THE TRANSITION GOVERNMENT TAKES SHAPE

C O N F I D E N T I A L SECTION 01 OF 03 ANTANANARIVO 000204 SENSITIVE SIPDIS STATE FOR AF/E - MBEYZEROV PARIS FOR RKANEDA LONDON FOR PLORD E.O. 12958: DECL: 11/04/2018 TAGS: PGOV MA SUBJECT: THE TRANSITION GOVERNMENT TAKES SHAPE REF: A. ANTANANARIVO 187 ¶B. ANTANANARIVO 195 Classified By: AMBASSADOR NIELS MARQUARDT FOR REASONS 1.4 B AND D. ¶1. (C) SUMMARY: Andry Rajoelina has moved quickly to give his transition government a legal foundation, issuing an Ordinance on March 19 that outlines the roles and responsibilities of each element of Madagascar's new government. Most controversial will be his suspension of parliament (Article 1),but opponents of the High Transitional Authority will find much to dislike in the concentration of power within the president and prime minister, the lack of a legislative counterweight, and clear conflicts with the current Malagasy constitution, which purportedly remains in effect to the extent that it doesn't contravene the new rules. As Rajoelina moves forward in the formation of his new government, this document will do little to alleviate the concerns of both Malagasy and international audiences. A complete translation of the ordinance is provided in paragraph 5. END SUMMARY. ONE BRANCH, TWO LIMBS -------------- ¶2. (C) The Malagasy constitution previously provided for three separate branches of government, along the lines of most democracies; Ordinance 2009/03 effectively reduces it to a powerful executive branch (the High Transitional Authority, or HAT, Article 2 and 4) with a vestigial advisory body to replace parliament (the Council for Economic and Social Recovery, or CRES, Article 5) and a highly politicized judicial body (the High Constitutional Court, or HCC, Article 9). Their functions generally match those of their constitutional counterparts, but almost all of the positions in all three bodies will be named by Rajoelina and his team rather than elected at any level. This document also formalizes the HAT's 24-month maximum deadline for completing the transition (Article 1). ¶3. (C) The HAT will have 44 members, and the CRES will have 120; each is intended to be representative of ethnic and regional sensitivities, but all members are appointed by the new administration. The HCC was previously composed of nine members, with three nominated by the president, four by parliament, and two by the Council of the Magistracy. The new HCC will grow to include 11 members, ten of which will be named by the HTA, the Cabinet, or the CRES - all, in turn, appointed by Rajoelina or his subordinates. While diversity and national representation among these appointments is a stated goal of the ordinance, there are no formal requirements as to the composition of these institutions. ¶4. (C) Based on the current constitution, purportedly still in effect, the legality of this ordinance is unclear. The constitution states that "in case of an emergency, the President of the Republic can enact measures by ordinance within the law" -- the key phrase being "within the law", meaning that no ordinance can overstep the constitution. If the president wishes to amend the constitution, he would have to obtain a three-quarters majority of votes in both houses of parliament, or submit the change to a popular referendum. Having suspended parliament, the first option is unavailable; not confident of his support around the country, the second may be unattractive. FULL TEXT: ORDINANCE 2009/03 -------------- ¶5. (U) Following is a complete translation of Ordinance 2009/03, issued by Andry Rajoelina on March 19, 2009. BEGIN TRANSLATED TEXT: REPUBLIC OF MADAGASCAR Fatherland - Freedom - Progress PRESIDENCY OF THE HIGH AUTHORITY OF THE STATE ORDINANCE No. 2009/003 creating the Transition regime to the Fourth Republic The President of the HAT Considering the Constitution, Considering Ordinance no. 2009/001 of March 17, 2009 on the dismissal of the Government and granting full power to a Military Directorate, ANTANANARI 00000204 002 OF 003 Considering Ordinance no. 2009/002 of the Military Directorate of March 17, 2009 conferring full powers to Mr. Andry Rajoelina, Considering Decree no. 2009-001/HAT of March 19, 2009 on the appointment of the Prime Minister, Head of Government, Considering Decree no. 2009-002/HAT of March 19, 2009 on the appointment of the Members of the Government, Considering Decree no. 2009-003/HAT of March 19, 2009 on the proclamation of the situation of emergency. In Cabinet Meeting ORDERS Article One: A High Authority for the Transition to the Fourth Republic is created. It is the guarantor of the regular operation of the institutions and of the democracy during the transition period that cannot exceed twenty-four months. Therefore, the activities of the following institutions are suspended by the present ordinance: - The Senate - The National Assembly The competencies of those institutions are exercised by the HAT, the Council for Economic and Social Recovery (CRES) or the Government according to the conditions determined by the present ordinance. Art. 2: The President of the HAT will give the following oath in front of the nation during a solemn hearing of the HCC and in the presence of the Government and the Supreme Court. "In front of God, the State and the population, I swear that I will fully execute with transparency the duties and functions of the President of the HAT. I swear that I will use the power granted to me to