-Senators argue, defending their amendment of Rule #63
Majority members of the Senate have termed the Supreme Court’s latest action as a “violation” of the privilege guaranteed by the Legislature under Article 42 of the Constitution by its citation to members of the Senate to appear before it to show cause why the court should not grant four of their colleagues’ request to declare the Amendment of Rule 63 of the Senate Standing Rule unconstitutional.
The majority senators’ charged 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.
The Respondents’ (Senators) 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, 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.
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.”
Their disagreement with the citation came almost immediately following the four senators’ petition to the Court to declare unconstitutional, the adoption and amendment of the procedure to enable them to conduct hearings on the impeachment of suspended Associate Justice Kabineh Ja’neh, because, according to them there was no such procedure at the Senate prior to the impeachment of Justice Ja’neh by the House of Representatives.”
The four senators, including Conmany B. Wesseh, Daniel Flomo Naatehn, Milton Teahjay, and Oscar Cooper later asked the court to declare their majority colleagues’ decision “unconstitutional.” Based on the averments of the Petition, the court cited the lawmakers to appear before it to hear and determine the matter, which the majority senators consider a “violation” of the legislative privilege.
According to the majority senators, legislative (parliamentary) privilege is universally recognized. “In recognition of this universal principle,” they maintained that, when “the proceeding is pursued before this Honorable Court to determine the constitutionality of a law or any action of the Legislature, no legislator is named to be personally liable.”
They likewise cite, for their argument, the Constitutionality of Sections 12.5 and 12.6 of the Judiciary Law, Approved May 10, 1972, 24 LLR 37 (1975).
“Imagine what it would have been like had this Honorable Court, in 1975, held legislators of 1972, who enacted this section of the Judiciary Law, accountable and required them to appear and defend the constitutionality of Sections 12.5 and 12.6 of the Judiciary Law,” the senators wondered.
They again argued that the mere title of the lawsuit, “The Constitutionality of the Amendment of the Senate Rules to Provide for Impeachment”, does not by itself confer jurisdiction on the Supreme Court.
The senators said the Court does not have jurisdiction over the subject matter of the petition, because of the manner in which the Liberian 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.”
The senators said Article 75 of the same 1986 Constitution vests in the Supreme Court the power to “make rules of court for the purpose of regulating the practice in which cases shall be commenced and heard before it and all other subordinate courts.”
This latter provision of the 1986 Constitution, they argued, also empowers the Supreme Court to “… prescribe such code of conduct for lawyers appearing before it and all other subordinate courts as may be necessary for the proper discharge of the courts’ functions.”
The only exception that the 1986 Constitution makes is that: “Such rules and code, however, shall not contravene any statutory provision or any provisions of this Constitution.”
The senators, meanwhile, maintained that the only time that judicial intervention (the power of judicial review) may be exercised by the Supreme Court in respect of the rule-making power of the Legislature is where one or more of those rules do not “conform to the requirements of due process of law.”
They also argued that the petitioners (four senators) petition claim that a portion of the Senate’s amendment of Rule 63 of the Senate Standing Rules does not “conform to the requirements of due process of law.”
They also agreed to the power of the Supreme Court to decide the constitutionality of legislative acts and executive actions, “insofar as the issue of determination of the constitutionality of a legislative act is concerned, legislative immunity/privilege is applicable and individual members of the Legislature shall not be made to account for their personal conduct during legislative business and proceedings.”
In their response, the senators also reminded the court of their colleagues’ plea to declare unconstitutional acts of the Legislature, “this Honorable Court has held that it will be very cautious in disposing of such plea.”
“In a more recent case on the same subject,” the senators said, “this Honorable Court held that it will declare an act of the Legislature unconstitutional only with the greatest possible caution and reluctance. “
The senators reminded the Supreme Court Justices about past decision where it had refused to declare the act of the Legislature unconstitutional. “So, for this flimsy and meritless Petition, we ask that your Honors not depart from this standard set by yourselves that you will not disturb an act of the Legislature and declare it unconstitutional merely because a petitioner asks you to.”