The debate on the question of human rights in Algeria is liable to go nowhere if it is disconnected from the broader and more fundamental question of constitutional rule. A constitution is, in principle, the fundamental law of a state, and a state that is subject to unconstitutional rule cannot be the guarantor of rights. The precondition of securing human rights in Algeria is thus the establishment of law-bound government in general. This problem is complicated by the fact that at no point since 1962 have Algeria's successive written constitutions corresponded to its real, unwritten constitution. It is also profoundly aggravated by the fact that the real constitution of the Algerian state precludes political accountability, because of the peculiar nature of the supremacy of the army in this state, although the army's position has not been static since 1962, but has exhibited considerable variations with sharply differing implications. These matters have so far failed to find their proper articulation within Algerian politics since 1989 because of the absence of a constitutionalist tradition in Algeria as a consequence of the amputation of Algeria from the Ottoman empire prior to the historical experience of the Ottoman reforms, and contemporary Western influence on Algerian developments is tending to inhibit the necessary emergence of a constitutionalist movement instead of encouraging this.

What I have to say may appear at first to be tangential to the subject of violence and the current international concern about human rights in Algeria, but I believe that it is profoundly relevant to it, as I hope I shall succeed in showing. My subject is the struggle that should, but does not, exist in Algeria today - the struggle for constitutional rule.(1)

Constitutional rule is not the same as democracy, but is a precondition of it. It is rule bound by law. A constitution is the fundamental law of a state. It is the law to found all laws.

Rights, including human rights, need to be enshrined in law if they are - as a rule - to be respected. The championing of human rights, therefore, implies - or, at any rate, should imply - the championing of law-bound government. Where law-bound government does not obtain, where the state is not a state bound by law (un état de droit), human rights, like other rights in general (e.g. property rights) enjoy no regular protection or guarantee, and are at the mercy of arbitrary rule and abuses of authority.

Why the struggle for constitutional rule in Algeria does not exist is a long story. But it cannot be emphasised too strongly that the absence of a serious struggle for constitutional rule is a major and arguably defining feature of the Algerian political landscape. Given this absence, the problem of constitutional rule has to be approached historically, to begin with.

Algeria has had no fewer than four written constitutions in the short time that has elapsed since Independence, but she has not had constitutional rule as this is normally understood at any point since 1962. The first constitution, adopted in August 1963, was violated and suspended in June 1965. The second constitution, adopted in November 1976, was violated in various ways and on various occasions between 1976 and 1988 (and with increasing frequency and recklessness in the later 1980s). The 1989 constitution was violated in June 1991 and again in January 1992. The 1996 constitution is perhaps yet to be violated in any dramatic and conspicuous manner at the national political level, but it is clearly being violated all the time in so far as the rights of individuals, which it notionally respects, are regularly being violated by the employees and supporters of the state as well as by its adversaries.

None of these constitutions has corresponded to, let alone reflected, the advent of law-bound government. None of these constitutions has afforded substantial protection - as opposed to merely rhetorical support - for human rights. In particular, in no case has the legislature been able to function as a real curb on the executive and so as a guarantor of the independence of the judiciary.

The persistent absence of law-bound government in Algeria is linked to several facts:

These conditions are the consequences, in the first place, of the fact that the strategy and organisation of the revolution which constituted the state were premised on the radical abolition of the distinction between the political and the military spheres and, in the second place, of the way in which the problem inherent in the abolition of this crucial distinction was handled by the wartime FLN and its peacetime successors.

The specific nature of a given constitution determines the extent to which the operation of the category of law enters into the form of government of the country in general.

By 'the constitution', I do not mean the piece of paper that currently bears this name at a given moment. A country may possess a piece of paper called 'The Constitution' without thereby possessing a fundamental law regulating the behaviour of the rulers. Equally, a country may have an effective fundamental law, and thus an effective constitution, without possessing a piece of paper called by that name. Indeed, a country may also possess both a formal, written, constitution and a substantial, effective, constitution without these necessarily corresponding to each other.

