The Supreme Court, The Legislature and The Doctrine of Separation: Which Way?

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Which way is the clash between the Legislature and the Supreme Court headed is the question on the minds of the public. This question arises in the wake of recent action by the House of Representatives to disregard the Writ of Prohibition on impeachment proceedings against Associate Justice Kabineh J’aneh as prayed for by his lawyers.

At bar is the essential question of whether Associate Justice Sie-Nyene Yuoh was indeed clothed with the legal and constitutional authority to command the issuance of such a Writ. This issue has become contentious to the point where questions are being asked about which way the country’s democracy is headed, given what is perceived by some as a dangerous power play between the two branches of government with a potentially destabilizing effect on national governance.

For answers to this question and in an effort to enlighten the public on this issue, the Daily Observance sought reliance on the Constitution and on precedents in case law since this matter, in the opinion of this newspaper, hinges on the Separation of Powers doctrine enshrined in the Constitution of Liberia.

Article 2 of the Constitution states that the “Constitution is the supreme and fundamental law of the land and its provisions shall have binding force and effect on all authorities and persons throughout the Republic”. This provision of the Constitution implies compulsory compliance by all state bodies as well as individuals with the tenets of Article 2. It means compliance by all three branches of government.

Further, in Article 3, the Constitution states that “the form of government is Republican with three separate coordinate branches: the Legislative, the Executive and the Judiciary”. Article 3 further states, “Consistent with the principles of separation of powers and checks and balances, no person holding office in one of these branches shall hold office or exercise any of the powers assigned to either of the other two branches except as otherwise provided in this Constitution and no person holding office in one of the said branches shall serve on any autonomous agency”.

Lawyers representing Justice J’aneh have maintained that the House of Representatives by constituting an Ad hoc committee, rather than the House’s Judicial Committee to probe Ja’neh’s alleged misdeeds, have violated the principle of “Due Process” and have accordingly prayed the Court to place a “Stay Order” on such impeachment proceedings.

But this newspaper, having found it difficult to reconcile such arguments with provisions of Article 43, for better understanding, sought reliance on precedents in case law to further understand the issue(s) at bar. Article 43 of the Constitution says that “the power to prepare a bill of impeachment is vested solely in the House of Representatives and the power to try all impeachments is vested solely in the Senate”.

Article 43 further states “when the President, Vice President, or an Associate Justice is to be tried, the President of the Senate shall preside. No persons shall be impeached but by the concurrence of two-thirds of the total membership of the Senate. Judgment in such cases shall not extend beyond removal from office and disqualification to hold public office in the Republic; but the party may be tried at law for the same offense. The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with requirements of due process of law”.

Given the above, this newspaper is at pains to understand the basis or reasons for praying the Court to issue a stay order on proceedings in the House when it is the sole prerogative of the House to hold such impeachment proceedings. The impeachment proceedings have not even begun and therefore the argument whether such procedures violates “due process” remains difficult to understand.

Referring to precedent case law, this newspaper draws reliance on the opinion of the Supreme Court in the case, LLR Vol 7 Page 212, Joseph F. Dennis, Relator vs Republic of Liberia, Edward J. Summerville, Circuit Judge of the Circuit Court of the First Judicial Circuit, Montserrado County, and M. Dukuly, County Attorney for Montserrado County, Respondents. Appeal from The Chambers of Mr. Justice Tubman. Argued February 3, 1941 and Decided February 21, 1941.

In that case, the Defendant/Relator was convicted of embezzlement. He contested a motion by the County Attorney for enforcement of the final judgment but before the trial judge could make a decision on the matter the Defendant/Relator sued out of the Chambers of Justice Tubman for a Writ of Prohibition.

