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Research studies

The Role of Parliament in the constitutional amendment Process – Between the provisions and practice in The Algerian Constitutional Experience

 

Prepared by the researcher

  • Sayeh BOUSSAHIA, Lecturer (A), Univ. of Larbi Tebessi, Tebessa, Algeria
  • Maamar BOUKHATEM, Assistant Professor (A), Univ. of Larbi Tebessi, Tebessa

Source – Democratic Arab Center

Journal of Political Science and Law : Twenty-Second Issue – May 2020

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin

Nationales ISSN-Zentrum für Deutschland
ISSN 2566-8056
Journal of Political Science and Law

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Abstract:

In this paper, we discuss the role of parliament in the process of constitutional amendment, through the provisions on one hand, and practice on the other one.

Where there are texts (provisions) to be likely interpreted through which the constitutional review processes were done in accordance to these trends and misinterpretations, so in this paper, we are going to clarify several points concerning the role of Parliament, both in terms of approval or proposal, as well as we’ll suggest many of solutions to address the defect by our point of view which we consider judicious and worthy given.

Introduction:

The scholars of the constitutions in Europe are doing so as if they were performing permanent action aimed at challenging the time, but experience has shown that it is not possible to have a permanent resisting constitution against the ways of development and change; and if the idea of constitutions ​​rigidity is based on the desire to achieve a great deal of stability in the political and legal system in the state, it has become recognized that this constitution shall be subject to review and amendment processes whenever it is needed or necessary, and in this regard, Dr.Ahmed Saaifan indicates that amending the Constitution is intended to resort to follow the procedures prescribed by the constitution in order to complete, cancel, change in the provisions of the constitution in force, and the constitution itself can provide for a special way or certain periods to be respected during the amendment process ([1]).

To talk about amending constitutions, as an entrance to the constitutional reform and resolving political crises, is always whittling a set of effects and reflections, and putting behind them a series of questions and problematic;  in this regard, the following problematic poses:

What role has the Algerian Parliament in the constitutional amendment process?

We will try through, this paper, to discuss the role of Parliament in the review process and in the constitutional amendment in the Algerian Constitutional experiment through the contents of legal texts on one hand, and on the other hand, through previous experiences in amending constitutions, especially when we knew that there is an urgent will to amend the Constitution by the President of the Republic accordingly for his methodology in the political reform process since his assuming the presidency post in 1999([2]).

Chapter One: mandatory of the passage of the constitutional amendment draft to parliament

Constitutional amendment has several definitions of the most important is: A disclosure from the competent political authority for amendment to its will, and according to the provisions of the Constitution, to a new political orientation in some or all of the following areas:

Adding a new or more provisions to the Constitution.

Deleting one or more of the provisions of the Constitution.

Replacing one or more provisions different in their contents from the replaced ones([3]).

It should be noted that some prefer the term “Constitutional Review” instead of “Constitutional Amendment”,([4]) and in this context, the amendment process is surrounded by a variety of restrictions, controls and procedures prescribed by the Constitution in order not that these amendments would be arbitrary, or personalized according to the wishes and whims of rulers([5]), and that what leads to the loss of the spirit, the cohesion and the philosophy on which the Constitution is founded([6]).

For that, we must respect the jurisprudence agreed rules during the process of amending the Constitution and these rules are:([7])

  1. The Viability of any Constitution to amendment, in order to keep pace with the society dynamic and political life.
  2. The ability to modify any article in the Constitution, taking into account the substantive prohibition provisions.([8])
  3. The possibility of a constitutional amendment at any time when the majority consent it, taking into account the provisions of the circumstantial or temporal ban.([9])
  4. Each Constitution must provide for the essentials and procedures to be followed during the review and amendment processes.([10])

From the above-mentioned, we tried referring to the need to respect the essentials and procedures constitutionally set when the process of constitutional amendment is made by the derivative authority entitled to this procedure.

1- The Algerian Expereience:

In the Algerian constitutional experience, by tracking the Algerian constitutions,([11]) we find that it recognized the pivotal role of the parliament when conducting any review of the constitution, and in this context, Article 71 of the Constitution of 1963 states that: «The constitution revision iinitiative is attributed  to both the President of the Republic and the absolute majority of the National Assembly together», As for the procedural side, articles 72-73-74 stipulate the procedures, restrictions and controls followed in the revision of the Constitution, which explicitly state the inevitably draft passage to the National Assembly before passing to a referendum of the people; the same is stipulated in the 1976 constitution with differentiates in procedures where Article 192 states that: «People’s National Assembly approves the Constitutional Amendment Bill by a majority of two-thirds of its members», in order to supplement article 191 which gave the right of initiative to the President of the Republic to amend the Constitution through the provisions contained in Chapter VI of the Constitution.([12])

This is the same matter enshrined in both the Constitution of 1989 and of 1996 in Chapter IV,([13]) where Article 163 of the Constitution of 1989 states that: «The President of the Republic has the right to initiate constitutional amendment, and after being voted by the People’s National Assembly, it’d be submitted to a referendum of the people for approval…»,  and that is almost the same as stipulated in Article 174 of 1996 Constitution with reference to the duality of the parliament, “The Council of Nation”.([14])

Through our extrapolation of all these texts, we conclude that it is an inevitable duty that any constitutional amendment draft passes to the parliament for adoption and approval before passing to the referendum and this is a foregone conclusion in terms of texts, but it remains a preliminary and theoretical judgment, because there are facts and indicators that make these provisions and other provisions in the Constitution subject to interpretation by several concepts outside this context,([15]) Which what was really happened in 1988-1996, for example, and here lies the seriousness to go into this subject that has raised a lot of controversy and a variety of opinions and trends.

In this connection, we put the following question: Is it possible for the President of the Republic to exceed the Parliament during the process of amending the Constitution?

