Balanced Scrutiny On De-tenurization Bill Scholar Asks Lawmakers To Proceed On Case-by-Case Basis

Public reactions to news about President George Weah’s submission of a bill to remove tenures off several autonomous agencies were fierce and polarized as they were extreme. There are some citizens who think the tenure-shields should be broken to give the President his constitutional right to appoint and seek unimpeded accountability from executive appointees. Other citizens are counter-arguing that the bill as submitted was an appeal for imperial presidency or authoritarianism and should be ignored by the Legislature. For Liberians who are taking the moderate or middle-level role in the debate, Kunkunyon Wleh Teh, a lawyer, lecturer and social advocate, is most outstanding amongst the liberals, putting his opinions as discreetly and freely as possible. The Analyst reports.

A Liberian who is lecturing Constitutional and Administrative Law at the AMEZ University has brought extremities in the discourse triggered by a presidential bill seeking repeal of tenured positions into the middle. In effect, , Kunkunyon Wleh Teh thinks the National Legislature reviewing the merits and demerits of the bill does not have to write it off completely nor adopt it as submitted.

Giving his thoughts before the House Committee on Judiciary holding public hearings on the bill submitted by President George Manneh Weah to the Legislature recently, Mr. Teh admonished the lawmakers to “review all these tenure provisions on a case-by-case basis.”

He told the legislators to “ascertain what function each agency primarily exercises; if any is found purely executive, strip away the tenure or the protective enclave that shield these officials from executive control.”

He added: “If the agency exercises primarily legislative (integrity) or judicial functions, the legislature must do everything to ensure that its independence is maintained and or strengthen the agency.”

Encouraging the Legislature to at all times hold debates on critical national issues of such by extending invitation to experts on this subject, the university lecturer, said there is a sense in which certain tenured positions violate the constitution of Liberia and infringes on the President’s executive powers and there is a sense in which the bill submitted by President Weah eclipses democratic governance and heralds rise of imperial presidency.

“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,” Kunkunyon Wleh Teh said, flagging both 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”, he said it was his considered opinion that the President acted within the confines of the law.

He noted that 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.”

It is against that background, Mr. Teh said, the President is seeking 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,” he asserted, adding, “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.”

The Liberian jurist disagreed 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, adding that there is a major difference between the two agencies. He said independent agencies do not serve “at the pleasure of the President” and that pursuant to Article 89 the Legislature cannot abdicate or limit powers expressly enumerated in the Constitution to the executive.

He said further: “Because our Constitution vests all executive powers in the President, to do that will amount to non-delegation of powers and effectively violate Article 3 of the Constitution (separation of power).

He indicated that an administrative agency is like any agent acting on behalf of a principle and so the Legislature cannot give away executive power because it does not have it.

The Legislature, he said, 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,” Mr. Teh opined, consistent with the Constitution of Liberia (1986), articles 3, 50, 54, and 56.

On the other hand, the Constitutional lawyer said also that 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,” he flipped, and added: “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.”

Mr. Teh said 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,” he averred, indicating that most integrity institutions are established to exercise legislative functions, they must function independently of executive interference or control.

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