In the evolution of society, a plan was reached providing for the choice of certain men to decide controversies where the parties thereto were unable to agree.
The essential element of such plan was that the men so set aside, must be free and that they must be above every outside influence whether sought to be exercised by king or people; they must decide all matters coming before them without fear, favor or affection.
The controversy, debate in the public domain today is whether or not the past administration creation of tenure positions for public officials were constitutional and in the ambit of the law?
This controversy, debate can only be answered by the men so set aside during the evolution of society. In our case for example, those men are the people on the Supreme Court bench of Liberia (the Justice and Associate Justices).
To begin with, lets first ascertain whether or not people in tenure position are public officials. And if they are, are they included in the appointment list in article 54 and 56 of the 1986 Constitution?
Public officials as defined by black’s law dictionary are people, appointed to carry out some portion of a government sovereign power. A sovereign power is the power to make and enforce laws. Liberia is a unitary sovereign state per article 3 of the 1986 Constitution. The sovereign power of the Republic of Liberia is vested in the President of the Republic, the Legislature and Supreme Court.
Consistent with the separation of power, no person belonging to either of the three branches of government shall exercise any of the functions or powers of either of the others. If the Legislature passes an act infringing on the constitutional provision that is to be enjoyed by another branch of government, the Supreme Court has the constitutional authority to declare such law or act void ab initio.
“When a case arises for judicial determination and the decision depends on the alleged inconsistency of a legislative provision with the fundamental law, it is the plan duty of the court to compare the Act with the Constitution, and if the former cannot upon a fair construction be reconciled with the latter, to give effect to the Constitution rather than the statute”. In re Constitutional of Legislative Act; 2 LLR 157; 1914. What this means is that, the Constitution will prevail over any law enacted by Legislature that runs in conflict with any provision outlined in the Constitution. Any act created by the Liberian Legislature giving tenure to public officials wanting of the Constitution will be declared void and of no legal effect.
Against this backdrop, my attention is drawn to Article 56 of the 1986 Constitution. Article 56 speaks to appointments by the President of “other government officials”. These other government officials in tenure positions by definition are public officials.
By constitutional provisions, (art. 54), the President nominates and, with the consent of the Senate, appoints and commission public officials (tenure and non-tenure). Thus, tenure and non-tenure officials are to hold their offices at the pleasure of the President (art. 56).
To hold office at the pleasure of the President means the President can dismiss one at will without cause. Additionally, such position (tenure and non-tenure) are not to exceed the appointing person authority in this case, the President six years’ tenure. To do so is ultra vires on the part of those with the sovereign power or statutory power to enact laws in that case, the Legislature. And any laws found in conflict with the Constitution are to be declared null and void because of their repugnancy to the fundamental law of the land, the Constitution.
It was not the intent and the spirit of the framers of the 1986 Constitution under article 89 for the power given to the Legislature to create other agencies for the effective operation of the government to give tenure to public officials beyond the presidential tenure of the President. Under the same article 89, the Constitution created three Autonomous Public Commissions. The intent of the framers was not for the Legislature to enact laws for the governance of these Commissions that will create tenure for public officials beyond the time the President is in office.
To give tenure to public officials beyond the appointing power tenure undermines the divided sovereign power of the government. The Legislature cannot enact laws to limit the President “pleasure power” to appoint and dismiss at will without cause.
This “pleasure power” is to be enjoyed by the President at all times. Any act by the Legislature that deprive the President of this right bestowed on him by the Constitution is wrong and is to be set aside. It is a principle of Constitutional Law that what a Constitution does not grant, it withholds. The Constitution did not grant onto the Legislature the power to enact laws that gives tenure to public officials beyond the President term of office.
"Although it has been said that the maxim 'expressio unius est exclusio alteries' does not apply with the same force to a constitution as to a statute, and that it should be used sparingly, there is authority to the effect that in construing a construction, resort may be had to the maxim, and the expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed. Thus, when a constitutional provision assumes to point out certain exceptions to one of its own general rules, a court may not say that other exceptions were intended though not mentioned. . . ." 16 Am Jur 2d Constitutional Law, § 108.
The Legislature is prohibited from enacting laws that are in derogation of Article 54 and 56 of the 1986 Constitution. Otherwise, the Supreme Court, in exercise of its constitutional power has the right to say what the law is and shall declare unconstitutional any such law. Liberian Constitution (1986), Article 2.
Boye T. Sumo, Contributing Writer