This question has raised many points since 1988 to the present day, due to several political and legal reasons.

2- Reasons :

1- Political reasons:

A disagreement between The ex-President Chadli Bendjedid and Liberation Front Party happened, which led to the possibility of transmission of this disagreement to the People’s National Assembly, and this could be an obstacle to reforms intended by that President to initiate following the October 1988 events, thus all the signs and indications demonstrated a possibility of collision with the Assembly or at least with its majority through the rift occurred between the reformists and the conservatives([16]) despite the fact reforms were required and necessary to break the impasse in the view of the presidency, and thus must think of a way out, which is to resort to the original sovereignty, the people, through referendum.([17])

2- Legal reasons:

These political reasons prompted some to justify the surpass of the parliament and Article 192 of the Constitution of 1976 as well as Chapter VI of this Constitution, based on other provisions at the heart of the Constitution, namely Article 111, paragraph 14, which allows the president to resort to referendum in all issues of national importance, and since the amendment of the Constitution is one of those issues, the text of this article can be adopted and applied to resort to referendum without referring to the National People’s Assembly.([18])

Through the above, it looks the importance of asking the question, and the need to clarify its answer.

The Constitutional Council has gone through its two notes, one in 1993 and the second in 1996 on the occasion of the amendment of 1989 Constitution, to the objection to resort to referendum in the absence of Parliament.([19])

Dr. Saïd Bouchair also went to that the amendment of the Constitution cannot be legitimate, unless depending on the requirements of Part IV of the Constitution,([20]) that is Chapter VI of 1976 Constitution.

This directive was also supported by the view of Mr.Ahmed Ouyahia as a supervisor on the preparation of 1996 Constitution as he was the Presidential Office Director at that time, where he officially acknowledged that the amendment of Constitution could be made only in accordance with the fourth part, including Article 07, paragraph 04 or Article 77, paragraph 08 in 1989 Constitution.([21])

This was a reverse from the first orientation taken by President Chadli Bendjedid when he exceeded the People’s Assembly at that time,  or the way taken in modifying 1989 Constitution in 1996 when this amendment was set up in the absence of the National People’s Assembly; this trend appeared by the occasion of the presentation of Mr.Ahmed Ouyahia of a draft of a Constitution mendment in 2008 on November 12th, 2008 before the parliament held in both chambers,in which it says:  «In the second place, our people through the Constitution, has freely pinponted all the several ways and the legitimate procedures to amend the Constitution…they are means written in articles 174 to 177 of this Constitution itself …»,([22]) but it was a position that came too late, thus the power has violated the Constitution in 1988-1996 when she violated both the constitution and the Constitutional Council and its direction, as well as the positions of the political class.

3- Trends:

In this context, we note that jurisprudence elaborated to talk about this subject, i.e. the extend of the constitutionality of the constitutional amendment that was conducted in 1988, and the subsequence of amendments regarding the role of the Parliament in that process; in this context, contradictory two-way have emerged, each has a point of view and grounds to support its stand.

The first trend: Proponents of this view argued that the constitutional amendment as well as the provisions of Chapter VI of 1976 Constitution can be processed relying on the text of Article 111, paragraph 14 of the Constitution of 1976. In this context, fourth paragraph of article VII had been added under which could being free from the will of the party at that time «The President of the Republic may directly resort to the will of the people», then later, it had been was relying on the text of Article 74, paragraph 09 of 1989 Constitution to start amending in 1996 and these views are based on that it can be for the president to resort to a referendum in all issues of national importance, and as long as the Constitutional Amendment It is one of the most prominent issues of national importance, it is possible to resort directly to the people since he is being the owner of sovereignty without referring to the National People’s Assembly.([23])

These views are considered by some as they were courtesies to the power, or a political justification for constitutional violations([24]) from the fact that referendum in the Third World including Algeria is usually conducted by means of pressure and influence, media directive and intimidation…([25])

The second trend: This opinion clings to the need for making an adjustment in accordance with the assets and the procedures stipulated in the constitution as agreed in the majority of jurisprudence;([26]) this view is supported by Dr. Saïd Bouchair and others,([27]) and also supported by the Constitutional Council at that time.

The implication of this view is that the constitutional amendment should be done in accordance with the requirements of Chapter VI of the 1976 Constitution and exclusively with the inclusions of Part IV of 1989-1996 constitutions in order to maintain the constitutionality and legitimacy of the constitutional amendments. In this, Dr.Saïd Bouchair concludes, after his desperate defense to the Authentic of this trend and to refute all the arguments adopted by the supporters of the first view, that the constitutional amendment outside these provisions is “a material breach of constitution”, and a frank exceeded of the procedures laid down, and therefore a violation of authority.([28])

We support this view, according to the clarity of the terms and arguments because of the fact that the most important thing in the constitutional amendment process is not only the will of the majority, or the importance of the amendment and its necessity, but rather the need to respect the procedures laid down in the Constitution itself, and this is what led to the survival of constitutions for more than a century in other countries such as: Belgium, USA…

According to the rule “base restricts the year”, the referendum provided in the provisions of the Constitution is not the same on the amendment to the Constitution since the latter is linked to an earlier passage which is the inevitably passage of the amendment to the Parliament, and therefore the need to apply the provisions relating to the constitutional amendment.

The jurists have to stay away from giving priority to the justifications of a political nature when it comes to analyzing the provisions of the Constitution for political reasons and gains, which were the cause of the persistence of the power to resort to referendum of the people without passing on the elected councils representing the people to avoid putting projects on the constitutional amendment for discussion and opinion, and informing Public opinion and media… this had an impact on the possibility of accepting the amendment in response to the aspirations of

The basic problem is sometimes the drafting of texts which are usually a real obstacle to any reform or orientation of the majority, for should be noted to this sensitive matter in the future.([29])

Finally, we conclude that passing through Parliament is enforceable to approve any project to amend the constitution, which was confirmed by the President of the Republic in the Council of Ministers on May 02nd, 2011, when he said, «if it turns out that the constitutional review project is deep, people after the Parliament, is entrusted to decide on his matter with his absolute sovereignty through transparent referendum».([30])

The third trend: the constitutional amendment before parliament

If we have had concluded that constitution cannot be revised without passing to Parliament, the raised question is how the Parliament deals with constitutional amendments projects in the Algerian Constitutional experience.