An example of a country ruled lawfully in accordance with its written constitution is the United States of America. An example of a country ruled lawfully in accordance with its unwritten constitution is the United Kingdom. Both of these countries have constitutional rule and law-bound government; both are now democracies, and in both human rights are generally respected and upheld.

An example of a country whose written constitution did not correspond to its real fundamental law was the USSR in the era of Stalin. The 1936 constitution of the USSR did not describe how the USSR was governed or even seriously prescribe how it was to be governed. The democratic and lawful content of this constitution was essentially at odds with the fundamental unwritten law that the CPSU held state power and a monopoly of legal political activity as the organised institutional guarantor of the class rule of the proletariat. At best, the 1936 constitution expressed a democratic aspiration which the state could not realise. At worst, it served to mystify the reality of an unwritten fundamental law, which was that the defence of the Soviet revolution was suprema lex and justified whatever violations of human rights were necessary to this defence.

The Algerian case resembles the Soviet example in certain respects but not all. It is certainly the case that the written constitutions have been honoured in the breach. But it is not entirely clear what the unwritten fundamental law has been that has functioned in Algeria as the counterpart to the unwritten fundamental law of the revolutionary Soviet state, and this lack of clarity is connected with the fact that the Algerian state has not been an unambiguously revolutionary state in relation to Algerian society in the way that the Soviet state was revolutionary towards Soviet society (at any rate up until the early 1950s). On the contrary, in many respects the social function of the Algerian state has been conservative rather than revolutionary.

It is accordingly tempting to look at the Algerian constitution in terms of the British model. Rather than a single-minded Jacobin-style dictatorship riding rough-shod over its own notional laws in the name of a revolutionary (and more or less utopian) higher purpose, the Algerian state has been based on a broad and motley but predominantly conservative coalition of social forces and governed by an unwritten constitution, which has provided a rough and ready system of customary (but not legal) regulation for the behaviour of its squabbling rulers behind the smoke screen of the formal constitutional texts.

The key difference is this. Whereas in Britain the fundamental element of the unwritten constitution is an axiom - 'Parliament is supreme' - that is frequently proclaimed without hesitation or contradiction and known to all and sundry, in Algeria, the corresponding axiom - 'the Army is supreme' - is never openly proclaimed, even if it is known to many and implicit in much of what is openly proclaimed. And this difference is significant from the point of view of law, and therefore also from the point of view of rights.

The terms 'supremacy' and 'sovereignty' are evidently closely linked in meaning as well as having a common root. The question of sovereignty is frequently invoked in the Algerian context, but almost invariably in relation to the exterior alone. The sovereign right of the Algerian nation-state to brook no interference from outside is regularly affirmed by government spokesmen, but the internal aspect of sovereignty is not dwelt on.

In official rhetoric, the locus of sovereignty is the People. The People is sovereign, and the source of all legitimate power, a postulate predicated on the historical axiom that the revolution which constituted the state was conducted 'by the People and for the People' - "par le Peuple et pour le Peuple", an axiom which is well known by all and sundry - including the People - to be essentially false.(2)

The formal constitution is thus at odds with the real constitution of the Algerian state. The People is not sovereign. In reality, the army is. But the army is disinclined to affirm its sovereign status openly. While repeatedly acting as the sovereign arbiter of the political process, the Algerian army refuses to claim the allegiance that self-respecting sovereigns invariably expect, and prefers to pretend that sovereignty resides in the People, and that it is itself the loyal servant of the People. In short, the army is that most unusual thing, a shame-faced sovereign, a sovereign which formally denies its right to the allegiance other sovereigns unhesitatingly, indeed proudly, demand.

This peculiar state of affairs has its origin in the particular nature and conditional character of the primacy of the army within the politics of the National Liberation Front (Front de Libération Nationale, FLN).

The primacy of the military was inherent in the act which initiated the revolution, the insurrection of November 1, 1954, because the revolutionary war was launched by a new organisation, the FLN, in a rupture with the nationalist political party, the Parti du Peuple Algérien (PPA), and because the FLN was founded by, and at first consisted almost entirely of, men bearing arms.

