5 .The prerogatives of the Constitutional Council  

            The prerogatives of the Constitutional Council are set out in the Constitution. They are specified by the rule setting the functioning procedures of the Constitutional Council dated August 7, 1989 as amended and completed and by the organic ordinance relative to the electoral system as regards electoral contentious matters.

            The prerogatives of the Constitutional Council may be summed up in two large categories : those to be implemented in normal conditions and those to be implemented in particular conditions.

Photograph of the deliberation room 
(with the presence of members)

1- The prerogatives of the Constitutional Council in normal conditions

a)- The prerogatives of the Constitutional Council in terms of control of constitutionality and the conformity of some legal texts with the Constitution.

             In pursuance of the provisions of article 165 of the Constitution, the Constitutional Council rules on the onstitutionality of treaties, laws and rules and on the conformity of organic law and rules of procedure of the two houses of parliament with the Constitution.

             The practice of this control, be it optional, compulsory on constitutionality or on conformity with the Constitution is not automatic in the sense that the control can only be carried out in case of referral by the constitutionally competent authority to do so, namely the President of the Republic, the President of the Nation's Council or the Speaker of the Peope's National Assembly.

             The Constitutional Council renders its opinions in the first case and its decisions in the second case. As for organic laws and rules of procedure of the two houses of parliament, it carries out a compulsory control of conformity prior to their promulgation for the former and their implementation for the latter.

             The 19 texts submitted to the Constitutional Council are classified here after according to the date of the pronouncement of the opinion or the decision. :

1.       The electoral law

2.       The law relative to the rules of procedure of the People's National Assembly.

3.       The law relative to the Status of Member of Parliament.

4.       The law relative to the postponment of elections for the renewal of county People's Assemblies (A.P.N.).

5.       The law relative to the postponment of elections for the renewal of Municipal People's Assemblies (A.P.C.).

6.       The rules of procedure of the People's National Assembly.

7.       Paragraph 2 of article 54 of the electoral law as amended and completed.

8.       Article 108 item 6 of the electoral law as amended and completed by ordinance n°95-21 of July 19, 1995.

9.       Article 2 of the ordiance relative to the judicial distribution.

10.    Ordinance relative to the organic law on the electoral system.

11.   Ordinance relative to the organic law on the electoral system.

12.   The rules of procedure of the People's National Assembly.

13.   The rules of procedure of the Nation's Council.

14.   Article 29 as amended of the rules of procedure of the People's National Assembly.

15.   The organic law relative to the prerogatives, the organization and the functioning of the State's Council.

16.   The organic law relative to the prerogatives, the organization and the functioning of the Tribunal of disputes.

17.   The law relative to the system of salaries and retirement of the Members of Parliament.

18.   The organic law setting the organization and the functioning of the People's National Assembly and the Nation's Council as well as the functional relations between the houses of Parliament and the Government.

19.   The rules of procedure of the Nation's Council.

             As part of the execution of its prerogatives, the Constitutional Council has to December, 31,1999 rendered 13 opinions and 05 decisions, classified as follows :

 - Opinions

11 opinions on referral by the President of the Republic among which 10 are mandatory opinions.
01 opinion on referral by the President of the Nation's Council
02 opinions on referral by the Speaker of the People's National    Assembly.

 - Decisions

04 decisions on referral by the President of the Republic
00 decisions on referral by the President of the Nation's Council
01 decision on referral by the Speaker of the people's national assembly.

      This classification of decisions and opinions representing the total number of parliamentary and legal acts published in the official journal these last ten years (1989-1999) which reached on October 4, 1999 the total of 13,778 which means   that the number controlled by the Constitutional Council is estimated only at 19 representing a percentage of 0,14 %.

        Besides, it is worth noting that the Constitutional Council has never been referred to on the following texts :
        - Parliamentary proceedings
        - Laws approving international agreements
        - Legal proceedings
        - Presidential decrees
        - Executive decrees

       These few statistical data give some indications on the efficiency of the control of constiutionality which must be reconsidered within a real perspective of implementing the rule of law and a pluralistic democracy.

b)- Prerogatives of the Constitutional Council regarding electoral matters :

     In pursuance of article 163, paragraph 2 of the Constitution, the Constitutional Council ".... sees to the legality of referendum operations, elections for President of the Republic and general elections. It proclaims the results of these operations". This prerogative is specified by the ordinance relative to the organic law governing the mentioned electoral system.

