By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia –The Clar Hope Foundation of the wife of former President George Manneh Weah, Clar Marie Weah is not taking the move by the Assets Recovery and Property Retrieval Task Force lightly.
Lawyers of the Foundation of the former Liberian First Lady in a motion to the Criminal Court “A” are claiming that the Liberian government is on “a fishing expedition” and allegedly wants them to gather evidence against themselves.
MOTION TO QUASH WRIT OF SUBPOENA DUCES TECUM FOR LACK OF JURISDICTION
Lawyer representing Clar Hope foundation has advanced a motion to quash the subpoena Duces Tecum filed by the government of Liberia through Asset Recovery and property Retrieval Task Force at Criminal Court A before Judge Roosevelt Z. Willie.
The motion said, the Management of Clar Hope Foundation, by and thru its General Manager, Jackson P. Gbamie, moves this Court to QUASH the Writ of Subpoena Duces Tecumissued herein, for lack of subject-matter jurisdiction and legal authority, and in support thereof states the following:
The respondent Clar Hope Foundation in their motion stated that there’s No Action or Proceeding Is Pending Before before the court.
The Respondent submits that there is no civil action, criminal proceeding, petition, or cause of action presently pending before the Court against the Respondent. Under Liberian law, a subpoena whether ad testificandum or duces tecum is ancillary process and must issue in aid of a pending judicial proceeding.
According to the respondent, a court cannot exercise compulsory process in a vacuum, nor may it compel attendance or production of documents absent a live case or controversy properly before it.
The respondent indicated that, Subpoenas Are Issuable Only within the Context of a Pending Action. Section 14.1 of the Civil Procedure Law defines a subpoena as process commanding a person to attend, testify, or produce documents in an action at a specified time and place. Section 14.2 of the Civil Procedure Law authorizes issuance of subpoenas only by the court in which the action is brought.
Similarly, Section 17.3 of the Criminal Procedure Law permits subpoenas “at the request of either the prosecuting attorney or the defendant”, clearly presupposing the existence of a criminal action already before the Court.Where no action exists, the court lacks jurisdiction to issue or enforce a subpoena, and any such writ is null and void ab initio. Further, Article 21(h) of the 1986 Constitution of Liberia provides that:
The cited that “..No person shall be compelled to furnish testimony or evidence against himself. And he shall be presumed innocent until contrary is proved beyond a reasonable doubt…”
The subpoena duces tecum as issue compels Respondent to produce financial, donor, and institutional records, without the existence of any charge, claim, or adjudicatory proceeding. Compulsory production of documents outside the context of a lawful judicial proceeding constitutes coerced evidence gathering, in violation of the protections guaranteed under Article 21(h).The Constitution does not permit the State or any of its instrumentalities to invoke judicial power as an investigative shortcut, absent due process and jurisdiction.
The respondent contended that, the Court Lacks Subject-Matter Jurisdiction to Conduct a Stand-Alone Investigative Exercise. The Respondent respectfully submits that this Honorable Court is not vested with investigative or inquisitorial powers outside the framework of an actual case. The subpoena ducestecum issued herein seeks to compel broad disclosure of financial and donor information without pleadings, claims, parties in litigation, or defined issues for adjudication.
Such use of judicial process amounts to an impermissible fishing expedition, unsupported by statute or constitutional authority.
The Writ Is Unreasonable, Oppressive, and Legally Defective Even assuming arguendo that jurisdiction existed (which is denied), the subpoena is overbroad, indefinite, and oppressive, seeking extensive records without limitation as to time, relevance, or nexus to any justiciable issue. Section 17.3 of the Criminal Procedure Law and Section 14.4 of the Civil Procedure Law expressly authorizes this Honorable Court to quash a subpoena where it is unreasonable or issued without legal basis.
WHEREFORE AND IN VIEW OF THE FOREGOING, the Respondent respectfully prays this Honorable Court to: QUASH AND SET ASIDE the Writ of Subpoena Duces Tecum issued against the Respondent for lack of jurisdiction, DISCHARGE the Respondent from any obligation to appear or produce documents pursuant to said writ; DECLARE that compulsory process may only issue upon the filing and pendency of a proper action before a court of competent jurisdiction; and GRANT any and all further relief this Honorable Court deems just, legal, and equitable.