The Writ was denied by Chamber Justice Tubman but the Defendant/Relator took an appeal to the Court en banc, meaning the full bench of the Court. In that case ruling, the Supreme Court ruling pointed out the following: 1. A Writ of Prohibition will lie only in cases of manifest necessity 2. It is the present policy of the Court to discourage removal of cases to the Supreme court other than by regular appeals. 3. A Writ of Prohibition to prevent enforcement of a final judgment in the lower court will be denied where the lower court has not yet acted 4. It would be inconsistent to deny a Writ of Prohibition and to enforce a lower court order since the former confirms the jurisdiction of the lower Court whereas the latter implies that the lower court, having jurisdiction has neglected to perform its duty and this court will perform it in its stead”.

Given all the above, this newspaper poses the question whether the Supreme Court has jurisdiction over such impeachment proceedings in the Legislature. Further, granted that the Supreme Court does have jurisdiction, then we must pose the question: Where is the “manifest necessity” that impels the court to rush head-on into such uncharted realms?

Was it motivated by a manifest desire to come in defense of a dear colleague such that the rules of the game (The Constitution) would be altered to fit their desires?

The Daily Observer cannot help but remind members of the Supreme Court Bench that there is no need to create Constitutional crises needlessly and resultantly push the nation to the brink. This game of brinkmanship and showmanship bears ill omen for the nation and should therefore be STOPPED!

Authors

6 COMMENTS

  1. There is absolutely no clash! The Supreme Court has simply been caught in its ignoarant, unscrupulous corrupt, and smellingly dishonest tracks, and is now been disgraced and punished By THE HOUSE! FOR THE CONSTITUTIONAL CLAUSE: “ALL POWER IS INHERENT IN THE PEOPLE” SUPPLANTS THE CONSTITUTIONAL CLAUSE: “COURT OF LAST RESORT”!

    Henceforth and forthwith, they shall forever remember that IMPEACHMENT PROCEEDINGS ARE ABSOLUTELY WITHIN THE PROVINVE OF THE LEGISLATURE AND FAR FAR FAR BEYOND THE POWERS AND OR JUSRISDICTION OF THE SUPREME COURT, AND ARE NOT THE SAME as cases, disputes, and controversies, which are within and or under the jurisdiction of the Supreme Court!

    These so called judges of the Supreme Court have long been taken the Liberian people for granted, to the extent that they have gotten into the jurisprudential masturbation that they are demi-gods and the Supreme Court controls the other two branches of THE GOVERNMENT. But they have now been chastised By THE HOUSE! It is as simple as that! And the truth been told and done, is that these so called judges have all poluted the bench of the Supreme Court! Thus they should all be removed and trashed!

  2. These so called judges of the Supr7eme Court have long been taking the Liberian people for granted. Forget about Articles 2 and 3, and instead lecture those half-baked judges of the Supreme Court on Article 1 of the Liberian Constitution! The first clause of that Article stipulates that: All power is inherent in the people!!! THE LEGISLATURE IS THE PEOPLE INSTITUTIONALIZED!!! AND THIS IS INTER ALIA WHY IMPEACHMENT CANNOT BE LEFT IN THE HANDS OF FIVE OR NINE INDIVIDUALS, BUT RATHER THE LEGISLATURE – THE PEOPLE INSTITUTIONALIZED!!!

    Despite the necessary constitutional silence, THE LEGISLATURE IS THE ACTUAL SUPREME COURT BUT SOLEY RESPONSIBLE FOR CALLING INTO QUESTION OF INTEGRITY ON THE PART OF JUDGES AND PRESIDENTS! PERIOD!

  3. The Supreme Court has no business getting involved with proceedings in the House of Representative. This would never happen in the United States, and our constitution makes it clear as daylight that the legislature has full impeachment powers. The legislature can change its rules as it sees fit to proffer its deliberations. The US Congress change its rules when necessary. It is their prerogative to do so. No other branch of the US government could tell the congress that their rules is illegal. Really?
    Article 43 is clear and unambiguous:
    Article 43 of the Constitution says that “the power to prepare a bill of impeachment is vested solely in the House of Representatives and the power to try all impeachments is vested solely in the Senate.” Which part of this clause the court doesn’t understand?

