Constitutional Issues Professor Nathan

Constitutional Issues

Professor Nathan Brown has written an overview of constitutional issues (link is pdf).

Andrew Arato writes by email:

This is the more or less complete picture for what 2/3 votes are needed for, according to the Transitional Administrative Law, in the National Assembly and for what 50% + 1 majorities are enough. [Many journalists seem confused on this issue], since most won’t read and try to understand the TAL itself. Almost every one of these provisions is important, and potentially very contentious.

But they do not amount to a consociational or even consensus structure of governing. Setting up government is another matter. But once it is set up, the Prime Minister can (because of his ability to dismiss ministers with the support of a simple majority) convert any coalition extorted through consensus requirements into a minimal coalition as long as it has 50% and is itself cohesive. The assembly under him can freely legislate within the TAL, though it can change the TAL only through the impossible 3/4, or repudiate it only extra-legally, but arguably legitimately–if very dangerously.

According to the TAL

2/3 or higher parliamentary votes are needed:

1. Art 3A: Amending the TAL itself: ¾ of 275, plus unanimous Pres. Council, except for the supposedly unamendable parts, which do not include 3A itself!

2. Art 36A:Election 2/3 and removal ¾ (both fractions are of all members of the National Assembly) of the members of the Presidency Council

3. Art 37: Over-ride of veto of legislation is by 2/3 of those present, but vetoes must be by the consensus of all three members of the Presidency Council (36C).

4. Art 38A: In the event that the Presidency Council fails to nominate a Prime Minister, the National Assembly can do so by 2/3 of those present. (On the assumption that when “all members” are not said, simply majority is implied).

A simple majority however is enough for:

1. Art 33A: Ordinary legislation – “Decisions in the National Assembly shall be taken by simple majority unless this Law (TAL) stipulates otherwise.”

2.. Art 26A and C: The rescinding of laws and regulations in force on June 30, 2004, including the “laws, regulations, orders and directives” of the CPA

3. Art 38 A: Vote of confidence in new government nominated by Presidency Council, explicitly said to be “a simple majority”

4. Art 40A: Withdrawal of confidence in PM, or ministers collectively or individually

5. Art 41: Approval of the PM dismissing any ministers is by “simple majority” explicitly