Powers of the Constitutional Council

The powers of the Constitutional Council are provided for in the Constitution. They are specified by the regulation setting the rules of functioning of the Constitutional Council of 12 May 2019 (repealing that of 6 April 2016) and, with regard to electoral disputes, by the organic law on the electoral system.

The functions of the Constitutional Council can be grouped into two main sections, those exercised in normal situations and those exercised in particular situations.

1- The powers of the Constitutional Council in normal situations

a) The powers of the Constitutional Council to review the constitutionality and conformity of certain legal texts with the Constitution.

 Pursuant to the provisions of Article 186 of the Constitution, the Constitutional Council rules on the constitutionality of treaties, laws and regulations and on the conformity of the organic laws and the rules of procedures of both Houses of Parliament with the Constitution.

The exercise of this control, optional or mandatory, is depending on whether it is a constitutional or conformity control. It can only be exercised if there is a referral by the authority constitutionally empowered, in this case the President of the Republic, the President of the Council of the Nation, the President of the People's National Assembly, or the Prime Minister.  In addition, when there is a referral of 50 members of the People's National Assembly or 30 members of the Council of the Nation.

The Constitutional Council issues opinions in the first case and decisions in the second case.

As for organic laws and rules of procedures of the two Houses of Parliament, it exercises a compulsory control of conformity to the Constitution, preliminary to their promulgation for the first and before their implementation for the second.

In the performance of its powers, the Constitutional Council has issued,so far, a limited number of decisions and opinions, particularlydue to the restrictive nature of the referral.

It is also important to note that the Constitutional Council has never been referred to of approval laws of international agreements and regulatory acts.

(b) The powers of the Constitutional Council in electoral matters

Pursuant to Article 182 (paragraphs 2 and 3) of the Constitution, the Constitutional Council "... shall monitor, among other matters, the proper conduct of referendum operations, of the election of the President of the Republic and legislative elections.

It shall review, in their substance, the appeals it receives on the provisional results of the presidential and legislative elections and shall announce the final results of all the operations provided in the preceding paragraph ".

This function is specified by the organic law on the electoral system.

The regularity control of major national political consultations extends from the consideration of appeals under the conditions and procedures of the electoral law to the control of campaign accounts.

The Constitutional Council has exercised its power in electoral matters nine times. Four times for legislative elections, including those aborted in 1991, and five times for the election of the President of the Republic.

Besides, it intervenes, as a substitute judge, in the event of vacancies on the part of parliamentarians due to death, acceptance of governmental office  or election as a member of the Constitutional Council.

 

2. The powers of the Constitutional Council in some exceptional situations.

The Constituent conferred on the Constitutional Council and its President advisory powers in certain exceptional situations.

a) With regard to the Constitutional Council

Pursuant to the provisions of Articles 107 and 111 of the Constitution, the Constitutional Council is consulted by the President of the Republic before the establishment of the State of exception and before the signing of Armistice Agreements and Peace Treaties.

The opinion of the Council is also required in case of constitutional revision decided in application of the provisions of Article 210 of the Constitution. It is also consulted beforehand, for the implementation of Articles 102 and 103 of the Constitution in cases of impediment or vacancy of the Presidency of the Republic due to death or resignation of the President of the Republic.

The Constitutional Council intervenes in the electoral process relating to the election of the President of the Republic and in the extension of Parliament mandate. In the first situation, it extends the deadline for the organization of the presidential election of sixty (60) days when one of the two candidates running in the second round dies, withdraws or is prevented for any other reason in accordance with the provisions of Article 103. In the second situation, in the case of particularly serious circumstances and if the mandate of the parliament was to be extended under the conditions provided for in Article 119 (paragraphs 4 and 5) of the Constitution, the Constitutional Council shall, in this case, be consulted by the President of the Republic.

Finally, the Constitutional Council has a "procedural" role in three specific cases:

1 - In case of impediment of the President of the Republic due to serious and lasting illness. In such a situation, the Council meets de jure, verifies the reality of this impediment and proposes unanimously, to Parliament, to declare the state of impediment.

2 - The Constitutional Council also meets de jure and declares the permanent vacancy of the Presidency, in case of resignation or death of the President of the Republic.

3 - Finally, in case ofcombination of the President of the Republicresignation or death and the vacancy of the Presidency of the Council of the Nation, for any reason whatsoever, it meets de jure and declares unanimously, the permanent vacancy of the Presidency of the Republic and the impediment of the President of the Council of the Nation.

The Constitutional Council employed its powers in the sole case of the vacancy of the Presidency of the Republic by resignation, and the vacancy of the Council of the People's National Assembly by dissolution. As this case was not provided for in the Constitution of 23 February 1989, the Council issued a declaration on 11 January 1992 in which it declared the permanent vacancy of the Presidency of the Republic and charged "the institutions vested with constitutional powers to the normal functioning of the institutions and the constitutional order ".

(b) With regard to the President of the Constitutional Council

In addition to its administrative and financial powers defined by the Presidential Decree N° 16-201 of 16 July 2016 on the rules relating to the organization of the Constitutional Council, the President of the Constitutional Council is consulted by the President of the Republic in case of establishment 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 Council of Nation under the conditions provided for in Article 102 of the Constitution, the President of the Constitutional Council assumes the office of Head of State.