Supreme Court Declares “Law ‘Futuristic’, Petition Premature, But Upholds Tenure Position”

By Wlejue Moore Roberts

The Supreme Court of Liberia has demonstrated yet again that it’s truly the bastion of ideas, wisdoms and constitutional orders, when it comes to the interpretation of the law. Analyzing the constitutional argument of whether or not a legislative enactment can invalidate a tenure position absent the “proven cause” requirements and without due process, the court carefully navigated the stormy waters by selecting keys words and phrases to address the issue. The Supreme Court of Liberia has three constitutional powers under Article 2 of the 1986 Constitution, namely (1) the power to review, (2) to declare and (3) the power to interpret.  But the in latest case, the court uses its interpretative power when it said: :“That the petitioner and other Commissioners still occupying and maintaining their respective positions and enjoying all of the associated benefits and immunities cannot be said to have been removed from office, as the transitional tenure provisions of sections 16.1 and 16.2 being futuristic, the petitioner’s petition is prematurely filed, however, should if  it become necessary to terminate the services of the petitioner and others similarly situated before the expiration of their contractual rights, the sanctity of contract as enshrined in the Constitution should be given due consideration…”.

The  court uses  the  words “premature’ means something happening before its time; and “futuristic”(future), means something ahead, that’s yet to come, or intended or seeming to come from some imagined time in the future.  Because Liberian courts deal with current issues, debates and arguments, the Supreme Court in effect, fails to see what injuries Petitioner Edwin Kla Martin has suffered on grounds that   the application of sections 16.1 and 16.2, which he complained of, as violating his tenure position are “futuristic” or are in the future.  In this regards, the Supreme Court was constrained to invoke its declaratory power under Article 2 of the 1986 Constitution by declaring petitioner’s petition “premature,”  meaning it was filed against ahead of or before time  and against  a planned future action. This,  in  the Supreme Court’s view has not happened, hence, the petitioner has suffered no injuries to warrant any   attention.

The  phrase: “:”That the petitioner and other Commissioners still occupying and maintaining their respective positions and enjoying all of the associated benefits and immunities cannot be said to have been removed from office…,  demonstrably outlines the court’s disagreement with the petitioner that he has been affected by   the enactment of sections 16.1 and 16.2 of the new LACC Act.

And this is further supported by the  phrases: “…still occupying and maintaining their respective positions and enjoying all of the associated benefits and immunities cannot be said to have been removed from office…,,

 Therefore, the Supreme Court believes that the  petitioner Edwin Kla Martin  is, or has not been  not affected in anyway and “…cannot be said to have been removed from office…”.

 Moreover, because the petition is premature and it complained of a future action, the court too decided to be “futuristic” in dealing with an apparent question of law. The phrase: “…however, should it become necessary to terminate the services of the petitioner and others similarly situated before the expiration of their contractual rights, the sanctity of contract as enshrined in the Constitution should be given due consideration…” clearly speaks to the fact that  petitioner has not been removed which is why the petition is premature.

 In further expanding on this futuristic or ‘perceived removal’ argument the court  invoked    its judicial wisdom when it said:”… should it become necessary to terminate the services of the petitioner and others similarly situated before the expiration of their contractual rights, the sanctity of contract as enshrined in the Constitution should be given due consideration…” , which means, the ‘removal’ of the petition has not happen and has become necessary. And if it were to be become “necessary to terminate the services of the petition prior to the expiration of their tenured contractual rights” then the sanctity of contract in the 1986 Constitution must be given due consideration. The key word used in this phrase is “must”, and not may.

Here again, the Supreme Court uses the doctrine of necessary implication by simply referring to contractual rights under the 1986 Constitution but without specifically saying or highlighting the specific provision of  the 1986 Constitution forbids the passage of any law that impairs contractual rights.  The doctrine “states that what is implied in a statute is as much a part thereof as that which is expressed.” The court does not to say specifically what the constitution says about contractual rights. And so when the court said: “…the sanctity of contract as enshrined in the Constitution should be given due consideration…” , it is referring to Article 25 of the 1986 Constitution which expressly states: Obligation of contract shall be guaranteed by the Republic and no laws shall be passed which might impair this right.” The Court has invoked this constitutional prohibition doctrine to forewarn against any future action that might impair the contractual rights of the petitioner absent “due consideration” to the 1986 Constitution. In summary, the true winner in this matter is neither the petitioner nor the Respondent but the law of the land. The Supreme Court did not say sections 16.1 and 16.2 have abolished petitioner’s tenure position, or petitioner’s tenure position is under attack. Rather, the court said the laws complained of by the petitioner are “futuristic” and not current and so petitioner has suffered no injuries; the petition is premature to be determined by the court and it is hereby DENIED AND DISMISSED.  At long last, there are feathers in the cap of the judiciary— hope and credibility is returning, and the “new normal” now is, the court will say what the law of the land is,  no matter whose interest is involved. The rule of law  has won because Petitioner Edwin Kla Martin used the law to challenge, although prematurely, and without suffering any injuries,  sections 16.1 and 16.2 of the new LACC Act which are  deemed by the highest court in the land as nothing but “futuristic!”

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