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The Guinean constitutionalist and professor at the Bissau Law School, José Carlos da Fonseca, considers void the decree of the President of Guinea-Bissau, published on Monday (11.05), which instituted the Technical Commission for constitutional review.
According to Presidential Decree No. 14/2020 to which DW Africa had access, the commission will consist of five elements and will have a period of three months to present to the President of the Republic a summary of the draft revision of the Constitution with the indication of the articles. to review and the meaning of the changes that are intended to be introduced there, as well as the draft of the revised Constitution itself, for its subsequent presentation for discussion and adoption by the competent bodies.
The Guinean League for Human Rights (LGDH) reacted in a statement with “quite concern” about the content of the presidential decree which it considers “manifestly unconstitutional” and “an affront to the principle of separation of powers”, which is the basis of the state of law. The LGDH condemns “without reservation” this constitutional drift of Umaro Sissoco Embaló, which it considers to be “an indication of a dangerous propensity for the arbitrary exercise of power.” The League also requires holders of sovereign bodies to act in accordance with the Constitution and the law “under pain of causing further disruption to the social fabric.”
In an exclusive interview with DW, José Carlos da Fonseca, a master in legal and political science from the Faculty of Law of the University of Lisbon, says that the president does not have the competence to create a commission and in a state of emergency, that the Umaro Sissoco himself decreed. The constitutional revision cannot be presented, debated or voted during the state of siege or emergency, defends the constitutionalist.
José Carlos da Fonseca
DW Africa: How can we constitutionally frame the presidential decree that institutes the technical commission for the revision of the Guinea-Bissau Constitution?
José Carlos da Fonseca (JCF): In terms of the legal framework, Decree No. 14/2020, which creates a commission to review the Constitution, since a decree, in terms of pathology, does not legally exist. Our Constitution in Article 91 is clear. This legislative initiative belongs to the deputies and the Government. The revision of the Constitution is a strict legislative act. And, according to this constitutional provision, only two organs in the Republic of Guinea-Bissau have the competence to set in motion, the will to create or revise a law. The President of the Republic, by virtue of the Constitution, is excluded, he does not appear in Article 91 nº1 of our Constitution.
DW Africa: Who is competent in this matter under the Constitution?
JCF: We have article 85, which speaks of the competence of the National People’s Congress (ANP) and clearly tells us that it is up to the National People’s Assembly to proceed with the constitutional review in accordance with the terms of articles 127 and following. This constitutional provision refers us, in terms of the competence of the Assembly, to Article 127 which says that the initiative for constitutional review is the responsibility of the deputies. Which means that, due to all these provisions that I have just mentioned, the President of the Republic has no competence to create any commission to change our Constitution. Even in the ninth and current legislatures, the National People’s Assembly, by resolution, created an eventual commission to review the Constitution, of which I myself am a part.
It is a commission that covers almost the entire structure, even the President of the Republic has a representative. All the sovereign organs of the Republic of Guinea-Bissau have a representative, they sit in that eventual commission for the revision of the Constitution. There is the President of the Republic, there is the Government, the courts, civil society, religious entities, everything. The entire social structure is in that committee. Therefore, there is no room for the creation of another technical committee. Because, in fact, this work has been carried out since the ninth term by the ANP and it has a constitutional vocation for that purpose.
DW Africa: In a state of emergency, what does the Constitution say? Is it possible to carry out a review?
JCF: No. Strictly not. Article 131, which limits the circumstances of the revision of the constitution, is part of article 127, chapter 2, says that “no project or proposal for revision may be presented, debated or voted during the state of siege or state of emergency.”
Sir. The President of the Republic decreed the extension of the state of emergency. How is it possible to counteract the [Artigo] 131? This is not the appropriate time. This rule wants to avoid [isso]. Right now, when everyone has the coronavirus problem, it’s time to focus on this.
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