-Files legal memorandum, setting stage for hearing Writ of Prohibition but, House of Representative remains defiant!
Embattled Associate Justice Kabineh Mohammed Ja’neh now awaits the Supreme Court’s judgment on his petition for the issuance of a Writ of Prohibition against lawmakers from the Lower House, which sought to nullify his impeachment proceedings due to what he considers violation of Articles 20 and 43 of the Constitution, and Section 57.3 of the House of Representative Rules and Procedures.
The decision comes after Ja’neh’s lawyers on Wednesday, August 28, filed their brief (a written legal argument to provide the judge or judges with reasons to rule in a party’s favor) before the Supreme Court.
The High Court is yet to set a date to determine whether or not it should issue the writ against Ja’neh’s impeachment proceedings by the House of Representatives, though the lawmakers had refused to file their response to the Writ of Prohibition, and had even argued that the supreme court’s Prohibition order likewise violates Articles 3, 42 and 43 of the Constitution.
The Writ of Prohibition is an order from a superior court to a lower court or tribunal directing the judge, and the parties to cease the litigation, because the lower court does not have proper jurisdiction to hear or determine the matters before it.
But as both branches are coequal and the prerogative to impeach lies solely with the House of Representatives, the unanswered question is whether the Supreme Court has the authority to exercise jurisdiction over the House since it is not inferior body to the Supreme Court..
In their arguments, Ja’neh’s lawyers have argued that, Section 57.3 of the rules and procedures of the House of Representative confers exclusive jurisdiction, and authority on the House’s Judiciary Committee to hear, among other things, all matters relating to judicial proceedings, civil and criminal.
“Speaker Chambers acted improperly and illegally by establishing a Special Ad Hoc Committee to review the impeachment petition, and submit a report to the plenary in derogation of the exclusive authority conferred on the House Committee on Judiciary,” Ja’neh’s argument contained in his legal brief filed on Wednesday, August 28 before the Supreme Court.
His lawyers argued further that the House’s Judiciary Committee was one of the standing committees that Section 57.3 of rules and procedures point to, “and it was necessary for the speaker to have referred the petition for impeachment against Ja’neh to that committee for the appropriate actions to be taken thereon.”
According to Ja’neh, the setting up of the Ad Hoc Committee was a clear violation of Section 57.3 of the House of Representative rules and procedures, because Speaker Chambers was not vested with any authority to arbitrarily remove, and unilaterally transfer the petition for impeachment to that committee.
“Therefore the writ of prohibition should be issued to stop the lawmakers from proceedings by rules different from or at variance with the Section 57.3,” they argued.
They also argued that although the constitution confers jurisdiction on the House of Representative to initiate impeachment, the same constitution also requires that in the exercise of that authority, the lawmakers must not be in violation of any of the applicable, and relevant constitutional provision making specific reference to Articles 20, 43 of the Constitution.
Article 20 (a) provides that “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law. Justice shall be done without sale, denial or delay; and in all cases not arising in courts not of record, under courts-martial and upon impeachment, the parties shall have the right to trial by jury.”
While article 43 also states, “The power to prepare a bill of impeachment is vested solely in the House of Representatives, and the power to try all impeachments is vested solely in the Senate. When the President, Vice President or an Associate Justice is to be tried, the Chief Justice shall preside; when the Chief Justice or a judge of a subordinate court of record is to be tried, the President of the Senate shall preside. No person shall be impeached but by the concurrence of two-thirds of the total membership of the Senate. Judgements in such cases shall not extend beyond removal from office and disqualification to hold public office in the Republic; but the party may be tried at law for the same offense. The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.”
Ja’neh also argued that although, it has been more than 30 years since the 1986 Constitution mandated the Legislature to prescribe, and publish the rules and procedure governing impeachments in Article 43 of the Constitution, up to date, the legislature has failed to carry-out that constitutional mandate to prescribe the rules and procedures necessary and required to govern impeachments.
