of removing a nominated member. However, if a nominated member is a fully fledged National Assembly member, the provisions which should apply for their removal should be the ones applicable to all National Assembly members. Any other interpretation of the constitution which makes them vulnerable to the executive is alien to democracy and good governance."
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kobo
United Kingdom
7765 Posts |
Posted - 14 Nov 2010 : 16:27:30
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Jollof online news Gambia gets a new Speaker of parliament under http://www.jollofnews.com/gambia-gets-a-new-speaker-of-parliament.html
Another unconstitutional move from these Jollof news quotes; Accordingly, this constitutes an unconstitutional move.
The Gambian Constitution states that the president shall elect five nominated members of Parliament amongst whom both the Speaker and Deputy Speaker will be elected. It is not clear why deputies went ahead so hastily without waiting for President Yahya Jammeh’s nominee." |
Edited by - kobo on 14 Nov 2010 16:38:02 |
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kobo
United Kingdom
7765 Posts |
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kobo
United Kingdom
7765 Posts |
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kobo
United Kingdom
7765 Posts |
Posted - 01 Dec 2010 : 20:34:11
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FOROYAA online newspaper editorial - THE NAIONAL ASSEMBLY ELECTS DEPUTY SPEAKER ABOLISH NOMINATION OF MEMBERS AND INTRODUCE PROPORTIONAL REPRESENTATION under http://www.foroyaa.gm/modules/news/article.php?storyid=5727
Foroyaa's conclusion; "Every reasonable Gambian would agree that the current interpretation of the Constitution could only engender a crisis in the National Assembly. In short, every removal of a Speaker or Deputy Speaker would put all the work of the National Assembly to a halt until a new Speaker and Deputy Speaker are elected. The current interpretation of the constitution by the office of president could therefore lead to absurdity in democratic governance. It could negate all the checks and balances between Parliament and the Executive, especially when the ruling party has full grip of parliament."
"Foroyaa strongly recommends that the position of nominated member be abolished and be replaced by proportional representation. Hence in addition to the Constituency representatives, others would be selected by parties based on a given percentage of the popular vote of each party. Speakers and Deputy Speakers could then be elected from such members who would not be subjected to any removal by the executive."
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