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