The High Council for the Defense of Democracy and the Rule of Law again comes up against an unfavorable decision by the High Constitutional Court. A second setback after his request for an opinion declared inadmissible in December.
Eighteen. This is the number of recitals in the decision published by the High Constitutional Court (HCC) yesterday. Explanations in eighteen points, to respond to the referral filed by the High Council for the Defense of Democracy and the Rule of Law (HCDDED), on February 28. In this singularly long decision since the entry into play of its current workforce, the HCC afflicts a second setback to the HCDDED. It declares “in conformity with the Constitution”, the declaration signed by Christine Razanamahasoa, president of the National Assembly, putting an end to the process of motion of censure initiated against the government in December. Likewise for the declaration of the permanent office of the Lower House, which confirms that of the lady on the perch.
On its way, the HCC declares “inadmissible”, the request of the HCDDED to have the institution of Ambohidahy note the non-respect of article 49 of the Constitution by the President of the Republic and thus to pronounce his impediment final. The referral filed by the HCDDED with the HCC last week stems from a complaint submitted to it by twenty-three deputies on 9 February.
Beyond the constitutionality check of the two declarations that put an end to the attempted motion of censure against the government in December. The purpose of the process is to have the HCC note the non-compliance with Article 49 of the Constitution and to have it apply the sanction provided for therein. This provision provides for the principle of the incompatibility of the office of President of the Republic with any activity within a political party, among others.
Failure to respect the principle of incompatibility of function “constitutes a reason for definitive impediment”, adds the fundamental law. In a press release announcing its referral to the HCC, the High Council recalls that in December, following a request from deputies again, it asked for the opinion of the Court of Ambohidahy on “the interference of the President of the Republic in the affairs of the National Assembly”. A request declared inadmissible.
precepts
In addition to declaring the inadmissibility regarding article 49, the HCC, in its decision of yesterday, also frames the implementation of the definitive impediment provided for in paragraph 2 of this provision. “(…) That it emerges from the spirit of the Constitution that the definitive impediment constitutes a political sanction in the event of failure by the President of the Republic to fulfill his obligations. That the constituent has entrusted to the representatives of the people elected by direct or indirect universal suffrage the right to trigger the constitutional mechanisms guaranteeing the balance of powers”, explains the HCC.
Also, the institution of Ambohidahy establishes that the definitive impediment “can only be initiated by the vote of Parliament, (…) by analogy to the impediment procedure provided for by articles 50 and 51 of the Constitution”. Speaking of temporary impediment, paragraph 1 of article 50 of the Basic Law provides in particular that it can be declared by the HCC against the President of the Republic, following a referral by the National Assembly, “ acting by a two-thirds majority of its members (…)”.
In its response to the referral to the HCDDED, the HCC also recalls its role as “regulator of the functioning of institutions and the activity of public authorities”. It adds that “this regulatory function (…) can be implemented at any time (…) with the aim of consolidating the rule of law and democracy (…)”. A way of concretizing the precepts that it indicates in its decision of yesterday.
In addition to the procedure to initiate a definitive incapacity of the President of the Republic, the HCC also poses that an authority must assess whether the conditions are met for the admissibility or not of a motion of censure tabled in the National Assembly. It is, in this case, the President of the Lower House on reading recital number 16 of the decision of the Court of Ambohidahy.
“(…) Article 103 of the Constitution mentions as the sole condition of admissibility of the motion of censure, the signature of half of the members composing the National Assembly. That the admissibility of the motion is subject to the existence of an authority which is required to verify the number of signatures and especially their authenticity. That on reading Article 95 of the National Assembly’s internal regulations, this obligation of verification is incumbent on the President of the National Assembly”, explains the HCC.
On its way, the Constitutional Court adds “that the bringing into play of the responsibility of the government requires that the signatories be clearly identifiable”. Emphasizing the notion of majority, she also indicates, “that it would be impossible to oppose the reality of an openly assumed political balance of power if such were the case. That the referral made by the HCDDED (…) on the basis of a request presented only to twenty-three deputies reflects the reality of this political balance of power”.