A historical overview
The history of the control of constitutionality in Algeria is closely
related to that of its constitutional history.
It evolved in a discontinuous process marked first by an "aborted" experience then a long absence and finally a sudden but still promising reemergence. The control of constitutionality is apparently being fully instilled in the political and institutional spectrum of the country.
What is the origin of this system of control ? what are its
characteristics ? How is the institution in charge of carrying out this control
organized, what are its prerogatives and how does it operate ?
Algeria's constitutional history shows that the process which led to the
adoption of the present form of control of constitutionality went through four
First, it was in 1963, following the elaboration of the country's first
constitution, after independence that a constitutional Council entrusted in
accordance with articles 63 and 64 of the Constitution : "with ruling on
the constitutionality of legislative laws and ordinances" was set up.
However, this Council failed to carry out its constitutional prerogatives
due to the political situation which prevailed then. As a consequence the
constitution was "shelved" less than one month after its promulgation.
The constitution of November 26, 1976 does not refer explicitly to
control although it stipulates in its article 186 that "political control
vested in leading organs of the Party and the State shall be carried out in
conformity with the national Charter and with the provisions of the
In the third stage, the idea of the control of constitutionality became
the subject of political debate again. Indeed in December 1983 the 5th
FLN party Congress "calls for the creation of a supreme body under the
authority of the President of the Republic, Secretary General of the party
entrusted with ruling on the constitutionality of laws with a view to
guaranteing the respect of the supremacy of the Constitution, reinforcing the
legitimacy and the sovereignty of law and fostering and enhancing accountable
democracy in our country".
The council will be finally set up again on the occasion of the important
constitutional revision of february 23, 1989 which in addition to its
establishment of political pluralism, public freedoms and the adoption of the
principle of separation of powers set forth the setting up of a constitutional
council and granted it more important prerogatives than those of 1963 notably
the control of treaties, laws and rules, the control of the legality of national
elections and finally of consultative prerogatives in some particular
The rehabilitation of the control of constitutionality is an important
step in the process of achieving the rule of law.
The constitutional revision of November 28, 1996 is an other step forward
through the introduction of two major innovations. Indeed it extends the prérogatives
of the constitutional council to include the mandatory control of organic laws
before their promulgation and grants referral to a new constitutional authority,
the President of the Nation's Council.
This gradual progress is a good sign for other important future