The Supreme Court is expected to start hearing oral arguments today, November 27, into whether the majority senators’ (Respondents) action to amend the Senate Standing Rule #63 was unconstitutional, amid contention by senators that the court’s involvement would constitute intervention into the Senate’s rule-making powers.
The case comes against the backdrop of the adoption of a procedural of Rule 63 to enable the majority senators to conduct a hearing on the impeachment of suspended Associate Justice Kabineh Ja’neh, because there was no such procedure at the Senate prior to the impeachment of Justice Ja’neh by the House of Representatives, according to four of their colleagues, now plaintiffs, who filed the matter before the court.
The plaintiffs include Senators Conmany Wesseh, Daniel Naatehn, Milton Teahjay and Oscar Cooper, who have requested the Court to declare “the unconstitutional amendment of the Senate Rules to provide for impeachment.”
The question now is not whether the Court can hear the Petition but whether the Court has the power to adjudicate a matter which, according to observers, falls strictly within the purview of the Senate and for which they stand not accountable to the Supreme Court keeping in mind the doctrine of the separation of powers.
They argued that to name each of them as individuals in the petition (lawsuit) citing them to appear before the court was also tantamount to holding them personally accountable, and that it is a violation of the privilege guaranteed by Article 42 of the Constitution.
In their return, the majority senators contended that the Legislative Privilege/Immunity Clause of the Constitution (Article 42 thereof) clearly provides in part that: “All official acts are done or performed and all statements made in the chambers of the legislature shall be privileged, and no legislator shall be held accountable or punished therefor.”
Although it may be a bit premature to determine how the Court will rule, but some legal experts hold that Justices may more likely than not return the matter to the jurisdiction of the Senate where they believe it properly belongs.
The respondents’ return was submitted by senators who voted for the amendment of Rule 63 of the Senate’s standing rule of March 30, 2009, by and through their counsel, Frederick D. Cherue of the Dugbor Law Firm, and Grand Cape Mount County Senator H. Varney G. Sherman, Chairman of the Senate Judiciary Committee. Senators Cherue and Sherman are both lawyers by profession.
The senators maintained that the Court does not have jurisdiction over the subject matter of the petition, because of the manner in which the Senate amended Rule 63 of the “Senate Standing Rules,” which was validated and approved by the 52nd Legislature on Monday, March 30, 2009, during the 2nd Day Sitting of the Session of the Senate.
They argued that the original and inherent power of the Senate to promulgate the Senate Standing Rules is found at Article 38 of the 1986 Constitution, which provides in part that: “Each House shall adopt its own rules of procedure. ….” The only exception is that, “All rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution.”
Meanwhile, the senators have asked the court not to yield to what they say is “mischief,” referring to a petition by four of their colleagues intended to have the Court its “judicial review power” by an unwarranted intervention into the exercise of the Senate’s rule-making powers.
“For if your Honors were to yield to this mischief, the Legislature is likely to assume that it, too, may intervene into this Honorable Court’s exercise of its rule-making power,” the lawmakers said in their brief filed against their colleagues’ petition to the Court.
In counter-arguments, the petitioners said their majority colleagues’ adopted the procedure to enable them to conduct a hearing on the impeachment of Justice Ja’neh, because there was no such procedure at the Senate prior to the impeachment of Justice Ja’neh by the House of Representatives.
The petitioners’ (Wesseh et al) further quoted Article 29 of the 1986 Constitution which provides that, “The legislative power of the Republic shall be vested in the Legislature, which shall consist of two separate houses: A Senate and a House of Representatives, both of which must pass on all legislation. The enacting style shall be: “It is enacted by the Senate and House of Representatives of the Republic in Legislature assembled.”
They further argued that the impeachment of public officials to include the President lies exclusively with the House of Representatives and the authority to try and impeach officials rests exclusively with the Senate; but, according to them, “when it comes to the procedure for impeachment, Article 43 provides that, “The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.”
Contrary to the clear mandate of that article, the four senators claimed that the majority colleagues proceeded to amend Rule 63, which is “meant for the normal conduct of the business of the Senate to provide the procedure for impeachment proceedings.”
They also arrogated unto themselves the authority to prescribe the procedure for impeachment to the exclusion of the House of Representatives, according to their request to the court.
“The action of the senators to amend the Senate rule to provide for impeachment was unconstitutional,” the aggrieved senators contended. “Any attempt by the Senate to have the House of Representatives concur with the action would also be unconstitutional.”
It can be recalled that the petition to impeach Justice Ja’neh was filed before the House by Representatives Acarous Gray (Mont. County, District 8) and Thomas P. Fallah (Mont. County District 5). Both alleged that Justice Ja’neh “committed a serious official misconduct by engaging in a wanton and unsavory exercise of his judicial discretion far exceeding the bounds of elementary judicial interpretation of issues simply to satisfy his personal ego.”
The lawmakers also wanted Ja’neh impeached for what they termed as “proved misconduct, gross breach of duty, inability to perform the functions of his office by allegedly allowing justice to be served where it belongs no matter the status of the party affected.”