In the following, we will look at a set of points we are going to take, respectively.

First: Is it possible for Parliament to discuss and modify constitutional amendments projects?

Axiomatic to say that the entry of any project to Parliament will give the force of law after approval, and therefore the above-posed question would seem at first glance meaningless, thus Dr.Saïd Bouchaair goes to the grounds that the draft amendment are implemented by the plain text action through discussion, addition, deletion, amendment, rejection.([31])

But when reflecting on the content of the texts and the disclosure of their secretes, we could get to other interpretations.

When returning back to article 72 of the 1963 Constitution, which states that « A revision of the Constitution includes, two readings and two votes by an absolute majority of the members of the National Assembly, separated for two months», we note here that there is no room for discussion and modification, but only there are two readings to revision project, then two votes take place for the same project, here there will be only a yes or no vote may without diving in the debate and amendment.

Knowing that the constitutional provisions texts are interpreted on a narrow interpretation.([32])

            Extrapolating Article 192 of the Constitution of 1976, which states that «the People’s National Assembly recognizes Constitutional Amendment Bill by a majority of two-thirds of its members», and if the draft amendment law is attached to the provisions for amending the Constitution, a majority of three-fourths of the members of the Council shall be admitted in accordance with Article 193.

The term admission (recognition) means approval and certification and not the debate and amendment; the vote would to be among the overall project by acceptance or rejection in our point of view, especially if we know the unity of the party leadership, as it is under the constitutional amendment for the year 1979-1981, the Rapporteur of the Committee pointed out that the draft amendment was built on the recommendation of the party, and that what has been submitted as proposals will be submitted to the President of the Republic, and it was only the role of Parliament is to only approve and acknowledge.([33])

In practice, this curve interpret the provisions of Article 192 of the Constitution of 1976; and in the 1989 Constitution, Article 163 noted that «the president has the right to initiate constitutional amendment, and after the vote by the People’s National Assembly, it’ll be submitted to a referendum of the people…» The text of Article 165 speaks to the recognition, where the article states that «The law which includes the draft constitutional amendment is displayed after being approved by the National People’s Assembly…» So if the legislator stopped here, it would have been as it was in a 1963-1976 constitutions in terms of voting and approval.

But the legislator continues “under the same conditions applied to the legislative text on the referendum of the people for approval within the 45 days following the Council’s approval of it,” through this text, the matter becomes complicated twice. Once when the legislator added a phrase according to the same conditions applied to the legislative text, here we wonder whether this means the possibility of the Council’s intervention to discuss and amend and then vote later?, but the legislator later used the expression “the following to the Council’s approval”, and this is a return to the original that is vote and approval without discussion, and if so, why was the expression “used under the same conditions applied to the legislative text?

Here, it seems uncertain, especially if we know that the constitutional amendment, “if we consider that an amendment” has been in the absence of the National People’s Council, and therefore there is no practical applications of these texts.

This text is almost transferred to 1996 Constitution under Article 174, which states that «the president has the right to initiate constitutional amendment; and after being voted by the National Assembly, and the council of nation by the same formula according to the same conditions applied to a legislative text, the amendment should be introduced to a referendum by the people during the fifty days following its approval. »

But this provision raises more than one question especially knowing that the 1996 Constitution provides for two new types of legislative texts: orders and organic laws and also this constitution added a new institution, namely The Council of State, and thus raises the question “Can we imagine there is a disagreement between the two chambers? And thus settling the dispute through the joint committee,([34]) and what is meant by the same formula? And the Legislative text? According to our point of view, the constitutional founding used the expression “to vote and to approve” in order to emphasize that the parliament does not have the right to discussion and amendment, but treats the text as orders and this is opposite to view of the others.([35])

In this context, we note that there is ambiguity and omission to regulate this issue in the Organic Law No.99/02 as well as the internal regulations of the parliament as well as the Constitution, which thus leaving it without explanation.

4- Opinions:

By conclusion, there will be two opinions:

First: With the treatment of the draft amendment as an ordinary law which gives the Parliament the possibility of debate and amendment, which went to Dr.Saïd Bouachair([36]) and others.

As we have seen in so it is that Parliament has no right to debate and amendment but must treat the text as treating orders which resulting to not imagine there is a disagreement between the two chambers that the only text will be subject to a vote in the same format, either by yes or no, in order to preserve the unity of the project and its cohesion; and Parliament can reject and adopt an anti-draft article 177 of the Constitution.

In short, the Parliament according to our point of view does not have the right to debate and amend, but has only the right to vote and approve or reject.

Second: What are the required majority to the vote and recognition?

The matter is clear in 1963-1976-1989 Constitutions1989, as the required majority in 1963 Constitution is the absolute one; in 1976 constitution is a two-thirds within the People’s National Assembly, and three-fourths majority when the amendment concerns the provisions for amending the Constitution in accordance with Article 193; we may unofficially refer to what is meant by a majority of 2/3 or ¾, is it the audience or the members of the Council as a whole?

In 1989 Constitution, where there is only one kind of legislative texts, namely law, the majority is the same as required to vote on regular texts, namely the ordinary majority. But in 1996 Constitution, we note that there are three types of legislative texts, so which text we adopt? what is the required majority? Is it the majority required for the ordinary text and the order? Or is it that required for organic laws? (Absolute majority, Article 123).

