Summary of Day 11, 13th January: Assembly Adopts Executive Powers but Disagrees over Judicial Appointments

The National Constituent Assembly entered its eleventh day of discussion of the constitution on Monday after a long debate the previous evening over the division of executive powers. The dividing line between the powers of the President of the Republic and the powers of the Prime Minister formed the theme of debates around articles 91 to 100 on Monday.

After having failed to reach agreement on article 90 on Sunday evening, swift progress was made on articles 91 to 100 with many articles receiving high percentages of yes votes. Articles were adopted on the powers of the Prime Minister, the formation of the government, the interaction between the government and legislature and motions of censure.

However, discussion soon ran into deep disagreements over judicial appointments when a proposed amendment seeking to give powers for senior judicial appointments to the Minister of Justice raised opposition, particularly among members of the Democratic Alliance, which called for the vote to be delayed to the following day. The voting on the article took place among shouting and general mayhem. The session was adjourned immediately after the vote. Meetings of parliamentary blocs are due to take place on Tuesday morning to discuss this article and attempt to reach agreement on the delineation of judicial appointment powers.

An overview of the articles adopted on Monday is set out below:

Statistics of Day 11

13: number of new articles adopted on Monday.

70%: percentage of articles discussed, out of a total of 146.

3: number of articles in the draft constitution that have been rejected so far.

79.67%: percentage of deputies present voting for amended article 103.

Article 91

Draft: “The Prime Minister is responsible for the following:

• Creating, amending and dissolving ministries and bureaus of state, as well as determining their mandates and powers after discussion with the Council of Ministers.

•  Removing one or more members of the government or receiving the resignation of one or more members of the government.

• Creating, amending or dissolving public institutions, public entities and administrative departments as well as regulating their mandates and powers after discussion with the Council of Ministers.

• Appointing and dismissing individuals from senior civil positions. These positions are determined by law.

The Prime Minister shall inform the President of the Republic of the decisions taken within the powers mentioned above.

The Prime Minister governs the administration and concludes international agreements of a technical nature.

The government ensures the implementation of laws. The Prime Minister may delegate some of his powers to ministers.

If the Prime Minister is temporarily unable to carry out his tasks, he shall delegate his powers to one of the ministers.”

Consensual amendment to 1) amend the second paragraph by adding “after consultation with the President of the Republic if the Minister of Defense or Foreign Relations is concerned, and 2) amend the third paragraph to “Creating, amending or dissolving public institutions, public entities and administrative departments as well as regulating their mandates and powers after discussion with the Council of Ministers, except for those under the authority of the President of the Republic, which shall be created, amended or dissolved by way of a proposal by the President of the Republic” passed with 150 for, 2 abstentions and 2 against.

Amended article 91 adopted with 153 for, 3 abstentions and 1 against.

Article 92

Draft: “The Prime Minister is the head of the Council of Ministers.
The Council of Ministers meets by convocation by the Prime Minister, who sets its agenda.

The President of the Republic heads the Council of Ministers in the domains of defense, foreign relations, and national security relating to the defense of the state and national territory from internal and external threats, and he may also attend other meetings of the Council of Ministers. When he attends meetings of the Council of Ministers, he shall preside over them.
All draft laws shall be discussed in the Council of Ministers.”

Proposed amendment to amend the third paragraph to “The President of the Republic heads the Council of Ministers, by invitation from the Prime Minister, in the domains of defense, foreign relations, and national security relating to the defense of the state and national territory from internal and external threats, and he may also attend other meetings of the Council of Ministers”.

Amendment not passed with 83 for, 10 abstentions and 69 against.

Unamended article 92 adopted with 125 for, 17 abstentions and 23 against.

Article 93

Draft: “The Prime Minister shall exercise general regulatory powers and shall issue individual decrees that shall be signed after discussion with the Council of Ministers.

Decrees issued by the Prime Minister are referred to as governmental decrees. Regulatory decrees shall be signed by the competent minister.
The Prime Minister shall sign the regulatory orders issued by ministers.”

Unamended article 93 adopted with 163 for, 3 abstentions and 1 against.

Article 94

Draft: “The government shall be held accountable before the Chamber of Deputies.”

Unamended version adopted with 167 for, 0 abstentions and 1 against.

Proposal to add an article after article 94, “The Government undertakes and promises to supervise investment in the public sector in the public interest” rejected, with 81 for, 37 abstentions and 54 against.

Article 95

Draft: “Each member of the Chamber of Deputies has the right to submit written or oral questions to the Government in accordance with the Chamber’s internal rules of procedure.”

Unamended version of article 95 adopted with160 for, 1 abstention and 1 against.

Article 96

Draft: “Votes may be taken on a motion of censure brought against the government, after at least one-third of the members of the Chamber of Deputies make a justified request to the President of the Chamber of Deputies. The voting process shall not take place except after the lapse of a fifteen-day period as from the date that the request was presented to the President of the Chamber.

