DCC 06-074

This decision addresses a key issue in constitutional law, in particular that of amending the Constitution through a legislative procedure (specifically vote by parliament). The decision effectively stopped the heated debate which had been ongoing on the issue since June 2006 in Parliament. Having resolved all preliminary admissibility questions (many petitions had been filed against the proposed constitutional amendment bill (No 2006/13)), the Court focused on the procedural and substantive constitutionality of the challenged law.

The Court began by inquiring whether the process adopting the law complied with Parliament’s internal rules of procedure. Under the rules, parliamentary sessions and voting must be conducted in the presence of two parliamentary secretaries. However, the examination of the minutes according to the Court, show that only one secretary (who also left the session before discussions on the law in question commenced), was present. In the Court’s view, this procedural lapse not only violated the articles 17(5), 58(4) and 129 of Parliament’s internal rules of procedure but also it indirectly violated article 89 of the Constitution. The latter requires Parliament to conduct proceedings in accordance with the rules of procedure, which must also be in compliance with the Constitution. The line of reasoning taken by the Court to make a finding of unconstitutionality is significant in that it effectively makes parliament’s rules of procedure part of the constitutional bloc of laws. The practical import of this is that breach of the rules of procedure automatically constitutes a breach of the Constitution. This outcome, while apparently logical, is not uncontroversial as conceptually, the constitutional bloc of laws can comprise only organic laws and the Constitution.

Be this as it may, it must be noted in any event that parliamentary secretaries play an extremely important role during parliamentary debates—directing and policing debates (Articles 58.4 and 129 of the Rules). As such, their absence has legal consequences on the validity of the debates outcomes. As far as the present bill is concerned and also given its nature (a constitutional amendment bill) the seriousness of the issue it dealt with (extension of parliamentary term), the Court did not hesitate to invoke the full legal consequences of this gap.

The second procedural issue the Court addresses is the mandatory steps that need to be taken to properly adopt a constitutional amendment law.  The Constitution, the Court recalls, grants the initiative to amend the Constitution concurrently to the President of the Republic (following the decision taken in the Council of Ministers) and Parliament. For the proposed amendment to be considered, Parliament must first approve it by a majority of 3/4 of its members (article 154).  Following deliberations, the final measure must be approved by referendum unless Parliament shall have adopted it by a 4/5 majority vote (article 155). However, as one of the two mandatory steps, particularly step one requiring a 3/4 approval by Parliament for the  measure to be debated, according to the Court’s finding on the facts, was not followed, the measure in its view violated article 154 of the Constitution

Most interesting and perhaps novel with this decision, however, is the reasoning the Court takes in making a finding of substantive unconstitutionality. The Court relies on two main arguments in its substantive analysis: the first drawn from the principle of budgetary equilibrium and the second is based on the so called principle of national consensus—an entirely new constitutional principle the Court develops — which ultimately becomes very decisive in striking down the measure.

With respect to the first argument, it is important to recall that under articles 107 (Constitution) and 74.5(Parliament’s Internal Rules of Procedure), the President of the National Assembly must reject any proposed measure that increases the public charge or expenditure if it is not accompanied by a corresponding measure that increases revenue by equivalent amounts. This is essence of the principle of budgetary equilibrium in public finance law. In its submission to the Court, Parliament unsuccessfully argued that contrary to popular perception, the intention with the proposed amendment was to cut down costs and generate substantial savings on the national budget by postponing and twining the legislative elections with the municipal elections. The Court responded that whatever intention might have informed the measure, expert opinion also indicated that twinning the elections involved additional expenditure, requiring an increase on the public budget. And without a supporting proposal to offset these additional costs on the public purse, Parliament violated the principle of budgetary equilibrium enshrined in both the Constitution and its own rules of procedure.

The second and perhaps most decisive element of the Court’s substantive analysis is based on the principle of national consensus. It is worth noting that this principle is found nowhere in the Constitution but a creation of the Court through an expansive reading of the Constitution. The Court underlines the fundamental opposition of the Beninese people as expressed in the preamble of the Constitution to any form of confiscation of power.  Even if the Constitution allows for its own amendment and defines procedures for that process, the Beninese peoples’ determination to create a dispensation based, amongst others, on principles such as the rule of law, democratic plurality and national cohesion requires—the Court argues— that any amendment be informed not only by these values but also, and perhaps more importantly by the principle of national consensus. In a reasoning strikingly similar to that in DCC 11-067 where the Court had to address the Presidential term limits question, it argued that there was a specific intent behind article 80, which Parliament is seeking to amend. In its view, article 80 represents the materialization of the principle of national consensus against personalization and confiscation of power. As such, amending this provision—and it is unclear if the Court even agrees it is amendable— without following the article 154 procedure and also not directly consulting the people violates that national consensus. As mentioned earlier, the Constitution does not provide for this principle. As such, what the Court effectively does is develop and introduce into Benin’s constitutional bloc another new principle. A consequence of the constitutional value which the Court attaches to this principle is that it has become a standard for constitutional review.

This reasoning is also problematic somehow: the Court seems to completely gloss over the fact that even if Parliament had complied with article 154, it is possible to also argue that article 155 of the Constitution requires a referendum only if Parliament cannot garner the 4/5 majority to pass the amendment in house. In other words, the Constitution envisages a referendum as a secondary, and not the primary approval method for constitutional amendments. However, the Court, invoking the principle of national consensus, seems to reject that view.  

In addition, the Court’s silence on article 2 of the proposed law, which effectively gives the amendment—had it passed—retroactive force as it made the change applicable to the existing parliamentary term (as it was then) with immediate effect, is somewhat perplexing. The principle of non-retroactivity prohibits the application of new law to currently existing or prior situations. Overriding it as Parliament seemed poised to, compromises legal certainty, which is a key feature of the rule of law, and as such one would normally have expected the Court to engage this issue as well. Notwithstanding the above, one final and perhaps equally relevant line of reasoning the Court could have taken relies on article 124(2) of the Constitution. It gives the Court’s actions a res judicata character by providing that its decisions are final, binding on all public authorities and not subject to any appeal. Read together with articles 81(2) and 117(3) (Constitution) and article 52(Organic law on the Constitutional Court) which effectively make the Court the ultimate electoral justice institution as far as parliamentary and presidential elections (including their results) are concerned, one could argue that the Court’s validation of the 2003 legislative elections of the current parliament for a four year mandate is effectively a judicial decision of a res judicata nature. As such, Parliament’s initiative to extend the term in question to five years might also be read as nothing more than both a violation of the res judicata principle and an attempt to circumvent a judicial decision by rewriting the law. While it is generally not unusual (or illegal) for parliaments to use their legislative power in this way to thwart judicial decisions, it can hardly be a practice to encourage. Such practices not only undermine the authority of the Court and its counterbalancing role in the political system but also they can ultimately erode the rule of law, especially when politically driven.