Possible and impossible in the formation of an interim wartime government in the Sudan (2-3)
It is difficult to form an independent interim Government in the Sudan under the circumstances of war, without setting out in advance a position on the applicability of the provisions of the Juba Peace Agreement. Ironically, the power that signed the Juba Peace Agreement collapsed with the 25 October 2021 coup d état. The overthrow of the Transitional Government and the repeal of the Constitution, and the Government official signed on behalf of the Central Government launched a war against the National Army, demonstrating that all the features of the political process on which the Transitional Government was based had changed completely. and the signatories to the Juba Convention still want it to exist without change or amendment. Would this assist in the formation of an agreed, impartial and impartial Government under the current circumstances? - A big question that needs an objective answer.
1. Theory of exceptional circumstances:
The theory of exceptional circumstances is an exception or a limitation on the principle of legality and its consequences. The theory of exceptional circumstances derives from the fact that the security and safety of the nation is more important than the freedoms of individuals. In case of necessity, the Executive shall take some exceptional decisions which are flawed by the competence embodied in the exercise of the Executives legislative functions and competencies, or perform acts which are flawed by the law. Such decisions are a deviation of the Abus of Power from its objectives set out in the Constitution. Although it contravenes the general rules governing the conduct of public authorities under normal circumstances, the Constitution authorizes them in exceptional circumstances when they are necessary to protect the country from an imminent threat and the actions are necessary and proportionate to the scale and type of damage expected.
Exceptional circumstances have a clear impact on the application of the Constitutions provisions, as well as on the political situation in the State. It is clear from the foregoing that the executive branch, when taking action and taking decisions to address exceptional circumstances, exceeds the competence conferred upon it by the Constitution and exercises powers that are not within its competence. Some constitutions usually empower the executive to exercise powers outside their competence with a view to maintaining public order and ensuring the regular and steady functioning of public facilities. Although the French Conseil dEtat considered that the requirements of such legitimacy for exceptional circumstances were reflected in the powers of war. However, war powers are only one of the manifestations of the application of the general theory of exceptional circumstances, which encompasses every emergency and anomalous circumstance, thus encompassing the circumstances of war, but are considered to be broader than war powers. Consequently, the States theory of exceptional circumstances in the event that it is exposed to unusual conditions for ensuring the regularity of public facilities justifies the production of an interim government to manage the crisis until the political and security situation in the country is stable. The application of the theory of exceptional circumstances does not exempt the Government from surveillance. The Administration must activate various control systems to ensure that the Administration adheres to the provisions of legality, non-authoritarianism and arbitrariness in the use of exceptional circumstances.
The constitutional document of 2019 in the Sudan did not provide a separate article for exceptional circumstances. Article 41 of the Constitutional Document stipulates exceptional circumstances as part of the state of emergency, manifesting a danger to the safety and unity of the country and citizens, which requires action and measures by the Council of Ministers which may include suspension of certain freedoms contained in the Constitutional Document after consultation with the Sovereign Council. Article 41 is weak and uncontrolled and does not effectively protect the Constitution. On the contrary, in the 1971 Egyptian Constitution, the exceptional circumstances gave much attention to more detailed provisions ensuring that exceptional circumstances were used as a justification for the Governments actions only after broad consensus had been achieved. Extraordinary measures shall be taken by decision of the President of the Republic, after consultation with the Council of Ministers and the Consultative Council, and a popular referendum shall be held two months after the announcement of the application of the extraordinary measures.
Episode III: Options for an interim government in the Sudan in wartime
In this aspect of this paper, we are looking at possible options for the formation of an interim Government, in the circumstances of war and political upheaval, used by constitutional experiences in different countries, or even those used earlier in the Sudan. Research into these options includes a study of the constitutional conditions, and the political circumstances that require the formation of the interim government, with a brief review of the experiences that used the model under consideration. Below, we look at the following models: the emergency government, the national rescue government or the government of national accord, the caretaker government, the exile government, the shadow government, and the government consisting of Chapter VII of the Charter of the United Nations. We review the concept of each government formation model and then provide a summary of the extent to which the model analysed can be applied to the Sudanese situation, as detailed below:
First: The Government of Emergency:
In different circumstances, in parliamentary and presidential systems, the Government is subject to dissolution by competent authority, which may be dissolved either by Parliament as under the parliamentary system, or by the Head of State as in the case of the presidential system. In this regard, the competent authority for the formation of an emergency Government shall endeavour to carry out urgent tasks until such time as a Government is formed in accordance with established constitutional procedures. The reasons for the Governments dissolution are numerous, as are the reasons for the formation of an emergency government.
The emergency condition is established as the basis for the formation of an emergency government. Amid the exceptional circumstances faced by States in the world, including those of the Second World War and the Cold War, a group of experts, and officials working in government offices linked to decision-making positions at the highest levels of the nation, have developed a new understanding of the nation as a complex set of vital and fragile systems whose ineffective management could lead to the collapse or demise of the State. They therefore invented technical and administrative machinery to alleviate the nations vulnerability and organized a distinctive form of emergency government that would make it possible to prepare for any emergency circumstances and enable them to run the state in the event of potential catastrophic events. Consequently, the (emergency Government) was a concept synthesized by the States decision-making centres to address the States internal vulnerability and protect it from collapse.