The primacy of the army within the FLN implied a particular relationship between the political and the military, which relationship exhibited two main features. First, in so far as the separation of the political and the military spheres was abolished, the abolition of this separation was effected in such a way as to establish the hegemony of the military over the political. In effect, the military sphere invaded the political sphere, took it over, and subjected it to its commanding authority. Second, in so far as 'the political' sphere continued to be conceived as something distinct from the military sphere, it was conceived as the sphere of civilian activities and apparatuses that were entirely ancillary and subordinate to military activity and apparatuses. Thus, 'politics' - in so far as they were the sphere of authoritative decision-making - were the preserve of the military commanders and accordingly militarist - elitist and commandist - in nature, such that the question of political accountability might not even be raised, much less answered satisfactorily; and, in so far as they were distinct from military activities because conducted by civilians, they were subaltern and dependent.

The capacity of the military leadership of the wartime FLN - the commanders of the Armée de Libération Nationale (ALN) - to constitute a politically coherent force by transcending its own internal divisions was a function of the unification of the ALN under the General Staff established outside Algeria on the Tunisian and Moroccan frontiers. As a result, the politically coherent army had a legitimacy problem from the outset, in so far as it was perceived (rightly or wrongly) as dissociated from the guerrilla struggle of the ALN units of the interior. This legitimacy problem was especially acute in relation to the urban element of the Algerian population which, unlike the population of the countryside, had had little or no experience of the activity of the ALN but vivid memories of the political formations which had articulated Algerian nationalism prior to November 1954 (PPA, UDMA, etc.(3)).

The wider framework of the FLN was accordingly essential to the legitimation of the leading role of the ALN and its post-Independence successor, the Armée Nationale Populaire (ANP). But this ideological dependence of the ANP on the symbolic framework of the FLN-state within which it located itself precluded the Party of the FLN from ever acquiring any reality as an autonomous locus of power. The political formation which was supposed, in the official doctrine of the time, to be the instrument by means of which the People exercised its sovereign power, the Party, was in reality an empty shell. But the historically given conditions of legitimation of military power required the real locus of power formally to defer to the empty shell.

The army's power has been exercised within four quite distinct political frameworks since 1965, when Boumediène's coup ended the turmoil of the first years of independence.

The first framework consisted of Boumediène's Council of the Revolution, which guaranteed political representation for the army through its senior commanders, while leaving Boumediène and his ministers largely free to govern through the agency of a separate body, the Council of Ministers, of which the army commanders were not members. It was a framework which gave Boumediène's rule the army's backing in return for certain guarantees, while restraining the army from interfering capriciously in the process of government.

Under Chadli from 1979 to 1989, the army was directly represented on the FLN's Central Committee and Political Bureau, and the FLN functioned as a large forum for all the factions and tendencies within the regime;(4) as a result, although the military commanders were the most powerful figures in the system, they could only act through the procedures in force within the Party, which formed a kind of institutional bridle and ensured a measure of political accountability, if not to public opinion, at any rate to the wider political class as a whole.

From February 1989 to June 1991, the army was relegated by the new pluralist constitution to a backstage role with the advent of the new political sphere structured by multi-party competition. Immediately after the promulgation of the new pluralist constitution in February 1989, the ANP accordingly withdrew its representatives from the Central Committee and Political Bureau of the Party of the FLN and thereafter it contracted no comparable links with any other party.

The collapse of Chadli's pluralist experiment in 1991 left the army commanders answerable to no one but each other, and they have not only remained answerable to no one but each other ever since, but have also tended to invest in and manipulate the various political parties and the so-called independent press, and use them as proxies and catspaws in the factional struggle within the army, thereby creating political chaos. In other words, the fourth political framework has been the antithesis of a political framework properly so-called, and the army's position since 1991, far from illustrating a traditional norm, has been quite unprecedented.

The central fact of the form of government of the Algerian state throughout the entire period since Independence is that the army is the main source of power but does not govern. One might well go so far as to say that the army has consistently refused to govern. It has preferred to delegate the business of government to civilians.

