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DO SENATE IMPEACHMENT RULES VIOLATE THE CONSTITUTION?

By: G.Yanquoi Lavela*, Esq.
Juris Doctor

The question is whether House Rules of Impeachment adopted by the Senate in the impeachment trials of Justice Kabineh M. Ja’neh violate Article 43 of the Liberian Constitution of 1986. At the current Article 71 impeachment proceedings against Associate Justice Kabineh M. Ja’neh, the claim has been made by his star “expert witness”, the now retired Associate Justice Philip A.Z.Banks, that, because the legislature has waited for more than 33 years since the adoption of the 1986 constitution to draft rules of proceedings on impeachments until now, when this respondent finds himself in the dock, any adverse outcome of the proceedings against him could be challenged on grounds of constitutionality, in that it would give the appearance that respondent was cherry-picked as an unfair target of the new rules. He buttressed that argument, further, by claiming that, since Article 43 confers upon the “legislature”, as a whole (by his interpretation), to promulgate rules on impeachments, any Senate impeachment verdicts based upon rules of procedure drafted exclusively by the House of Representatives, without the joint Senate’s input, could suffer the same fate of unconstitutionality. It is on these points of law advanced by Mr. Retired Justice Philip Banks, that I must beg to differ in several salient respects, as a matter of constitutional law.

First, as a matter of general principles of constitutional jurisprudence, the failure by any branch of government on the first day to exercise its constitutional powers reserved unto it by the constitution does not, ipso facto, nullify, abrogate, nor negate, the existence of that power. It is legally sufficient that it has the constitutional authority to act or exercise such power at any time it chooses under the appropriate circumstances, as it deems fit, when necessary and proper to exercise its delegated powers. There are many laws that lie dormant and buried on the pages of history without seeing the light of day simply because no case has been brought forward to test them in a court of law. That is particularly true of a nascent constitution, such as ours, which is only 33 years old with many provisions that have yet to be tested in court. It is, therefore, immaterial, irrelevant and impertinent to the case at bar that the legislative branch “waited for 33 years” to draft rules of impeachment proceedings. What matters is that impeachment is a legislative prerogative reserved unto it by the constitution. Arguments against combining the quasi-judicial function of impeachments with legislative powers in one branch of government (Congress) were successfully replied by John Jay and Alexander Hamilton in their Federalist Papers, Numbers 64 & 65 , respectively, as part of the many spirited debates leading up to the final and formal adoption and ratification of the United States Constitution on September 17, 1788. So, this is not new grounds. It is a well-beaten path and settled constitutional law that people who challenge the Liberian Senate’s power to impeach Justice Kabineh M. Ja’neh, or any other justice or elected officials of government, for that matter, need to study carefully before they speak publicly on the subject. Even a fool is considered wise if he keeps his mouth shut lest he opens it and removes all doubts. Second, the use of the term “legislature” in Article 43 in conferring the power to make rules governing impeachment proceedings, does not on its face, require a bicameral or joint action by both the House and the Senate, as it would require with bills or legislative enactments. The fair and reasonable import of that term or expression, and any rational interpretation of it, must be that the framers intended that each house of the legislative branch would make rules to govern its respective function with regard to impeachments. That is to say, while Article 43 confers on the House of Representative the power to precipitate charges or articles of impeachments, it reserves unto the Senate the sole power to conduct trials of impeachments. It then broadly provides that: “The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.” What is worth noting in this provision is that the accused shall be accorded “due process of law”, which generally only means the right to be heard before any tribunal can condemn anyone to suffer deprivation of any legally protected rights or liberty. Nothing in that term or provision either expressly, nor implicitly, precludes each house from delegating to the other house the mere ministerial duties of drafting any documents relative to their collective legislative function as a whole. Therefore, the argument by the learned Justice Banks that it was illegal and unconstitutional for the Liberian Senate to fail to participate in drafting rules of impeachments, which had originated in the House of Representatives alone, is an argument that is deeply flawed and without any merit, as a matter of constitutional law. Furthermore, and more to the point, it is neither unseemly, nor unconstitutional, for one branch of the legislature to draft documents that are formally adopted by the other branch for internal administrative use in the course of normal legislative processes. And to do so does not, and did not, violate any doctrinal jurisprudential precepts that would give rise to any legally viable or actionable claims of unconstitutionality.

