Tenure Positions For Autonomous Agencies Are Constitutional Justified

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Separation of Power. There is every reason to fear that holding back our pens and allowing misinformation to mingle with the conscience of our community might well threaten the allocation of authority among the three branches of Government.

Although the doctrine of Separation of Powers does not require airtight separation between the branches of government, it acknowledges the involvement of all branches in the process of governing in a particular area for checks and balances purposes. For example, the legislative and executive branches participate in lawmaking through the bicameral and presentment streams.

There would be a separation of powers problem when one branch is aggrandizing its power beyond what was intended by the constitution or abdicates its authority.

Enumerated Powers. The legislative branch of government has properly exercised its enumerated power under Article 89 of the Constitution of Liberia by creating “autonomous” agencies it deemed necessary for the effective operation of Government.

The creation of those agencies by the Legislature is consistent with the original meaning, principle, and intent of the Constitution. This conclusion also finds support in the text and the history of Article 89 of the Constitution.

But for the urgency I attached in sharing this opinion to timely arrest the danger of misinformation, this analysis focuses on the textual tool that justifies the constitutionality of tenure positions in the Executive branch of government. However, I believe only a quarter of a dose will effectively serve this purpose.

Article 89 of the Constitution of Liberia provides that, “[t]he following Autonomous Public Commissions are hereby established: 

Civil Service; b. Elections Commission; c. General Auditing Commission.

The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of Government.”

It is no doubt that Article 89 of the Constitution expressly empowers the legislative branch of Government to create autonomous agencies that it deemed necessary for the effective operation of Government. When a branch of government acts in accordance with an expressed or implied constitutional authorization, her power is at the maximum or highest ebb. 

What is “Necessary” in the context of the Constitution? The catching Clause “create other agencies as may be “necessary” for the effective operation of Government” in the Liberian Constitution, is like the “necessary and proper Clause” in the United States Constitution.

In 1819 the United States Supreme Court gave us a guide to defining “necessary” in a constitutional context. In the case McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), Chief Justice Marshall speaking for the Court wrote, “[l]et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consisted with the letter and spirit of the Constitution.”

The term “necessary” as used in Article 89 of the Constitution requires any useful means to achieving the end of the Legislature enumerated powers therein and other implementing authority along with said enumerated power. In this case, the Legislature has acted in accordance with its Article 89 enumerated power and the Executive has granted its approval by signing the Acts creating autonomous agencies and positions.  Hence, there is no overlap of functions. 

It is constitutionally incorrect to reference Articles 50, 54, and 56 of the Constitution as the basis for the President to appoint commissioners at the National Elections Commission, General Auditing Commission, Liberia Anti-Corruption Commission, and all other related autonomous agencies created by the Legislature.

The fact that the Legislature has so elected to exercise an enumerated power bestowed upon it cannot in any way be construed to subvert the Executive powers under Articles 50, 54, and 56.

An act can only be unconstitutional if it is expressly prohibited or not authorized by the Constitution. Article 89 contains expressed terms that authorize the Legislature to create autonomous agencies it deemed necessary for the effective operation of Government.

Thus, the President cannot aggrandize his Article 56 powers beyond its intent – by transgressing a clear-cut power given to other branch of government.  No branch of government shall exercise any power expressly given to the other, except in limited cases under the doctrine of “delegation.” I said limited because the choice to delegate power is not absolute for concerns of accountability and check and balances. See, Article 3 of the Liberian Constitution.   

The Legislature exercised its Article 89 powers. Because Articles 50, 54, and 56 are not controlling constitutional provisions for the appointment of tenure officers at autonomous agencies created by the Legislature, I find them totally irrelevant to dissert in detail.

Article 50 provides that, “[t]he 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 president shall be elected by universal adult suffrage of registered voters in the Republic and shall hold office for a term of six years commencing at noon on the third working Monday in January of the year immediately following the elections. No person shall serve as President for more than two terms.”

Here, nothing in this article comes close to any interpretation that the exercise of an enumerated by power by another coequal branch of government – the legislative branch – trumps on the power of the Executive.