            In this field, neither the Constitution nor the Organic Law 99/02 regulating the relationship between the government and the parliament nor the internal systems of the two chambers nor the practice, nor the Constitutional Council clarified this matter; and even jurisprudence overlooked on this topic which raises the required majority problematic.

According to our point of view, the required majority should be that of the deputies in line with what is required for organic laws following 1963-1979 constitutions where there was a contrariety in required majority between the constitutional amendment and the ordinary laws.

Third, parliament session in both chambers “to amend the constitution without passing to referendum.”

This method is inspired from the French constitutional experience in 1958 Constitution in terms of Article 89 of which states the possibility of not resorting to a referendum when the President decides to refer the project to parliament held in the form of a Conference (congrès) and in this case, the required majority to be the three-fifths of the votes cast.

The same mechanism was adopted in 1989 Constitution under Article 164, which stipulates that «if the Constitutional Council saw the draft constitutional revision does not affect at all the general principles governing the Algerian society and human and civil rights and liberties, does not affect anything fundamental balance of powers and constitutional institutions and the ills of his mind possible prime Republic to issue a law pertaining to constitutional revision without submitting it to a referendum if it obtains Three-quarters of the votes of the members of the National People’s Assembly». In the sense that the legislature adopted a new choice was not unusual and is a logical, so that if the constitutional amendment is significant or not prejudicial to the general principles governing the Algerian society and human and civil rights and liberties, does not affect anything fundamental balance of powers and institutions, so what’s to resort to referendum while there are representatives of the people who can leave the amendment as long as there was a reasoned opinion by the constitutional Council to do so.

            The same selection was adopted in 1996 Constitution under Article 176, taking into account the existence of a new institution, namely the Nation Assembly and thus both chambers of parliament will meet together in a form of the Conference; and the required majority would be three-fourths.

This technique is inexpensive and practical of being excludes resorting to a referendum, as long as it is not dragged by the prejudice to the constitution of the aspects mentioned, there is no objection to its adoption, and has been invoked on two occasions 2002-2008, and in both cases resorting to text of this article raised considerable debate on the doctrinal, political, media and popular levels.([37])

            Since the first relates to the fact that the text of Article 03 of the Constitution, which is the Arabic language as a principle of society when they were adding a new paragraph, a “Tamazigt is also a national language,” where some considered it prejudices one of the principles of Algerian society at the time. But at the second time in 2008, it aroused considerable controversy both politically or legally.([38])

Fourth, in the case of the parliament’s rejection of a draft constitutional amendment draft

We distinguish two cases in this area:

First, in the case of the project, which will pass on the referendum, which inevitably will pass to parliament before resorting to a referendum, the elected council could reject the project in theory, and in this case it raises the following question: What are the legal implications of this rejection? If the matter does not pose any problematic in1963-1976 constitutions in view of the unity of the political leadership, the unity of the parliament, the unity of direction and unity of the Party, the problem raises with 1989-1996 constitutions.

The legislature relied on one possibility, that is the approval of the National People’s Council in 1989 Constitution and the approval of both houses in the 1996 Constitution on the project, but in the case of rejection, the Constitution did not provide for any solution or impact or procedure knowing that the parliament is made up of several parties, then we have to wonder about the fate of this project?

 – Is it as if it was not?

 – Or does the President may bypass the parliament?

 – Or could the project be reconsidered and returned to parliament again?

Fundamental questions must be asked and answered as they may be put in practice with no solution from a legal point of view, except for the case of rejection by the people, where law is considered null and void if rejected by people, and cannot be submitted again to the people during the same legislative period.

In this regard, we note the constitutional formulation that has ignored this matter supposing that the will of the President of the Republic cannot be rejected as he above the authorities and his decision can’t be refused.

We can say that the president, before resorting to the amendment, consulted with all parties to receive the consent of the majority.([39]) It is what happened in 1996 Constitution and what is currently going on in the draft amendment to the Constitution by Mr.Ahmed Ouyahia to conduct the consultation.

In this we emphasize on one necessary thing is that the president cannot overcome the Parliament in the case of rejection, because it is a fundamental violation to constitution, thus the President can readjust his project and submit it again to the Council in subsequent sessions. We can also talk about the dissolution of the Assembly and resort to early legislative elections.

 Second, in case of the project approved by Parliament without resorting to a referendum.

            Through the provisions of Article 164 of 1989 Constitution and article 176 of 1996 Constitution, in this case, which it was originally found in order not to resort to a referendum, we point to the ambiguity in some terms that brook interpretation, where the phrase “Possible for the President of the Republic” and “directly without submitting it to a referendum”  have many aspects, and that is what led the Constitutional Council in his reasoned opinion No.08/01,([40]) on the occasion of the amendment of 2008 constitution , in mind  1 – the recent recital to explicitly saying “The effect that this procedure does not exclude the resort of the president of the republic to referendum if this law did not gain three-quarters of ¾ votes of the members of the two parliamentary chambers. “

This is what was supportd by Dr. Bokra Idris, who says that resorting to this method is linked with the conditions and specific restrictions in constitution, however, the availability of these combined conditions, the text issuance remains constrained by the will of the president, who can enact the text directly without resorting to a referendum([41])….

But it was contrary to what happened in Algeria on November, 1989…despite the fact that Article 192 of 1976 Constitution requires the necessity adoption of the National People’s Assembly on the Constitutional Amendment Bill by a majority of two thirds of its members, the option of resorting to a referendum is still in the hand of the president due to the above-mentioned historical considerations, as the constitutional review process,  when proposed and adopted, is subject to the discretion of the President of the Republic alone, especially the matter of recourse to a referendum because of the ambiguity of terms, so they do aim to maintain the dominance and superiority of the presidency on the rest of the institutions in the Algerian constitutional experiment.([42]) This is the opposite to French case because of the clarity of words and terms.