The problem is that the civilians have had ministerial functions but little real power. The formal distribution of political responsibility has not reflected or corresponded to the real distribution of political power. And, whatever the formalities of procedure may suggest, ministerial mandates have in reality been granted informally by the various factions of the army as the ingredients of complex political package-deals devised at intervals as the agreed outcomes of vigorous factional conflict and bargaining behind the scenes (what the Algerians call 'les tractations en coulisses'). Thus the problem of the lack of correspondence between the actual distribution of power and the formal attribution of responsibility is intimately connected with the conceptually distinct problem of the way in which the choice of ministerial personnel is systematically subordinated to the logic of factional competition.

These circumstances mean that not only does Algeria not have law-bound government, it actually is not governed at all. The only time Algeria was governed in the proper sense of the word was between 1965 and 1978, when it was governed by Boumediène. But Boumediène's formula both for ensuring his own power and for governing the country at large was premised upon an historically unique combination of factors and has proved unrepeatable. Boumediène's successors may have presided over something or other, but they have not governed. And what they have presided over has correspondingly tended to look less and less like a state.

The foregoing outline analysis leads to a number of provisional or interim conclusions that can be formulated in the following theses:

Thus we can see that the achievement of constitutional rule in Algeria will require the ascendancy of the formal sector over the informal sector of the Algerian polity. In other words, the fundamental problem of the Algerian state - the problem at the root of its other problems - is the problem of political institutionalisation. This problem has been central to Algerian politics since the first congress of the wartime FLN in the Soummam valley in August 1956. The striking thing is that it has not been reflected on openly and openly debated. Instead, it has been at best no more than the matter implicitly or indirectly at stake in those questions which have been openly disputed.

Constitutionalism was a central theme of Arab and, more generally, Middle Eastern (notably Ottoman - and later Turkish - and Persian/Iranian) politics in the second half of the 19th century and the first half of the 20th century. In the Maghreb, however, this was true only in the Tunisian case.

Of the political parties which mobilised nationalist opposition to French colonial rule, only the Tunisian parties - the Hizb el Destour (the Constitution Party) and its more radical successor, the Néo-Destour - expressed in their names this political outlook. This was because Tunisia had been a province of the Ottoman Empire up until the French take-over in 1881-1883 and had experienced the modernising reform movement - tanzimat - in the Ottoman empire from the 1820s onwards, and the Tunisian state had done its best to reform and modernise itself prior to the period of French rule in a protracted process that had included the adoption of a short-lived constitution in 1861. In focusing on the question of constitutionalism, therefore, Tunisian anti-colonialism was invoking an aspect of its own pre-colonial experience as a yardstick by which to judge and find wanting the manner in which the country was governed under the French Protectorate.

Neither Moroccan nor Algerian anti-colonialism had any such pre-colonial experience or political tradition to contemplate or invoke. Morocco had never been part of the Ottoman Empire to begin with, and Algeria had been amputated from it by the French conquest from 1830 onwards before its political élites could acquire even a vicarious experience of the tanzimat process. The political content of anti-colonialist nationalism in these two countries was therefore either the simple goal of independence - el-istiqlal, as proclaimed in the name of the main Moroccan nationalist party - or the more complex and profound process of liberation - el-tahrir (the revolutionary purpose proclaimed by the Jebhat el-tahrir el-watani, the Front de Libération Nationale).

The absence of any other explicit political content in Moroccan and Algerian nationalism betrayed the predominantly conservative political outlook that underlay and informed the anti-colonialist reflex in these two countries. In Morocco, this conservatism has worked to the advantage of the monarchy, but it cannot be said to have worked to the disadvantage of the society, in so far as there has been general social acceptance of the monarchy as the locus of sovereignty and the Moroccan monarchy has proved equal to the task of governing post-Protectorate Morocco and has notably demonstrated a capacity for constructive innovation in the matter of constitutional reform. In Algeria, by contrast, this conservatism has been disastrous, in so far as there has been no agreed locus of sovereignty dating from the pre-colonial era to fall back on and none of the forces in the political arena since 1962 has had plausible proposals to make which really address this problem.

