Yanks wrote,
[Now tell me where in this passage did I qualify that this was the definition of legal positivism? And even if I did, how can this position be outdated. Is it a thing of the past that the sovereign states receive habitual obedience of their subjects in a political society? Or that the sovereign states are bound by the laws of their predecessors or have limits to what laws they can make? The answer here is a big no.
ML Touray, you therefore cannot be correct in calling this position of legal positivism as outdated, regardless how you try to twist your words?] Yanks
Now can you please tell me your definition of legal positivism or is it what you tried to defend above? You also need to clarify what you mean by “their subjects in a political society,” because it appears that you are defending imperialism. European imperialists used to call the peoples of their colonies “subjects.” Gambians are no longer subjects, we are sovereign people! I hope you understand the distinction between “subjects” and “sovereign people,” if not there will be no need to continue this conversation. In 1997, the people of the Gambia overwhelmingly ratified the 1997 Republican Constitution as the supreme law of the land; in essence, it means that the Gambian people constitute the sovereign
power, not the elected representatives. Any law that contravenes the Constitution is null and void, thus the draconian media laws imposed on the national assembly and used to “persecute” and sentence the six journalists are illegal, simply because they contradict the 1997 Republican Constitution.
The following quotes from the 1997 Constitution of the Gambia support this position.
Subsection 1 (The Republic) (2) states:
The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of government are to be exercised in accordance with this Constitution
Subsection Chapter 2, subsection 4 (Supremacy of the Constitution) states:
This constitution is the supreme Law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
Subsection 25 (Freedom of Speech) states:
(1) Every person shall have the right to-
(a) Freedom of speech and expression, which shall include freedom of the press and other media;
(b) Freedom of thought, conscience and belief, which shall include academic;
(c) Freedom to practice any religion and to manifest such practice;
(d) Freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;
(e) Freedom to petition the Executive for redress of grievances and to resort to the Courts for protection of his or her rights.
These quotes above show that (1) the Gambian people constitute the sovereign authority, not the president or any other organ of government; (2) the Constitution is the supreme law of the Gambia; (3) and the Constitution legalizes free speech and expression. I conclude from this premise that the arrest, detention, prosecution, conviction and sentence of the six journalists are illegal. This is the crux of my contentions with UDP’s ill conceived statement.
Here you go again; what do the Nazis War Crime Tribunal, the Iraq war, and World War II have to do with injustice in the Gambia? You seem to confuse national law and international law. We are talking about Gambian citizens who exercised their constitutional right of free speech and expression and found themselves convicted and sentenced for it. Remember that no one is saying that “everything in this world is just, except the Gambia.” I think you are the damn fool for trying to defend the indefensible.
The fact that segregation laws existed in the US or that Mandela decided to setup a Truth and Reconciliation instead of a tribunal, do not in any way justify the travesty of justice in the Gambia. Furthermore, I don’t care whether China, Saudi Arabia, UK, or US are democracies; I care about entrenched rights of Gambians being trampled on by Jammeh and his thugs. Conscientious and informed Chinese, Saudis, and others, like their Gambians counterparts are everyday fighting for their human rights and justice. You and UDP may continue legitimizing blatant injustice and think that conscious people would listen to your nonsense. You should be ashamed of yourself for making a bunch of irresponsible
statements here.
The following quote of yours shows your true nature:
[Be advised that even in the United Kingdom there are immoral laws, such as the Inheritance Tax. I mean, how immoral can it be to tax the dead? But you will be surprised to note that it is the law that exists in the UK.] Yanks
Who are you to judge the Inheritance Tax law of the United Kingdom as immoral? Do you even know the reason for the inheritance tax laws? The US has a similar law but only less than one percent of the population is affected by it. You need to think before you lip. Moral relativists would sue you at Jammeh’s kangaroo court for your cultural insensitivity. Moreover, morality of UK Inheritance Tax has nothing to do with the illegal conviction of the journalists.
[It means; if I agree with what you are claiming that the law in the Gambia is bad law and that law states that Gambians should not kill each other, and no one is killing each other, at present, means that Gambians are obeying that bad law of Yahya Jammeh. If not they would be killing each other. That is the impression you give when you start challenging the legal system of the Gambia as simply illegal.] Yanks
Are you saying that Gambians are blood tasty killers who are only restrained by Jammeh’s laws from killing one another? Are you saying that without Jammeh’s laws Gambians would be killing one other? Or are you saying that Jammeh and his government are licensed to kill, torture, detain, and harass Gambians so as to restrain us from annihilating one other? This paragraph of yours still needs clarification. Gambians are well known for our tolerance, peacefulness, and civility. Jammeh and thugs exploit this peaceful nature of Gambians and effectively instituted a police state and overthrow our Constitution.
