Question: Is the Constitution acceptable to be applied in a post-PFDJ Eritrea
Answer to Hagos' Question.
I wish first of all, to apologize to the Eritrean who asked me 8 questions one of which I answered this morning. I ask you to bear with me; I will provide the answers to your 7 other questions soon. I wanted to give a chance to others and answer their questions first. It is basically a matter of fairness.
My answer to the present question is that definitely, the constitution should be applicable in a post-PFDJ situation. You actually partially supplied the answer yourself by opining that the "the whole people" participated and "the constitution is kidnapped by the regime." (Your words).
If the whole people participated in the making of our constitution why should the question arise as to whether it should be applicable in a post-PFDJ situation? I have actually covered this point in answer to a previous question explaining the objections voiced by some former ELF members, during the early part of the constitution making effort. I argued that such objection is invalid precisely for the reason that you stated in your question, i.e. the fact that the vast majority of the Eritrean people participated in its making.
Hagos also queried what measure of amendments are acceptable.
In this connection, it may be useful to inform the public that the Constitution makes ample provision on the amendments of the constitution.
Article 59 provides the ways the constitution may be amended as follows.
a). A proposal for amendment may be tabled: (1) by the President, or (2) by 50 percent of all members of the National Assembly
b). Any provision of the constitution may be amended: (1) where the National Assembly by a three-quarters majority vote of all its members proposes the amendment with reference to a specific Article of the constitution tabled to be amended; and (2) where, one year after it has proposed such an amendment, the National Assembly, after deliberation , approves again the same amendment by four-fifths majority vote of all its members.
Two basic points must be noted regarding this provision of the constitution. The first concerns the mechanism of the amendment; secondly, any part of the constitution is subject to amendment, at least in theory.
The first point refers to the difference between the mechanism required for constitutional amendment and for ordinary legislation. Constitutional amendment i different from amendment of ordinary legislation for the simple reason that a constitution id a basic law upon which all other laws hinge and on which the entire legal edifice and political system rests. The amendment of a piece of ordinary legislation--even one that contains some important legal matters such as articles in the penal code or civil code-is a mater to be disposed of during the normal legislative session and following the normal legislative process, requiring a simple majority vote of the members of the legislative body. On the other hand, amendment of any Article of the constitution is more difficult before it can become a reality, as can be seen from the provision of Article 59.
The different mechanism contemplated under Article 59 has two aspects--the higher majority of votes required, and the length of time that must elapse before the initially tabled amendment can be reviewed and submitted for further deliberation.
The second basic point of Article 59 is that any part of eh constitution may be subject to amendment. However it is generally understood that there are certain fundamental values that cannot be subject to change such as the democratic basis of government and the rule of law and fundamental rights, a subject I have already discussed in answer to a previous question. But I can revisit this int if need be. for now, It is enough to say that any attempt by the leadership of the government of the day taper with eh democratic foundation of governance would and must be condemned and resisted by all means possible. You may say, "we are not even there yet...!"and I would regretfully agree. But hope springs eternal and I happen to be an incorrigible optimist.
[For a more full discussion of this int I refer you to my book, The Making of eh Eritrean Constitution, Red Sea Press (2003).