Madagascar, High Constitutional Court, 5 July 2021, No. 9-HCC/D1
Case overview
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Link to the full text of the decision
General Summary
The Malagasy President referred to the High Constitutional Court for the constitutional review of a law authorizing the ratification of a loan agreement to respond to the challenges of the Covid-19 pandemic. This referral was in conformity with Art. 117 of the Constitution. The agreement was concluded on October 22, 2020, between the Republic of Madagascar and the Arab Bank for Economic Development in Africa (BADEA). The Court stated that:
- The referral of the President was admissible.
- Law No. 2021-007 authorizing the ratification of the Loan Agreement to finance the urgent operation tackling the Covid-19 pandemic was in conformity with the Constitution.
Facts of the case
On October 22, 2020, the Republic of Madagascar signed a loan agreement with BADEA to finance the country’s strategy and response to the pandemic. On June 8, 2021, the two chambers of the parliament approved a law authorizing the ratification of the agreement (law No. 2021-007). According to Art. 117 of the Constitution, before their promulgation, Organic laws, laws and Ordinances must be referred by the President to the High Constitutional Court to assess their constitutionality. Therefore, pursuant to Art. 117, the President of Madagascar referred law No. 2021-007 to the Court for review. On July 5, 2021, the Court ruled on the constitutionality of the funding agreement.
Type of measure challenged
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Individual / collective enforcement
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Reasoning of the deciding body
The Court relied on two articles of the Constitution to adopt its decision. These articles were Art.116(1) and Art. 137. The Court first noted that according to Art.116(1), the “Court shall rule on the conformity with the Constitution of treaties, laws, Ordinances and autonomous regulations.” Moreover, Art.137(2) stresses that agreements (such as loan agreements) that engage the State's finances must be authorized by law. Art. 137 (3) also notes that before any ratification, treaties must be submitted by the President to the Court for constitutional review. According to the Court, these conditions were met. As a result, it declared its competency to rule on the constitutionality of the Act. Furthermore, the Court held that the conditions set by Art. 137 were also fulfilled as the loan agreement was authorized on June 8, 2021, by the two chambers of the parliament. Finally, the Court noted that the President also met paragraph 3 of Art. 137 by deferring the agreement to the Court for review. On the merits, the Court found that the law authorizing the ratification of the agreement did not conflict with the Constitution.
Conclusions of the deciding body
The Court ruled that the referral of the President was admissible. It also declared the loan agreement to be constitutional.
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Balancing techniques and principles (proportionality, reasonableness, others)
In this case, the Constitutional Court did not use any balancing technique, it applied the rule of law deriving from the provisions of the Constitution. It mainly relied upon Art. 116 and 137 to admit the claim and declare the law constitutional.
