Administrative Regulatory Mechanisms at the Local Level in Algeria

 https://doi-001.org/1025/17875593363100                            

1. Dr. Mammeri Mebrouka
Ahmed Draia University, Adrar, Algeria
Laboratory of Law and Society

Professional E-mail: mselika1982@univ-adrar.edu.dz

2. Dr. Khidaoui Naim
Ahmed Draia University, Adrar, Algeria
Laboratory of Law and Society

E-mail: Khidaoui.naim@gmail.com


3. Dr. Assri Ahme 
Ahmed Draia University, Adrar, Algeria
Laboratory of Law and Society

Professional E-mail: ahm.assri@univ-adrar.edu.dz

ــ Received: 12/042026     Accepted: 23/07/2026     Published: 24/08/2026

Abstract:

The state assumes administrative policing functions in order to preserve public peace and security. To achieve this objective, administrative policing duties have been distributed among several bodies, including local authorities represented by the Wali and the President of the Municipal People’s Council, each of whom exercises specific powers within this framework. Since the exercise of these functions may affect the constitutionally guaranteed rights and freedoms of individuals, the Algerian legislator has regulated them and established controls and conditions governing their implementation.

Keywords : Administrative Policing; Wali, President of The Municipal People’s Council; Public Order; Public Tranquility.

Introduction:

Local authorities exercise administrative policing powers with the aim of achieving one of the most important functions of the modern state, namely the preservation of public order. This essential function has undergone continuous development in parallel with the evolution of the state, the extent of its intervention in managing the daily lives of individuals, and its concern with regulating their lives in a manner that ensures stability and public tranquility within society.

When local authorities, represented by the Wali and the President of the Municipal People’s Council, adopt regulatory policing measures, these actions often come into contact with certain rights and freedoms guaranteed to individuals by law. Consequently, they find themselves between two conflicting interests: the rights and freedoms of individuals on the one hand, and the requirements of preserving public order in all its elements and dimensions on the other, namely the realization of public security, public health, public tranquility, and public morals.

The central problem addressed in this research paper is the following: what administrative policing powers has the Algerian legislator granted to local authorities in order to preserve public order? This raises subsidiary questions: are these administrative policing powers absolute or restricted? If they are restricted, what are the limits of such restrictions?

To address this topic, we relied on the descriptive analytical method through which we presented the legal texts governing the administrative policing powers of local authorities, analyzed them, and attempted to discuss them according to a plan structured into two sections:

  •  First Section: The Legal Organization of Local Administrative Policing Powers in Algeria
  • Second Section: The Means and Limits of Exercising Local Administrative Policing Powers

Section I: The Legal Organization of the Powers of Local Administrative Police in Algeria

Administrative police constitute one of the mechanisms placed in the hands of the administration to preserve public order in all its dimensions and to prevent the occurrence of any danger that threatens social stability or signals its potential emergence.[1] Accordingly, local administration seeks to adopt a range of measures capable of achieving the objectives of administrative police without the need to reconcile its will with that of individuals and citizens. This differs from other activities undertaken to manage public services, which require participatory approaches in order to attain the best results of administrative action.[2]

The administrative bodies exercising administrative police powers at the local level in Algeria are limited to two entities. The first is an appointed authority represented by the Wali at the level of the province, to the exclusion of the elected Provincial People’s Assembly, which is considered a deliberative body. Although the latter may indirectly contribute to achieving the objectives of administrative police through deliberations on certain issues related to public health and other matters, the second authority is the President of the Municipal People’s Assembly, who exercises powers in this field within the territorial jurisdiction of the municipality.[3]

Both the Wali and the President of the Municipal People’s Assembly possess, for the purpose of maintaining public security, a set of powers exercised under normal circumstances, and others exercised under exceptional circumstances.

A) Administrative Police Powers of the Wali Under Normal Circumstances

The Wali is the head of the executive authority at the provincial level. Consequently, the process of appointment carries considerable importance and is carried out by presidential decree, as stipulated in Article 92 of the amended and supplemented 1996 Constitution.[4] The Wali is proposed by the Minister of Interior, Local Authorities and Urban Planning from among senior officials, including Secretaries General of provinces, Directors of Local Administration, Directors of Regulation and General Affairs, Heads of Districts, and General Inspectors of provinces. His functions are terminated through the same procedures by which he was appointed.

