The law empowering the President of the Republic to take, by ordinance, measures within the domain of the law and authorizing the extension of the state of emergency comes to an end in a few days. If the head of state wants a new prorogation, he will have to return to the National Assembly. It could do so since the same arguments related to the fight against covid-19 are still valid.
It was on March 23, in his first speech on the coronavirus, that the head of state had declared a state of emergency. But it should take longer to stem the spread of the pandemic. Thus, as authorized by the Constitution, he should ask the deputies to extend this exceptional regime. Article 69 of the Constitution provides: “The state of siege, like the state of emergency, is decreed by the President of the Republic. The National Assembly then meets as of right, if it is not in session. The decree proclaiming the state of siege or the state of emergency ceases to be in force after twelve days, unless the National Assembly, seized by the President of the Republic, has authorized its extension. ” On April 1, 2020, the National Assembly, reduced exceptionally to around twenty members to comply with the barrier measures, extended the state of emergency enveloped in a “Bill empowering the President of the Republic to take, by ordinances, measures within the domain of the law and authorizing the extension of the state of emergency ”to deal with the Covid-19 pandemic. Therefore, as stated in article 77 of the Constitution, it is “within the limits of time and jurisdiction fixed by the enabling law” that the President of the Republic can make use of these prerogatives conferred on him. However, the Assembly empowered the President of the Republic to take, by ordinances, “within three months of the publication of this law, any measure within the domain of the law, in order to meet the needs economic, budgetary, security and health ”. It is therefore this “time limit” – dear to Ousmane Sonko who abstained – that will be opposed to the Head of State from June 1, 2020, three months to the day that the law of empowerment was in force.
A new law for the same reasons
While it is clear that President Macky Sall can no longer extend this state of emergency this time – even though many jurists have challenged the two decrees which have already done so – the fact remains that the texts do not specify that he can declare another state of emergency and request, after the 12 days, a new prorogation of three other months by the National Assembly, in accordance with article 69 of the Constitution. All the same, a constitutional expert who preferred to remain anonymous said: “If the head of state wants to extend the state of emergency, he will have to return to the National Assembly. Likewise, if he wishes to preserve his exceptional powers conferred on him by the enabling law, he must again request the deputies. ” In the explanatory memorandum to the law, it is written that recourse to article 77 of the Constitution to attribute these exceptional powers to the Head of State is also justified by a concern “to avoid having to gather the National Assembly every time there is a question of taking urgent decisions ”. However, this argument is now more valid since the National Assembly has just been affected by covid-19 with a confirmed case and many contact cases quarantined. No doubt the President will provide answers early next week. And, maybe even before.
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