Judge Boima Kontoe (Criminal Court ‘C’) is poised to cast a tie-breaking vote as to whether the House of Representatives was proceeding unconstitutionally to impeach Associate Justice Kabineh Ja’neh, after the four other Supreme Court justices were split 2-2 in a vote on Ja’neh’s Writ of Prohibition, requesting the court to prevent the lawmakers from taking the action.
A well placed judicial source hinted the Daily Observer that Chief Justice Francis Saye Korkpor and Associate Joseph Nagbe were justices against granting Ja’neh’s prohibition’s request, while the two female justices, Associates Justices Jamesetta Wolokollie and Sie-A-Nyene Yuoh were in favor.
The Constitution empowers a circuit judge in the order of seniority to sit as an ad-hoc justice to break ties when the Supreme Court justices are split evenly on a question before it, as it has been in the case of Ja’neh’s Writ of Prohibition. It was Article 67 of the 1986 Constitution that President George Weah relied on to recently appointed Judge Kontoe to break the tie with Ja’neh’s prohibition.
That article states, “The Supreme Court shall comprise one Chief Justice and four Associate Justices, a majority of whom shall be deemed competent to transact the business of the Court. If a quorum is not obtained to enable the Court to hear any case, a circuit judge in the order of seniority shall sit as an ad hoc justice of the Supreme Court.”
Prior to Kontoe’s appointment, the four justices, excluding Ja’neh who had recused himself from the bench to hear and decide the matter, had concluded hearing arguments for days, splitting 2-2 to come with a definite decision.
With Kontoe’s appointment, our legal source said, it means that there would be a re-argument of the matter to allow Kontoe to get a clear understanding of the legal issues raised by the parties before breaking the tie.
But, Ja’neh’s legal team, in their petition, argued that under Article 73 of the 1986 Constitution, no judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and acts done in the course of a trial in court or in chambers.
The lawyers also argued that Article 20 (a) of the 1986 Constitution provides that no person shall be deprived of life, liberty, security, property, privilege or any other right except at the outcome of a hearing judgment consistent with the provisions laid down in the Constitution in accordance with the due process of law.
The lawyers said the Liberian Constitution requires that an impeachment of a justice of the Supreme Court or judge of a subordinate court must be based on four grounds as required under Article 71 of the Constitution — proved misconduct, gross breach of duty, inability to perform the function of their office or conviction in a court of law for treason, bribery or other infamous crimes. But the lawmakers’ bill of impeachment clearly has not met the four requirements needed for impeachment.
It was based on that argument that the lawyers asked for the issuance of the alternative Writ of Prohibition that was issued by Justice Yuoh who was then Chamber Justice and subsequently forwarded to the full bench of the Supreme Court for a hearing and determination, “because the petition for prohibition squarely raises constitutional issues.”
In counter-argument, the Ministry of Justice that represents the House of Representatives contends that Ja’neh has not shown anywhere that the House of Representatives exceeded its jurisdiction. “The rule the Constitution requires is that the impeachment proceedings should comply with the process of law.”
The MoJ again argued that the Supreme Court has no power and authority to restrain the House of Representatives, through the issuance of the Writ of Prohibition, from exercising its power and authority vested in that organ of government by the Constitution.
The Ministry also argued that Article 71 of the Constitution was not debatable because members of the Lower House were merely exercising an authority and power vested in that august body by the Constitution when it commenced impeachment proceedings against Justice Ja’neh.
Article 71 provides 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 ministry maintains that impeachment is a matter over which the Constitution confers and vests jurisdiction in the House of Representatives. “This means that Ja’neh’s petition is nothing short of instigating an unnecessary confrontation between the Judiciary and the House of Representatives.”