NEW LAWS AFFECTING THE STAKES AND FAIRNESS OF THE ELECTIONS
A Weaker National Assembly
The new constitution, drafted by the government and adopted by a referendum last November, has diluted the power of the National Assembly and given the president more far-reaching powers. It also creates a secondchamber, the National Council, composed of members who are not directly elected, that will share legislative functions with the National Assembly. Two thirds of the 170-member National Council will be elected by communal and provincial council deputies who are to be chosen in local elections later in 1997. The remaining one-third will be appointed by the president.15
The president appoints the prime minister (Article 77). The National Assembly can force the resignation of the prime minister by voting down the government's program. In that case, the president appoints a new prime minister (Article 81). The president has the power to dissolve the National Assembly at any time (Articles 82 and 129).
The prime minister or a group of at least twenty deputies are entitled to introduce draft legislation (Article 119). To become law, it requires the approval not only of the National Assembly, but also the support of three-fourths of the National Council (Article 120). Once adopted by the two chambers, the president of the republic may still send the legislation back to the National Assembly for a second vote. This time, the legislation must obtain a two-thirds majority in order to pass (Article 127).
Restrictions on the Nature of Political Parties
Both the 1996 constitution and its predecessor guarantee freedom of association. Following the political reforms of 1989 and 1990, independent and party-related civic associations proliferated. However, under the 1992 emergency law, the interior minister could suspend or close associations by administrative order when their activities were deemed to "endanger public order, public security, the normal function of institutions or the higher interests of the country."16 After the banning of the FIS in February 1992, this provision was used to outlaw numerous civic and labor organizations that the government accused of affinity with that party.
The constitution recognizes and guarantees in Article 42 the right to create political parties. However, the same article prohibits their creation on a basis that is "religious, linguistic, racial, gender-related, corporatist [i.e., an organized economic interest] or regional.17 The political parties law, promulgated on March 6, states further in Article 5 that a political party "cannot establish its founding or action" on these criteria. Article 3 stipulates, "the fundamental components of the national identity in its three dimensions, Islam, Arabism and Amazighté [Berber ethnicity], cannot be exploited for partisan propaganda purposes." The law gives parties two months to bring their names and programs into conformity with these requirements.
This law, like others passed since the cancellation in 1992 of the legislative elections, was decreed by the president and approved by the National Transitional Council. Prime Minister Ahmed Ouyahia praised the constitutional provisions on political parties for presenting "the definition of a framework for the conduct of pluralism which bans parties based on religion, on regional special interest groups, and still more on violence."18Interior Minister Mostafa Benmansour said the new party law introduced "features that will allow the country to avoid the disastrous slip-ups of the past."19
Article 40 of the previous constitution recognized the right to create political "associations." The 1989 Law on Political Associations also restricted political associations based on religion.20 But, at that time, the authorities granted the FIS and other Islamist parties legal status and allowed them to function. Some thirty political groupings sought and received official recognition in the year following adoption of the 1989 political associations law.
Altogether, under the March 1997 law, some fifty groups have already won recognition as political parties; of these, about four-fifths are competing in the legislative elections. The FIS remains banned. Two other Islamist parties, MSP (formerly Hamas) and an-Nahdha, both of which fared poorly in the 1991 parliamentary elections, are running candidates, after conforming to the new political party law by changing their names and parts of their platforms.
El-Oumma, a small pro-Islamist party, disbanded a month after the new party law was passed. Its secretary general, Ben Youssef Ben Khedda, told us, "The government wanted to deprive us of our national symbols. Islam is at the center of our national identity and we refuse to abide by this unjust party law. We preferred to disband rather than function under these conditions."21
The MDA, headed by Algeria's first president, Ahmed Ben Bella, announced it would boycott the elections rather than comply with an official order to change its platform. In a letter to the MDA, the Interior Ministry asked the party to change by May 8 Articles 3 and 6 of its platform, or face "stringent measures to implement the law." Article 3 says: "The MDA aims to bring together various forces of the country around national unity, democracy, social justice and Arab-Islamic values." Article 6 defines MDA work in developing national cultural independence, national unity and "the defense and growth of Islam, the religion of the State and of the people." In the view of Human Rights Watch, nothing in these articles would justify attempts by the state to foreclose their peaceful expression or forbid persons who support them from associating together. As this report went to press, negotiations were continuing between the interior ministry and the MDA.