“Since the legislature did not promulgate these rules prior to the commencement of the impeachment proceedings against Ja’neh, the entire proceedings are unconstitutional, null and void and of no legal effect, therefore, a Writ of Prohibition will lie to prohibit them from acting unconstitutionally,” Ja’neh’s argument stated.
The lawmakers had earlier argued that Ja’neh should be impeached, ousted and removed from the Supreme Court on grounds of “proven misconduct, abuse of public office, wanton abuse of judicial discretion, fraud, misuse of power and corruption.”
However, Ja’neh argued that the valid, and proper application of any of these grounds must strictly comply with the due process requirements of Article 20 of the Constitution which inter alia states that “no person shall be deprived of life, liberty, security of the person, property, privilege or any right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution, and in accordance with due process of law……”
“None of the allegations of the impeachment petition meets any of the four grounds stated in Article 71. These are required to constitute prima facie and valid constitutional grounds for the impeachment of a Supreme Justice,” their argument noted.
Article 71 states that “The Chief Justice and Associates Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.”
The imbroglio began on August 18 when Associate Justice Sie-A-Nyene Yuoh, who currently serves as Justice-in-Chambers, imposed a stay order on members of the Lower House from proceeding with the impeachment of Ja’neh and subsequently asked them to appear for hearing into Ja’neh’s petition against his impeachment.
Justice Yuoh’s action resulted from her acceptance of Ja’neh’s request for an Alternative Writ of Prohibition, seeking to prevent House Speaker Bhofal Chambers from proceeding with his impeachment.
“And all parties are ordered returned to status quo ante, pending the disposition of the Writ of Prohibition,” Yuoh’s order stated.
In July of this year, a petition signed by the acting chairman of the CDC in the House of Representatives for Montserrado County, Rep. Thomas P. Fallah of District #5, and Rep. Acarous Gray of District 8, a staunch member of the CDC, called for Justice Ja’neh’s impeachment.
In a communication to Speaker Chambers, the two CDC lawmakers argued that Justice Ja’neh should be impeached, ousted and removed from the Supreme Court of Liberia on grounds of “proven misconduct, abuse of public office, wanton abuse of judicial discretion, fraud, misuse of power and corruption.”
On Tuesday, July 17, 2018, the Bill of Impeachment Petition, together with a motion proffered by Grand Kru County District #1 Representative Nathaniel Barway, received a favorable vote in the House of Representatives.
Shortly afterwards, Speaker Chambers set up an 8-man Ad-Hoc Committee to review and investigate the Impeachment Bill as well as the write-up of the proceedings. That committee was given three weeks, as of July 17, to begin work and report to Plenary.
But it can be recalled that in a similar case, the Supreme Court, in 2016, denied a petition for a Writ of Prohibition against the House of Representatives filed by the then embattled former House Speaker, Alex Jeneka Tyler. Tyler, then in the middle of an impeachment battle sought to prevent his colleagues from convening outside the regular House Chambers. Tyler contended that their actions were illegal and therefore sought the intervention of the Court.
However, the then Justice-in-Chambers, Jamesetta Howard Wolokolie denied the petition on grounds that the matter was political and it was one over which the Court could not exercise jurisdiction. Current lead lawyer for Justice Ja’neh, Arthur Johnson, leading the argument for the majority bloc at the time, vigorously maintained that the Court lacked jurisdiction as the matter of impeachment was solely within the purview of the House.
In a rather strange twist, Cllr. Arthur Johnson now finds himself, unlike then, arguing that this time around, the Supreme Court does have jurisdiction over internal processes of the House of Representatives. Legal observers maintain that Justice Yuoh should have relied on the precedence set by her colleague in the Alex Tyler impeachment case rather than venturing into what they refer to as rather “unchartered waters”.
Meanwhile the standoff between the Supreme Court and the House of Representatives continues with no end in near sight.