Whereas Article 89 of the French Constitution was very clear when it states that: «… but the revision draft won’t submitted to referendum when the President decides to transmit it to Parliament, which will be summoned in a form of conference …» therefore if it is resorting to this choice by the President of the Republic, he cannot resorting later to the referendum, and this restriction is by the Constitution explicitly, and in the same context, Dr.Saïd  Bouchair believes that the opinion of the constitutional Council, especially in the last recital was wrong, where the constitutional Council exceeded the constitutionality of this procedure for constitutional amendment and it turned into a tool to put pressure on parliament.

In saying that «this procedure does not exclude a recourse by the president of the Republic to a popular referendum if this law did not gain three-quarters of ¾ of votes of the members of the two parliamentary chambers» is nothing more to be only a departure from the requirements of the notification because it did not ask him to do so, and therefore it’s a political orientation affecting the credibility of the constitutional Council, thus it turned into a tool to guide the position of the members of parliament and to warn them and squeeze them from the possibility of taking a position opposed to the draft amendment, so clearly, the circumstances in which the draft amendment was put were not appropriate in terms of timing, which came ahead of presidential elections, and the emergence of formal urgent signs to suggest the willingness of the president to canditature for a third time, which can be achieved only through an amendment to Article 74 of the Constitution.

In this context, we  note that the President already indicated that he wants to amend the constitution on several occasions 1999-2004-2006([43]) and for the fear of failure of the draft amendment, the power doubled its pressure on the Constitutional Council to be used as a guide to the parliament on the one hand, and on the other hand, the temptation of Members of parliament to increase the salaries and compensation and grants on the other hand, so the justification of the constitutional Council is a political justification.([44])

But Dr.Saïd Bouchair when citing arguments and evidence on the exit of the Constitutional Council out of rightness relying on the establishment of resorting to a referendum in the case of the Parliament’s (both chamers) rejection of the constitution amendment project, does not interpret its position accurately towards this matter i.e. in the case of rejection, is it possible to bypass the parliament?

            The recourse to Article 176, originally, was due not to resort to referendum, but if sitting in both chambers of Parliament decided to reject this project, it is imperative to follow the procedures set forth in Article 174 if the president decided to resort to a referendum because there is no other way out of  Chapter Four of the Constitution, and therefore the opinion, which says that by Dr.Saïd Bouchair «that the founder of the Constitution gave the president of the republic a choice when he used the word” possible “and the word” direct “and” without “un resorting to people in the absence of quorum set of votes for referendum, a view that makes the president overriding the parliament .

It must be in the context of the conditions and limitations set forth in Article 176 of the project for a three-fourths majority ¾, in this case the president can resort to a referendum to consolidate the situation and show the president’s popularity([45]) and this is a waste of time, effort and potential, as long as the Constitution on states this option to avoid referendum, why does the president resort to referendum, though, meaning that, he had to apply Article 174 from the beginning.

Thus, the bottom line is that if the project was rejected by the parliament, we cannot resort to a referendum, but all the way back to article 174 of 1996Constitution, which corresponds to Article 163 of the 1989 Constitution.

            Because the term “possibility” related to resort to referendum only applies to the case of the project approval by the Parliament meeting, and thus enactment process without resorting to a referendum to be directly in the case of acceptance, and there is a possibility of resorting to a referendum, subject to an approval by Parliament and the quorum is achieved.

It remains to point out that the required majority is three-fourths majority vote of the members of both chambers of parliament and not three-quarters of votes of those present members, opposite to France, where the article provides three-fifths of the votes cast in accordance with Article 89 of the 1985 French Constitution.

4– The role of Parliament in proposing the constitutional amendment

In Algeria, this requirement seems elusive, whether in theory or in practice, so we note the absence of any role for Parliament in proposing a constitutional amendment in both the Constitution of 1976 or 1989, and this confirms the priority and single-point initiative amendment which is the Presidency.

But the constitutional founder has allowed the National Council of the possibility of the proposed amendment by an absolute majority([46]) repeated, and under Article 177 of 1996 Constitution, which states that «three quarters ¾ members of the houses of parliament gathered together to propose a constitutional revision to the President of the Republic, who can submit to a referendum and issued it in the case of approval.»

Through this article crippling trend is clear in front of parliament to propose a constitutional amendment([47]) and the difficulty is reflected in several points, who calls to prepare a proposal? Who calls Parliament for the convening? Can the President of the National Assembly calls for the convening of Parliament without the consent and knowledge of the president?([48]) and other points that indicate the impossibility of achieving a constitutional amendment with these conditions, procedures and limitations, and therefore it’s a formal theoretical right only to balance between the president and parliament in the initiative, especially if we know that to make a simple comparison to what it is the case in France or neighboring Tunisia, Morocco, Mauritania where it is clear the outweigh of presidency institution on parliament.

In France, it Members of Parliament can initiate to review the Constitution, both members of the National Assembly or the Senate, in the same way adopted to propose legislative texts and under Article 89 of the Constitution of 1958 and the same applies to the voting process. In Tunisia, under Article 143 of the Constitution of 2014, which states that «the President of the Republic or a third of the members of the People’s Congress have the right to initiate a proposal to amend the constitution …».

As for the approval of the voting shall be by an absolute majority of the deputies on the principle of the amendment and a majority thirds of 2/3 of members on the proposal, so we note that one-third of the members of the Council can initiate to propose the amendment as long as the initiative is governed by later voting and approval of two-thirds majority (2/3) after the approval of the amendment in principle, this is the same thing in the Constitution of 1959 as amended by Articles 76 and 77 thereof.

It is the same thing in the Kingdom of Morocco in successive Constitutions,([49]) where the members of the House of Representatives and House of Councilors have the right to initiate constitutional amendment in the same way as in the bill, under Article 172 and 173 of the Constitution of 2011, where one member of a two chambers or more can propose to amend the Constitution, but the approval and vote should be by a majority of two thirds of members of each house.