I hope you are not speaking for the UDP. The party needs to distance itself from your irresponsible statements here. You don’t seem to know what you are talking about. I am done with this topic, for I have already made my point clear for conscience readers. My conviction is that the arrest, detention, prosecution, conviction and imprisonment of the six gallant journalists are illegal and immoral.
ML Touray
M L Touray wrote:
“I never said that Legal Positivism is outdated; what I said is that your definition of the philosophy is primordial. Contemporary scholars of Legal Positivism do qualify the sovereign authority, while earlier versions do not.”
If I remember very well, this was what I stated in my email of the 13 August 2009, which you misinterpreted as my definition of legal positivism, just as you twisted the UDP passage. This was what I stated:
“the position of the legal positivists, which John Austin, one of the proponents of that school of jurisprudence, explained about positivism of law and the sovereign powers. He accepted that the sovereign might not be a person who by divine or natural right could tell us what we ought to obey, but he is identified by the fact that he is obeyed and his commands are in fact what we call laws. Therefore, he stated that the sovereign is he who receives habitual obedience within a political society. He further added that the sovereign could not be bound by laws promulgated by previous sovereigns and his powers to make laws could not be limited”.
Now tell me where in this passage did I qualify that this was the definition of legal positivism? And even if I did, how can this position be outdated. Is it a thing of the past that the sovereign states receive habitual obedience of their subjects in a political society? Or that the sovereign states are bound by the laws of their predecessors or have limits to what laws they can make? The answer here is a big no.
ML Touray, you therefore cannot be correct in calling this position of legal positivism as outdated, regardless how you try to twist your words?
As for your claim that based on my:
“definition, the primordial definition, apartheid laws and Mandela’s 27 years of incarceration would be legal because they were formed by a sovereign nation. In the same vein, the holocaust would be considered legal because it was formed by a sovereign nation.” ML Touray
Firstly, I rebut your claim that what I explained above is my definition of legal positivism and it does not sanction the laws of the Nazis or that of the apartheid regime of South Africa as morally justifiable laws.
Secondly, what you failed to understand is that no philosopher will support your supposition that the laws of the Nazis were not legal in the context of the German law, at the time of Hitler. What was argued later, was that they were morally unlawful laws, that ought not to have been enforced.
Even that justification, was not without its critics. The war trials of the Nazis war criminals in Nuremburg and Tokyo was criticised by J. N Shklar, as a pretence of legalism, which was a mere sham. She stated that “it would have been more frank to recognise them as the elimination of enemies, justified on political grounds.”
And she indeed has a point. Even not just from the political perspective, but on the legal perspective, which is that it contradicts the legal doctrine that law cannot have retrospective effect. The Nazis argued that they acted within the laws of their land at the time, but it was adjudicated that those were bad laws and the good laws which were existing at the time of the trial could sentence them for those crime. That was a retrospective application of the law. Just like making a law today to persecute those who took part in the slave trade!
From the political perspective, it was only the Nazis who were prosecuted for the Holocaust, but the Americans were not prosecuted for using the nuclear bomb on the two Japanese cities, or for their part in the slavery, which were as brutal as the holocaust? And if the trials had further set a legal precedent, why was George Bush and Tony Blair not prosecuted for the fake war in Iraq , and why has no Israeli ever been prosecuted for the killings of innocent Palestinians?
But it seems that the effect of that tribunals’ legal precedent is mainly for Africa and Africans, with the exception of certain Baltic States . It cannot apply to the US soldier, as the tribunal lacks jurisdiction of the US soldiers. Do you have an answer to this discrimination? This is a question you can’t answer.
Therefore, you will be a damned fool to think that every thing in this world is just, except the Gambia .
You further mentioned Nelson Mandela and the apartheid laws. Do you even know a similar law existed in the mighty United States called Segregation? Mandela was a legal scholar, shortly after his release, he did not set up a tribunal to prosecute the apartheid regime, but set up a truth and reconciliation commission. We cannot ponder on the legitimacy of the law locked him for such a long time, as no one was tried for its crimes; just like no one was tried in the United State for similar crimes.
But this still does not justify the immorality of such laws! And if I’m right, such laws have now been repealed in the constitutions of both South Africa and the United States .
