Liberia: Resolving The Tenure Issue
By Kwame Clement
The dispute over the President's power to remove tenured officials of government is one that has gripped the nation. A fair resolution of that dispute, as with many important national questions, requires that we resort to the constitution and engage in a reasoned and objective interpretation of its relevant provisions.
In doing so, we should be guided by certain basic and settled rules of constitutional interpretation. The first is that we should look to the plain text of the constitution to determine the intent of the framers. The second is that we should not interpret provisions of the constitution in isolation, but should read the document as a whole, taking into account its structure and design. Finally, there is the rule that one provision of the constitution should not be interpreted as to defeat or render irrelevant other provisions.
Let’s now apply these rules to two provisions of the constitution that are relevant to the tenure question. The first is Article 56, which provides that “cabinet ministers, deputy and assistant cabinet ministers, ambassadors … and other government officials … appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”
Read alone, the plain text of Article 56 seems to bring the dispute over tenured positions to a close. All holders of tenured positions are appointed by the President, pursuant to the statutes creating those positions. They therefore should fall within the category of “other government officials” that Article 56 says “shall hold their offices at the pleasure of the President.”
But as we have stated above, there is a well-settled rule of constitutional interpretation that requires us not to read Article 56 in isolation, but in the context of the entire constitution and its other relevant provisions.
A key relevant constitutional provision we must take into account when reading Article 56 is Article 89, which established the Civil Service Commission, the Elections Commission, and the General Auditing Commission as “Autonomous Public Commissions,” and then expressly provided 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.”
Article 89 thus not only established the named three agencies as “autonomous” or independent of any of the three branches of government, it also gave the Legislature the power to create other similar agencies and “enact laws for [their] governance.” It goes without saying that the power to enact laws for the governance of these agencies includes the power to say how people should be appointed to head those agencies, how long they can serve in their positions, and the conditions under which they can be removed. In short, for our purposes here, that includes the power to give people who head those agencies “tenure”.
Any interpretation of Article 56 that says the President has the power to remove at his pleasure the tenured heads of these agencies because they are “other government officials” would render irrelevant the plain language of Article 89 and violate the rule that one provision of the constitution should not be interpreted as to defeat another provision or render it meaningless.
Further, look at the structure of the constitution. If the framers wanted heads of the agencies mentioned in Article 89 or created by the Legislature pursuant to that Article to be subject to the President’s removal power, they would have included those agencies among the agencies of government named in Article 56. They would not have created a separate Article — Article 89 — in which they specifically “established” certain “autonomous” agencies and then expressly empowered the Legislature to “create other agencies”, and enact laws as to how they will be governed.
Moreover, consider the policy implications of a constitutional interpretation that subjects all heads of autonomous agencies established or created pursuant to Article 89 to the removal powers of the President. Do we want a President, any President, with the power to remove at will the chairperson and other commissioners of the Elections Commission because they refuse to do what that President wants even if doing so would compromise an election? Do we want a President with the powers to remove an Auditor General who is investigating misuse of public funds? Do we want a President with the power to remove the Director General of the Civil Service who opposes the President’s orders to dismiss civil servants because they did not vote for or support the President? And do we want a President with the power to dismiss the Executive Governor of the Central Bank because of differences over monetary policy? Of course, we would not want any President with such powers. And it is not enough to say the President we support will not exercise his removal powers in such a nefarious manner, even if we are convinced of his or her good faith. Other Presidents we don’t support may act differently and choose to remove tenured officials for improper reasons. That is the danger we face if we interpret Article 56 to vest the presidency with the power to remove at will heads of agencies created under Article 89. It is also not proper to leave it to a President to determine which agency is worthy of tenureship and which is not because tomorrow another President may determine that an agency we believe is worthy of tenureship is not. The issue of tenureship should be defined by law — by a fair and impartial reading of Article 89 in tandem with Article 56.
Accordingly, the argument against an overbroad reading of Article 56 and the President’s power to nullify tenureship goes both ways. As much as we should not interpret Article 56 as to render Article 89 irrelevant, so too we must not interpret the latter to render the former irrelevant. That is, we must not interpret Article 89 to give the Legislature the powers to create agencies that exercise core executive functions and limit the President's legitimate powers to remove at will the heads of such agencies pursuant to Article 56.
What do we mean? Well it would be wrong, it seems, to say that Article 89 empowers the Legislature to create agencies that exercise powers similar to powers exercised by Cabinet Ministries and positions referenced in Article 56, like the Commerce Ministry or the Ministry of Labor and then say the President cannot remove the heads of those agencies at his pleasure. That would effectively be neutering the President’s appointment and removal powers under Article 56, rendering that Article irrelevant.
It should not surprise us that we are not the first country to have passionate disputes over the President’s power to remove heads of agencies created by the Legislature. The United States, after whose government and constitution we have fashioned ours, has had similar disputes, and the way that country resolved those disputes may be instructive for us.