As well as for Mauritania under 1991 Constitution amended in 2006, as a third of the members of the House of Representatives at least can claim the revision of the Constitution under Article 76; for the voting and approval, will be two thirds of the members of two thirds majority. Thus, through the above, it is clear that these countries provided an opportunity for Parliament to enable its members to propose to amend the constitution; later the approval and recognition remain a matter of something else over sighted by the majority determined by the constitutional founder.

What we want to achieve it is a necessity to leave a reasonable and logical sidelines before the members of parliament in line with the geographical environment and historical context in which it allows the participation of Parliament in this process. Something else must be mentioned is that this initiative provided for under Article 177 of 1996 Constitution by being subject to suggestion, and remain so until the approval of the president on one of two things in theory, namely:

  1. Refer of the proposal to a referendum, and issued in the case of approval, with the same generally accepted procedures.
  2. Issuing the proposal if approved by the President of the Republic without submission to a referendum when the initiative was serious and acceptable from the tip, and it should be the correct understanding of the provisions of Article 177 and not the other concept to the effect that ignore this initiative([50]) and here poses the following question:

What is the fate of the proposal if not issued by the President or did not forward it to a referendum?

Conclusion:

At the conclusion of this study , we can conclude that the role of parliament in the constitutional amendment process is still far from what is stipulated in the Constitution, thus there is a difference between what is enshrined in the text and political practice; Parliament is only, a meant by decision-makers, a follower, supporter, explainer, acknowledging, accepting, recorder of the wishes and directions of the President, and through practice and realism, and all evidence supports this point of view, in the sense of outweigh of the presidency, in all cases and stages, so some points are suggested, perhaps to elevate political and constitutional practice, and give a decent stature to Parliament representing people first, and in line with the geographical and historic surroundings, including:

Emphasis on the need to place the constitutional amendment process and review in accordance with Part IV of the Constitution without the other and follow the procedures set forth in this section.

Clarifying the role of parliament precisely in the constitutional review process under Article 174 in terms of the possibility of debate and amendment or not, or in terms of the constitutionality and legitimacy of the bypass parliament and go for a referendum in the event of non-approval of the project.

Suggesting a review of some compositions and formulations that carry interpretation of constitutional review.

Easing the required majority in the initiative and the proposal by the House of Representatives to 20 deputies or a member of the National Assembly and retain the absolute majority of votes of the deputies or the majority of the two thirds majority and then ¾ National Assembly members each separately.

Clarify the fate of the proposal submitted by the members of Parliament carefully, i.e. obligation to the president by a clear duration of time.

 In the last hope, we hope to take these suggestions into consideration at the earliest opportunity of constitution amendment.

References:

Books:

([1])-Azzi Naqshbandi, Ahmed, amendment of the constitution, Warraq for Publishing and Distribution, Oman, 2006.

(2)- Saaifan, Ahmed, political, constitutional and international terms Dictionary, Lebanon Library Publishers, first edition, Beirut, 2004.

(3)- Saaifan, Ahmed, political systems and the general constitutional principles, Halabi edition, Beirut, 2008.

(4)- Hadi al-Hilali, Ali, the general theory in the interpretation of the Constitution, Sanhouri library, Baghdad 2011.

(5)- Avril P., les revisions concernant les pouvoirs exécutifs et legislatifs, journée d’étude du 14/11/2006.

(6)- Boussoumah, parenthèses des pouvoirs publiques constitutionnels de 1992 à 1998, o.p.u, 2005, Alger.

(7)- Sabah Hamid, Hazem, constitutional reforms in the Arab States (1991-2007), Dar Al-Hamed, Oman, 2012.

(8)- Abdullah Sheikh, Ismat, Constitution: between the requirements of the Stability and triggers of change, Dar Ennahda Publishing, Cairo, 2002.

(9)- Ardant, Philippe, institutions politiques et droit constitutionnel,. L.G.D.J. Delta,16eme ed. Paris, 2004.

(10)- Mahmoud Tadjen, Rajab, restrictions to amend the constitution, Dar Ennahda Publishing, Cairo, 2006.

Theses and dissertations:

([1])- Slamani Leila, the referendum in Algeria,  Master thesis, of the Faculty of Law University of Algiers, 1999.

(2)- Barakat Mouloud, the constitutional amendments in the Algerian constitutional order, Master thesis, Faculty of Law, University of Biskra, 2009/2010.

(3)- Hartani (A.K), le pouvoir presidentiel dans la constitution du 28 novembre 1996, Ph.D thesis, university of Algiers, 2003.

Articles:

([1])-Ammar Aouabdi, chairman of the parliament in the Algerian parliamentary law, parliamentary magazine thought, fifth edition, 2004.

(2)- Bokra Idris, constitutional review in Algeria: between stability and change, Idara magazine, the first issue, 1998.

(3)- Bokra Idris, constitutional development and crisis situations in Algeria, Journal of Parliamentary thought, Number 07, December 2004.

(4)- Hammami Miloud, legal reading in the constitutional amendment for the year 2008, Journal of Parliamentary thought, Number 23, July 2009.

(5)- Hussein Frija, does the amendment of Constitution become an absolute necessity? Journal of jurisprudence, Volume IV, Faculty of Law, University of Biskra.

(6)- Nasreddine Ben Tifour, the legal nature of the constitutional documents of Algeria, the Algerian magazine of legal, economic, and political science, third edition, September 2002.

(7)- Ouassila Ouezzani, scientific and legal theory to the process of amending the Constitution and its applications in Algeria, Journal of Parliamentary thought, Number 16, 2007.

(8)- Rebhi Ahcene, a reference of inflation of the Algerian constitutional documents, the Algerian legal journal of Science, second edition, 2009.

