CONSTITUTIONAL COUNCIL STICKS TO ITS LIMITED GUNS

C O N F I D E N T I A L SECTION 01 OF 02 NOUAKCHOTT 000760

SIPDIS

E.O. 12958: DECL: 12/21/2013
TAGS: PREL PGOV MR
SUBJECT: CONSTITUTIONAL COUNCIL STICKS TO ITS LIMITED GUNS

REF: A. NOUAKCHOTT 744

B. NOUAKCHOTT 442

Classified By: Charge d'Affaires Dennis Hankins for reasons 1.4 (b and
d)


1. (C) Summary: The High Constitutional Council exercised
its limited oversight role in rejecting some of the National
Assembly changes designed to kick out Assembly President
Messaoud Ould Boulkheir. The Council exercises "pragmatic
legalism" under the "exceptional" constitutional
circumstances but has already signaled that the Regime's
efforts for constitutional change through a National Dialogue
on Democracy will not, by itself, pass constitutional muster.
The President of the Council sees constitutional order being
established only through the return of the elected president
and hopes both sides will find a way for that to happen --
even if just temporarily. End Summary.


2. (C) Shooting Down the Regime's Plans: Charge met
December 21 with President of the High Constitutional Council
Abdoullah Ould Ely Salem and Vice President Taki Ould Sidi.
Ely Salem welcomed the Charge's visit, the second since the
coup (see Reftel B on previous meeting with Ould Sidi in
August),noting the U.S. was the only diplomatic mission to
visit since the 2005 transition. Charge took the opportunity
to praise the Council for maintaining its independence in its
decision to strike down National Assembly efforts to force
the ouster of National Assembly President Messaoud Ould
Boulkheir (REFTEL A). Ely Salem noted the decision "had
gotten everyone upset" but added that the Council had only
done what it is charged to do -- review changes in "organic
law" to determine its constitutionality. He noted that the
Council had not ruled on the constitutionality of either the
current ordinary session of the National Assembly nor on the
previous "emergency session" because the Council has no legal
standing for such a determination -- despite Ould Boulkheir's
assertion that both sessions are illegal. The Council had
reviewed the proposed changes in the internal workings of the
National Assembly accepting that the changes had been adopted
by a legal majority of the chamber. That said, the Council
had found two significant changes as unconstitutional --
Article 12 which would have forced deputies to elect the
officers of the National Assembly by show of hands instead of
secret vote (which would have resulted in unconstitutional
pressure on the deputies); and Article 17 which would allow
the President of the National Assembly to be voted out (a
violation of his 5 year mandate that can only be ended
through resignation or death). Ould Sidi noted that the
National Assembly had tried twice before to establish a
public vote for the leadership of the chamber and had been
shot down by the Council every time. He added that the vote
of the Council this time was unanimous.


3. (C) A Limited Role: Ely Salem noted that the
constitution allows the High Constitutional Council very
limited jurisdiction but that, within those confines, the
Council has frequently gone head-to-head with previous
regimes. He added, "there are many things we might disagree
with where we have no legal voice." He said the Council
"noted" the presence of the High State Council (HSC) as the
"effective power" but it had no standing to speak to its
constitutionality nor that of its Constitutional Charter.
When asked what, if any, legal standing might have, Ely Salem
responded "even Aziz has said 'there is no president,'" so
the HSC could, at best, take the powers but not the
legitimacy of the president's office. Ould Sidi noted that
the Council was designed to be both juridical and pragmatic
in its work as reflected in a membership that had both
jurists and former ministers in its membership. He noted
that, "we have spent most of our history with military
governments "of exception" with military leaders either in
uniform or hiding in civilian suits," that has generally
limited the Council's role.


4. (C) Not So Fast On The National Dialogue: Charge asked
whether, from a constitutional perspective, there was any way
the upcoming National Dialogue on Democracy could be used to
change the constitution as seemed to be the plan. Ely Salem
noted a constitutional change could be done legally only

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through a referendum (which can only be initiated by the
president -- an office that Aziz cannot rightly claim to
occupy) or by a two-thirds majority of the combined National
Assembly and Senate. The National Dialogue did not
constitute a legitimate mechanism for constitutional change
and Ely Salem suggested Aziz would be unable to get the
necessary votes in the parliament. Ely Salem added, "the
Council does not believe now is an appropriate time to
discuss constitutional change. Laws -- and especially the
constitution -- should be politically neutral and not changed
for the short term benefit of one faction or another."


5. (C) Return to Constitutional Order: Charge noted the
ongoing debate about what could constitute a "return to
constitutional order." A debate in which the U.S. held could
only be met by the return of the elected president --
recognizing political arrangements could be worked out later.
Ely Salem agreed that "the U.S. position is the best
legally," adding that it would be very problematic to go
forward with new elections "if the President does not grant
his consent." That said, he added, "Neither side seems to be
moving from their positions -- Aziz won't accept he was fired
and the President is closed to negotiation. Neither is
working in the interests of the Mauritanian people who can
only suffer from this political deadlock." Ely Salem
suggested the best solution was for Abdallahi to get a firm
commitment for the military's exit from politics and then
accept early elections -- either by resigning in favor of the
President of the Senate once coming back to office or serving
only for the time needed to organize those elections.


6. (C) Comment: Despite its constitutionally and, it seems,
self-imposed mandate limits, the High Constitutional Council
has complicated General Aziz' efforts to manipulate the
National Assembly and seems poised to block the National
Dialogue on Democracy if it has the right legal hook. The
Council is too weak to reverse coups, but it can prevent them
from gaining democratic legitimacy. End Comment
HANKINS