Article 102: A solution to the Algerian crisis or a new impasse?

Fatima Hamdi-Algeria

Article 102 of the Constitution, which provides for the announcement of vacancy to the post of President, is the nucleus of the current phase in Algeria. The slogans of the street were launched on 22 February. Today, the Chief of Staff of the Army, Lieutenant General Kayed Saleh, declared that it is the only solution to the crisis. Passed by the country.

But what seems to be a proposal for a solution prompted by the military hide details that might open the doors of the unknown to Algeria instead of addressing the crisis at its roots, especially with regard to the expected response of the Constitutional Council with the proposal of the army and the problematic nationality of the Speaker of the National Assembly, Abdul Qadir bin Saleh, Float to the surface and make the scene more complicated.

Article 102 of the Algerian Constitution amended in 2016 states that "if the President of the Republic can not exercise his duties due to a serious and chronic illness, the Constitutional Council shall meet and decide.

The Parliament, which convenes in its two chambers, shall declare the impediment to the President of the Republic by a two-thirds majority of its members, and shall be charged with acting as Acting President for a maximum period of 45 days.

If the impediment continues after 45 days, the vacancy shall be announced by resignation. The President of the National Assembly shall serve as head of state for a maximum period of 90 days, during which presidential elections shall be held.

A real crisis
In the opinion of the constitutional specialist Nasser Bougazala, there is currently in front of the Constitutional Council in Algeria only an emergency meeting to ensure that the health status of Bouteflika is chronic, which must apply Article 102 of the Constitution.

"Originally, the Constitutional Council is legally authorized to authorize Article 102, not the army, and no institution has the right to speak on this subject except the Constitutional Council."

"The Constitutional Council must ascertain from the reality of the impediment that the President of the Republic is going through a chronic and serious illness by means of medical certificates in his hands. In this case, he shall decide and propose to the Parliament the authorization of the obstruction."

Bougazala is afraid of the possibility of the Constitutional Council's non-response and understanding with the army's output, which came from the leadership of the staff, pointing out that the dispute will lead the country to freeze the constitution and thus a crisis more serious to Algeria than in 1992.

In this case there is no legal solution, and the country will go to the political option and it is very dangerous in the absence of a government, and the constitution is almost frozen. "In the case of a disagreement between the Constitutional Council and the Chief of Staff, .

Bougazala believes that the most serious challenge faced by Algeria is to reach what is known as "the real situation, ie no recognition of the parliament or the government or any of the institutions of the state and this makes the state shake and enter the country into chaos."

He added that Algeria is "in the face of a real crisis, since neither the siege nor the emergency can be declared, because these two things are announced by the president," calling for "patriots in the country" to save Algeria from "executing the law" because Algeria needs its men more than ever before. , As he put it.

Problematic nationality
On the issue of how to deal with the acquired nationality of the President of the Council of Nation (born in Morocco and Gens after independence), in the event of the announcement of the vacancy of the post of president and his presidency in the transitional period, surprised constitutional law specialist Fawzi Ousdik raise this question at this particular time.

And stresses that the issue of nationality will not be a hindrance "on the grounds that the current President of the National Assembly exercised his duties as the second man in the country for more than a decade without any legal impediment."

He added that "practice proves that his original nationality is Algerian, by virtue of his tenure, and in the case of doubt, although it is unlikely, there is another option, in a paragraph of Article 102, which provides for the case of the presidential vacancy, mission".