The term emergency government, ambiguous, unclear and overlapping with other definitions. In the current Sudanese context, the term emergency government was traded to mean the formation of an interim executive authority to deal with exceptional circumstances. In the event of natural disasters and wars, governments change their objectives and programmes, confine themselves to confining their functions to emergency conditions, and thus change the name of the government to the name of the emergency government, as it essentially assumes emergency functions, so sometimes called the crisis government. In this case, interim laws and measures may be promulgated to assist the emergency government in carrying out its functions.
The question of the dissolution of the existing Government, in whole or in part, and the formation of an emergency Government is a constitutional issue that is easy to proceed with and control in the event of clear constitutional texts, otherwise the procedure lacks constitutional attribution. This assumption makes it imperative that a Government actually exists when a state of emergency occurs. The emergency government is assigned by a sovereign authority to perform emergency tasks, and ministers and undersecretaries of ministries are sometimes assigned to perform emergency government functions.
There is no clear and explicit provision in Sudanese constitutions for an emergency government in times of war and crisis. Nevertheless, it is easy to conclude that, in times of crisis, Sudanese constitutions decide on government measures to address emergency conditions. Article 211, paragraph (b), of the Constitution of the Sudan of 2005 stipulates that the President of the Republic, with the consent of the First Deputy, may, under the law or the extraordinary order, take any measures that do not restrict, partially nullify or limit the effect of the provisions of the Constitution and the Peace Agreement. However, he may, inter alia, dissolve or suspend any state organ, suspend any powers conferred upon the states by this Constitution. The President of the Republic shall, with the consent of the First Vice-President, (discharge of the functions of those organs), exercise powers or decide on the manner in which the affairs of the state in question shall be administered. It is from this text that we understand that the President of the Republic has the authority to lead a caretaker Government during the emergency period. On the contrary, article 41 of the Constitutional Document of 2019 stipulates the power of the Council of Ministers to declare a state of emergency in the country. The article stated that In the event that the exceptional situation has reached such a degree that it threatens the integrity of the nation, the Council of Ministers, in consultation with the Sovereign Council, may suspend part of the Bill of Rights contained in this Constitution. The 2019 Constitutional Document authorized the suspension of part of the Bill of Rights, but did not address the suspension of constitutional provisions governing the functioning of constitutional institutions. Thus, the article clearly did not give the Prime Minister the power to form an emergency government or a caretaker government.
Summary of the above:
There is no reference in the Sudanese Constitution not only to an emergency Government but also to the state of emergency as described above. Some of the commentaries to the Constitutional Law may suggest that a Government performing exceptional and emergency functions is contextually a Government of emergency.
Is it appropriate to apply the option of an emergency government in the Sudan?
In the current political circumstances, as the war continues, and with the absence of the constitutional framework governing the process of forming a civil emergency government, it will be difficult to establish an effective and efficient civilian government that is able to meet the States obligations in the provision of public services, as called for by some civil entrepreneurs to stop the war and restore the democratic path in the Sudan. In a subsequent chapter of this study, we will address the constitutional, political and security determinants that prevent the formation of a civilian Government that will assume the functions of executive power in the current time of war in the Sudan. Measurement and interpretation of constitutional custom may guide us until the de facto authority, and the President of the Sovereign Council, has formed an emergency Government to appoint him to run State institutions during the war, which works to rationalize wishes, resources and citizens in order to achieve the objectives of war. Consequently, the purpose for which community-based institutions have advocated in their initiatives the formation of an emergency government of national competencies independent of the parties involved in the war that administers government facilities and provides public services.
Second: Caretaker Government:
(Business Government) or (Business Government) is an incompetent interim Government for the purpose of conducting the Governments business within a short period of time. The functions of the caretaker government are limited to filling the executive vacuum in the state, resulting from the dissolution of the government or the withdrawal of confidence from it by parliament. At times a caretaker government may be established during a post-election phase and prior to the formation of a government through parliament, or any other circumstance that prevented the formation or delay of a new government. The caretaker Governments functions are limited to maintaining the routine functioning and functioning of the Government, particularly its public service aspect. The caretaker Government has no right to decide on political matters or conduct sensitive constitutional acts. We find that the caretaker Governments experiences are clearly applied in the constitutional systems of parliamentary parliamentary parliamentary government. In order to distinguish the caretaker Government from other interim Governments, the term caretaker Government describes a Government that carries out objectively and temporarily restricted functions. According to the UKs experience, a caretaker government is shaped by the postponement of elections or the postponement of the announcement of their results, or because the government has been dissolved due to a recall by the House of Commons. The Rules for the Establishment and Operation of the UK Caretaker Government were recently regulated in 2011 with inclusion in the Cabinets Business Manual. According to the British regime, the caretaker government is a temporal interim government, defined in terms of competence. Lebanon has experienced a clear experience of the formation of a caretaker Government during the previous period.