  4. Good question that the impeachment proceedings have not even begun and therefore the argument whether such procedures violates ” due process ” remains difficult to understand. Perhaps you should be reminded that the procedure start when in your own article stated that the House of Representatives constituted an Ad hoc committee . The Ad hoc committee has already been empowered by the Speaker to investigate and set up the procedues that will lead to the impeachment proceedings . So why are you confused about the idea of “due process ” that cause the lawyers of the Associate Justice to run to the supreme Court ? As you rightfully said that the proceedings have not yet begun. No one is speaking about the proceedings ! It is the procedure that is being used by the Ad hoc committee appointed by the Speaker that is being challenged before the Supreme Court that it violates the due process of the law ! It is the procedure and not the constitutional authority of the House of Representatives to impeach that is being challenged before the Supreme Court . The procedure comes before the proceedings to impeach. If the procedure by being used the Ad hoc committee violates the due process of law as claimed by lawyers representing the accused , then it is a case for the Supreme Court to review. Hence a stay order is putting on the procedure being used by the Ad hoc committee of the House of Representatives. And not on the House constitutional duty to impeach. If the procedure being used by the Ad hoc committee violates the right to due process to charge someone with impeachment, how is it an interference or wrong for the Supreme Court to review the procedure to see if it actually violates the due process of law as claimed by lawyers representing the Associate Justice ? How will the public know if the procedure being used by the Ad hoc committee actually violate the due process or not , if the Court can not review the procedure that will lead to the impeachment proceedings in the House ? Does the House makes it own procedures and justify that it meets all the constitutional provisions when challenged , and then set to execute their own procedures and proceedings ?Claiming to have the sole authority to impeach as the argument not to appear before the Supreme Court. Knowing that it is not about their right to impeach, but rather it is the procedure being used by the Ad hoc committee to charge someone that it violates the due process of law leading to the impeachment proceedings that was brought to the attention of the Supreme Court . Two different things here! It is the procedure not the proceedings , or the authority of the House to impeach. That is questionable before the Supreme Court. And who has the authority to review if the procedures being used by the Ad hoc committee to find out if such procedures actually violate the due process of law ? The House of Representatives or the Supreme Court ? That’s the question ? And how soon shall the lawyers representing the Associate Justice run to the supreme court and request a stay order ? When the proceedings start ? The constitution says the legislature shall prescribe the procedure for impeachment proceedings. Again two different things , one being the procedure and the other being the proceedings. Should the procedure denied the due process to the accused, what can anyone say about the proceedings ? But what is troubling is why an Ad hoc committee being used instead of the House Judiciary Committee in relation to the Senate Judiciary Committee to set up the legislative procedure of impeachment proceedings ? It is the procedure being used by the Ad hoc committee to charge someone that may lead to the impeachment proceedings that is being challenged before the Supreme Court for due process, and not a case concerning the constitutional authority of the House to impeach, or for that matter the proceedings which has not yet begun. Of course , the lawyers representing the Associate Justice know better than to run to the Supreme Court asking the Supreme Court to stop the House constitutional duty to impeach. How silly could they be ? The constitution says the legislature shall prescribe the procedure, who knows if the procedure being used by the Ad hoc committee actually violate the due process of the accused or not ? Only the Supreme Court. The Supreme Court was never asked to put a hold on the proceedings of the House of Representatives, which Never started. The Court was asked to put a stay on the procedure being used, cause lawyers representing the accused believe that the procedure violated the due process of law. It is the procedure that lay out the ground work for the charges to proceed. How good is the proceedings if the procedures being used are faulty ? And who is out there to tell, but the Supreme Court. All the silly quotes concerning the articles of the constitution in this article can not point to any where the procedure being used actually violate the due process of law process or not. That is the job for the Supreme Court to determine as the lawyers representing the Associate Justice claimed , that the procedure violates the due process of law and not the proceedings as claimed by this article.