The Wali enjoys dual competence. On the one hand, he represents the province at the local level and is entrusted with implementing the deliberations and decisions of the Provincial People’s Assembly. On the other hand, he represents the State, being considered an extension of the government within the province, and thus works to implement all laws and directives.[5] In addition to his responsibilities as an executive authority for the outcomes of deliberations of the Provincial People’s Assembly, he exercises political functions in his capacity as representative of the State throughout the entire provincial territory.[6]

On this basis, the Wali exercises administrative police powers pursuant to the Law on the Province or other legislative texts at two levels. At the first, ordinary level, these powers are exercised under normal circumstances, while at the second level they are exercised under exceptional circumstances.

2- The Regulatory Powers of the Wali in Ordinary Circumstances

The Algerian legislator has granted the Wali a set of powers to exercise administrative policing authority pursuant to Article 114 of Law 12-07 relating to the Wilaya,[7] which stipulates that the Wali is responsible for maintaining public order, security, safety, and public tranquility. From an examination of this provision, it follows that the Wali must adopt all measures necessary to preserve public order and security, since the concept of public order is flexible and varies according to time and place. However, regulatory measures are exercised in relation to public freedoms and therefore constitute an exception, whereas the principle remains the exercise of freedom and rights. Public security is also achieved by empowering the administration to adopt measures that ensure individuals feel secure regarding their persons and property.[8]

To this end, the Wilaya Law grants the Wali authority to requisition security services placed at his disposal for the purpose of maintaining public order and security, ensuring public tranquility and safety, and protecting individuals and their property. Article 118 provides that the Wali, for the implementation of decisions taken within the framework of the tasks specified in Articles 112, 113, and 114 above, coordinates the activities of security services operating within the territory of the Wilaya. In this capacity, heads of security services are required to inform him primarily of all matters relating to public security and public order at the Wilaya level. The modalities for implementing this provision are determined by regulation. The legislator also granted the Wali authority under the Wilaya Law to provide all forms of defense and protection that do not assume a military character in order to maintain public order and security within the Wilaya.

Within the framework of preserving public health and preventing epidemics and their consequences, Article 119 of the Wilaya Law provides that the Wali shall prepare, update, and implement an emergency assistance plan for the Wilaya. In implementing this plan, he may requisition persons and property.

In addition to the powers granted to the Wali to exercise general administrative policing in his capacity as representative of the government, he also exercises special administrative policing authority in application of ministerial orders when regulated by legal texts. An example is the Wali’s authority to issue licenses for the establishment and operation of certain sports facilities. Article 3 of Executive Decree 91-416 provides that the establishment of sports facilities open to the public is subject to prior authorization delivered by decision of the Wali following an opinion of technical conformity.[9] Authorization is also required for certain installations with environmental impacts. The legislator classified these establishments into three categories according to the degree of risk and granted the Wali authority to license those of the second category pursuant to Article 19 of Law 03-10.[10]

In order to preserve social peace and ensure public reassurance and public cleanliness, the Wali may take any measure capable of achieving these objectives, protecting persons and their property, ensuring the proper functioning of public institutions, and preventing any disturbance that may hinder this endeavor. In performing administrative policing duties, the Wali is assisted by the Head of the District within the territorial limits of the district.[11] Article 25 of Decree No. 83-373 provides: “The Head of the District, under the authority of the Wali, oversees the implementation of laws and regulations and ensures the proper functioning of administrative and technical services within the district. He also, with the assistance of security services, ensures the preservation of public order and the security of property and persons within the district. For this purpose, security services in the district must inform him of any event occurring within the district that is related to public order and security.”