It is the prerogative of a government, where evidence exists that a party or its members have engaged in illegal conduct, such as acts of, or incitement to violence, to prosecute them according to the law. However, Algeria's broadly worded bans on particular categories of political parties violate the International Covenant on Civil and Political Rights (ICCPR). Algeria ratified that treaty in 1989, and published it in the Official Gazette in March 1997, a step required for its becoming part of domestic legislation. The ICCPR guarantees to citizens the right to take part in the conduct of public affairs either directly or through freely chosen representatives and the right to vote and to be elected in periodic and fair elections. These rights, articulated in Article 25, entail participation in, and voting for, political parties. They are to be guaranteed "without any of the distinctions mentioned in Article 2 and without unreasonable restrictions." Article 2 of the ICCPR requires States Parties to respect and ensure civil and politicalrights "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The criteria that Algeria forbids as the basis for political parties-ethnicity, religion, language, gender, and regional origin-correlate with these forbidden categories of discrimination. The present law violates the rights of supporters of a party that claims a religious basis for its program to associate together and to vote for representatives of their choice.22
Algeria's ban on broad categories of parties also restricts free association with others. Article 22 of the ICCPR, which guarantees this right, permits restriction only in the narrow circumstances where three conditions are met: 1) the restriction is "prescribed by law"; 2) the restriction is "necessary in a democratic society"; and 3) it is necessary "in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." These conditions are not met by Algeria's decision to proscribe whole categories of political parties on the basis of discriminatory criteria. The burden rests with the government to show that the restrictions meet each of Article 22's conditions. To be "lawful," a restriction must not only be embodied in a law, but also be consistent with fundamental human rights norms, including the requirement that it is "necessary in a democratic society." A "necessary" restriction is one that is narrowly drawn and proportionate to the interest it seeks to protect; it must further accord with values of tolerance, pluralism, popular sovereignty and equality characteristic of "democratic" societies. Finally, the specific interests that may be protected have restrictive meanings. National security, for example, entails a threat to the physical integrity of the state, and not merely to the tenure of any particular government. Public order (ordre public) is endangered by violent disturbances, not by partisanship or public debate on controversial topics. Algeria, to the best of our knowledge, has made no case that any of these criteria have been met in justifying the ban on categories of political parties.15 They are to be appointed from among "national figures and experts in the scientific, cultural, professional, economic and social spheres," according to Article 101 of the constitution. 16 Presidential decree 92-320 of August 11, 1992. 17 "Dans le respect des dipositions de la presente Constitution, les partis politiques ne peuvent etre fondés sur une base réligieuse, linguistique, raciale, de sexe, corporatiste, ou régionale." 18 "Premier Interviewed on Constitutional Referendum," Rome Rai Uno Television Network, November 27, 1996, as reported by Foreign Broadcast Information Service (hereinafter FBIS), Near East and South Asia, November 27, 1996. 19 AFP, February 18, 1997. 20 Article 5 prohibited political associations the founding or activity of which has a basis that is "exclusively" religious, linguistic or regionalist, or tied to a single gender, race, or particular professional status." ("Aucune association a caractere politique ne peut fonder sa création et son action sur une base et/ou des objectifs comportant:
-des pratiques sectaires et regionalistes, le féodalisme et le nepotisme....
Dans ce cadre, l'association à caractère politique ne peut, en outre, fonder sa création ou son action sur la base exclusivement confessionelle, linguistique, régionaliste, d'appartenance à un seul sexe, à une seule race ou à un statut professionelle determiné.")21 Human Rights Watch interview, Algiers, April 3, 1997. 22 The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the UNGA in November 1981, gives important guidance about the concept of "intolerance or discrimination" based on religion. Article 2 of the Declaration states that intolerance or discrimination "means any distinction, exclusion, restriction, or preference based on religion or belief and having as its purpose or as its effect nullification or impairment or the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis."