The Supreme Court on Wednesday, April 24, delivered a landmark precedent decision in the tenure dispute over five Autonomous Public Commissions and Agencies (petitioners), whose leaderships the Executive Branch (respondent) sought to replace.
Chief Justice Sie-A-Nyene Yuoh, who read the unanimous opinion (judgment), said there is no showing that the Act passed by the Legislature, providing tenure violates the power granted the President of the Republic of Liberia, under Article 56 (a) of the 1986 Constitution, to appoint and dismiss at his pleasure, officials of government appointed by him.
"Therefore," Justice Yuoh said, "this court sees no reason to declare the said Act unconstitutional as the Minister of Justice has urged us to do.
"The alternative writ of prohibition issued by the Justice in Chambers is affirmed and the peremptory writ prayed for by four of the five petitioners are hereby granted," Justice Yuoh further ruled. "The names of the nominees to the positions currently occupied by the petitioners herein mentioned are ordered withdrawn."
Following his inauguration, President Joseph Boakai in February 2024 nominated officials to ranking positions of five commissions and agencies, while the tenures of those who currently hold those respective positions have yet to expire.
Entities affected include the Liberia Telecommunications Authority (LTA), the Governance Commission (GC), the National Public Health Institute of Liberia (NPHIL), the National Lottery, and the National Identification Registry (NIR).
Meanwhile, the Supreme Court declined to issue the Writ as prayed for by the Executive Director of the Environmental Protection Agency, Professor Wilson K Tarpeh.
Justice Yuoh noted that the decision is based on the failure to establish the documentary evidence that Prof. Tarpeh was chosen from among a list of three persons recommended by the Policy Council to former President George Weah and, to make mention of his selection process in his petition regarding the existence or submission of said list, to include the name, he is not entitled to tenure under the EPA Act.
"Having been established that the Petitioner served in an interim Executive Director capacity at the EPA, his removal was in consonance with the executive order 123 signed by former President George Weah on November 22, 2023, in which he stated that all non-tenured presidential appointees shall be presumed to have resigned as of the date of the inauguration of President Joseph Boakai," Justice Yuoh said.
On the decision of the remaining four Petitioners, Justice Yuoh said although Article 89 specifically created three (3) autonomous public commissions, the same article authorizes the Legislature to create agencies as may be necessary for the effective operation of Government and enact laws for their governance; that even though the nomenclature does not so expressly depict. "The Legislature acted within the scope of its authority in enacting laws for its governance, including the provisions of tenure officials."
According to her, an act passed by the Legislature is presumed to be constitutional unless the contrary is clearly shown; that the Legislature is presumed to have acted constitutionally in passing a statute and courts must start with the presumption that the statute is constitutional and valid and that every intendment is in favor of the validity of the statute; in addition to the conferred constitutional power to enact laws for the governance of the autonomous commissions named under the Constitution.
The Chief Justice explained the Legislature was given additional power to create other agencies as may be necessary for the effective operation of the Government.
"At the time of establishing the three autonomous commissions in 1986, the farmers of the constitution did not and could not have thought of all the relevant autonomous commissions for the effective operation of Government so they empowered the Legislature to act when the need arises to create additional autonomous commissions," the judgment noted.
She further explained that over the years, as the need for establishing other appropriate commissions or agencies for the effective operation of Government became necessary, the Legislature consistent with the power granted it by Article 89, established all of the agencies from which the petitioners were removed under the Executive Branch and provided tenures for each of the said agencies.
"In doing so, the Legislature acted within the scope of its authority," Yuoh noted.
Yuoh said the Executive did not state any constitutional or statutory conditions or cause by which the petitioners were being removed from their respective tenure positions. "We are also taken aback by the argument of the Minister of Justice that the Executive's action was only at the nomination stage and only created a SCARE to the petitioners, that they suffered no harm, injury or embarrassment as they are still performing the duties and responsibilities associated with their respective offices and enjoying all of the benefits associated with the said offices; and that the petitions are based on future events which may not happen, meaning that the petitions were prematurely filed."
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"This is preposterous," Justice Yuoh exclaimed.
Firstly, Yuoh said, the petitioners are still in their respective positions only because of a stay order imposed by the Justice in Chambers and not by any magnanimous gestures by the Executive.
Yuoh wondered why the Executive would proceed to nominate individuals to positions that are not available only to create a SCARE to the individuals already occupying the said positions when there are provisions of the law that set forth procedures for the removal from office of officials of government as the petitioners.
On the argument of violation of due process rights as enshrined in Article 20 (a) of the 1986 Constitution, Justice Yuoh pointed out that the Executive proceeded to nominate other individuals to the respective positions of the petitioners in disregard of their tenures and without notice (actual or constructive), to the petitioners and/or the opportunity to be heard in person or by counsel. "Tenures as provided for under the law should be respected. Hence the petitioners' due process rights were violated and we so hold," the Chief Justice noted.
"The alternative writ of prohibition issued by the Justice in Chambers is affirmed, and the peremptory writ prayed for is hereby granted. The names of the nominees for the positions currently occupied by the petitioners herein mentioned are ordered withdrawn."
