On the Use of the Constitution against the Algerian democratic transition

For more than a month, the Algerian people has been expressing, through massive, peaceful, patient but resolute demonstrations, its determination to dismiss the incumbent regime in place and move towards a real democratic transition.

This national movement for a radical political change has put forward, through numerous and sometimes overlapping initiatives, a number of common demands. These include the termination of the Head of State’s term, and then the start of a transition period with the setting up of a “collegial presidency” made up of trusted national personalities, including a military officer, who would pledge not to remain in power at the end of the transition period. The main task of the collective presidency would be to appoint a government of national unity or salvation responsible for managing the day-to-day affairs of the State, and to organise an inclusive national consultation that will define the practical modalities for revising the constitution as well as organising elections at the end of the transition period. These initiatives advocate a transition through the creation of mechanisms outside the current constitution.

While the people have remained steadfast in their will to see a fundamental change in governance, the ruling power has not stopped, since the beginning, from resorting to stalling tactics, tricks, twists and turns. Despite six massive national marches, which drew millions of citizens all over the country and could be construed as referenda, the regime has conceded only demand (the resignation of the former president).

The regime in place, through either the presidency or the army chief-of-staff, has so far rejected any real democratic transition, that is to say a transition which it does not control totally. A few weeks ago, it had advocated an extension of the presidential term, a new government and a national conference it would supervise itself. Today, although it has abandoned this alternative, it continues to prepare a transition within the current constitutional framework. Following Bouteflika’s resignation, the regime seeks to impose the unpopular current president of the Senate as president, or, failing that, any other member of the Senate, in order to lead a transition within the current constitution.

This stubborn persistence to impose the transition exclusively within the present constitutional framework is also defended by media outlets affiliated to the regime, and many other figures and political parties which had been calling for change, such as Ali Ghediri or the Talaie El Houriat party, as well as some constitutional experts, such as Fatiha Benabbou and Smail Lalmas.

To most people, this legalistic approach to change is blocking the country in its quest for a real and peaceful democratic transition. In times of tremendous historical changes, the majority opinion is often right on matters of principle, but the fact remains that it is important to examine the merits of the constitutional approach, just as it is also necessary to consider the arguments that would justify a democratic transition outside the current constitution framework.

Arguments for way out of the crisis « within the constitution framework »

The main argument, put forward by the legalists, states first that it is not appropriate to violate the law. On the contrary, it is commendable, wise and meritorious to comply with the fundamental law. Those who defend this position often combine it with raising the spectre of an « institutional vacuum » if one went out of the constitutional framework. Constitutionalist Fatiha Bennabou says: « Things must be done in a gradual way in order to prevent an institutional vacuum, [that would ensue from] a constitution stripped from its substance « . (Le Temps, March 24, 2019) She considers that an extraconstitutional path would « weaken the Algerian state », which could force the army to intervene. (El Mujahid, March 24, 2019)

This line of argument is not an Algerian exception. In the political transition literature, there are a number of studies focusing on the relationship between constitutions and the success of democratic transitions. There are several arguments in favour of transitions within the constitutional framework. One of those arguments states that democratic transitions benefit from constitutions because they provide an orderly framework for the stormy politics of countries in transition. Furthermore, constitutions facilitate the transition process in the sense that the existence of a constitutional framework can persuade a dictatorial regime to withdraw from power, knowing that constitutional continuity will preserve much of its political projects, even after its departure. A third argument is that constitutional stability favours democratic transition because it helps to secure property rights, which tends to maintain, and even encourage, foreign investments that are essential for political and social stability during transitions.

Arguments for a democratic transition in breach of the current constitution

To counter the main legalist argument one could say that complying to forms blindly is nothing but blindness. Respect for the law presupposes that the law in question is respectable. However, the current constitution has been violated many times by both the civilian and military figures of the regime. The counter-argument would be to say that one must remove those who violated the constitution and not the constitution itself.

The weakness of this argument is that if the transition were to take place within the current constitutional framework, then it would undoubtedly be controlled by influential figures of the corrupt regime still in place. For example, according to the current constitution, presidential elections should be held within ninety days, under the direct control of the senate president, government ministers and the constitutional council members who were appointed by the very same people the army chief-of-staff had described as “the gang”. Furthermore, such elections would be supervised by a body dissolved by Bouteflika, and which will need to be appointed again by the new head of state. Such a scenario is more likely to aggravate the crisis than to achieve a real democratic transition.

Moreover, the constitution amended on 2016 is not appropriate because it was tailor-made for an authoritarian presidential regime and does not enshrine the balance and separation of powers or the independence of the justice.