Withdrawal of confidence in the government shall be conditional upon the approval of an absolute majority of the members of the Chamber of Deputies and upon the presentation of an alternative candidate for the position of Prime Minister whose candidacy shall be ratified in the same voting process. The President of the Republic shall entrust the candidate with the task of forming a government.
In the event of failure to attain the specified majority, a motion of censure may only be reintroduced against the government after the lapse of a six-month period.

The Chamber of Deputies may withdraw confidence in a member of the government after a justified request is submitted to the President of the Chamber by no less than a third of the members. Withdrawal of confidence shall be by an absolute majority of votes.”

Consensual amendment to add to the end of the second paragraph “The President of the Republic shall entrust the candidate with the task of forming a government, in accordance with the provisions of article 88” passed with 157 for, 5 abstentions and 4 against.

Amended article 96 adopted with 157 for, 8 abstentions and 4 against.

Article 97

Draft: “If the Prime Minister resigns, the entire government is considered to have resigned. The resignation shall be submitted in writing to the President of the Republic who notifies the President of the Chamber of Deputies.

The Prime Minister may propose to the Chamber of Deputies to give a vote of confidence to the government to continue its work. The vote shall be by an absolute majority of the members of the Chamber of Deputies. Should the Chamber not renew confidence in the government, it shall be deemed to have resigned.

In either case, the President of the Republic shall assign the person who is most capable to form a government in accordance with the provisions of Article 88” adopted with 156 for, 2 abstentions and 3 against.

Proposal to add a new article after article 97, “The President of the Republic may request the Chamber of Deputies to vote on a vote of confidence for the Government to continue its tasks, a maximum of two times in a presidential term.  Such a vote would be by absolute majority of the members of the Chamber. If the Chamber does not give a vote of confidence to the Government in such an event, it would be considered to have resigned and the President of the Republic shall task the most capable person with forming a government within thirty days in accordance with paragraphs (1), (5) and (6) of article 88.
If the set period expires without the formation of a government, or if it does not gain a vote of confidence from the Chamber of Deputies, the President of the Republic may dissolve the Chamber and call early legislative elections in a period not before 45 days and no later than 90 days.
If the Chamber of Deputies grants the government a vote of confidence on two occasions when requested by the President of the Republic, the latter shall be deemed to have resigned.”

The new article was adopted with 150 for, 13 abstentions and 4 against.

Article 98

Draft: “If, for any reason other than resignation or withdrawal of confidence, the post of Prime Minister is permanently vacant, the President of the Republic shall task the candidate nominated by the ruling political party or coalition to form a government within one month. If this period lapses without a government having been formed, or it fails to receive a vote of confidence, the President shall task the most capable person with forming a government, which shall be put to a vote of confidence by the Chamber in accordance with the provisions stipulated in Article 88.

The outgoing government shall continue its activities under the supervision of one of its members, to be selected by the Council of Ministers and appointed by the President of the Republic, until the new government takes over.”

Unamended version adopted with 159 for, 1 abstention and 2 against.

Article 99

Draft: “Any disputes arising with respect to the powers of the President of the Republic and of the Prime Minister shall be referred to the Constitutional Court. The Court shall rule on the dispute within one week based on a request presented by the most concerned of the parties.”

Unamended version adopted with 149 for, 14 abstentions and 2 against.

Chapter Five: Judicial Authority

Title of chapter adopted with 162 for, 4 abstentions and 3 against.

Proposal to amend the title to “Justice” rejected with 27 for, 31 abstentions and 109 against.

Article 100

Draft: “The judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of law, and the protection of rights and freedoms.

Judges are independent. No power shall be exercised over their rulings other than the power of the Constitution and law”.

Proposed amendment to article 100, to amend last paragraph to “No power shall be exercised over their rulings other than the power of law” passed, with 116 for, 6 abstentions and 54 against.

Amended article adopted with 78 for, 6 abstentions and 0 against.

Article 101

Draft: “A condition of being a judge is the possession of competence. He must abide by impartiality and integrity. He shall be held accountable for any shortcomings in the performance of his duties.”

Unamended article adopted with 182 for, 3 abstentions and 2 against.

Article 102

Draft: “Judges shall enjoy immunity against criminal prosecution and may not be prosecuted or arrested unless their immunity is lifted. In the event of flagrante delicto, a judge may be arrested and the Judicial Council shall be notified with a view to decide on the request to lift the immunity.”

Unamended article adopted with 182 for, 2 abstentions and 0 against.

Article 103

Draft: “Judges shall be nominated by virtue of an order made by the President of the Republic based on an opinion from the Supreme Judicial Council.”

Proposed amendment to add “”Appointments to senior judiciary positions shall be made by way of governmental order based on a proposal from the Minister of Justice, and the law shall determine these positions” passed with 109 for, 12 abstentions and 6 against.

Amended article 103 rejected with 98 for, 12 abstentions and 13 against.