The Autonomy-Tenured Discourse: Legality vs Expediency
Every profession has unique sets of principles, jargons and inherent standards to which members are required to operate. Sometimes, what seems apparent and overt from an outsider perspective is completely different when viewed by a professional. For example, a person reading a political manual may feel adept but when explained by a seasoned political scientist, the grey areas become evidently useful and riveting. This same approach finds its support within the noble profession of law.
As H. Boimah Fahnbulleh, Jr puts it, “reading a Bible or Koran doesn’t make you a Christian or Muslim.” This profound statement applies similarly to the law. One’s ability to read the constitution does not in anyway makes him a legal scholar and therefore, in most instances, such faint interpretation to the provisions of the law is preposterous, baseless and inherently flawed. While there are numerous techniques and principle to statutory interpretations, the best available and widely used methods by lawyers (mainly judges) are “plain meaning rule” and “framers intent”. You cannot just read the law without holding true to its value the spirit and intent. Too many at times, non-lawyers are embroiled in statutory interpretation, resorting into misinformation of the public and misrepresentation of the true meaning of the provisions.
There are three branches of government espoused in the constitution of Liberia which define this republican form of government so dearly enjoyed. From my elementary school teaching, we were told that the three branches of government are the executive, legislative and judiciary. We were also informed that the legislative branch makes the law, the judiciary interprets the law and the executive enforces the law. Strangely, my elementary teacher ( not vouching for the teaching experiences of other former elementary students reading this paper)) did not inform me that the Executive Branch of Government is the only of the three branches that is headed by a single individualThe President of Liberia. The legislature is not headed by a single person; neither is the judiciary. It is still debated, in political quarters by non-lawyers, whether the legislature is headed by the speaker or the Pro-tempt. Legally, there is no singular head. The speaker is a presiding officer and administrator of the lower house, while the Protempt is the administrator of the Senate. The constitutional mandate positioning the speaker as the third in succession where the president and vice president are incapacitated simultaneously (Article 64 LIB Const.), is a political aspirational provision which does not speak to the leadership designation within the legislature. The mere fact that somebody will need to fill a leadership void is disproportionally perpendicular to the idea that such person is the head of the legislature where the constitution has not provided any direct designation or provided a clue in subsequent or preceding provisions. Similarly, the judiciary is headed by the supreme court-not a single individual with the Chief Justice being an administrator of the courts. All justices have equal opinions in the adjudication of all matters before the court.
It is evident that the powers of the president, as the singular head of the executive, are enormous and far-reaching. He exudes the authority to appoint and dismiss government officials within the executive as indicated in the constitution (Article 54&55 LIB Const.). He (used primarily because Liberia has a male president with no intention to discredit the female gender) also appoints all judges and justices, including the chief justice (Article 68&69 LIB. Const.), even though he cannot dismiss any justice directly, who are removed through an impeachment proceeding (Article 71 LIB. Const). The president directs the foreign policy of the country and can enter into bilateral agreements, treaties, and conventions beneficial to Liberia’s interest (Article 57 LIB Const.). He is authorized to extend the session of the legislature (yes for real) and call for a special sitting (Article 32b LIB Const.). He signs bills into law and has a veto power, even though we refuse to reference such action as lawmaking. He commands the army and all military orchestration and avalanche within the power of the Government and People of Liberia.
To further enunciate the “profoundly innumerable” powers of the president, the constitution provides 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.” (Article 56b LIB Const.). The most important clause in the above-quoted text is “…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.” This grants the president the enormous power to decide the fate, aspirations, and delicate operations of any person who is appointed by the [HIM] except judges and justices of the supreme court. The limitation of such powers to the judges and justices comes within the constitution. Any other position that is not mentioned within the constitution, as in the case of the removal of the justice or judge, (71 LIB. Const), shall operate at the behest of the President at all times and in all situations.
“Tenure vs autonomy” or “tenure and autonomy”
It is important to clarify the mystifications enmeshed in the relationships of autonomy and tenured positions. Several questions come to mind. Is it fair and smart to say that tenure breeds autonomy or autonomy is unachievable unless tenure is attached? Do we support the concept that tenure is just an ancillary embodiment of autonomy? Should autonomy be differently captioned and/or authorized from tenure? Are the two mutually exclusive complementary?
These questions can simply be answered from interpretation garnered in Article 89 of the Liberian Constitution which reads in part “the following Autonomous Public Commissions are hereby established:
A. CIVIL SERVICE COMMISSION;
B. ELECTIONS COMMISSION; and
C. GENERAL AUDITING COMMISSION
It is no doubt that the constitution intends for these commissions to be autonomous. However, it continues, in subsequent provisions, that “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.” Incontrovertibly, “governance” as used in the quoted text suggests that tenure is not proportional to autonomy. An agency can maintain autonomy, as evidenced by the constitution, while its head does not have tenure, a governance issue to be determined by the legislature (and the President). If the opposite was correct, the drafters wouldn’t have asked the legislature to define the governance structure of these commissions but would have used the “autonomous status” to agree that a tenured position complements the autonomy. This perfunctorily shows that an agency can become autonomous without tenure for its key officers.
The question then is what constitute autonomy in a bill to establish a public commission? Autonomy has many and complex components but the essential point is that commissions/agencies and state-owned enterprises are legally entitled to freedom of action in managing their affairs within the restraints of the laws of Liberia. The claim for autonomy rests upon the argument that the institutions can properly undertake the work expected of them by the community which supports them only if they have freedom of choice and of action.
Autonomy can be exercised from different other authorities other than tenured positions. A public commission and its officials can have autonomy through the act of the legislature whereby they cannot be removed from office except through a cause biz., fraud, proven misconduct unbecoming of a public official, gross neglect of duties, incapacity, etc (Article 13 and 20 of the Liberia Revenue Authority Act provides elaborate clarity in this regard); must be allowed to operate without presidential interference especially when such decision is within the confines of the law creating the commission; and must sign a performance contract such that if the head is underperforming based on the provisions of the performance contract, can be removed by the president. There are plethora of other measures that grant autonomy. Tenured is not an absolute method. Therefore, the president has the prerogative, authority, and powers to scrap and add any tenure position he so desires. His action will be underpinned by his legal authority granted through the constitution.
Recommendations to the Legislature and the President
While this paper provides legal justifications to the authority granted to the president to remove and add tenure positions (a singular right under the constitution), there are recommendations in support of maintaining some tenure position for reasons enunciated herein. At least, the president will be acting in his authority to set procedures for commissions and agencies that will maintain the tenure but at different levels. The first recommendation is to retain the “tenureship” for the following commissions/agencies: General Auditing Commission, Elections Commission, the Civil Service Commission, and the Liberia Revenue Authority. Mr. President, I’m also recommending, while it is your constitutional right to remove or add tenured positions, that you extend tenure authority (for the above-mentioned entities) only to the heads and not the deputies or other positions below. Undisputedly, the head of the institution drives the policy direction of the commission/agency. Wherein a deputy works efficiently under the supervision of the head, it becomes difficult for such deputy to operate in contrast to such policy direction. This seemingly breeds respect, coordination, growth and institutional motivation.
It will be expedient, not contrary to law, for heads of these institutions to hold ONLY tenure position! In addition, it is recommended that the lifespan of such tenure should not extend beyond the presidential timeframe of the appointing authority.
Urias Goll is an environmental economist and 2018 prospective graduate of the Louis Arthur Grimes School of Law. He can be reached through [email protected]m