The Wali also seeks to preserve public tranquility. For this purpose, the legislator, pursuant to Law No. 91-19 amending and supplementing Law No. 89-28 concerning public meetings and demonstrations, assigned several responsibilities aimed at maintaining public tranquility and imposed a set of restrictions on the exercise of the right of assembly. These include the requirement to submit a declaration of the meeting at least three full days before its scheduled date to:

  • The Wali for municipalities that are the seat of the Wilaya
  • The Wali for municipalities of the Wilaya of Algiers
  • The Wali or his delegate for other municipalities[12]

In addition, Article 100 of Law No. 11-10 relating to the municipality, as amended and supplemented,[13] grants the Wali the authority to substitute for the President of the Municipal People’s Council when the latter fails to preserve public order. In such a case, the Wali adopts all necessary measures to maintain or restore public order after issuing formal notice and upon expiry of the deadlines specified in the notice, in accordance with Article 101 of Law No. 11-10 relating to the municipality, as amended and supplemented.

Furthermore, Article 9 of Law No. 23-18 of 28 November 2023 concerning the protection and preservation of State land[14] grants the Wali the authority to substitute for the Mayor to issue demolition orders for buildings and structures erected on State-owned land within a period not exceeding ten days following the expiry of the period granted to the President of the Municipal People’s Council, which is set at eight days from the registration and detection of the encroachment by the local unit established for this purpose.

The Wali also plays a role in determining the intervention perimeters of the Master Plan for Development and Urban Planning and the Land Use Plan in cases involving a group of municipalities. This is done after deliberation by the municipalities concerned and is issued in the form of a decision, provided that the proposal originates from the Presidents of the Municipal People’s Councils concerned, as stipulated in Article 12 of Law No. 90-29 relating to development and urban planning, as amended and supplemented.[15]

2- The Policing Powers of the Wali in Exceptional Circumstances

The powers of the Wali in the field of administrative policing expand under exceptional circumstances. Various measures may be adopted that could affect the principle of legality, since the administration cannot confront exceptional situations except through exceptional measures. Accordingly, the Wali has the authority to request the intervention of security forces in exceptional circumstances pursuant to Article 116 of Law 12-07 relating to the Wilaya through requisition. This article provides: “When exceptional circumstances so require, the Wali may request the intervention of police forces and the National Gendarmerie present within the territory of the Wilaya through requisition. The modalities for implementing this article shall be determined by regulation.” This is in addition to Article 113 of the same law, which grants the Wali the authority to ensure the defense of the superior interests of the state and its institutions and to guarantee the regular functioning of public services. To this end, the law authorizes the Wali to take all preventive security measures necessary to preserve public order in all its elements.[16]

In the case of a state of siege, which was not defined but whose objectives were specified in Article 2 of Presidential Decree 91-196,[17] the decree grants the Wali the authority to take all necessary measures to maintain the stability of the democratic and republican institutions of the state, restore public order, and ensure the proper functioning of public services by all lawful means, particularly the measures provided for in the decree. The state of siege is declared, pursuant to Article 97 of the Constitution, by the President of the Republic after convening the High Security Council and consulting the President of the National People’s Assembly, the President of the Council of the Nation, the Prime Minister or the Head of Government as the case may be, and the President of the Constitutional Court. It is noteworthy that these consultations are not binding in nature but remain purely advisory and may be followed or disregarded. Under a state of siege, civil authority is transferred to military authority, and a Wilaya committee is established under the presidency of the military authority, with the Wali serving as a member. Its task consists of preserving public order in all its dimensions within the Wilaya and proposing exceptional measures to be adopted as provided for in Decree 91-196.

There is also another situation that the Algerian constitutional framers did not distinguish from the state of siege, namely the state of emergency. The difference between them lies in the fact that, under a state of emergency, civil authority remains responsible for managing the situation. Consequently, the Wali has the authority to adopt the necessary measures to preserve public order and public security, including the detention of individuals, the temporary closure of premises and halls, and the prohibition of meetings. The state of emergency was declared pursuant to Decree 92-44.[18]

The third situation concerns the recourse of the administration to army units to preserve public security. This situation is not provided for in the Constitution, but was established by Law No. 91-23.[19] Under this law, army units may intervene in cases of disasters and catastrophes of exceptional gravity, when public security is threatened and the competent authorities are unable to control the situation, in cases of serious or anticipated errors that threaten the safety of persons and their property, or in the event of continuous infringement of collective or individual freedoms.[20] Intervention is carried out by decision of the Head of Government after consultation with the competent civil and military authorities, although the decree does not specify the civil authoritiesthat must be consulted. The implementation of this measure remains under the responsibility and supervision of the civil authority.[21] Article 3 of the same law also refers the conditions for its application to a decree to be adopted in the Council of Ministers, which has not been issued.

