By Lincoln G. Peters
The Magistrate of the Monrovia City Court, Jomah Jallah, has ruled on motion filed by prosecution for Subpoena Duce’s Tecum thereby ordering Mr. Alexander B. Cummings, Political Leader of the Alternative National Congress (ANC) to produce the two original copies of the Collaboration Political Parties document that were signed in May 19, 2020.
According to Magistrate Jallah, the defendants are ordered to produce, provide, bring and make available to the court, the two copies of the originally signed framework document within 72 hours.
Even though defense lawyer rejected and frowned on the ruling by the Magistrate, using Article 21 (h) of the 1986 Constitution of Liberia, Magistrate Jallah maintained that his action has legal grounds because Article 21 (h) of the constitution does not hold, and submits that constitutional privilege against self-incrimination as provided for under Article 21 (h) of the Constitution does not apply to business records, public documents or political contracts that are normally executed in accordance with parties’ rules and regulations as they may see it fit.
Mr. Alexander B. Cummings is currently facing criminal trial at the Monrovia City Court for forgery and criminal conspiracy filed by the Leader of the All Liberian Party (ALP) businessman-turned politician Benoni Urey.
On January 18, 2020, the prosecution filed a 10-count written motion for subpoena Duce’s Tecum, contending strenuously that the originally signed CPP framework document of May 29, 2020, is in the hands of Mr. Alexander B. Cummings, and that persistent efforts made up to, and including the time of filing the motion, have fallen on deaf ears and the defendant, Mr. Cummings has ignored, neglected and refused to deliver to them copies of the document, contrary to their own internal arrangement.
The ALP proffered to the motion, a sworn-affidavit, denouncing the alleged alterations, expansions and modifications of specific provisions of the framework document, mainly the sections on “good state of health” with emphasis on the physical and mental capacity of would-be CPP presidential candidate as well as question of the withdrawal and the nomination of vice presidential candidate which, ALP alleged – were recommended in the amended Framework Document, prepared and produced by the lawyers, but was never deliberated upon and ratified by each of the constituent parties of the Collaboration as required before the said purported CPP Framework Document was filled by ANC to the National Elections (NEC).
The ALP contends further the filing of the framework document with NEC was done without its expressed knowledge, participation and approval and therefore prays the court to grant the motion, thereby mandating, ordering and instructing the ANC to produce the selfsame document.
But the ANC resisting the motion prays court to deny and dismiss prosecution’s motion for subpoena duces tecum, contending that such a request will amount to self-incrimination that will be in gross violation of Article 21(h) of the 1986 Constitution.
The ANC further argued that by filing the motion, the ALP was now looking for evidence from Mr. Cummings, who is already charged for crimes whose evidence the ALP must produce beyond all reasonable doubt to convict its Political Leader, Cummings and therefore, the court should deny and dismiss the motion as if it was never filed.
After analyzing the arguments on both sides, Judge Jomah Jallah says there are two salient issues that are determinative of the matter, explaining whether or not the CPP Framework Document of May 19, 2020, is a public document: and whether or not a subpoena duces tecum granted under the circumstances requiring the ANC to produce copies of the originally signed CPP Framework document will be considered as incriminating, and will amount to violation of the defendants’ constitutional rights.
On the argument whether the CPP Framework Document is a public document, Magistrate Jallah ruled that the CPP is a public entity and a body corporate that can sue and be sued, noting that the signing ceremony of the CPP document was not confidential, so was the publication of excerpts of the framework document for public review and scrutiny.
He furthers that there is no legal basis for organizing such a political alliance if the intent was to keep its activities, records or operations secret and it is a principle, practice and procedure in contract law that parties whose executives witnessed an agreement are entitled to, as a matter of right, copies of the contract if they so desire.
“This court says the motion by ALP requiring the ANC (Respondents) to produce copies of the CPP Framework Document signed on May 19, 2020, is legally sound and it is consistent with the Criminal Procedure Law-Title 2, Liberian Codes of Law Revised, chapter 17, sections 17.2 and 17.3.”, Magistrate Jallah ruled.
As to the second count of whether or not a subpoena duces tecum granted under the circumstances requiring Mr. Cummings to produce copies of the originally signed CPP Framework Document will be considered as incriminating and will amount to a violation of his constitutional rights, the court again for proper guidance and direction, takes recourse to the law, Article 21(h) of the 1986 Constitution of Liberia.
Magistrate Jallah notes that Article 21(h) of the Constitution especially the portion that forbids the defendant from producing document (s) or testifying against himself in a criminal case is synonymous to the Fifth Amendment rights of the US Constitution which expressly states, “No person shall be compelled in any criminal case to be a witness against himself.” the qualifying phrase in the fifth Amendment right of the US Constitution.
The Magistrate said that the law when interpreted and compared to Liberia, is restricted to a witness and by law and practice, a witness is someone who gives testimony at an investigation and trial.
He continues that the provision that states the defendant shall not be compelled to furnish evidence against himself, in the mind of the court, referred to a defendant making a statement against himself or herself either knowingly or unknowingly and thereby incriminating his or herself by duress or other forms of coercive and intimidatory or intimidating action.
Judge Jallah said that the court maintains that is only possible if the testimony required of the defendant affirmative defense to absolve himself or herself of the crime charged or the document demanded is personally and exclusively owned by the defendant in a criminal trial upon which the prosecution attorney may or is relying on to prove its case against the selfsame defendant.
“The case before this court is clear and that is, the request by the prosecution is consistent with law. To determine and challenge an act as self-incrimination and unconstitutional under Article 21 (h) as it’s being done, there must be an egregious violation or application of the law that demonstrably reveals a rather callous and brazen disregard of the right of the defendant on trial. However, this does not obtain in the instant case which is why it’s difficult if not impossible to contextualize the defense counsel reliance of the law” he explained.
He says in the mind of the court, the doctrine of self-incrimination as provided for under Article 21 (h) of the 1986 Constitution of Liberia, becomes apparent and may be invoked if upon arrest, or during criminal investigation or at a trial, defendant is mandated or coerced to provide a testimony that may be considered utterly reprehensible as to incriminate him.
Magistrate Jallah, in his ruling noted that this is possible if the testimony so required, violates the principal of the defendant’s right to remain silent thereby gives the prosecution an edge to convict him at all cost.
“Wherefore, and in view of the above foregoing facts and circumstances, this court holds and submits that the constitutional privilege against self-incrimination, as provided for under Article 21 (h) of the Constitution does not apply to business, records, public document or political contracts that are normally executed in accordance with the parties own rules and regulations as they may seem fit. The motion should be and same is hereby granted as a matter of law and the respondents are hereby ordered to bring and produce to this court within 72 hours the two copies of the same original signed framework document of May 19, 2020, as of the date of this ruling and it’s so ordered while matter suspended pending issuance of a formal notice of assignment”, he rules.https://thenewdawnliberia.com/cummings-trial-court-rejects-televised-trial-request/ Editing by Jonathan Browne
