Teacher-researcher in public law at the Gaston Berger University in Saint-Louis, Dr. Yaya Niang gives his opinion argued on the impact that God’s reminder of the Constitutional Council, Mamadou Badio Camara could have. He shares his analysis on the functioning of this institution seized last week, by a group of opposition deputies of an appeal against the so -called interpretative law.
Specialist in constitutional law, Dr. Yaya Niang also specified about this appeal that it will be up to the Constitutional Council to assess the means to lead to a conclusion: the constitutionality or unconstitutionality of the law submitted to its examination.
Constitutional Council: What governance after the disappearance of its president?
“The texts remain summary and evasive on this issue. However, the Constitutional Council could invoke its regulator status or adopt a broad interpretation to ensure continuity, as it has already done in the past.
From the point of view of the evasive nature of the texts, we can invoke organic law number 2016- 23 of July 14, 2016 on the Constitutional Council and Decree number 2021-300 of February 25, 2023 approving the internal regulations of the constitutional jurisdiction. Indeed, the aforementioned organic law has in its article 23 that “if one of the members of the council, temporarily prevented, is the president, the vice-president ensures the interim”. It thus appears that this provision evokes the interim of the president of the Constitutional Council when his temporary impediment occurs. However, we are in the presence of a death, that is to say a final impediment. The application of this provision could therefore be ruled out unless extensive interpretation
However, the aforementioned decree, approving the Constitutional Council’s internal regulations, is content to discuss the interim, in the event of the absence and the president of the president, without specifying the temporary nature. More specifically, article 3 of the internal regulations dedicates that “in the event of absence or impediment, the interim is ensured by the vice-president, or failing that, speaks the oldest member”. By interpretation, death can enter the scope of this provision as soon as the impediment has not been qualified. In this specific case: “temporary”.
As a result, the impediment mentioned in this article may be temporary as well as final. If it is admitted that death is considered to be a definitive impediment, one could conclude, in this case, that the interim could be assured either by the vice-president, or speak of age when the vice-president is prevented ”.
From the case of a jurisprudential, it should be remembered that, in the past, when the Constitutional Council had found itself in a situation where its composition was no longer in accordance with the texts to be able to deliberately deliberate, the constitutional jurisdiction invoked its status as a regulator to do without the textual constraint. This means that the jurisprudential work could fill the textual deficiency.
Admissibility of the appeal filed by the opposition against the interpretative law
“The question of admissibility should not arise. It is the examination of the conditions of form which leads to admissibility. An appeal is admissible as soon as it is brought before the jurisdiction competent under the conditions prescribed by the texts, more precisely article 74 of the Constitution. These are conditions related to deadlines (six clear days after the adoption of the law) and the quality of the applicants (sixteen deputies at least). When these conditions are met, the Constitutional Council will judge the appeal admissible. Then, will be pronounced on the substantive question, which is that of whether the legal means invoked in support of the appeal are likely to conclude that the so -called interpretative law is unconstitutionality. It is the solidity and the relevance of the means raised that will determine its scope. They can focus on the principle of equality, the nature of the law referred, its modifying or interpretative object and its intelligible or unintelligible character. It will be up to the Constitutional Council to sovereign the means to achieve a conclusion: the constitutionality or unconstitutionality of the law subject to its examination ”.
It is therefore clear that the rest of the events will be widely conditioned by the content of the advanced means.