     The control of legality of large national political consultations ranges from the examination of appeals made within conditions and in accordance with procedures set out in the electoral law to the control of campaign accounts.

     The Constitutional Council has carried out its prerogatives as regards electoral matters five times. Three times for general elections including those of 1991 and twice for the election for President of the Republic.

     It was involved six times in the capacity of replacement judge in cases of vacancy of parliamentary seats due to death, resignation and legal impediment.

      Finally, it was involved once in the control of candidates' campaign accounts for election for President of the Republic.
In this frame-work, it has rendered 861 decisions which are classified as follows :  
- In its capacity as electoral judge :
    00 decisions concerning referendum contentious matters
    00  decisions concerning contentious matters relative to the election for President of the Republic
     345 decisions concerning contentious matters relative to general elections including 3 decisions relative to the election for members of Parliament  regarding appeals considered as well founded.
 - In its capacity of replacement judge :
    03 decisions of replacement of members of the Nation is Council.
    08 decisions of replacement of members of the People's National  Assembly.
- In its capacity as judge on the legality and sincerity of campaign accounts
    31 decisions of acceptance of campaign accounts of candidates for general elections.
    377 decisions of rejection of campaign accounts of candidates for general elections.
   04 decisions of acceptance of campaign accounts of candidates for  election for President of the Republic.
     03 decisions of rejection of campaign accounts of candidates for election for President of the Republic.

2- Prerogatives of the Constitutional Council in some exceptional situations

     The constituent has vested the Constitutional Council and its President with consultative prerogative in some exceptional situations.

a)- Concerning the Constitutional Council :

     In pursuance of the provisions of articles 93 and 97 of the Constitution, the Constitutional Council is referred to the President of the Republic prior to the instoration of the state of exception and prior to the conclusion of armistice agreement and peace treaties.

         The Council's opinion is also required in the case of a Constitutional revision decided in pursuance of the provisions of article 176 of the Constitution. In addition, it is referred to before hand for the implementation of articles 91 of the Constitution during the periods of impediment or of vacancy of the Presidency of the Republic because of death or resignation of the President of the Republic.

        The Constitutional Council intervenes in the electoral process relative to the election of President of the Republic and in the extension of the Parliament's mandate. In the first case, it extends the organization of the schedule of the Presidential election by sixty (60) days when one of the two candidates present during the second round dies, withdraws or is impeded for any other reason in accordance with the provisions of article 89.

       In the second case of particularly serious circumstances and if the Parliament's mandate should be extended in accordance with the conditions set out in article 102, paragraph 2 and 3 of the Constitution, the Constitutional Council is in this case referred to by the President of the Republic.

         Finally, the Constitutional Council has an "observatory" role in three particular cases :

             1- In case of impediment of the President of the Republic because of serious and long illness. In such a situation, the council meets in its own right, notes the reality of this impediment and suggest unanimously to Parliament to declare the state of impediment.

             2- The Constitutional Council also meets in its own right and take note of the definitive vacancy of the Presidency, in case of resignation or death of the President of the Republic.

             3- Finally, in case of conjunction of the resignation or the death of the President of the Republic with the vacancy of the Presidency of the Nation's Council for any reason, the Constitutional Council meets in its own right and takes note unanimously of the definitive vacancy of the Presidency of the  Republic as well as the impediment of the President of the Nation's Council.

             The Constitutional Council has carried out his prerogatives only once in the case of conjunction of vacancy of the People's National Assembly through dissolution. Since this case was not envisaged by the Constitution of february 23, 1989, the Council made a declaration on january 11, 1992 in which it took note of the definitive vacancy of the Presidency of the Republic and entrusted "the institutions vested with Constitutional powers referred to articles 24, 75, 79, 129, 130 and 153 of the Constitution to see to the conformity of the state and to prepare the necessary conditions for a normal functioning of institutions and of the Constitutional system.

b)- Concerning the President of the Constitutional Council :

             In addition to his administrative and financial prerogatives set on the the presidential decree n° 89-143 of August 7, 1989 relative to the rules governing the Organization of the Constitutional Council and the status of some of its staffs, the President of the Constitutional Council is referred to by the President of the Republic in the case of instoration of the state of emergency or the state of siege.

             In case of conjunction of the definitive vacancy of the presidency of the Republic and the Presidency of the Nation's Council in accordance with conditions set out in article 88 in fine of the Constitution, the President of the Constitutional Council shall discharge the functions of the Head State.