4.
Functionning procedures of the Constitutional Council
In accordance with article 167 paragraph 2 of the Constitution,
theConstitutional Council sets rules for its function. These rules are set by
the rule dated Moharam 5, 1410 corresponding to August 7, 1989 as amended and
completed. The procedure set out in the above mentioned rule is simple for the
control of constitutionality and is relatively complex as regards the legality
of national political elections.
In both controls, the procedure is written and deliberations are secret. The latter are also subject to the rule of quorum under which the effective presence of at least five members is required. Deliberation is carried out in closed doors at the majority of the members of the Constitutional Council. In case of equality of votes the President or the session's chairman shall exercise a casting vote.
1-
Concerning the control of constitutionality
Article 166 of the constitution provides that the
Constitutional Council
« is called upon by the President of the Republic, the President of the
People’s National Assembly or by the President of the Council of Nation ».
This implies that the Constitutional Council cannot exercise its control of
constitutionality upon a determined juridical text only if this text is
submitted to it by these three powers entitled to call it upon. Accordingly,
there is no possibility for the Constitutional Council to call upon itself.
The referral to the Constitutional Council is therefore a competence granted by
the constituent to these three powers which exercise it with full sovereignty
and whenever it seems right to them.
Nevertheless the constituent has restrictively provided for in articles 123 and
165 of the constitution the duty to submit before their enforcement, to the
control of the Constitutional Council which should in this manner deal
with their conformity to the constitution, the organic laws and the rules of
procedure of the two chambers of Parliament. In fact, the Constitutional Council,
called upon by the President of the Republic, puts forward a compulsory opinion
on their constitutionality after their adoption by Parliament. They are brought
into effect only when the Constitutional Council renders an opinion on their
conformity to the Constitution.
In
addition, the Constitutional Council takes a decision on ordinary laws, treaties
and regulations if it were called upon too. In this case, it puts forward either
an opinion if the juridical text submitted to it is not enforceable yet or
a decision if the juridical text it is considering is already in force.
It
happens that a juridical text, that is already in force and that accordingly has
made effects, is submitted to the Constitutional Council. Within this framework,
the constituent prescribes in article 169 of the constitution : «
When the Constitutional Council considers that a legislative or regulatory
provision is not constitutional, this latter looses its effect from the date the
decision is taken by the Council. ».
Therefore the opinions and the decisions of the Constitutional Council become
absolute immediately enforceable and compulsory for all public powers. It
implies that all the provisions ( the law in part or in whole ) considered by
the Constitutional Council inconsistent with the constitution are concealed from
the text scrutinised and lapse from the date the Constitutional Council gives
its opinion or its decision.
The procedure is initiated through a letter of referral, sent to the
President of the Constitutional Council by one of the three Constitutional
authorities qualified to do so.
The letter of referral is recorded at the general secretariat and an
acknowledgement receipt is delivered.
The investigation phase starts with the appointment by the President of the
Constitutional Council of a rapporteur among the members. The rapporteur
examines the file, proposes a draft opinion or decision and submits a copy
together with a report to each of the members. He may in this context gather all
the information and documents related to the file and seek advice from any
expert he wishes.
Following the investigation phase, the President of the Council sets the
date of the plenary session and summons the members. The Constitutional Council
meets and rules on in closed doors and deliberates at the majority of its
members.
The opinions and the decisions of the Constitutional Council are
motivated and given in the National Language within twenty days after the date
of referral. Once signed by the President of the Constitutional Council or the
Chairman of the session and recorded by the Secretary General of the Council and
classified, they are notified to the President of the Republic and depending on
the author of the referral to the President of the Nation's Council or the
Speaker of the People's National Assembly.
The opinions and decisions are finally sent to the Secretary General of
the Government for publication in the Official Journal.
2-
Concerning the control of legality of national political consultations
As is the case for the control of constitutionality, the procedure is
written and secret. The Constitutional Council rules on in closed doors,
depending on the rule of the quorum envisaged, decides at the majority of its
members and in case of equality of votes the President shall exercise a casting
vote.
The
contradictory principle can be seen more clearly in the electoral
contentious.
a)-
The referendum :
The Constitutional Council examines appeals and proclaims the final
results of the ballot.