Implicitly explicit in the doctrine of separation of powers, providing, inter alia, that the legislative branch of government shall be the sole judge of its own rules, without the perils of judicial review, is the broad powers it has, not only to determine its own rules of procedure, but the manner and style of adopting those rules, as well. Even if the Liberian Senate had simply by resolution adopted the general rules of criminal procedure of the Liberian Code of Laws Revised, in lieu of the one it allegedly got from the House of Representatives and nothing more, as long as it provided the accused a due process of law before a fair and impartial tribunal, that would have been legally sufficient to pass constitutional muster. This doctrine of “sole judge of its own rules” is not without historical legal precedents in developed and more enlightened legal systems, including the United States, from whence Liberia borrowed its current, but demoralized and discredited, legal system that citizens must suffer under. For example, it is reported that the adoption of the first impeachment rules by the United States Senate occurred on July 5, 1798, in the case Senator William Blount of Tennessee, who was a Federalist. The House had informed the Senate of its determination to file articles of impeachment against Senator Blount based on his alleged involvement in a conspiracy to seize the Spanish territory of Florida and Louisiana, with the help of the British and Indians. The Senate expelled him but the House insisted on going forward with its articles of impeachment anyway. Upon receipt of five articles of impeachment against Senator Blount, the Senate adopted its first impeachment rule, which simply stated that: “All persons are commanded to keep silence while the Senate of the United States are receiving articles of impeachment against ___ ___ on pain of imprisonment." This was followed four days later, it is said, by the Senate’s adoption of an its own oath of conduct in the proceedings, as required by the constitution, which mandated members to “do impartial justice, according to law." That raised a firestorm of a bitter partisan controversy between the opposing Jeffersonian Republicans and the Federalists about the Senate’s power to make its won rules, with the opposition asserting that the Senate had no right to set its own rules of impeachment. They insisted, very much like Justice Banks does in this case, that any such rules must be passed by both houses, like any other piece of legislation and signed into law by the president, to be binding. “Otherwise”, they warned, “an impeached party might deny the jurisdiction of the Senate, sitting under an oath of their own making.” However, the Federalists, who were 2/3 of the Senate prevailed, citing state legislative precedents and the relevant constitutional provision granting to the Senate the sole power to make its own rules. (See https://www.senate.gov/artandhistory/history/minute/Senate_Adopts_First_Impeachment_Rules.htm,) Since then, it is now settled law of American constitutional jurisprudence in the United States that the sole power to exhibit articles of impeachment and propose rules of impeachment proceedings resides within the legislative branch of government, namely, the House and the Senate, and the exercise of that power, or lack thereof, cannot be challenged in any court of law. And more recently, there is the case of the impeachment of Federal Judge Walter L. Nixon, who was impeached for a felony conviction in 1989 on charges of perjury before a federal grand jury. The U.S. Supreme Court denied his application for judicial review of his conviction by the Senate, based on his claim of denial of the right to jury trial before the Senate, because the Senate had designated a select committee to hear and take evidence on his articles of impeachment and made recommendation to the full Senate on his guilt or innocence. In rejecting his appeal the United States Supreme Court held that Judge Walter L. Nixon’s appeal was a “non-justiciable” political question that properly belonged to the political branches of government. See Nixon v. United States, 506 U.S. 224 (1993).

And is it not truly ironic that Philip Banks is called as an “expert witness” in the impeachment trials of a fellow Justice Kabineh M. Ja’neh for high crimes and misdemeanor? Is not this the same Philip A.Z. Banks who, along with Justices Jamesetta Howard Wolokolie and Kabineh M. Ja’neh, were previously cited for impeachments by the legislature for judicial misconduct, but for the unlawful and unconstitutional interference by former president Ellen Johnson-Sirleaf in the legislative process of impeachments, which saved all three justices from removal from office? For him to pontificate as an “expert witness” at the trial of a fellow justice for high crimes and misdemeanors, when he had barley escaped the same fate by the skin of his teeth into quiet retirement, with the full benefit of pensions and reputation in tack, is in itself a mockery of justice. One should never have a fox sitting on the jury at a goose’s trial. This is man with a checkered past. His public persona leaves much to be desired. I find many of his opinions on the Court very troubling and of doubtful constitutionality. Whether it was his issuance of a writ of prohibition against the Legislature and the Attorney-General in the Mary Broh case (See Broh v. Hon House of Representatives et al.[2014] LRSC 20(24 January 2014), or the opinion he wrote for the majority in the Subah-Belleh v Oniyama case, (See Subah-Belleh v Oniyama [LRSC] 4 (8 January 2015) among the many, which I have discussed extensively in my Brief of Amicus Curiae submitted to the Liberian Supreme court regarding the Varney Sherman bribery case, Philip Banks has made novel legal claims in controversial matters that require careful scrutiny. But he is not alone. And neither should Justice Kabineh M. Ja’neh be seen as the only rotten apple in the cart. He has rightfully asked the question: “Why is it that only Justice Ja’neh is on trial for high crimes and misdemeanors?” I am not familiar with the underlying facts of the articles of impeachment against Justice Kabineh M. Ja’neh. But if he is being prosecuted and impeached for his judicial opinion rendered in the normal course of his duties as justice of the Supreme Court, I believed he has a plausible defense grounded in sound constitutional jurisprudence that he is absolutely immune from prosecution “criminally or civilly” in any court of law for his judicial actions and utterances while on the bench. He can only be impeached based on clear and convincing evidence of bribery or other improper motives that entered into his decisions of a particular case. That is a universal judicial immunity that all judges enjoy dating back to the earliest inception of the English Common Law. (See Blackstone, (1775).Commentaries on the Laws of England: in Four Books, vol. 3, p. 255.) That idea was predicated on the notion that the “King can do no wrong.” And, since the dispensation of justice amongst its subjects is essentially a sovereign act, judges acting on behalf of the sovereign or state cannot be held liable “civilly or criminally” for mistakes or errors of judgment, however most egregious and injurious such might be, as long as it was not done with malicious intent for nefarious purposes. And if, as I presume, Justice Ja’neh is being impeached solely for writing a majority opinion in any particular cases that were thoroughly discussed and voted upon by a majority of the justices in chambers, who all appended signatures to those decisions and published them on the bench, why not impeach the others, as well? That, by itself standing alone, triggers the Article 11(c) equal protection clause of the constitution. But selective justice is nothing new in Liberia. Or for that matter, why not impeach the entire bench, like the Legislature did in the State of West Virginia in 2018, where the entire Supreme Court was impeached for various acts of corruption enumerated in articles of impeachment against them? There is nobody on the Liberian Supreme Court today, or before them, who, in my view, can lay any plausible claims to being a paragon of virtues. The Liberian people deserve better than that.

