Liberia’s Supreme Court has denied Associate Justice Kabineh M. Ja’neh’s petition to prohibit his impeachment by the House of Representatives, but two dissenting female justices term the court’s action as “troublesome precedence.”
The court’s decision on Friday, 30 November was signed by three justices out five, inclusive of Chief Justice Francis S. Korkpor, Sr., Associate Justice Joseph Nagbe and Ad – Hoc Justice Boima Kontoe, a circuit Judge appointed by President George Manneh Weah to break a tie following previous tied vote.
Following the ruling Friday, most recently retired Associate Justice Philip A.Z. Banks says he is “disappointed” and he would have decided otherwise if he were still on the bench because he disagrees with the ruling. He promises that he would publish an expert opinion this week.
Justice Ja’neh is accused by two sitting Representatives of President Weah’s ruling Coalition for Democratic Change (CDC) Mr. Moses Acarus Gray and Thomas Fallah of alleged proved misconduct, fraud, misuse of power and corruption, among others.
With the decision of his majority colleagues, Justice Ja’neh is now set to stand impeachment trial at the Liberian Senate in which his colleague, Chief Justice Korkpor will also preside.
Justice Ja’neh sought the Supreme Court’s intervention because he said representatives were violating Article 43 of the Constitution requiring the Legislature to prescribe procedure for impeachment, and also challenged the use of an ad – hoc committee to peruse the petition for impeachment instead of the House Judiciary Committee.
But in the majority Opinion of the Supreme Court, Liberia’s final arbiter of justice, Chief Justice Korkpor says “the House of Representatives did “nothing in violation of the Due Process Right” of Justice Ja’neh to warrant the granting of the writ of prohibition as at the time he filed the petition.
“We see no wrong act on the part of the House of Representatives to warrant the issuance of the extraordinary writ of prohibition,” Korkpor rules.
He argues that no bill of impeachment or writ of summon were prepared or served against Justice Ja’neh by the House, other than “a mere proposal” submitted by Reps. Gray and Fallah against Justice Ja’neh.
He argues that Reps. Gray and Fallah’s petition was still being perused by an Ad – Hoc Committee of the House when Justice Ja’neh “fled to this court with a writ of prohibition.”
Chief Justice Korkpor says “under the circumstance, we hold that the prohibition was prematurely filed and that the alternative writ should not have been ordered issued.”
He further disagrees with Justice Ja’neh’s argument that the House was in error to have submitted the petition for impeachment to an ad – hoc committee instead of the House Committee on Judiciary because it “was an internal administrative act which cannot be sanctioned by the judiciary.”
He says the submission of a petition by Reps. Gray and Fallah to impeach Justice Ja’neh was a mere proposal, and an Ad – Hoc committee set up to study the petition could have opted against the petition while perusing it in the committee room.
Besides, he believes that if the Ad – Hoc committee had recommended impeachment, the Plenary of the House could have also voted against carrying out the impeachment.
“This means that until the Plenary of the House of Representatives acted, no official position was taken on the petition. In order words and as we see it, an impeachment proceedings commences at the House of Representatives when the Plenary has voted, endorsing a request or proposal or call it a petition to carry out the process of impeachment,” he says.
In addressing the House’s disrespect for the Supreme Court by its refusal to appear for the case, Chief Justice Korkpor says the House of Representatives is emendable and answerable to judicial process, especially a process initiated by the Supreme Court, citing Article 66 of the 1986 Constitution.
He recalls that the Supreme Court has exercised jurisdiction over the House of Representatives in several matters including the Grace Kpan versus House of Representatives; [Mary] Broh versus House of Representatives, among others.
According to Chief Justice Korkpor, the House was legally obligated to obey when Chambers Justice Sie-A-Nyene G. Yuoh ordered issued the alternative writ of prohibition in the case and directed the House to refrain from certain specified actions pending the hearing and determination of the petition for writ of prohibition.
