النظام القانوني للمراسيم الرئاسية في الجزائر

بوسدرة, بختة

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النظام القانوني للمراسيم الرئاسية في الجزائر

بوسدرة, بختة

URI: http://dspace.univ-chlef.dz/handle/123456789/2119

Date: 2025-04-22

Résumé:

إن موضوع المراسيم الرئاسية في الجزائر مر بتطور تاريخي مهم جدا ،حيث يعتبرها البعض أنها من أعمال السيادة والبعض يعارض ذلك،فوجودها من عدمه يحدد شكل النظام السياسي في الدولة من حيث أنها تخضع لإجراءات استشارية قبلية ،وتعتبر أداة لتسيير الظروف الاستثنائية ،فالمراسيم الرئاسية حسب التعديل الدستوري الأخير لسنة 2020 أصبحت تخضع للرقابة الدستورية ،ومن خلال ما سبق نطرح الإشكال التالي: إذا كان للبرلمان مجالات محددة حصرا وفقا للدستور بحيث لا يمكن تجاوزها ،فإلى أي مدى يمكن لرئيس الجمهورية التمتع بامتياز إصدار المراسيم الرئاسية في الجزائر؟

Description:

Presidential decrees are considered the mechanism through which the President of the Republic exercises his constitutional powers, which are characterized by speed, unlike legislation, accuracy, and independence from the areas specified by the Constitution for legislative authority, which play an important role in legal life and in influencing the principle of separation of powers. Therefore, it must go through several stages before it comes into effect, starting with preparation, signing, then issuing and publishing in the Official Gazette for the public and those to whom it is addressed to know about it for the purpose of implementation. The presidential decree is individual when it relates to appointment or termination of tasks. It is regulatory when it relates to the organization of public facilities and public interests, and it may take on a special nature if it deviates from these two forms, such as presidential decrees related to amending the constitution, concluding treaties, etc., so the President of the Republic monopolizes the authority to sign them according to the text of Article 91 of the Constitutional Amendment of 2020. This authority cannot be delegated. It is also not possible to infringe upon the areas reserved for Parliament stipulated in Articles 139 and 140 of the same constitutional amendment. The Constitution also established a monitoring mechanism on presidential decrees, through which its provisions are not infringed or violated, which is the constitutional oversight imposed by the Constitutional Court to protect, Whereas the Constitution subjected the independent regulations issued by the President of the Republic to constitutional oversight in Articles 192 and the following through notification carried out by the bodies specified in the Constitution represented by the President of the Republic, the President of the National People’s Assembly, the President of the National Assembly, the Prime Minister, or the Head of Government, as the case may be, Or through the defense presented by one of the parties to a lawsuit, on which the regulatory ruling on which the outcome of the dispute depends violates one of his rights or freedoms, which is called the defense of unconstitutionality stipulated in Article 195 of the Constitutional Amendment of 2020, which is made based on a referral from the Supreme Court or the Council of State, The constitutional founder also added oversight of the conformity of laws and regulations with the treaties ratified by the President of the Republic because they transcend the law. In order to protect the principle of legality, the Algerian legislator introduced judicial oversight over organizations. Pursuant to Organic Law No. 22-13 amending and supplementing Law No. 08-09 containing the Code of Civil and Administrative Procedures, the administrative courts of appeal created pursuant to it became, It has the jurisdiction to decide on appeals filed against presidential regulatory decrees, which before the amendment were under the jurisdiction of the State Council because they are considered among the decisions issued by the central authorities. However, presidential decrees are now escaping this type of oversight under the pretext of the theory of acts of sovereignty, which relies on several criteria, the most important of which are the political motive, the objective criterion, the mixed criterion, and the criterion of the judicial list, as they relate to the sovereignty of the state. Moreover, no one has the audacity to sue the first judge in the country and dispute his decisions, and this is what strengthens the position of the executive authority.

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