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Laws creating tenure positions are unconstitutional

Says a Labor expert

Laws creating tenure positions within the Executive Branch of government are unconstitutional, and officials removed from those positions before their tenures expire are not entitled to pay for the remainder of their tenures, says Liberian labor expert and journalist. 

Citing several constitutional provisions as well as U.S.case law, Mr. Alphonso Nyenuh says it would be unfortunate if the administration of President Joseph Boakai pays officials in those positions who are replaced. “It will cost the government millions of dollars that could and should be used to pay nurses, fund education and road construction, etc., Mr. Nyenuh said. 

“The President has the exclusive constitutional authority to remove tenured officials in the Executive Branch who perform purely executive functions. They are executive officers restricted to the performance of executive functions, they are not entitled to salary for their unexpired tenures because those tenures were unconstitutional in the first place,” Nyenuh pointed out. 

Article 50 of the Constitution gives the president the duty to administer the executive functions of government as the Chief Executive and with that duty comes the authority to hire and fire. How else would the president exercise his/her chief executive functions if he does not have the authority to hire competent people and to fire non-performing and undesirable ones, Nyenuh argued. 

He cited a U.S. Supreme Court decision in the Myers Case in which the Court, relying on Article II of the US Constitution ruled that officials in the Executive Branch of Government who perform executive functions serve at the will and pleasure of the president. In that ruling the U.S. Supreme Court relied on Article II of the U.S. Constitution which vests the executive power of the country in the president.

Article II of the U.S. Constitution states: 

“The executive Power shall be vested in a President of the United States of America” 

Invoking the president’s executive power, the U.S Supreme Court noted that, to deny the President that power to remove executive officers would not allow him to “discharge his own constitutional duty of seeing that the laws be faithfully executed.” 

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Pointing out the similarities between Article II and Article 50 of the U.S. and Liberian constitutions respectively, Nyenuh noted that the two provisions read almost exactly the same, therefore we could take our cue from that ruling. Article 50 of the Liberian Constitution 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…”

THE MYERS CASE: Frank S. Myers was appointed a Postmaster of the first class for a four year term but was removed by the Postmaster General with the approval of the President before the expiration of his tenure and without the approval of Congress. Myers’ lawyers filed suit claiming that his removal violated the law assigning him tenure and that he was entitled to salary for his unexpired tenure. 

They cited section 6 of an Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179,  which reads:

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 U.S. Supreme Court ruled that the Act of Congress was unconstitutional, to the extent that it assigned tenured protection to executive officers such as postmasters.The Court wrote

“: 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. . . . ” (U.S. Supreme Court)  

Mr. Nyenuh also cited Article 56(a) of the Liberian Constitution which he said reaffirms the President’s authority to hire and fire executive officers who perform executive functions. 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.

“Combining the two provisions, Article 50 and Article 56(a), you will see that the president’s power of removal of executive officers appointed by him, is full and complete. Article 50 gives the president the power by virtue of his duty to administer the affairs of the executive branch while Article 56(a) is explicit in assigning appointment and removal powers of executive officers to the president. 

LAWS CREATING TENURED POSITIONS ARE UNCONSTITUTIONAL LEGISLATIVE OVERREACH

The relevant Acts of the legislature, by creating tenures within the Executive Branch of government are unconstitutional.  By assigning tenures to officers who perform purely executive functions, thereby putting those executive officers outside the control of the president, not only violates Articles 50 & 56(a), they handicap the president’s ability to execute the functions assigned to him by the Constitution.

Relying on Article 2 of the Constitution, Nyenuh maintained that the laws providing tenured protections to executive officers against the president’s hiring and removal authority are null and void because they are in contravention of Articles 50 and 56(a) of the Constitution. 

Article 2 sections 1 & 2 make 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 havebinding force and effect on ALL AUTHORITIES, this includes the Legislature; the legislature MUST operate within the confines of the Constitution as it exercises its lawmaking powers. If the legislature makes any law that is ultra vires to the constitution, that law is VOID AND HAS NO LEGAL EFFECT,” Nyenuh argued. 

THEY ARE NOT ENTITLED TO SALARIES FOR THEIR UNEXPIRED TENURES

Accordingly, Mr. Nyenuh argued that 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 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. 

THE NEED FOR INDEPENDENT PUBLIC AGENCIES IN GOVERNMENT

Mr. Nyenuh criticized some who he said have confused executive entities with autonomous public entities, noting that the argument 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, he said. 

HOW DO WE DISTINGUISH AUTONOMOUS ENTITIES FROM EXECUTIVE ENTITIES

He said 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:

  1. 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 the tenured agencies that 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. 

He criticized the Supreme Court decision categorizing tenured positions under the contract provision of the Constitution, noting that tenure positions in the executive branch are unconstitutional and tejure positions created pursuant to Article 89 are protected from presidential removal, safe for cause; accordingly they are not contract positions. Categorizing them as contract jobs presupposes that the occupants can be removed as long as they are compensated, which is not the case, Nyenuh, a Cornell University trained labor relations expert noted. 

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