He admits that it is respect for the rule of law that balances and strengthens the nation’s democracy, creates an enabling environment for peaceful co-existence and provides comfort and assurance for local and foreign investments.According to him, the insolent content of the letter written by the House of Representatives to the Supreme Court did not show respect for the rule of law, nor showed respect for the Judicial Branch of government.
“This is indeed a bad example set by those who make our laws. The laws they make require compliance by all,” he adds.He continues that if the example set by the House is anything to go by, then a party defending in a lawsuit that feels he or she is not in error will no longer file defenses in court or abide by any order of the court.
Addressing the representation of the House of Representatives by the Ministry of Justice in the case, Korkpor argues that in a unanimous opinion, the Supreme Court earlier on February 5, 2016 ruled in Grace Kpan versus House of Representatives case that the Ministry of Justice is “duty – bound to represent them” because members of the Legislature are officers of the Republic of Liberia.
He emphasizes that Ministry of Justice has the right to represent the House of Representatives in this case and it did not require the expressed approval or consent of the House.“We hold that the writ of prohibition will not lie against the House of Representatives under the facts and circumstances of this case,” he rules.
Chief Justice Korkpor, Justice Nagbe and Ad – hoc Justice Kontoe have voted quashing and vacating the alternative writ of prohibition issued by Justice Yuoh in chambers and denied the peremptory writ of prohibition prayed for by Justice Ja’neh.
But Associate Justices Jamesetta Howard – Woloko and Sie-A-Nyene G. Yuoh had fundamental disagreement with the majority’s opinion and did not sign up to it.
Reading their dissent, Associate Justice Yuoh recalls how in August, the House, through its Clerk Mildred Siryon, insolently indicated that a “purported writ” issued by chambers Justice Yuoh violated Article 42 and 43 of the Constitution, and advised that in the interest of constitutional democracy and separation of power, that the justice vacate and avoid embarrassment to the Supreme Court.
She says this communication “still remains before the Supreme Court as it has never been withdrawn” by the House.On Justice Ministry’s representation of the House, she notes that the only reason the Ministry was filing a brief in the case was because the Supreme Court had asked it to do so, as provided for by law.
“We must add further that this court by permitting the Ministry of Justice to represent the House of Representatives in the case as the one before us will lead to troublesome precedence in our jurisprudence,” the dissenters warn.
“It may invariably spring forth the question whether the Ministry of Justice can represent the House of Representatives in a similar suit commenced for impeachment of a president and who appears before this Court, challenging said impeachment,” Yuoh cautions further.
The dissenters wonder if in such a case, the Ministry of Justice will represent the House of Representatives or the president.
According to her, the Ministry of Justice was not made a party in the case because it is an institution under the Executive Branch clothed with responsibility to give legal opinion to that branch of government.
In the jurisdiction here, the dissenting Justices argue that the traditional scheme of things have been to have the Ministry of Justice act as legal counsel only for the Executive Branch and not the other two branches.
They insist that it cannot be a subject of any rational debate that part of the primary functions of the Ministry of Justice is to defend all branches of government including the Legislature.
Reading further, Justice Yuoh says the dissenters believe that the Court’s support for the Justice Ministry’s alleged obligation to represent the House “is erroneous and legally faulty.”
She says where an officer of the Republic is in a lawsuit against another officer of the Republic, the Ministry of Justice’s representation “is on the side of the law and not to represent one officer of the Republic against another officer.”
In reaching this construction, she notes that the Supreme Court firstly defines “officer of the government” as all those of the three branches constituting the government.
In further emphasis, she says the Supreme Court has said that a justice of the Supreme Court, the Speaker and members of the House of Representatives “are all officers of the government.”
“We find the position of the majority hilarious,” she says, arguing that “it is legally improper for the Ministry of Justice to take sides in representing a party” when sitting Justice Ja’neh of the Supreme Court and officer of the Judiciary Branch of government is contesting the constitutional grounds of his removal by the House, a part of the Legislative Branch of government.
By Winston W. Parley-Edited by Othello B. Garblah