But quite aside from his equal protection argument, Justice Kabineh Ja’neh has further invoked the judicial immunity clause of Article 73 of the constitution of 1986 that provides the legal framework for his impeachment trials. That clause, in relevant parts, provides absolute blanket immunity for judicial acts, whether by commissions or omissions, if done in the proper execution of judicial functions. It states that:

No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statements made or acts done shall be admissible into evidence against them at any trial or proceeding.

The operative phrase is “prosecuted or tried civilly or criminally “. The question becomes whether impeachment proceedings are in their nature properly to be regarded and considered “criminal or civil”. I argue that an impeachment is neither criminal nor civil, as those terms are commonly understood among lawyers. The penal goal of a criminal prosecution is to impose punishment. But the constitution expressly prohibits the imposition of any punishment for impeachments. The restorative or restitutionary goal of a civil cause of action is to award monetary damages against a wrongdoer in order to make the victim whole and deny the wrongdoer the benefits of his wrongdoing. But the impeachment provision does not contemplate nor authorize damages against unfit public officials. It is limited to the sole and exclusive purpose of removing from office persons who are deemed unfit to hold any office of public trust, although they may be tried for crimes committed, or be sued civilly for private wrongs done, while in office. So, if impeachment proceedings are neither civil nor criminal in nature, what then are they? The short answer is that they fall in the general category of cases the law regards as “special proceedings.” Therefore, the assertion by Justice Kabineh Ja’neh that his impeachment is barred by Article 73 has absolutely no merits in law whatsoever and must suffer the fate of a dismissal.

Finally, these public spectacles of national disgrace and the international embarrassment Liberia suffers from putting them on display, without any real or meaningful consequences or deterrent effects on corruption, are the result of our public institutions being plagued by mediocrity, not the least of which is the Liberian Supreme Court, that is packed by patronage appointees with no discernible qualifications or demonstrable legal scholarship. The net result of our institutional failures and poor performance of public officials is that the Liberian people have to suffer and will continue to suffer the indignities of scandals caused by public officials. The nation has yet to see Varney Sherman and his co-defendants face trials for their bribery scandals. The last we heard of that case is that it was “put on hold” by the current Chief Justice during the last election under a pretext of “freeing up the courts” to hear election disputes. That is why it is very unfair to single out only Justice Kabineh M. Ja’neh for impeachment. The successful impeachment of one man will not cure the nation’s festering wounds from moral decay if those wounds are full of other maggots that remain in it to perpetuate and prolong the nation’s sickness. Perhaps Liberia should consider the death penalty for corruption in public office, especially financial crimes that rob the nation of much needed funds to provide basic medical care and infrastructure, like market-accessible roads and bridges to serve the people. The Liberian people deserve better than this. Nobody should be born to suffer and die, needlessly, without hope or opportunity for self advancement in the country of his birth. 197 YEARS OF SLEEP IS THE MORAL EQUIVALENT OF DEATH. WAKE UP, LIBERIA! RISE & SHINE!


[*The author is a lawyer and a Liberian citizen residing in the United States, who occasionally comments on events taking place in or about Liberia. He obtained his Juris Doctor degree from University of Detroit School of Law (now Mercy College of Law) in Detroit, Michigan; a Bachelor of Arts degree in Philosophy with honors from Rutgers University, with minors in sociology. He was admitted to the Liberian bar in 1981 and served briefly as judicial assistant to the Chief Justice of the Liberian Supreme Court before joining the legal staff at the Ministry of Justice, from which he resigned to return to the United States to serve in the Law Department of the City of Detroit. He subsequently relocated to Minnesota and passed the Minnesota Bar in 1996.]