Article 54 states that, “[t]he President shall nominate and, with the consent of the Senate, appoint and commission [:] a) cabinet ministers, deputy and assistant cabinet ministers; b) ambassadors, ministers, consuls; and c) the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts; d) superintendents, other county officials and officials of other political sub divisions; e) members of the military from the rank of lieutenant or its equivalent and above; and, f) marshals, deputy marshals, and sheriffs.”

The President Article 54 power is clearly outlined, and the scope is unambiguous. Therefore, it does not apply to the Legislature Article 89 power. The Acts creating those autonomous agencies gave the President authorization to appoint tenure officers, not Article 54 of the Constitution.  

Also, Article 56 (a) (b) provide that, “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.”

“There shall be elections of Paramount, Clan and Town Chiefs by the registered voters in their respective localities, to serve for a term of six years. They may be reelected and may be removed only by the President for proved misconduct. The Legislature shall enact laws to provide for their qualifications as may be required.”

Again, I do not see any limitation on the legislative branch exercise of Article 89 of the Constitution by creating autonomous agencies it deemed necessary for the effective operation of government.

The tenure provisions in the Acts establishing those agencies are well supported by the text of the Constitution using the term “autonomous,” which means independence. We must defer to the inclination of the legislative branch when they employed means well calculated to create such agencies.

Our precedents and history also support the creation of these institutions and the tenure positions. The Constitution does not give the Legislature exclusive power to create autonomous agencies.

The original meaning and intent of Article 89 requires legislative and executive actions – to enact laws – to create other agencies the Legislature deemed necessary for the effective operation of government. Thus, the Acts establishing other agencies deemed necessary for the effective operation of Government satisfied the constitutional stream of lawmaking (where applicable): bicameral; presentment; presidential veto, and legislative override. Few precedents and history are discussed in the succeeding paragraphs.   

Delegation. The legislative history of delegation of powers was carried out in specific instances where certain powers were necessary for the President to carryout his duty. But, as mentioned above, the choice to delegate function is not absolute. The legislature is not permitted to transfer to other essential legislative function with which it is vested under the Constitution.

The Legislature in exercising its Article 89 power in some cases delegates to the President powers to appoint tenure officers, and in other cases authorizes boards to appoint officers. The legislative history explains the its intent and the inclination behind each Act.

For example, still meeting the autonomous requirement of Constitution, the Legislature delegated appointing powers to the President, to appoint Commissioners of the Liberia Anti-Corruption Commission (LACC) (legislative debate records show that they had considered that the commission’s activities would affect other branches).

In other example, still meeting the autonomous requirement of the Constitution, the Legislature also delegated appointing power to boards, in especial cases where agencies undertake revenue generating functions.    

Autonomous. In deciding a jurisdictional contest by the Forestry Development Authority (FDA) in the Case Forestry Dev. Auth. v. Walters, 34 LLR 777 (1988), the Honorable Supreme Court of the Republic of Liberia recognizing the autonomous status of the FDA said, “we gathered that … the FDA is an autonomous agency, it is unlike the Ministry of Labor or Justice. It has power like any other corporation.”

The judicial powers of the courts under Articles 65 is not disputed. The Supreme Court of Liberia is in fact the final arbiter of all constitutional disputes. Article 66 of the Constitution. The Court has authority to render judgment in cases that involve autonomous agencies. See, e.g., Gansahn v. Vinton, 37 LLR 47 (1992); Liberty Party v. NEC, LRSC 27 (2009).  However, in crucial matters that involved other branches of government, like this one, the Court had exercised caution in evaluating its jurisdictional authority to hear cases.

Tenure appointees at autonomous agencies are not article 56 appointees, but statutory appointees pursuant to article 89 of the constitution.

About Author

Kunkunyon Wleh Teh, Esq.
BA, Sociology, Cuttington University, Bong Co., Liberia; LLB, Louis Arthur Grimes School of Law, University of Law; LLM (Candidate), Emory University, Atlanta, Georgia, U.S.A.  Interests: Ethics & Professionalism; Constitutional Law, and Law Reform

 

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