By Alphonso W. Nyenuh
I submit that:
- The President has the exclusive constitutional authority to remove tenured officials in the Executive Branch. They are executive officers restricted to the performance of executive functions.
- Tenured officers in the Executive Branch who are removed by the President before the expiration of their tenures are not entitled to salary for their unexpired tenures because those tenures were unlawful in the first place.
The question before the Supreme Court of Liberia regarding tenured positions is two-fold:
- whether the president has the constitutional authority to replace tenured officials in the Executive Branch of government before the expiration of their tenures and without cause, and
- whether such officials are entitled to pay for the unexpired terms of their tenures?
There are currently two categories of tenured positions in Liberia. They are:
- Article 89 entities- these are entities that are either explicitly named or whose creation is provided for under Article 89 of the Constitution, and
- Those created by Acts of the legislature and situated within the Executive Branch of Government
PRESIDENTIAL POWER TO HIRE AND FIRE
The constitution grants the president the authority to hire and fire at his/her pleasure, under Articles 50 and 56(a).
ARTICLE 50- states: “The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia…”
This provision gives the president the duty to administer the functions of the Executive Branch as its Chief Executive. And with this duty comes the authority to hire and fire. How else would the president exercise his executive powers if he does not have the authority to hire competent people and to fire non-performing and undesirable ones?
Article 56(a) reaffirms this point. It states: “All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.
I argue thus, that the president’s power of removal of executive officers appointed by him, is full and complete, as articulated in Articles 50 and Article 56(a). Article 50 gives the president the power by virtue of his duty to administer the affairs of the executive branch while Article 56(a) explicitly gives the president that authority.
Consequently, the legislature’s action of assigning tenures to offices under the president’s executive control as the chief executive, thereby putting those officers outside his control, not only violates Articles 50 & 56(a), it also handicaps the president’s ability to execute the functions assigned to him by the Constitution.
LAWS CREATING TENURED POSITIONS ARE UNCONSTITUTIONAL LEGISLATIVE OVERREACH
The statutes creating tenured positions within the Executive Branch are unconstitutional because they are in contravention of Articles 50 & 56(a).
Article 2 of the Constitution makes that abundantly clear.
Article 2 sections 1 & 2 of the Constitution state:
- This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic.
- Any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.
1) Note that Section 1 states that the Constitution shall have “binding force and effect on ALL AUTHORITIES [this includes the Legislature]..; thus the legislature MUST operate within the confines of the Constitution as it exercises its lawmaking powers.
2) Note also that section 2 states that “any laws …statutes… found inconsistent” with the Constitution… shall be void and of no legal effect,” thus, if the legislature makes any law that is ultra vires to the constitution, that law is VOID AND HAS NO LEGAL EFFECT.
ARE THEY ENTITLED TO SALARIES FOR THEIR UNEXPIRED TENURES
Tenured officials in the Executive Branch who are removed before the expiration of their tenures are not entitled to salaries for the unexpired terms of their tenures because, as argued above, the laws that gave them tenures are unconstitutional and therefore void. They were not entitled to tenures in the first place, and therefore cannot claim that their tenure “rights” were violated.
PRECEDENCE- HOW THE SUPREME COURT OF THE UNITED STATES DEALT WITH THIS QUESTION IN THE PAST
THE MYERS CASE: In 1926, the U.S. Supreme Court was confronted with almost exactly the same question as we are today.
On July 21, 1917, Frank S. Myers was appointed a Postmaster of the first class at Portland, Oregon. He was to serve a four year term. But on February 2, 1920, he was removed by the Postmaster General with the approval of President Woodrow Wilson. He filed suit claiming that his removal violated the Act creating the agency and that he was entitled to salary for his unexpired tenure.
He cited section 6 of an Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179, which states:
“Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law.”
The Supreme Court however concluded that the power to remove executive officers is vested in the President alone and, to deny the President that power would not allow him to “discharge his own constitutional duty of seeing that the laws be faithfully executed.”
Years later, the Supreme Court, while considering another case (the Humphrey Case) reaffirmed the Myers Decision, invoking the president’s power as the Chief Executive, to hire and fire Executive Branch officers. It Concluded as follows:
“: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office…”
“A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.” (U.S. Supreme Court)
The Court relied on Article II of the U.S. Constitution (executive power of the president) to arrive at its conclusion.
Article II reads as follows:
“The executive Power shall be vested in a President of the United States of America”
Note that Article 50 of the Constitution of Liberia reads almost exactly the same as Article II of the U.S.Constitution.
“The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia…”
We can take our cue from this U.S. Supreme Court ruling given the similarities in law.
THE NEED FOR INDEPENDENT PUBLIC AGENCIES IN GOVERNMENT
Many have confused executive entities with autonomous public entities (those provided for in Article 89) in this debate. The argument over tenured positions in the Executive Branch does not extend to independent entities provided for under Article 89 and therefore does not put the independence of autonomous public corporations in jeopardy. The architects of our Constitution did a good job at building safeguards against presidential overreach as far as autonomous agencies are concerned.
HOW DO DISTINGUISH AUTONOMOUS ENTITIES FROM EXECUTIVE ENTITIES
To distinguish an autonomous public entity (Article 89 entity) from an executive entity, we must look to the Character of the Entity-I.e., its functions- is it performing a purely executive function, or a quasi- legislative function, or a quasi-judicial function, or multiple functions that draw from the powers of more than one branch of government?
Article 89 (autonomous) are those whose functions are so critical that they are placed above political interference and control by the constitution. They are divided into three main categories:
- Those explicitly named in Article 89 of the Constitution- A) the Civil Service Agency, B) the Elections Commission, and C) General Auditing Commission
- Those that are quasi- judicial (like the Liberia Anti- Corruption Commission- LACC- because it has a judicial function); or those that are quasi-legislative such as a Trade Commission. If the Legislature chooses to create one, a Trade Commission would be quasi- legislative because the constitution assigns the country’s trade functions to the Legislature, as stipulated in Article 33 (g).
- those whose functions traverse more than one branch of government and, as a result, cannot be left to the control of a single branch. For example, the Liberia Public Procurement and Concessions Commission, (the PPCC) because the PPCC exercises functions ascribed to the Legislature (concessions) and to the Executive (procurement); consequently, it sounds to reason to place such an institution above the firm control of one branch.
Article 89 entities are protected from presidential removal.
On the other hand, executive branch entities are those that perform entirely executive functions. The president can remove officers in this category at his will and pleasure, as provided for in Articles 56(a) and 50.
Accordingly, I conclude with the following:
- That the President has the exclusive constitutional authority to remove the tenured officials in the Executive Branch. They are executive officers restricted to the performance of executive functions.
- That the statutes/Acts assigning tenures to executive officers- who are essentially aides of the president in the discharge of his executive duties- are unconstitutional insofar as they place those executive officers- aides of the president- outside the president’s exclusive executive power to hire and fire
- That the tenured officers in the Executive Branch who are removed by the President before the expiration of their tenures are not entitled to salary for their unexpired tenures because those tenures were unlawful in the first place.
The Author is a human rights and social justice advocate and journalist. He worked previously with the Catholic Justice and Peace Commission in Liberia as Information Officer. He holds a Masters Degree in Labor and Industrial Relations from Cornell University.