-Majority Senators Reply
The majority members of the Senate have cautioned justices of the Supreme Court not to yield to what they termed as “mischief”, a petition by four of their colleagues intended to abuse the Court’s “judicial review power” through an 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 maintained in their brief filed against their colleagues’ petition to the court.
The four senators (petitioners) recently filed before the Supreme Court a petition to place a stay order on the impeachment proceeding of suspended Associate Justice Kabineh Ja’neh, until the court can make a determination on the constitutionality of Senate Rule 63.
The petitioners’ argument was that their colleagues were in violation of the Constitution when they amended Rule 63 of the Senate standing rules on the impeachment of all public officials, including Associate Justice Kabineh M. Ja’neh, without the involvement of the House of Representatives.
However, the majority senators (Respondents) wondered whether their minority colleagues (Petitioners) have the legal standing and authority to institute legal action against the majority Senators (19 of the 21) who voted for the amendment of Rule 63 of the Senate Standing Rules.
The Respondents’ Brief 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, Cllr. Frederick D. Cherue of the Dugbor Law Firm and Grand Cape Mount County Senator Cllr. H. Varney G. Sherman, Chairman of the Senate Judiciary Committee.
“Alternatively are these nineteen Senators subject to a judiciary inquiry into their votes or the process adopted to obtain their votes to amend Rule 63 of the Senate Standing Rules?” the Respondents again asked.
To determine the issues, the senators informed the justices for them to first take what they considered as “judicial notice”, that the decision-making process of the Court is almost similar to the decision-making process of the Liberian Senate.
“Party litigants argue their cases before Your Honors and Your Honors ask questions of them; Your Honors then deliberate on the issues presented and a vote is taken. The vote of the majority becomes a decision of this Honorable Court,” the Respondents argued in their brief.
Further in their argument, the Respondents explained that if the minority Justices were to petition the Legislature to pass a law contrary to a decision of the Court and these minority Justices name the majority Justices as those who voted for that decision, “with the request that they be required to appear and answer to why or how they voted on that decision… Would that not be anarchy brewing in this Republican form of government that the 1986 Constitution provides for?” they asked.
According to the senators, it is such anarchy that the petitioners and their counsel, unwittingly or knowingly, are propagating through the filing of the petition. And to avoid any such anarchy, Legislative/parliamentary proceedings all over the world are considered privileged and legislators/parliamentarians have immunities from any proceeding for reason of what they say or do at legislative/parliamentary proceedings, they told the justices.
“Similarly, judicial officers have privileges/immunities in respect of their actions or decisions as judicial officers,” they argued.
The senators argued further that Rule 63 was not the first time to be made since the date of the 1986 Constitution on January 6, 1986, that the Liberian Senate has adopted as a rule governing impeachment before it.
“Respondents pray Your Honors to take judicial notice that 1986 was the commencement of the 50th Legislature (Samuel Doe Administration); and it was during the 50th Legislature when Mr. Chief Justice Chea Cheapoo was impeached pursuant to the Senate Standing Rules, which was validated and approved by the Liberian Senate in April 1987,” the senators reminded the Supreme Court.
They said the specific rule governing impeachment before the Senate at that time is Rule 41 and it is pursuant to this Rule 41 that former Chief Justice Chea Cheepo was impeached.
They added that during the Charles Taylor Administration (the 51st Legislature), new Standing Rules of the Liberian Senate were drafted in 1997 and were validated and approved in 1998; “and it is Rule 52 thereof which constituted the rule to govern impeachment if the Senate had sat on the impeachment of any public official.”
The majority senators contended that their minority colleagues were interested in the Court to interpret the clause, “The Legislature shall prescribe the procedure for impeachment proceeding which shall be in conformity with the requirements of due process of law.”
To mean that both Houses of the Legislature should together sit in the same room and deliberate and prescribe impeachment procedure “is based on this weird interpretation that Petitioners submit that the amendment of Rule 63 of the Senate’s Standing Rules by the Senate is unconstitutional.”
They explained that insofar as the exercise of legislative law-making or rule-making powers is concerned, the House of Representatives and the Senate do not meet in the same room, debate and jointly decide.
“It is therefore absurd, unfounded and baseless for Petitioners to suggest that the amendment of Rule 63 of the Senate’s Standing Rules should have been done in that manner. That suggestion or proposition shows a total lack of knowledge about legislative proceeding,” the majority emphasized.
According to the senators, the power of rule-making by each House of the legislature for its own proceeding is clear that: “Each House shall adopt its own rules of procedure.”
“Every other provision of the 1986 Constitution regarding the exercise of the rule-making power of the two (2) Houses of the Legislative must yield to Article 38. A canon governing the construction of a constitution is that where there appears to be an inconsistency between two (2) provisions of a constitution, long-standing legislative practice and construction is given a heavyweight to contemporaneous construction.”
According to the majority senators, the existence of Article 29 of the 1986 Constitution is not disputed but the citation thereof in the Petition, standing alone, is of no relevance and materiality on the issue to declare unconstitutional the amendment of Rule 63 of the Senate Standing Rules.
“The fact of the matter is that, even though by the 1986 Constitution both Houses of the Legislature pass on all legislation, in practice hoary with age, one House first legislates or acts and the other House concurs on all legislation or actions; the language of what is legislated or acted upon is then commenced with the enacting style: “It is enacted by the Senate and the House of Representatives of the Republic of Liberia,” they said.