Retired Associate Justice of the Supreme Court, Cllr Philip A. Z. Banks, has warned that if rules of procedure for the impeachment trial of Justice Kabineh Ja'neh was prepared only by the House of Representatives, as the Legislature, "any action by the Senate (jurors ) will face challenges of legality and constitutionality."
Cllr. Banks, who spoke as expert witness in the over five hours proceedings in the Chambers of the Senate on Thursday, March 21, 2019, also lectured that the rules of procedure in impeachment proceeding is important, because at least in the minds of the framers of the 1986 Constitution, it prevents arbitrariness so that no impeachment would be taken because of someone's selfish reason.
If there were rules of procedure, former Justice Banks said, the House was under obligation to abide by those rules of procedures in order that the impeachment is legitimized.
"And this, Mr. Chief Justice, is important at least in our own legal sphere; if what the House did was illegal or unconstitutional, any action by the Senate will face challenges of legality and Constitutionality."
The former Justice's statement is due to the fact that the Senate is serving as Jurors whose vote will determine the fate of the trial.
He wondered, "how do you proceed with impeachment if there are no uniform rules as directed by the Constitution?"
He said Article 43 is very clear when it states that the Legislature, not separate Houses, shall prescribe the procedure for impeachment proceedings, which shall be in conformity with the requirements of due process of law.
"I think part of the problem may have been a longevity of inaction by the Legislature to complete the mandate of the Constitution to promulgate procedures; it didn't say wait until you have somebody whom you think might have done a wrong, then you have to go and do it, No. It said you are mandated to promulgate rule of procedure to govern impeachment."
He said that it took the Legislature 33 years, and that only after the House of Representatives has decided to proceed with impeachment proceedings, that there was the attempt to formulate rules.
"This was not the intent of the framers of the 1986 Constitution, certainly it was not the intent of the framers that rules would be promulgated, specifically designed to target a specific individual," Banks told the hearing.
The rule of procedure, he said, has to be designed to cover all individuals, and that the framers of the Constitution believe that because this would be a process so that there would be consistency in the application of the conditions laid down in the Constitution as the basis for impeaching and removing a Justice from office and, for that matter, any official.
With respect to the current proceeding, Justice Banks, who made comparative historic references of both the 1847 and1986 Constitutions, said that if the Legislature had followed the mandate of the Constitution to the letter to prepare a standing rule of procedure, all crimes or what constitutes impeachment offenses such gross misconduct and abuse of power, among others, the current seeming legal controversy would have been unnecessary.
Due to the marathon proceeding, the Chief Justice called the proceeding adjourned until Monday, March 25, 2019, when the House of Representatives legal team will cross-examine Justice Banks.