(9)- Saïd  Bouchair, the constitutionality of the use of the referendum as a way to amend the Constitution, the Algerian legal journal Science, the third issue, September 2011.

(10)- Saïd  Bouchair, amending the constitution by the parliament, the Algerian legal journal Science, 2012.

(1[1])- Tahar Khouidhar, the role of parliamentary committees and equal members of the legislative process, parliamentary magazine thought, fifth edition, 2004.

Forums:

([1])- Systematic political reform in Algeria, “an initiative to change or continuation of the monopoly of power of right,” the National Forum on political reforms in Algeria, Faculty of Law and Political Science, University of Tebessa, Algeria, April 2013.

(2)- Standards of the constitutional amendment, the Second International Forum on constitutional amendments in the Arab countries, the University of Laghouat, Laghouat, May 2008.

(3)- The role of parliament in the constitutional amendment process, the International Forum on constitutional amendments in the Arab countries, Faculty of Law, University Hassiba Ben Bouali, Chlef, Algeria, December 2012.

Laws:

([1])- The Algerian constitutions provisions

(2)- The Moroccan constitutions

(3)- Opinion No. 08/01, November 7, 2008, on the draft law containing the constitutional amendment, official gazette 63, November 16, 2008.

([1])-Saaifan, Ahmed, political, constitutional and international terms Dictionary, Lebanon Library Publishers, first edition, Beirut, 2004, p.98.

([2])-Maammar, Bokhatem, systematic political reform in Algeria, “an initiative to change or continuation of the monopoly of power of right,” the National Forum on political reforms in Algeria, Faculty of Law and Political Science, University of Tebessa, Algeria, April 2013.

([3])- Hazem, Sabah Hamid, constitutional reforms in the Arab States (1991-2007), Dar Al-Hamed, Oman, 2012, p.89.

Ahmed, Azzi Naqshbandi, amendment of the constitution, Warraq for Publishing and Distribution, Oman, 2006, p.142-143.

Ardant, Philippe, institutions politiques et droit constitutionnel. L.G.D.J. Delta 16eme ed. Paris, 2004, p.75.

Avril P., les revisions concernant les pouvoirs exécutifs et legislatifs, journée d’étude du 14/11/2006.

([4])- Because the constitutional review is within the same political and constitutional document of choice. The constitutional amendment could lead to changing the nature of the political system.

([5])- For more about personifying the constitutional amendments, see Ahcene, Rebhi, a reference of inflation of the Algerian constitutional documents, the Algerian legal journal of Science, second edition, 2009, p.73 et seq.

([6])-Abdullah Sheikh, Ismat, Constitution : between the requirements of the Stability and triggers of change, Dar Ennahda Publishing, Cairo, 2002, p.27 and beyond.

Mahmoud Tadjen, Rajab, restrictions to amend the constitution, Dar Ennahda Publishing, Cairo, 2006, p.52 et seq.

– Qashi Allal, standards of the constitutional amendment, the Second International Forum on constitutional amendments in the Arab countries, the University of Laghouat, Laghouat, May 2008.

([7])-Saaifan, Ahmed, political systems and the general constitutional principles, Halabi edition, Beirut, 2008, p.72.

([8])- The objective ban means to prevent modifying some of the principles, provisions and subjects in the Constitution and its example as stipulated in Article 195 of 1976 Constitution and Article 178 of the Constitution of 1996. For more details see / Rajab Mahmoud Tadjen, op.cit., p.52 et seq.

([9])- The timing ban means to prevent the amendment of the Constitution in certain times, but the situational ban is the prohibition of amendment to the Constitution in certain circumstances, including the threat status of the state, the case of vacancy of the president of the republic… etc. See: Rajab Mahmoud Tadjen, Ibid.

([10])- Ahmed Saaifan, political systems and the general constitutional principles, Op.cit., p.73 et seq.

([11])- To consider the legal nature of the Algerian constitutional documents, see Nasreddine Ben Tifour, the legal nature of the constitutional documents of Algeria, the Algerian magazine of legal, economic, and political science, third edition, September 2002, p.91 et seq.

([12])- See Article 191 of 1976Constitution.

([13])- See Qashi Allal, op.cit.

([14])- See Article 174 of 1996 Constitution.

([15])- There are some texts remains vague and there are some shortcomings in the constitutional documents concerning the constitutional review. See Rebhi Ahcene, op. Cit., p.83 et seq.

([16])- See Bokra Idris, constitutional development and crisis situations in Algeria, Journal of Parliamentary thought, Number 07, December 2004, p.141 et seq.

Beloudnin Mohammed, the constitutional amendment as a mechanism to resolve the political crisis in Algeria, the International Forum on constitutional amendments in the Arab countries, Laghouat, May 2008.

([17])- Saïd  Bouchair, the constitutionality of the use of the referendum as a way to amend the Constitution, the Algerian legal journal Science, the third issue, September 2011, p.09 et seq.

– See also Bokra Idris, constitutional review in Algeria: between stability and change, Idara magazine, the first issue, 1998, p.23 et seq.

([18])-Saïd  Bouchair, the constitutionality of resorting to a referendum, op.Cit., p.13 et seq.

– Bokra Idris, ibid., p.24.

Barakat Mouloud, the constitutional amendments in the Algerian constitutional order, Master thesis, Faculty of Law, University of Biskra, 2009/2010, p.82 et seq.

Ouassila Ouezzani, scientific and legal theory to the process of amending the Constitution and its applications in Algeria, Journal of Parliamentary thought, Number 16, 2007, p.95.

Boussoumah, parenthèses des pouvoirs publiques constitutionnels de 1992 à 1998, o.p.u, 2005, Alger, p.319 et seq.

