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Organic Law No. 2011-009 on the Special Electoral Court
EXPLANATORY MEMORANDUM The continuation of malagasy-Malagasy dialogue between the Malagasy political actors to end the crisis in Madagascar results in some areas of agreement, including the creation, on an exceptional and temporary basis, to a Special Electoral Court.
The creation of this Court enjoys the membership of the main political actors because it can provide security for free and transparent elections. To achieve these objectives, this organic law requires certain conditions for future members of the Special Electoral Court, namely the good character, honesty and integrity in addition to their legal expertise. Moreover, they should have never been affiliated with any political party.
Indeed, the Special Electoral Court is composed of judges, civil administrators and a teacher
law. Moreover, the method of appointment is rather special in that they are all elected by their peers
. Said Court terminates or the existence or the powers of the Supreme Constitutional Court
, it is only substituted for it on the treatment of electoral disputes and the presidential elections of deputies, as well as the proclamation the final results of those elections. It will be dissolved at the end of the date of announcement of final results of the latest elections in this organic law.
This organic law consists of 54 articles divided into five titles dealing
respectively: - the creation of the Special Electoral Court - the composition and status of its members, - organization, - the powers of the Electoral Court Special specifying the procedure for
handle disputes relating to presidential elections and deputies, as well as on the proclamation of the results of those elections,
- various provisions.
This is the purpose of this organic law. 2
Organic Law No. 2011-009 on the Electoral Court
Special Congress of the Transition and the High Council of the Transition adopted in their respective session dated June 7, 2011 and August 2, 2011 the law which reads as follows:
TITLE OF THE CREATION OF THE COURT ELECTION SPECIAL
Article - To end the crisis in Madagascar and to the advent of the Fourth Republic, he created an exceptional and temporary basis, a Special Electoral Court in charge of electoral disputes and the announcement of final results of elections of the President of the Republic and Deputies.
TITLE II COMPOSITION OF THE COURT ELECTION SPECIAL
AND STATUS OF ITS MEMBERS
Art.2 - The Special Electoral Court is composed as follows: - seven magistrates elected by their peers activity including three of the judiciary, two administrative
order and two of the financial order; - Three civilians directors elected by their peers activity; - A right of teachers of public universities elected by their peers.
They are elected because of their legal competence, and must have adequate experience of the judiciary or of higher legal education or public administration and electoral legislation. They must be of good character, honest, upright, never to have been affiliated to any political party and have never been convicted. Art. 3 - A special commission composed of the heads of the three courses composing the Supreme Court or their representatives is responsible for conducting the selection of eligible candidates, all vote counting results of the election of members of the Special Electoral Court and stop work on the list of elected candidates. All these operations will be the subject of the minutes signed by the members of the Commission. The terms of elections are established by decree of the Council of Government.
Art. 4 - The appointment of the elected members is established by joint decision of the Heads of the Supreme Court of Madagascar. Members took the title of election judge. The members of the Electoral Court Special gather at the latest within thirty days of their appointment to: - the swearing and - the election of their president.
Art. 5 - The term of office begins on the date of appointment and ending on the date of the dissolution of the Electoral Court Special pursuant to Article 50.
Art. 6 - The Special Electoral Court consists of a President, a judge Dean and nine judges. The President is elected by his peers. The title of senior judge is vested in the oldest member. He second and compensates the president when needed. Judges rank according to their age from the standpoint of precedence. Art. 7 - Civil servants and judges appointed to the Special Electoral Court are considered, notwithstanding any contrary provisions, as a mission and continue to benefit in their original body advancements in level, class and grade, by means appropriate to their bodies original. Art. 8 - Special Electoral Court member's mandate is incompatible with:
- One member of an institution, the INEC - General Secretary functions, General Manager or Director in a public administration
; - One member of CSM - Court Chief functions or jurisdiction; - Any elected public office; - Any activity within a political party or organization or in a union.
