Will Supreme Court Justices Stand With Ja’neh?

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Associate Justice Kabineh M. Ja'neh

-Rules on amendment #63 of the Senate’s stands

An opinion to establish whether the amendment of Rule 63 of the Senate’s standing rule approved by majority members to conduct hearings on the impeachment of Associate Justice Kabineh Ja’neh was unconstitutional is expected to be delivered today, February 6, 2019 at the Supreme Court. But the looming question is whether the remaining members of the High Court Bench will stand with their embattled colleague, Ja’neh.

Before today’s judgment, the Justices on a 3-2 vote denied Justice Ja’neh’s Writ of Prohibition he sought to be issued against the House of Representatives to prevent them from instituting impeachment proceedings against him.

Initially, four of the senators asked the Court to prevent the impeachment trial of Justice Ja’neh on grounds that their majority colleagues’ adopted the amendment to the Senate Standing Rule #63 to enable them to conduct the hearing, because there was no such procedure at the Senate prior to the impeachment of Justice Ja’neh by the House of Representatives.

The four senators included Conmany B. Wesseh, Daniel Flomo Naatehn, Milton Teahjay, and Oscar Cooper.

They had argued that Article 29 of the 1986 Constitution provides that “The legislative power of the country 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 in the Legislature assembled.’

They again argued that the impeachment of public officials to include the president lies exclusively with the House of Representatives and the authority to try impeached officials exclusively rests 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 mandate of that article, the four senators claimed that  their 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.”

The senators argue further that the majority members 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 dissenting senators contended. “Any attempt by the Senate to have the House of Representatives concur with the action would also be unconstitutional.”

In counter argument, 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.”

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 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 were 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 in 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.”

Also, Section 12 of the amended Rule 63 of the Senate rules states that “on the day appointed for the commencement of the impeachment trial, the Legislative and Executive business of the Senate shall be suspended and, prior to that, on the order of the President Pro Tempore or the Presiding Officer of the Senate, whichever is applicable, the secretary of the Senate shall give notice to the House of Representatives that the Senate shall commence the impeachment of the person named in the articles/resolutions of impeachment in the Chambers of the Joint Session, which shall be prepared for the accommodation of both the Senate and the House of Representatives.”

It may 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 the lawmakers alleged that Justice Ja’neh “committed 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.”

According to legal observers, much has happened since the Senate recessed on the matter and it is possible that during the interregnum compromises may have been or deals may have been struck thus making it difficult at this point to determine whether the Supreme Court has since closed ranks and will take a stand against the impeachment of their embattled colleague.

However, according to observers, given the historically dominant influence the Executive has exerted on the Judiciary bending it to its will on several occasions, it appears more likely than not that the Executive could have a final say on the matter should it so desire.

It may be recalled that in recent history only once has a Justice of the Supreme Court stood up to Presidential diktat. It was the case of Justice John Dennis who had refused to step down on orders of President Doe.

President Doe had issued an ultimatum to the entire Supreme Court Bench to resign or face impeachment charges on corruption. With the exception of Justice Dennis, the rest of the Justices including the Chief Justice resigned forthwith. Justice Dennis however later retracted his position and subsequently resigned.

So far President Weah has not publicly commented on the matter from which inferences could be drawn whether or not he will enjoin issues with his staunch political ally, Representative Acarous Gray.

Should such a scenario unfold, Chief Justice Francis Saye Korkpor and his colleagues may likely find themselves faced with tough choices, according to observers.

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