Statement delivered before the House Committee by Kunkunyon Wleh Teh on the Tenure Cancellation Bill submitted to the House of Representatives President George Weah
Thank you, Mr. Chairman, committee members, Representatives, and interested citizens for the opportunity to speak to you about “An Act prohibiting the Tenure of Public Officials within the Executive Branch of Government.”
My name is Kunkunyon Wleh Teh. I am a graduate of the Cuttington University (BA, Sociology/Dev. Studies); Louis Arthur Grimes School of Law, University of Liberia (LLB, General Law), and Emory University School of Law, located in Atlanta, Georgia, U.S.A. (with a Master of Laws degree (LLM), General Practice & Ethics, Constitutional Law). I am also a lecturer in Constitutional and Administrative Law at the AMEZU and currently a partner at the International Law Group, LLC. I am a Liberian lawyer and advocate. I have spent most part of my career doing integrity work with: NEC, FIU, and Special Presidential Taskforce (SPTF). As a lawyer, it is my responsibility as a public citizen, with a unique responsibility for the quality of justice and the rule of law in Liberia.
I am not here in a representative capacity of any client. Instead, I am here in my capacity as a public citizen seeking to improve the law, the administration of justice and the quality of service rendered by the legal profession.
Again, let me express especial thanks to you, Mr. chair and to all committee members for being farsighted to initiate such a prudent exercise; particularly, for giving me this occasional opportunity to make a public statement on the bill submitted by His Excellency George M. Weah, President of the Republic of Liberia.
While I do not oppose the right of the President to submit a Bill to the Legislature to repeal the tenure provisions, I am concerned about the potential legal and constitutional issues that may follow if we ignore certain basic principle of constitutional governance.
First and foremost, let me address your inquiries in two folds: the procedural and substantive concerns surrounding the entire subject.
As to the procedural concerns raised – about the President’s submission of a bill to the Legislature to repeal tenure provisions in the Acts creating “administrative agencies” – it is my opinion that the President acted within the confines of the law. Cf. The Constitution of Liberia (1986), art. 35. The President has two options (legislative or judicial) to correct legislation he believes usurp his executive powers to “enforce the laws of the Republic” and “appoint.” See, The Constitution of Liberia (1986), art. 50, 54.
Hence, the President sought legislative action to repeal tenure provisions in the laws creating several administrative agencies of government. Seeking legislative action to repeal the tenure provisions amplifies President Weah’s willingness to coordinate with other branches of government. See also, The Constitution of Liberia (1986), art. 3. Seeking judicial action to invalidate statutory provisions which provide tenures for positions in the executive would have unquestionably triggered judicial and or political contestation, and perhaps become inexpedient but for certain international commitments. No doubt that a commissioner so removed is likely to seek remedy through judicial review. See generally, Isaac Jackson v. The Administration of the Liberia Maritime Authority and the Executive Branch of Government, October Term, A.D. 2018, S. Ct. (2018). No doubt that a political feud is likely to follow any removal that may appear arbitrary. See, e.g., Webmaster Admin, President Weah should Give His Proposed Tenure Bill A Rethink, Daily Observer, Nov. 2, 2018. That certain international commitments would be breached thus making Liberia vulnerable among the comity of nations. See generally, Edwin G. Genoway, Liberia Lacks Funds to Publish LEITI Report, Front Page Africa, Nov. 9, 2018. Therefore, the President acted in a lawful and politically expedient way to place checks on such delegation of power by the Legislature when he submitted the bill.
Now, I shall proceed to the second and most intriguing concerns, that is, the substance of the President’s bill. It is obvious that the substance of the bill to repeal the tenure provisions incites compelling constitutional and legal discussions.
I do not agree with the phrase “necessary and convenient” as used in section two of the bill. It offers a subjective test that has to do with the opinion of the person implementing the law. It also leaves room for fuzzy interpretations and an exercise of unlimited discretion. Instead, I recommend the phrase “necessary and proper.” Necessary and proper is defined as “any useful means to achieving the end of an enumerated power and other implementing authority along with the power. See, MaCulloch v. Maryland, 17 U.S. 316 (1819). Necessary and proper also means “those things needed in the course of carrying into execution vest power.” United States v. Comstock, 560 U.S. 126 (2010). Therefore, the use of the phrase necessary and proper would allow the application of an objective test.
Whether the legislature has the authority to limit executive interference and provide for independence to heads of administrative agencies: I think so and I think not. Why? To determine whether an act is constitutional or unconstitutional one must first decide whether the Constitution “authorizes” or “Prohibits” the act.