When a judge is in one of the cases of incompatibility as provided above, the acceptance of new functions waiver outweighs its previous mandates or functions. Art. 9 - Before their oath, the members of the Electoral Court Special undertake individually, by letter addressed to the Prosecutor General of the Supreme Court, is not present in any election for the duration of their mandate. Art. 10 - Under penalty of disqualification, members of the Electoral Court Special are required to make a declaration of assets within fifteen days of their appointment. As such, a certificate of deposit of their statement will be issued by the Director General of the Bureau Independent Anti-corruption.
4 Forfeiture of Justice is pronounced by the State Council of the Supreme Court, within three days, the referral to the President of the Special Electoral Court, an institution Head, the President of the Independent National Electoral Commission or a group of ten legally constituted political parties.
Art. 11 - For the duration of their term, members of the Electoral Court Special can take no public position on matters within the jurisdiction of the Court, or be consulted on the same subjects.
Art. 12 - A member of the Electoral Court Special may resign by letter addressed to the President which immediately notifies the President of the High Authority of Transition and Heads of the Supreme Court of Madagascar.
Art. 13 - An election judge appointed to exercise any of the functions resulting incompatibility under section 8 above is resigned. The compulsory retirement of a member is recognized by a decision of the Electoral Court Special if it exercises an activity or accepts a function or incompatible with elected office as a member of the Court or if he would have violated Article 11 above. Copy of the decision immediately to the President of the High Authority of Transition for the appointment of his replacement.
Art. 14 - In the event of forfeiture, voluntary resignation, compulsory retirement or death of a member of the Special Electoral Court, the Heads of the Supreme Court find joint decision by the appointment, within eight days of candidate with, second, the largest number of votes in the first election. Art. 15 - If the vacancy with the chairmanship of the Special Electoral Court, it is first to nominate an electoral judge in accordance with Article 14 above to complete the members of the Court.
The new President is elected then within three days from the date of appointment of the new Electoral Judge.
Art. 16 - Before taking office, the members of the Electoral Court must swear Special solemn audience of the Supreme Court, and in the presence:
- President of the High Authority of Transition or his representative; - President of the High Transition Council or his representative; - The President of the Transitional Congress or his representative; - The Prime Minister, Head of Government, or his representative; - President of the High Constitutional Court or his representative; - The President of the Independent National Electoral Commission or his representative
; in the following terms:
"Mianiana aho fa hanatanteraka antsakany andavany sy ny pahamendrehana-ary amim andraikitra atolotra ahy ao amin 'ny ny Fitsarana Manokana Momba Fifidianana, tsy hiandany na 5
amin'iza na amin' iza handray fanapahan fa-ka ny ny kevitra ankalalahana fanajana Lalàmpanorenana sy ny manan lalana kery-ary ireo foto-kevi-dehibe raiketiny No. hany hibaiko ahy amin'izany. Mianiana koa aho fa tsy ary hitandro mandrakariva hamboraka oviana na na ny oviana tsiambaratelon ' ny ny diniky Fitsarana ". Record is drafted of the oath. The recipient is told installed in office by the First President of the Supreme Court. The report thereon is published in the Official Journal of the Republic.
Art. 17 - The members of the Special Electoral Court granted the same pay and benefits granted to members of the High Constitutional Court. However, any equipment available to members of the Special Electoral Court in the discharge of their duties, must be submitted to the State, at the end of their mandate. Art. 18 - The President of the Special Electoral Court and members are criminally responsible before the competent ordinary courts for acts performed in and outside the exercise of their functions and qualified crimes or offenses at the time they were committed.
PART III THE ORGANISATION OF THE COURT ELECTION SPECIAL
Art. 19 - The Special Electoral Court headquarters in Antananarivo. It is convened by the Chairman. In case of impediment of the latter, the senior judge shall deputize.
In case of absence or temporary incapacity of the President and senior judge, the oldest of nine judges ensures substitution.
Art. 20 - The Special Electoral Court enjoys administrative and financial autonomy. A regulatory text sets out how this autonomy. The funds necessary for its operation are subject to budgetary proposals adopted jointly by the President of the Electoral Court and the Special Minister for Finance and Budget. The corresponding overall allocation is included in the Finance Act of default current year to be granted by donors.
The credits of the Electoral Court Special Budget are distributed and open deliberation by its members.