protect and strengthen national unity, human rights, and the democracy. I swear that I will respect the Fundamental Law of the Transition, the Constitution, the administrative laws, and will always seek the welfare of the Malagasy population without exception." Art. 3: The powers of the President of HAT are defined as follows: - He is the symbol of independence, national unity, and territorial integrity; therefore, he is the Supreme Chief of the armed forces; - He appoints and recalls, on proposition of the Prime Minister, the ambassadors and representatives of the Malagasy Republic to other states and international organizations; - He receives the credentials and recall letters of representatives of states and international organizations recognized by the Malagasy State; - He ratifies international conventions and treaties; - He exercises the right to pardon; - He awards the state honors; - He promulgates ordinances. Art. 4: The HAT has forty-four members appointed by its President, from all elements of the Nation and of the Regions. It elects among its members one or several vice-presidents. It ratifies ordinances. The office composed of the President and the Vice-Presidents is assisted by a secretariat general. Art. 5: The CRES is composed of one hundred and twenty members, representing professional, economic, cultural and social groups appointed by the Prime Minister on the proposition of said groups and taking into account regional representation. It has a permanent office composed of a President and of Vice-Presidents, not exceeding twelve members. The President and the Vice-Presidents are elected by the members of the Council. The Secretariat is insured by an official of the state data bank, appointed by the permanent office. The Council is in charge of: - Giving recommendations to the Government on the social and political strategy; - Serving as a body for the social and economic issues of the Nation; - Promoting the establishment of fair regional balance; - And, in general, all studies that the HAT or the Government feels appropriate to submit. It is compulsorily consulted on: - The ordinance on the budget; ANTANANARI 00000204 003 OF 003 - The draft of each sector or general development plan. Art. 6: The President of the HAT, in Cabinet meeting: - Legislates by ordinance; - Exercises regulatory power; - Appoints civil servants and armed forces to high functions; - Appoints and removes the members of the Government; - Organizes preparatory meetings for the drafting of the new Constitution and electoral code for the advent of the Fourth Republic; - Calls the voters and organizes the referendum in view of the adoption of the new Constitution and the general elections; - Declares, after consultation of the HAT, a state of emergency for the defense of the Republic of the public order and of the State security. Art. 7: The Prime Minister, in Government meeting: - Adopts ordinances on the budget, in consultation with CRES; - Chairs the Government meeting; - Is the Chief of the Administration ; - Controls the enforcement of justice decisions; - Is the guarantor of peace keeping and public security, respecting fundamental freedoms and Human Rights. Therefore, he is the chief of all the armed forces in charge of the police, public order, internal security, and defense; - Proposes to and advises the President of the HAT on the appointment of ambassadors and extraordinary representatives of Madagascar; - Negotiates international treaties and conventions in conformity with the principles decided in Cabinet meeting; - Presents to the High Authority the general guidelines of Government policy. Art. 8: In case of vacancy, for any reason, of the post of President of HAT, the HAT proceeds to the appointment of a new President. Art. 9: The High Constitutional Court (HCC) is in charge of respecting the general principles of the Law. It rules on disputes in referendums, and legislative and presidential elections. The number of its members is brought to eleven, of which four are appointed by the President of the HAT, two by the Prime Minister, four by the Minister of Justice, and one by the Superior Council of the Magistrature. The President of the HCC is elected among its members. The members are not allowed to conduct political activity nor work in the public or private sector, paid or unpaid, except in the teaching activities. Art. 10: It is forbidden to hold functions concurrently in more than one institution. Art. 11: Upon publication of the present Ordinance, the HAT and the CRES are formed and proceed to the election of their respective officers; Each competent institution appoints its HCC members; The Prime Minister proceeds to large consultations to form a consensus Government and appoints the members of the Government. Art. 12: The President of the HAT calls on the whole Malagasy population for peaceful serenity, national recovery, development, freedom, democracy and national unity. Art. 13: The law in force in the Republic of Madagascar is still applicable if not contrary to the present Ordinance, to the fundamental principles of the Human Rights Declaration and to the International Agreement on Civil and Political Rights. Art. 14: Due to the emergency, the present Ordinance will come into force upon publication by radio or television broadcast, independent of its publication in the Official Gazette. Promulgated in Antananarivo, March 19, 2009 Andry RAJOELINA END TRANSLATED TEXT. MARQUARDT