Why not? One might be tempted to conclude that Article 89 of the Constitution authorizes the Legislature to limit executive interference and provide for independence to heads of administrative agencies. Let me first clarify that text and intent of Article 89 seek to give independence to the agencies and not the individual officers. However, the Legislature reasoned that giving protections to persons serving those agencies is necessary and proper to achieving the goal of independence that Article 89 authorized the Legislature to create.
Further, I do not agree that the legislature can limit executive interference and provide for independence to the heads of all administrative agencies. I have reached this conclusion with the understanding that there are two kinds of administrative agencies: Independent and executive agencies. The central puzzles in administrative law is the concept of independent agency. Ronald M. Levin, Administrative Law and Process 53, (6th ed. 2017). A major difference between these two agencies is that the independent agencies do not serve “at the pleasure of the President.” The Legislature in pursuant to Article 89 cannot abdicate or limit powers expressly enumerated in the Constitution to the executive. Because our Constitution vests all executive powers in the President, to do that will amount to nondelegation of powers and effectively violate Article 3 of the Constitution (separation of power). An administrative agency is like any agent acting on behalf of a principle. Thus, the Legislature cannot give away executive power because it does not have. The Legislature is not the principal for such power. Therefore, it is my opinion that the legislature cannot limit or abdicate executive control or appointment power over agencies that exercise purely executive functions. The Constitution of Liberia (1986), art. 3, 50, 54, and 56.
I think the Legislature can limit executive interference and provide independence to administrative agencies that do not exercise purely executive function. I recognize that independent agencies perform functions that would be normally associated with the executive branch, yet they are not under the full control of the executive. Agencies may need some form of functions enumerated to each branch of government to be effective. This is an acceptable exception in constitutional and administrative law in as much as the dominant function which the independent agency exercises is not one of the Executive.
To allow the President to exert direct political control over independent agencies that carry out legislative and or judicial functions will also violate Article 3 of the Constitution. This is true because the division of powers among the branches was designed to create a system of checks and balances and lessen the possibility of tyrannical rule. Therefore, such control will violate the constitutional guarantee of separation of power in Article 3.
Further, because most integrity institutions are established to exercise legislative functions, they must function independently of executive interference or control. Emphasis. The Legislature has broad power to investigate implementation of statutory programs and to expose corrupt or ineffective administration must also be emphasized. Therefore, in pursuit of this goal, the legislature properly created independent agencies and delegated legislative functions. The Constitution of Liberia (1986), art. 89. The executive cannot lawfully question that or seek to control such power.
Hence, the legislative grant of power or integrity agencies exercise of legislative functions does not in any way limits the President’s power under Article 50 or 56. In addition, the said grant of legislative power supports public interest and legitimizes the workings of government in that it aims to maintain integrity within our governance system. It is also my opinion that such delegation makes political accountability an effective tool for our constitutional democracy.
Another concern bearing on the substance of the President’s bill is the term “autonomous” as used in Article 89 of the Constitution. It is my opinion that autonomy does not necessarily means tenure or “fixed period of years.” Autonomous could mean any statutory provisions protecting the agency from arbitrary political control or removal. The Legislature is the body best suited and authorized to give prescriptions for what autonomous is or what it means for agencies established under article 89 that do not perform purely executive functions. In the Liberian parlance “the President has no fish to fry” in such delegation (when the legislature delegate legislative or judicial functions).
Also, in rare cases, courts will uphold delegation of certain functions that are not legislative or judicial when such delegation does not impede the President’s “ability to perform his constitutional duty.” See, Morrison v. Olson, 487 U.S. 654 (1988). I would like to argue this principle in favor of Social Security Corporation.
Lastly, I would like to sound a caveat that the President has massive powers to indirectly assert political control over independent agencies. Few of these powers could be using the budget office or the Ministry of Finance and the Ministry of Justice to control autonomous agencies – especially integrity institutions (which are deemed arms of the Legislature). Therefore, the Legislature must go further to narrow these loopholes and or fully implement statutory provisions requiring the National Elections Commission and the General Auditing Commission to submit their respective budget(s) directly to the Legislature.
To conclude, I like to recommend that:
- the Legislature review all these tenure provisions on a case-by-case basis;
- ascertain what function each agency primarily exercises, if purely executive, strip away the tenure or the protective enclave that shield these officials from executive control;
- if the agency exercise primarily legislative (integrity) or judicial functions the legislature must do everything to ensure that its independence is maintained and or strengthen the agency; and,
- the Legislature should at all-time encourage public debates on critical national issues of such, and kindly extend invitation to experts on this subject to extent of looking at each of these agencies and the functions.