The operating expenses are incurred under a special procedure.
Art. 21 - The President is the head of administration of the Special Electoral Court. It's spending authority. However, it may delegate some of his powers to one of the election judges. 6
A decree of the President of the Special Electoral Court determines the conditions and procedures for administration of funds in accordance with the principles and rules of public accounting. Art. 22- The administrative account credits of the Electoral Court Special is integrated in the draft regulation law of the state budget related to the current year.
Art. 23 - The Special Electoral Court establishes its rules of procedure and determines the organization and operation of services and the general staff rules.
Art. 24 - the Special Electoral Court services include the Office of the President, the Registry, the General Secretariat including the IT service and the administrative and financial department.
Art. 25 - The Chief Registrar is appointed by the President of the Electoral Court Special on a list of three names proposed by the First President of the Supreme Court, among Clerks Chief courses and courts.
Art. 26 - The administrative staff of the Electoral Court Special is made either by public servants made available, either by directly recruited agents under contract. The grid balance, rates of various allowances and various accessories served to the Electoral Court Special agents are aligned with those of the public service. Art. 27- the Special Electoral Court's staff, with the exception of junior officers are determined by the rules, takes the oath before the Special Electoral Court in a special audience in these terms:
"Mianiana aho fa hanatanteraka antsakany sy andavany ary ny amim-pahamendrehana andraikitra omena ahy, tsy hamboraka oviana na na izay oviana tsiambaratelo mikasika antotan- taratasy rehetra mety fantatro noho ny ho ao amin'ny asako Fitsarana Manokana Momba ny Fifidianana. "The swearing is proven by the minutes.
Art. 28 - The judgments and decisions of the Court are published under the direction of the President or a judge delegated by him, within seven days of the date of the act at the latest. Art. 29 - The State is liable for damages of any kind caused by the Special Electoral Court Services. Art. 30 - The President shall ensure the internal and external security of the Special Electoral Court. It may, for this purpose, request the police and all the authorities which he deemed necessary contest. This requirement may be addressed directly to the responsible law enforcement who are required to refer it immediately. 7
TITLE IV RESPONSIBILITIES OF THE COURT ELECTION SPECIAL
Art. 31 - The Special Electoral Court ruling on the contentious election of the President of the Republic and of Deputies where it makes decisions. It proclaimed the official results for these elections by stops.
Chapter I THE CONTENTIOUS PROCEDURE
Art. 32 - in contentious proceedings before the Special Electoral Court is free and essentially written. However, when a lawyer is made, it may, if he shall inform in advance the Court at the hearing of oral argument. In this case, the president, the electoral judges and the chief clerk get in robe and the hearing is public.
Art. 33 - The Special Electoral Court is seized by originating application, and if applicable, according to the procedural rules laid down by the special legislation governing the matter before it. The request must be sent to the Registry of the Court within ten days of the election date, stamp postmark. For applications confrontation of minutes, they should be addressed to the Registry of the Court, three days from the date of the announcement of provisional results by the Independent National Electoral Commission. The request must specify the region, the district, the county, the fokontany and number of the polling station concerned. Any request for a general comparison of the results of the presidential elections is inadmissible
Art. 34 - The request is in duplicate and must, on pain of nullity, be signed and include:
- the applicant's full name; - His home; - Documents establishing its quality; - Subject of the request; - The pleas and arguments.
All parts offered support means must be annexed to the application.
They can be either authentic or official documents or testimony in a written statement signed by at least three witnesses present at the facts or of the alleged irregularity. The Court discretion to assess the probative value of the produced parts. 8
Art. 35 - Upon receipt of the request, the Chairman of the Electoral Court Special Rapporteur refers to a judgment following the procedure unless he decides to make himself the report. The President may set a deadline for submission of the report or enlistment of the case. Art. 36 - The application is notified by the office of the Special Electoral Court to the parties. Interested persons may produce a statement of defense within three days of notification. Each party has then, in turn, forty eight hours to respond to the defense or rebuttal. The deadlines set above may be extended automatically by the president if exceptional circumstances require. If one of the parties did not submit Memorial within the time allotted to him, the case is deemed ready. Art. 37 - The case once ready, the President made the Sign of the role and fixed the date of hearing. The role of hearing is posted at the entrance to the courtroom of the Court at least twenty four hours before the start of the hearing. The parties are notified by any means possible correspondence in writing. The decisions of the Electoral Court Special on all litigation must take place before the announcement of official election results. Art. 38 - The originating applications hit inadmissibility or invalidity for failure to comply with requirements of the law does not give rise to exchange of pleadings or arguments. They are immediately enrolled for a hearing of the Special Electoral Court.