Therefore, ML Touray, make no mistake, every law is legal at its time. They ceased to be law once repealed. If we detest the laws of Yahya Jammeh regime, we have to change him and then repeal his laws. At that time we can make laws that are morally acceptable to us. Until then it would be wronged to question the legality of his laws.
As for your question about “why do we need human right laws, African Charter, and others? There are fundamental human rights, such as the right to life, free speech, association, and many others that cannot be denied by any sovereign nation. Therefore sovereign nations cannot form arbitrary laws just to punish a certain section of society or contravene their National Constitutions”.
The question I want to ask you is that, what will you do, if the sovereign’s breach their conventional obligations. The simply answer is nothing. Simply because what you failed to understand is that all these conventions, you are referring to, were all craftily drafted; such that they are all subjected to the condition of none interference with the sovereignty rights of a contracting state.
You still seem oblivion to the concept of sovereignty. No state bargains its sovereignty!
As for your further claim that I defended Yahya Jammeh, I think even in Jammeh’s sweetest dream, he will not see me his defending him. I guess that’s one of your cheap charges.
As for the claim that I call Gambia a democratic society, well that is what it’s meant to be. However, I can accept that my choice of phrase was a bit inappropriate. Only that I seriously, don’t believe that the Gambia is in fact a democratic society. However, I also don’t believe that China , is democratic society, nor do I believe Iran to be democratic society, or North Korea , or even Saudi Arabia . However, I do not believe that democracy is a prerequisite for a sovereign’s right to make legal laws for its subject, whether moral or immoral.
Be advised that even in the United Kingdom there are immoral laws, such as the Inheritance Tax. I mean, how immoral can it be to tax the dead? But you will be surprised to note that it is the law that exists in the UK .
As for my quote below:
[If we say the law in the Gambia is corrupted as you are supposing, then even the mere fact that people don’t kill each other in the Gambia is wrong. Because by them not killing each other they are obeying the illegal laws of Yahya Jammeh or Gambia government. Laws are to be obeyed for the good of every one; and it is through the obedience of law that we identify the bad ones.] Yanks
It means; if I agree with what you are claiming that the law in the Gambia is bad law and that law states that Gambians should not kill each other, and no one is killing each other, at present, means that Gambians are obeying that bad law of Yahya Jammeh. If not they would be killing each other. That is the impression you give when you start challenging the legal system of the Gambia as simply illegal.
On that note I reiterate again that the sentencing of the six journalists is morally wrong, which the UDP statement condemned. The UDP further calls for it to be repealed and I believe if it ever wins election in the Gambia , it will repeal that law, so that no journalist will ever be prosecuted for it again. However, as long is not repealed it remains the law, whether morally right or not.
Nemesis Yanks
I never said that Legal Positivism is outdated; what I said is that your definition of the philosophy is primordial. Contemporary scholars of Legal Positivism do qualify the sovereign authority, while earlier versions do not. Based on your definition, the primordial definition, apartheid laws and Mandela’s 27 years of incarceration would be legal because they were formed by a sovereign nation. In the same vein, the holocaust would be considered legal because it was formed by a sovereign nation. We don’t think like that anymore in the 21st century. If legality of laws was just based on being formed by a sovereign authority, why do we need human right laws, African Charter, and others? There are fundamental human rights, such as the right to life, free speech, association, and many others that cannot be denied by any sovereign nation. Therefore sovereign nations cannot form arbitrary laws just to punish a certain section of society or contravene their National Constitutions.
Moreover, you defense of Yahya Jammeh and the APRC is exceptionally good; I have not seen a better defense of this rotten regime. I cannot believe you said the following about the Jammeh regime:
[The Gambia is further a democratic society. Jammeh was elected by the majority, though difficult to verify, but that is what we were told by the electoral commission. The Gambian people empowered him to make laws. Who is the UDP or we to deny the people’s choice from making laws for them?] Yanks
How many innocent Gambias and UDP supporters are still languishing in prison? And you dare to say that the Gambia is a democratic state. How and When? In fact right after the last presidential election, UDP/NRP filed a complaint at the High Court accusing APRC of election malpractice. Furthermore, who empowers Jammeh to make laws? I thought the legislature is responsible for making laws, not the executive?
Please help me to understand what you mean by the following quote.
[If we say the law in the Gambia is corrupted as you are supposing, then even the mere fact that people don’t kill each other in the Gambia is wrong. Because by them not killing each other they are obeying the illegal laws of Yahya Jammeh or Gambia government. Laws are to be obeyed for the good of every one; and it is through the obedience of law that we identify the bad ones.] Yanks
ML Touray
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