Hence any voter has the right to challenge the legality of voting operations .
He must mention his complaint on the minute of the polling station. Minutes of
county commissions are sealed and sent to the Constitutional Council which will
examine them and proclaim the final results at the latest ten days after the
reception of the minutes.
b)-
Election of the President of the Republic :
The Constitutional Council is involved at three levels :
- It validates the candidatures for election as President of
the Republic.
- It rules on appeals made by candidates or their mandated
representatives and proclaims the results of the election.
- It controls the campaign accounts of candidates for
election.
a.a)-
The validation of candidatures :
The declaration of candidature made according to conditions set out by
article 73 of the Constitution and other provisions of the ordinance relative to
the organic law concerning the electoral system
is submitted to the general secretariat in accordance with the
conditions, forms and time-limits set out by this law. An acknowledgement
receipt is delivered.
The ordinance relative to the law concerning the electoral system
stipulates in its article 161 that "Once the candidature is lodged,
candidates can only withdraw in case of death or legal impediment".
The President of the Constitutional Council appoints among its members
one or several rapporteurs entrusted with the verification of candidature files.
At the end of this operation, the President of the Constitutional Council
summons members of the Council for a closed door meeting to examine the report
and rule on the validity of the candidatures.
After verification of the list of the documents and making sure that each
candidate meets really the conditions set out in the Constitution and in the
ordinance relative to the electoral system, the list of candidates for the
Presidential election is set under a decision of the Constitutional Council. It
is notified to the concerned, communicated to the authorities concerned and sent
to the Secretary General of the government for publication in the Official
Journal.
In contrast, in the case of death, withdrawal or impediment of one the
two candidates during the second round, the Constitutional Council states that
it shall proceed anew to the initiation of all the voting operations. In such a
case the Constitutional Council extends the organisation shedule of the new
elections for a maximum period of sixty (60) days.
a.b)-
The examination of appeals and the proclamation of the results :
The
Constitutional Council examines appeals in conformity with the provisions of the
ordinance relative to the organic law governing the electoral system and the
provisions of the rule setting its functioning procedures.
It proclaims the results of the ballot in conformity with the ordinance
relative to the organic law governing the electoral system.
a.c)-
The control of campaign accounts :
The
setting up of a campaign account for
the record of the origin and the nature of all the funds received and the
expenditures made in accordance with the conditions and the modalities set out
in article 191 of the ordinance relative to the organic law governing the
electoral system is compulsory for all candidates standing for election as
President of the Republic. The non-respect of the provisions set out in article
191 may lead to penal sanctions against their author as set out in article 215
of the said ordinance.
Candidates shall present their campaign account within a maximum period
of three (03) months from the date of the proclamation of the final results of
the ballot.
The Constitutional Council rules on the campaign account and notifies the
candidates about its decision. Besides, the decision relative to the campaign
account of the elected candidate will be published in the official journal.
The decision of the Constitutional Council determines the acceptance or
the rejection of the campaign account. In case of rejection, the candidate can
ask for reimbursement of the expenditures made.
C)-
Election of members of Parliament :
1- Election of members
of the People's National Assembly :
The Constitutional Council proclaims the results of the ballot and rules
on the merit of appeals made by candidates or political parties. It controls
campaign accounts of candidates for election to the People's National Assembly.
1.a)- Examination of appeals and the proclamation of results :
1.b)- The control of campaign accounts :
The
Constitutional Council rules on campaign accounts of candidates for election to
the People's National Assembly in the same conditions as those of President of
the Republic. However these accounts have to be presented two months following
the proclamation of the final results of the ballot. Accounts of elected
candidates are not subject to publication in the Official Journal. They are only
sent to the bureau of the Assembly.
2)- The election of members of the Nation's Council :
The Constitutional Council rules on in closed doors on the parties taking
part in the election in accordance with the forms and the time-limits set out in
articles 145, 148 and 149 of the ordinance relative to the organic law governing
the electoral system and the rule setting its functioning procedures.
It proclaims the final results of the election in
conformity with the provisions of article 146 of the above mentioned ordinance.