Art. 39 - In terms of electoral disputes, the Court has jurisdiction to entertain any question or objection raised on the occasion of the application but its decision on a status issue is not binding on other courts. The Special Electoral Court, if it declared the application admissible in form, examines the background. If necessary, it may order the confrontation of related records in the presidential and legislative elections which it is addressed. It proceeds as appropriate:
- either the rejection of the application; - Either in the reformation of the results; - Or the cancellation of operations of the concerned polling stations if it was proven that
facts or disputed transactions have affected the integrity of the election and changed the meaning of the vote cast by the voter or if was flagrant violation of laws or regulations or of public order regulations.
Art. 40 - The Court Special Election Headquarters in at least nine members, chaired by the President or the Judge Dean if unable to attend. During deliberations, the youngest judge opines the first after the rapporteur, the Chairman opines last. In case of a tie, the Chairman has the casting vote. The judgments and decisions of the Special Electoral Court are not subject to any appeal; they are signed by minute, by the President and the Chief Registrar. They are notified by the Registry to all interested parties. They went in solemn public hearing.
Art. 41 - The judgments and decisions of the Special Electoral Court are published in the Official Journal of the Republic.
Chapter II PROCLAMATION Art.42 - The Special Electoral Court will receive the provisional results published by the Independent National Electoral Commission. Art.43.- accordance with section 124 of the Electoral Code, the Special Electoral Court makes the final announcement of the results of presidential and legislative elections within 45 days maximum from the date of the respective publication provisional results by the Independent National Electoral Commission. Art.44.- Pursuant to Article 48 of the Constitution, the inauguration of President-elect of the Republic is provided by the High Constitutional Court. The members of the Special Electoral Court attending this solemn audience.
Chapter III COSTUME
Art. 45 - Members of the Electoral Court Special wear during their oaths and at public hearings and solemn costumes defined below. The purchase of these costumes is borne by the general budget appropriations allocated to the Court. Art. 46. The judges of the Special Electoral Court wearing a red woolen gown with high neck gown of white silk edged with white fur, white lace flap hat and red velvet cloth provided with a golden braid. President worn over the gown golden fabric passing over both shoulders. Art. 47 - The chief clerk carries the same costume as the Chief Registrar of the Supreme Court in solemn audience.
10 TITLE V MISCELLANEOUS
Art. 48 - During public hearings, the chairman, judges and the Chief Registrar of the Special Electoral Court wearing their costumes.
Art. 49- The members of the Special Electoral Court are equipped with a special card function which the model is determined by decision of the President of the Court. The Special Electoral Court Art.50- dissolved automatically the end of the proclamation date of the final results of the latest elections in this organic law. The members and the Electoral Court personnel returning their bodies and Special respective home ministries. Art. 51 - Regulatory instruments will be taken as necessary, pursuant to this Act. Art. 52 - The powers and responsibilities of the High Constitutional Court on electoral disputes and announcement of final results for the presidential and legislative elections for the advent of the Fourth Republic are conferred on provisional basis to the Special Electoral Court. Art. 53 - Because of the urgency, and in accordance with Article 4 of Ordinance No. 62-041 of 19 September 1962 on general provisions of internal law and private international law, this order comes immediately force once it has been published by radio and television broadcast or display. Art. 54 - This organic law shall be published in the Official Gazette of the Republic. It will run as the organic law of the state.
Antananarivo, August 2, 2011
THE CHAIRMAN OF THE BOARD OF TRANSITION
Rasolosoa Dolin THE PRESIDENT OF THE CONGRESS OF TRANSITION