Ensuring the continuity of the public facility is the justification for the formation of a caretaker government in exceptional circumstances. Ensuring the continuity of the public facility is required by citizens rights and the public interest. It is important that the drafters of the Constitution take account from the outset of the need for constitutional provisions to fill the potential vacuum in the executive branch. The Lebanese Constitution stipulates that if the Government resigns or is deemed to resign, it shall continue to conduct business, pending the election or formation of a new Government within a specified period of time. The Lebanese Constitution stipulates that the ministries are merely active, which is included in the concept of conducting the necessary matters relating to the public interest, without taking decisions that would hold the Government politically responsible. Under Lebanons constitution, the caretaker government consists of the same ministers whose term of office ended with the dissolution of the government or a withdrawal of confidence, so that they are mandated to continue providing daily and routine administrative services for a short period of up to one or two months until the formation of a new government.
There are no clear provisions in Sudanese constitutions concerning the formation of a caretaker government. Article 38 of the Constitution of the Sudan of 1964 provides a short and simple definition of the term conduct of government, stating that the actions of the Government are all operational acts of the Government of the Sudan. The Council of Ministers shall issue rules for the smooth functioning of the Government of the Sudan and for the distribution of these acts among the Ministers. Article 2011, paragraph (b), of the 2005 Constitution referred to the conduct of government organs during the period of the state of emergency by stipulating that the President of the Republic, with the consent of the First Vice-President, may take, under the law or the extraordinary order, any measures that do not restrict, partially nullify or limit the effects of the provisions of the Constitution and the Peace Agreement. However, he may, inter alia, dissolve or suspend any state organ, suspend any powers conferred upon the states by this Constitution. The President of the Republic shall, with the consent of the First Vice-President, (discharge of the functions of those organs), exercise powers or decide on the manner in which the affairs of the state in question shall be administered.
In the absence of a constitutional text, there is no clear practice in the Sudanese constitutional experience of the caretaker Government. Sudanese constitutional jurisprudence has not made any contribution that can be seen in this regard. However, through the facts, we may find Governments created to fill a vacuum in the executive branch and to carry out their functions in an emergency manner. Among other things, the Undersecretaries are mandated to perform the functions of ministers until the formation of a government. This was applied after Dr. Abdullah Hamdoks return to the transitional government after the coup d état of 25 October following the signing of the political agreement between the army leadership and rapid support with the isolated Prime Minister in November 2021 for the continuation of the transition period and the abolition of customary measures taken by the army chief. The Prime Minister had mandated the Undersecretaries of Ministries to conduct the work of the Government until the formation of the Government to appoint new Ministers, but the Constitutional Document of 2019 does not provide for provisions for the formation of a caretaker government.
According to experience in the Arab Ocean, in order to avoid the dangers and caveats arising from the vacuum in the executive branch, the constitutional custom was that the President of the Republic should mandate the resigned Ministry to remain in power until the new Ministry is composed and its scope of action is determined by the so-called normal functioning. This custom has become an inherent principle of common law applicable in cases of loss of the Ministrys legitimate governmental entity, including resignation. From recent experiences, Lebanons caretaker government experienced the 2022 resignation of Michel Aouns government. The experience of Iraqs caretaker government in the same year as 2022 was led by Prime Minister Mustafa al-Kadhimi.
The latest experience of the caretaker government was in Pakistan this year 2023. Under Pakistans Constitution, after the expiration or dissolution of the Government, a caretaker government is formed in consultation with the outgoing Prime Minister and opposition leader. In mid-August, Anwar al-Haq Kakkar, a former senator from the region of Baluchistan, was sworn in as head of the caretaker government, which will oversee the constitutionally mandated parliamentary elections within 90 days.
Functions of the Caretaker Government:
The functions of a caretaker government may be defined in the Constitution - or in the Regulation of Cabinet Business as in the case of the UK, and may be determined by Parliament as in the Netherlands. Because they are temporary arrangements - the caretaker governments functions may not include any functions of a strategic nature. Therefore, the caretaker governments functions are always summarized in administrative, organizational and routine work and do not go beyond it to the formulation of new future policies. The caretaker government does not have the right to propose laws, hold loans or appoint to senior state positions, exempt them, or restructure ministries.
It is very important that the Constitution provides for procedures for the formation of a caretaker government, its functions and the duration of its continuity. Under the constitutional provisions established, the caretaker government is the result of a mandate from a legitimate authority. It exercises its functions realistically and effectively by recognizing the constitutional components and political groups in control of the countrys governance institutions.
Is the Government of Business in the Sudan applicable?
Notwithstanding the absence of the constitutional text, and on the basis of constitutional custom and past best applications, the sovereign authorities of the Sudan can form a caretaker Government by dismissing the current Ministers. It is important to recognize that a caretaker government is made up of members of the existing government, either to mandate current ministers to continue to conduct routine business in a short period of time, without going beyond the functions of a caretaker government to strategic subjects. While there have been proposals for a government of national competencies from outside the current government, this description does not apply to a caretaker government.