This is because Algeria's political class has had no collective memory of the Ottoman Reforms and the constitutionalist concerns which were a central feature of these, but has thoroughly internalised post-1789 French political conceptions instead, with the result that Algerian politics in the 20th century - in palpable contrast to Tunisian politics - have correspondingly tended to be highly ideological, revolutionary and profoundly anti-constitutionalist in spirit:

It should now be evident that the 1989 constitution, far from promoting the kind of political parties that would tend to consolidate the new pluralist structure, actually liberated profoundly anti-constitutional political forces. The two main parties founded and then legalised on the basis of this constitution - the FIS and the RCD - were both hostile to this constitution on doctrinaire ideological grounds (Islamism, secularism) and set about subverting it. They thereby made it immeasurably easier than it otherwise would have been for the army, eventually, to subvert this constitution itself, as it did in June 1991, and to abandon it in January 1992.

The absence of constitutionalist political traditions and reflexes within Algeria's various political parties has continued to produce negative effects in more recent years. The most spectacular recent instance of this was the total evacuation of the constitutional debate by the political parties when this was actually the debate of the moment in the summer of 1996.

The 1996 Constitution has various merits, most notably the merit of existing, in that its promulgation filled a vacuum and made possible the return to the electoral process in 1997 and thus the re-establishment of representative and deliberative assemblies at national, regional and local level, which has certainly been a necessary (although clearly not a sufficient) condition of ending the violence. But it also has numerous defects, chief among which is the weakness of these same new representative institutions and, above all, the very limited prerogatives and attributes of the new bicameral national Parliament. The limits placed on the powers of the Parliament mean that Parliament as presently constituted cannot be the source of government mandates, and will accordingly prove unable to make itself the central agent of political accountability in the state, so that government, by becoming politically accountable, might become bound by something worthy of the name of law. But Algeria's political parties must accept their share of the responsibility for this outcome.

When the idea of an upper house in a bicameral parliament was first formally mooted by President Zeroual in his Memorandum in May 1996, the response of the political parties was simply to denounce and oppose this as an unacceptable limitation on the powers of the National Assembly. The hostile reaction of the parties seemed to take it for granted that a unicameral parliament was indispensable to democracy, instead of recognising that many if not most modern democracies have bicameral legislatures and that the crucial question is the precise nature of the powers and composition of both chambers and the relationship between them. Because Algeria's parties simply refused to address (let alone canvass proposals concerning) these specific matters when formally invited to do so, it is hardly to be wondered at that the preferences of the most conservative elements of the regime were embodied in the final version of the constitution submitted to referendum in November 1996.

Where do these considerations leave the outside world, or, at any rate, those elements of the outside world which are concerned by the continuing violence in Algeria and disposed to feel an obligation to do something about it? In the brief time left to me, I can only stress two main points.

The first is that the outside world should stop looking to the various parties - whether Islamist or secularist - in Algeria as the vectors of the desired development. The parties - whatever the subjective intentions of their founders and leaders - are far too weak and divided and accordingly far too vulnerable to manipulation by the various factions of the Algerian army to be able to fulfil these expectations, which are accordingly misplaced. Instead, the outside world should start looking at the question of Algeria's political institutions, and consider how these might be strengthened. Among the key questions it should examine in Algeria at present are the following:

The second point I would stress is that whatever initiatives the outside world may be contemplating in the name of human rights should take full account of the complexity of the internal situation in Algeria and should be based on a serious political evaluation of this situation. The great danger of an external initiative on Algeria taken in the name of human rights is that it could very well do more harm than good. In particular, it might have the effect of pre-empting or compromising internal political developments that hold real promise for the promotion of political accountability in the long run, especially if the initiative has the side-effect of weakening rather than strengthening Algeria's fledgling institutions. These matters deserve more thorough as well as more sharply focused consideration by concerned elements of the outside world than they have received hitherto if justice is to be done to them.

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