Bennabou and Lalmas who defend the constitutionalist position speak of the constitution as it were a sacred text. They are committed to a normativism that isolates the legal norms from the real facts of political exercise. The constitution is about the past in the sense that it brings today the political decisions adopted by its authors in the past. What was once only a political opinion of the constitution-makers gains over time the prestige or dignity of « Constitution », i.e. an almost revered text considered to be above politics by politicians, judges and the wider public. Indeed, the older a constitution, the higher it rises above politics, and the opposite is true. The fact remains that the constitution is a frozen object of a polity at a given time in the past, even history gives it a dignity that makes people forget that, at a given point in time, it was only politics. Imposing to Algerians the current constitutional framework would amount to reducing their political perspectives by the obstacles set up by a regime they loathe.

A constitution framing is not a purely normative construction. It is a part of the political process and therefore it calls for a wider remark. The constitution is the expression of the people’s constitutive power. The people have the inalienable right to make and remake the institutional framework through which it is governed. Constitutive power is the power to formulate or amend a constitution. The government is a constituted power, whereas the people possess the constitutive power. The government is subject to the constitution. The people is not. As Emmanuel-Joseph Sieyès said about the people: « Its will is always legal; it is the law itself. »

Another point for a democratic transition outside the current constitution derives from the observation that transitions made within the constitutional framework are often misused to protect incumbent elites from the rule of law or to give them an edge in the political and economic competitions even after democratization. We know that about two-thirds of the countries that adopted democracy since the Second World War have done so under constitutions elaborated by the overthrown authoritarian regimes (Kenya, Nigeria, South Korea, Argentina, Chile, Mexico). Studies of these transitions show that outgoing authoritarian elites misuse constitutional tools, in order to redistribute power and profits in their own favour. They may do so through the manipulating the electoral system design, legislative appointments, federal law, amnesties, the role of the army in the politics, and the architecture of constitutional courts. The also put up obstacles against changing social contracts, through constitutional provisions that impose change thresholds for defining the absolute majority, in order to cement their own privileges.

Constitution and revolution

Constitutionalists like Bennabou have a Manichean approach to constitutionality. For her, a transitional in breach of the constitutional framework implies « the dissolution or complete change of the law and institutions of the state [which] is more of a danger rather than a solution. » (El Mujahid, March 24, 2019) In fact, that is not the case. It is possible to consider a real democratic transition that conforms partially with the current constitution and keeps certain institutions in place.

The discourse on the constitutionality of the transition must not be a cover-up that hides the will to dominate the political transition, against the people demands. In reality, the problem is political rather than legal.

The national movement for a radical political change has put forward an inclusive and transparent democratic transition. None of the numerous initiatives that have been proposed has rejected the involvement of an army representative in the collective presidency. The National People’s Army remains a legitimate stakeholder in the transition process. The democratic transition must be carried out with the army and not against it. The Algerian people want a strong, republican, professional army that obeys the civilian authority exercised by elected representatives of the people, and it does not want an army that dictates content of this transition.

However, the army chief-of-staff has insisted, so far, that the political process should follow the provisions of the current constitution. This unwillingness to depart from constitutional legality looks more like a political trick to control the transition than a reverence for the law. It is more akin to a ploy to prevent the people from shaping the content of the transition.

This is not Algeria’s first-time democratic transition. Algeria witnessed one, between 1989 and 1992. In January 1992, the military ignored constitutional legality, overthrowing an elected president, dissolving a parliament, and cancelling the first free parliamentary elections in the country. It replaced these institutions by a collective presidency (High State Committee) and a legislative assembly (National Transitional Council). If yesterday the army set up an extraconstitutional presidency and parliament, totally against the popular will and legitimacy, why would it then reject today the idea of a collective presidency and institutions for a transition, which have an overwhelming popular legitimacy in their favour?

In 1962, the army overthrew the first government of independent Algeria. It aborted the first democratic transition, which ended in a bloody civil war and engendered this hybrid regime, which is totally rejected by that people. National history offers now the ruling military in place a new opportunity to meet the Algerian people’s expectations .It should not be afraid of change. The people keep repeating « djeich, chaab, khawa, khawa (Army, People, Brothers) ». They want a change with the army, not against it. Will the army officers, while maintaining unity within it, finally agree to let, honestly and peacefully, Algeria write a new bright page in its history? Will they have the courage to trust finally their people?

Bouteflika’s constitution should not be a trap against the democratic transition. The real constitution of the Algerian people should be the culmination of its democratic revolution.

Rachad, April 4, 2019