Take for example the case Humphrey’s Executors v. United States. In 1925, U.S. President Calvin Coolidge, a conservative Republican, appointed William Humphrey to a six-year term as a member of the Federal Trade Commission (FTC), an agency responsible for consumer protection and enforcement of laws against unfair business practices. Humphrey began another six-year term in 1931, before President Franklin Roosevelt, a liberal Democrat, came to power in 1933. Roosevelt quickly became dissatisfied with Humphrey who Roosevelt thought was interpreting the FTC’s regulations in ways that did not support his policies. Roosevelt thus fired Humphrey in 1933, while Humphrey still had several years left on his tenure. The statute creating the FTC provided that commissioners could be removed before their tenure ended only for “inefficiency, neglect of duty, or malfeasance in office.” But Roosevelt fired Humphrey because of political and policy differences and not for any of the statutory reasons.
Humphrey challenged his dismissal in a lawsuit that finally reached the United States Supreme Court.
In deciding the case, the Court distinguished between “executive officers” and “quasi-legislative and quasi-judicial officers”. The Court held that quasi-legislative or quasi-judicial officers could only be removed from office for reasons provided by Congress, whereas executive officers could be removed from office at the pleasure of the President. Then noting that the FTC had the power to pass regulations governing trade and to adjudicate alleged violations of those regulations, the Court reasoned that the agency was quasi-legislative and quasi-judicial and therefore held that the President could not fire an FTC commissioner like Humphrey solely for political reasons or policy differences. The precedential value of Humphrey’s Executors has been somewhat limited by recent decisions by the U.S. Supreme Court, but the case still stands for the proposition that the Legislature can create certain autonomous agencies that do not exercise core executive functions and limit the President's power to remove the heads of those agencies. Many of those agencies exist today in the United States including the FTC, the Securities and Exchange Commission, and more.
It may be difficult drawing the line as to which agencies were contemplated by Article 89 whose heads are beyond the removal powers of the President and which are not. But it seems that as a matter of constitutional interpretation and as a matter of public policy, agencies like the Elections Commission, the General Auditing Commission, the Civil Service Commission, the Central Bank, the Liberia Anti-Corruption Commission, and the Public Procurement and Concession Commission should easily qualify. Other agencies we have not named here that are quasi-legislative or quasi-judicial in nature and do not exercise core executive functions should also easily qualify.
On the other hand, one can make the argument that agencies like the Maritime Commission, or the Fisheries and Aquaculture Authority, and other similar agencies exercise core executive functions so that their heads should not be exempt from the President's removal power under Article 56.
The Way Forward
We may all have different views as to the heads of which agencies, if any, should be beyond the President’s removal power. But the fact remains that certain agencies and their tenured positions were created by statutes enacted by the Legislature and signed into law by previous Presidents. So, even if we believe that those laws are misguided and violate the Constitution, we cannot pretend they do not exist and just ignore or contravene them. That would not be an exercise in sound governance and it may open the doors for future administrations who we do not support to simply ignore or violate laws with which they do not agree, even if we believe those laws are valid and constitutional.
However, those who want to eliminate tenured positions they think were wrongly created are not without relief. They can work with the Legislature to enact new laws that eliminate those positions. Alternatively, opponents of tenured positions can challenge the constitutionality of those positions in the courts, and ask the Supreme Court to settle the matter once and for all. A decision by the Court undoing tenureships, unlike legislation by the Legislature, could have retroactive effect because the Court could find certain tenured positions unconstitutional ab initio — from their very creation, as to render the holders of those positions without any vested rights in them. A well-reasoned Supreme Court decision disposing of the tenureship matter could also provide definitive guidance as to what types of agencies created under Article 89 are entitled to tenured positions. So, some good could come after all from the tenure dispute.
Lessons to be Learned
As with all disputes, there are vital lessons we should learn from the tenure dispute. The first is that what we live in is not merely a democracy but a constitutional democracy. That means we are not simply subject to the will of whatever government may come to power by winning a majority of the votes cast in an election. Instead, the powers and prerogatives of that government are defined and limited by a constitution to which we all subscribe.
Second, we are all better off as Liberians if the three branches of government recognize the limits of their respective powers and operate within their constitutional orbits. Constitutional crises borne of the Legislature overreaching and usurping the powers of the Executive or Judiciary and vice versa serve no useful national purpose. Moderation and principled compromise should be the common currency of national governance. The development challenges we face as a nation are enormous and pressing. We cannot solve them if we become ensnared in unnecessary and divisive constitutional crises, like the current one created by the tenure dispute.
It is therefore important for all stakeholders to work in good faith and find a way out of the crisis that comports with our constitution.
About the Author
Kwame Clement holds a Juris Doctor degree with Highest Honors from the George Washington University Law School in Washington, DC. He also holds a Bachelor of Law degree from the Louis Arthur Grimes School of Law in Monrovia. He has practiced law extensively in Liberia and the United States, including serving as a Law Clerk to Judge Carlos Lucero of the United Court of Appeals for the 10th Circuit in Denver, Colorado. He also practiced Antitrust and Securities Laws at the Arnold and Porter Law firm in Washington, DC as an Associate, and served as a Senior Counsel at the United States Securities and Exchange Commission also in Washington, DC, where he led investigations and helped prosecute violations of the federal securities laws. He has taught Constitutional and Torts Laws as an unpaid volunteer at his alma mater, the Louis Arthur Grimes School of Law in Monrovia since 2017.