The High Court Orders Him To Withdraw Nominations To LTA, Lottery Authority And NIR
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia- Three months into power, President Joseph Nyuma Boakai has been told in a Supreme Court’s ruling on Wednesday, April 24, 2024 that his actions to appoint/nominate people to tenured positions in several government institutions were not in line with the law.
“Wherefore and in view of the Foregoing, the alternative writ of prohibition issued by the Justice in Chambers is hereby quashed and the peremptory writ prayed for denied,” said the Supreme Court ruling.
Boakai and his ruling Unity Power came to power in January on the mantra of rescuing from breaking of the constitution and laws and to ensure respect for the laws and good governance.
But against the backdrop of the old adage that says, “he who comes with equity must come with clean hands,” the Supreme Court has ruled in opinions handed down in cases filed by tenured positions affected by the earlier presidential appointments/nominations that President Boakai withdraws his nominations made to four of the five controversial tenured positions.
They are at the Governance Commission (GC), National Identification Registry (NIR), Liberia Lottery Authority (LLA) and the Liberia Telecommunications Authority (LTA).
Opinions of the four tenured cases, including that of the Environmental Protection Agency (EPA), were consolidated into one by the Supreme Court.
The Supreme Court heard arguments from both government lawyers and the petitioner lawyers on March 28, 2024. All Eyes And Ears Set On Liberia Supreme Court’s Decision On Tenured Position Cases – News Public Trust
After the Liberian leader took office on January 22, 2024, he relied on Article 56 of the Liberian Constitution to remove the heads of four autonomous agencies who the Legislature has granted tenure authorities.
According to president Boakai, those tenure officials are members of the Executive Branch of government and therefore serve at the will and pleasure of the president.
Article 56 (a )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.
However, the Justices in a unanimous decision, ruled that Article 89 of the Liberian Constitution authorized the Legislature to create other agencies as may be necessary for the effective operations of government and enact laws for their governance.
“The Legislature acted within the scope of its authority in enacting laws for its governance including the provisions of tenure”, the Court further ruled.
According to the Judgement, an act passed by the legislature is presumed to be constitutional unless the contrary is clearly shown; that is presumed to have acted constitutionally in passing a statute and that courts must start out with the presumption that is constitutional and valid and that every intendment is in favor of the validity of the statute; in addition to the conferred constitutional power to enact laws for the government of the autonomous commissions named under the Constitution, the Legislature was given additional power to create other agencies may be necessary for the effective operation of government.
The ruling further that At the time of establishing the three autonomous commissions in 1986, the framers of the constitution did not and could not have thought of all the relevant autonomous commissions for the effective operation of government; so they empowered the Legislature to act when the need arises to create additional autonomous commissions.
Speaking on behalf of the Supreme Court Chief Justice Sie-A-Nyene G. Yuoh noted that over the years, as the need for establishing other appropriate commissions or agencies for the effective operation of government became necessary, the Legislature consistent with the power granted it by Article 89 of the Constitution, established all of the agencies from which the petitioners were removed under the Executive Branch of Government and provided tenures for each of the said agencies.
The Supreme Court further added that in doing so, the Legislature acted within the scope of its authority… that there is showing that the Act passed by the Legislature providing tenure is in violation of the power granted the President of the Republic of Liberia under Article 56(a) of the Constitution to appoint and dismiss at his pleasure, officials of government appointed by him, therefore, this court sees no reason to declare the said Act unconstitutional as the Minister of Justice/ Attorney General has urged us to do.
According to the Court Judgment, the Executive did not state any constitutional or statutory conditions or cause by which the petitioners were being removed from their respective tenure positions.
“ We are also taken aback by the argument of the Minister of Justice that the Executive Branch of Government action was only at the nomination stage and only created a SCARE to the petitioners; that the petitioners suffered no harm, injury or embarrassment as they are still performing the duties and responsibilities associated with their respective offices and enjoying all of the benefits associated with the said offices; and that the petitions are based on future events which may not happen, meaning that the petitions were pre-maturely filed.
“This is preposterous, firstly, the petitioners are still in in their respective positions only because a stay order was imposed by the Justice in Chambers and not by any magnanimous gestures by the Executive Branch of government” the ruling says.
The ruling further said: “We asked the question as to why the Executive Branch of government would proceed to nominate individuals to positions that are not available only to create a SCARE to the individuals already occupying the said positions when there are provisions of the law which clearly set forth procedures for the removal from office of officials of government as the petitioners.
Accordingly, the court said, we uphold the principles of law that there being no showing that any of the conditions under which the present petitioners may be removed from office to warrant the nominations of other persons to their positions by the President of Liberia before expiry of their respective tenures, the act by the president is not within the pale of the law. Also, this Court says, that having decided the issue of tenure, the Court expects that the Executive Branch of Government will take cognizance of the opinions rendered by the Court regarding this issue and henceforth act accordingly.
On the issues of the violation of their due rights as enshrined in Article 20(a) of the Liberian Constitution the court ruled that the Executive Branch of Government proceeded to nominate other individuals to the respective positions of the petitioners in disregard of their tenures and without notice (actual or constructive) to the petitioners and/ or the opportunity to be heard in persons or by counsel. Tenures as provided for under the law should be respected. Hence, the petitioners due process rights were violated and so hold.
Wherefore and in view of the foregoing, the alternative writ of prohibition issued by the Justice in Chambers is affirmed and the peremptory writ prayed for us hereby granted. The names of the nominees are ordered Withdrawn.
Meanwhile, the Supreme Court has denied Professor Wilson Tarpeh his petition for the writ of prohibition.
The High Court added that the petitioner failed to establish by documentary proof that he was chosen from among a list of three persons recommended by the policy council to the former President George Weah and to make mention of his selection process in his petition regarding the existence or submission of said list to include his name, he is not entitled under the EPA Act.
That it being established that the petitioner served in an intern Executive Director capacity at the EPA, his removal was in consonance with the Executive Order 123, signed by former President George Weah on November 22,2023 in which he started that ball non-tenured presidential appointees shall be presumed to have resigned as of the date of the inauguration of the incoming president Joseph Nyumah Boakai Sr.
The Court ruled that a writ of prohibition will not be granted by the Court where, as in the instant case, the respondent, Executive Branch of Government did not proceed wrongly by appointing Dr. Emmanuel K. Urey Yarkpawolo as interim Executive Director of the EPA in the absence of the formation of the policy council.
Wherefore and in view of the Foregoing, the alternative writ of prohibition issued by the Justice in Chambers is hereby quashed and the peremptory writ prayed for denied.