Hartani (A.K) , le pouvoir presidentiel dans la constitution du 28 novembre 1996, Ph.D, university of Algeirs, 2003, pp.393-399.

([19])- Saïd  Bouchair, amending the constitution by the parliament, the Algerian legal journal Science, 2012, p.14.

([20])- Ibid., p.14.

Rezkallah Larbi Ben M’hidi, mechanisms to amend the constitution in Algeria, the International Forum on constitutional amendments in the Arab countries, Laghouat, 2008.

Bousalem Dounia, the role of parliament in the constitutional amendment process, the International Forum on constitutional amendments in the Arab countries, Faculty of Law, University Hassiba Ben Bouali, Chlef, Algeria, December 2012.

([21])- Ibid., p.14.

([22])-Saïd  Bouchair, ibid., p.15.

([23])- Ibid., p.16.

Boussoumah, Op Cit, p.319.

([24])- Saïd Bouchair, pp.16-17-18.

([25])- On the referendum and its uses and types, see:

Slamani Leila, the referendum in Algeria,  Master thesis, of the Faculty of Law University of Algiers, 1999.

Mesrati Salima, the constitutional referendum and the popular constitutional amendment: democratic mechanism or just a formality? the International Forum on constitutional amendments in the Arab countries, Faculty of Law, University Hassiba Ben Bouali, Chlef, December 2012.

Mourad Bakalm, a popular referendum as a means to directly amend the Constitution, the International Forum on constitutional amendments in the Arab countries, Faculty of Law, University Hassiba Ben Bouali, Chlef, Algeria, December 2012.

([26])- Ahmed Saaifan, political systems, ibid., p.71 et seq.

([27])- Saïd  Bouchair, amending the Constitution by Parliament, ibid., p.17.

Rezkallah Larbi Ben M’hidi, Ibid.

Bokra Idris, constitutional review in Algeria between stability and change, op. Cit., pp.22-23.

([28])- Saïd  Bouchair, the constitutionality of resorting to a referendum to amend the constitution, op. Cit., pp.23-24.

Bokra Idris, constitutional review, ibid., pp. 24-25.

([29])- Mohammed Naceur Boughezala, legal drafting and the constitutional amendment, the International Forum on constitutional amendments in the Arab, Laghouat, 2008.

Rebhi Hcene, deficiencies relating to the constitutional review process in Algeria, the International Forum on constitutional amendments in the Arab, Laghouat, 2008.

([30])-Saïd  Bouchair, amending the constitution by the parliament, op. Cit., p.15.

([31])- Saïd  Bouchair, ibid., p.16.

Barakat Mouloud, op. Cit., p.29 et seq.

Boussalem Dounia, Ibid.

Hammami Miloud, legal reading in the constitutional amendment for the year 2008, Journal of Parliamentary thought, Number 23, July 2009, p.37

([32])- See Hadi al-Hilali, Ali, the general theory in the interpretation of the Constitution, Sanhouri library, Baghdad 2011.

– Ismat Abdellah Sheikh, ibid., p.95.

([33])- Saïd  Bouchair, Amendment of the Constitution by parliament, op.cit., p.09 and beyond.

([34])- Tahar Khouidhar, the role of parliamentary committees and equal members of the legislative process, parliamentary magazine thought, fifth edition, 2004, p.83 et seq.

([35])- Saïd  Bouchair, ibid., p.16.

([36])- Ibid., p.16.

([37])- Ibid., p.17 et seq.

Barakat Mouloud, op. Cit., p.146 et seq.

Hussein Frija, does the amendment of Constitution become an absolute necessity? Journal of jurisprudence, Volume IV, Faculty of Law, University of Biskra, p.109.

Kouadri Samet, S. Ait Yahia, the constitutional amendment motives and justifications, international Forum on constitutional amendments, Chlef.

Mohammed Barakat, a former constitutional amendments in the Algerian Constitution: causes and motives, the international Forum on constitutional amendments, Chlef.

([38])- National newspapers on Parliament approves constitutional amendment, 04/10/2002.

([39])- In Belgium, the Netherlands, Denmark, the parliament is dissolved and a new one is elected for the adoption of a constitutional amendment, Ahmed Saaifan, op.cit., p.98.

([40])- Opinion No. 08/01, November 7, 2008, on the draft law containing the constitutional amendment, official gazette 63, November 16, 2008.

([41])- Bokra Idris, op. Cit., pp.22/23.

([42])- Ibid., p.25.

([43])- The ex-President Abdelaziz Bouteflika has been professing his desire to amend the constitution repeatedly since coming in 1999 on the occasion of his election campaign and the situation continues until the year 2004, after his success in the elections and on the occasion of Independence and Youth Festival on 04/07/2006 in front of the army in the frames of the Ministry of National Defense. Saïd  Bouchair, amending the Constitution by Parliament, ibid., p.19.

([44])- Saïd  Bouchair, ibid., p.26 et seq.

([45])- Ibid., p.29.

Bokra Idris, op.cit., p.23.

([46])-Bokra Idris, ibid., p.20.

See Article 71 of the Constitution of 1963 constitution.

([47])- Saïd  Bouchair, ibid., p.13.

Zranez Amel and Mellah Nassira, the problem of the legislative institution’s role in the exercise of the constitutional amendment in Algeria, international Forum on constitutional amendments, Chlef.

Boussalem, Ibid.

Kamal Drid, the effectiveness of the Algerian parliament in the exercise of the constitutional amendment, the International Forum on constitutional amendments in the Arab countries, Laghouat.

([48])-Ammar Aouabdi, chairman of the parliament in the Algerian parliamentary law, parliamentary magazine thought, fifth edition, 2004, p.102 et seq.

([49])- We mean the constitutional successive documents in Morocco: the Constitution 1962-1970-1972-1992-1996-2011.

([50])- Bokra Idris, ibid., p.22 et seq.

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