  5. James, perhaps it will help you understand how laws or for this matter the Constitution should be looked at. Have a descriptive reading of it and not a normative reading. It’s not about what we think it ought to be as the framers already figured that out. I have, and so have others, provided answers to the questions you raise here, so I’m not sure if you disagree with those comments from commenters with legal background or you believe the rulings should be based on “what ought to be”.
    Almost, most of the assertions you make above about the proceedings and the Court’s authority are mistakenly applied here.

    Let’s revisit the issue discussed here:

    1) Few members of the House believed an Associate Justice of the Court has acted in a way that warrants his impeachment and removal from office. No constitutional provision bars them from thinking as such or require they provide reasons to any other Branch of Government on while they think so.
    2) The Constitution gives the members the right to file Articles of Impeachment to formally submit their petition. There is no constitutional provision to review if they have a right to file a petition.
    3) The Constitution grants exclusive authority to the House in determining it’s own procedures on how to conduct impeachment proceedings. The Constitution does not define for the House what should be in the procedures and how it must implement the procedures
    4) This is not a trial. There is no case that the House would be trying. It simply received an Article of Impeachment. The Speaker who has the fundamental prerogatives as leader of the House and also leader of the majority party determines how the full House will vote. Note, the procedures and how it is drafted are exclusive prerogatives of the House. The Constitution does not even provide instructions. Impeachment itself is addressed by the Constitution; that a 2/3rd majority is needed to impeach.

    5) Lawyers for the accused Justice filed for a Stay Order against the House proceedings and the Justice in-Chambers issued a Writ of Prohibition against the House.
    6) You commented that the Judge was simply suggesting to the House to hold on because a case was filed and all parties needed to appear before her to clarify the law. Actually, no case exists and as such the Court jurisdiction has not been established. I provided detailed explanation on this in a prior comment.
    7) The Speaker has complete authority to assign various issues to different committees, and there is no constitutional provision for other branches to review his reasons. Furthermore, how have the accused Justice lawyers concluded that the Speaker would not refer the matter later to the Judicial Committee? It should not matter, as the Speaker can assign bills or issue to select committees in his discretion.
    8) The Court never establish its jurisdiction to here the petition. Establishing its jurisdiction required that the Court should have reviewed whether there has been an action by the House that violated the Constitution. The House procedures drafting process is exclusive to the House. No jurisdiction was established. Has a trial taken place under due process of law? None has taken place and none was in the process in the House. So no jurisdiction established by the Court.
    9) The Court then issued a Stay Order against the House without establishing the legality of the petition, its jurisdiction to hear the petition and incorrectly instructed another Branch of government to cease its internal process until that Branch explains it has the authority to proceed in the manner it has chosen. Note, a Stay Order of Prohibition is issued by a Higher Court to a lower Court. This was not a matter of Judicial Review. So, the Stay Order itself is not enforceable. It’s almost like a Ghanian police officer on vacation in Monrovia issuing a traffic ticket to a Liberian driver in Monrovia for speeding. His ticket will be worthless.
    10) The Justice in-Chambers did not need the House Speaker or Lawyers to appear before her to make these determination. She has the petition abd the Constitution before her. Look at it.

    What the legal community is saying, and it appears there is consensus here from every lawyer who had publicly or anonymously addressed this issue that the Court blundered If the faux pas was unintentional, the Court needs to withdraw the Order so it forms part of the Court’s records for future cases. After all, it was an actual order issued by the Court and there needs to be a ruling on it. It also impress upon the President and the Senate to take seriously the qualifications of those that are nominated and confirmed to the Courts.

    The House doesn’t need to respond just like the ticketed Liberian driver would not need to respond to a ticket issued to him in Monrovia by a Ghanian police officer.

    I hope this helps.

  6. Larry Emerson, are saying the action taken by The Ad hoc committee is not due process then what is it?
    is this in keeping with the law. I want to know what part of the impeachment procedure says the national legislature should used its own discretion? The nation legislation seem to be using its own discretion by setting up the Ad hoc committee.

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