The Wali also exercises police powers in exceptional circumstances for the preservation of public health, as granted by Executive Decree No. 20-69 concerning measures for the prevention of the spread of the Coronavirus COVID-19 and its control.[22] In this context, the Wali is entrusted with organizing the transport of persons to ensure the continuity of public services, taking any measure necessary to safeguard public health, and requisitioning persons, places, and public facilities, as provided for in Articles 4 and 10 of the decree.

B) Administrative Police Powers of the President of the Municipal People’s Assembly in Normal and Exceptional Circumstances

The municipality constitutes a territorial entity administered by an elected Municipal People’s Assembly chaired by a president elected according to the mechanism set out in Article 80 of Organic Law No. 12-01 relating to the electoral system,[23] as well as the provisions of Articles 64, 64 bis, and 65 of Law No. 11-10 relating to the municipality, as amended and supplemented,[24] notwithstanding the legal issues raised regarding the installation and selection process.[25]

The president’s functions terminate either upon the expiry of the electoral term, death, resignation, abandonment of office, the existence of a legal impediment, or criminal prosecution. Upon initiation of public proceedings, the Wali suspends him as a precautionary measure until the case is adjudicated. If a conviction is issued, he is permanently dismissed.[26]

The President of the Municipal People’s Assembly exercises the duties assigned to him both as representative of the municipality and as representative of the State. In this capacity, he exercises administrative police functions under normal circumstances (first branch), and also exercises administrative police functions under exceptional circumstances (second branch).

1- The Regulatory Powers of the President of the Municipal People’s Council in Ordinary Circumstances

One of the most important functions exercised by the President of the Municipal People’s Council, in his capacity as representative of the State, is the preservation of public order in all its components. Law 11-10 relating to the municipality, as amended and supplemented, confines the task of administrative policing to the President of the Municipal People’s Council, unlike the Municipal Law of 1967, which allowed the Municipal People’s Council to share with its President the exercise of administrative policing powers, even if under the guise of supervision.[27] Article 88 of Law 11-10, as amended and supplemented, provides that the President of the Municipal People’s Council exercises certain administrative policing duties under the supervision of the Wali, namely:

  • ensuring the implementation of laws and regulations within the territory of the municipality
  • working toward and ensuring the implementation of precautionary measures, prevention, and intervention in the field of emergency assistance

Furthermore, Article 94 requires the President of the Municipal People’s Council to:

  • ensure the preservation of public order and the security of persons and property
  • ensure the maintenance of public order in places where people gather and to sanction any disturbance to public tranquility, as well as any acts likely to disrupt it
  • regulate traffic policing at the municipal level, taking into account roads with heavy traffic
  • ensure the cleanliness of buildings and guarantee the smooth circulation in streets, squares, and public roads
  • take necessary precautions and measures to combat and prevent communicable or contagious diseases
  • prevent the wandering of harmful and dangerous animals
  • ensure the safety of consumer food products offered for sale
  • ensure compliance with instructions relating to environmental cleanliness and protection
  • ensure the regulation of funerals and cemeteries in accordance with customs and various religious rites, and to ensure the immediate and dignified burial of the deceased without discrimination based on religion or belief[28]

The law authorizes the President of the Municipal People’s Council to seek assistance from the police operating within the territorial jurisdiction in order to perform his duties.[29] It should also be noted that the President of the Municipal People’s Council may exercise administrative policing authority when deliberating in a closed session to examine matters relating to public order, pursuant to Article 26 of the Municipal Law.

Other laws have also defined the functions of the President of the Municipal People’s Council in his capacity as a regulatory authority. Executive Decree No. 81-267 of 10 October 1981, in its Article 6, specifies these functions as follows: “The President of the Municipal People’s Council must take all necessary measures aimed at supporting or demolishing walls and structures in buildings threatened with collapse.” In the field of road and public place regulation, it is observed that his powers have expanded under Decree No. 81-267, whereby he:

  • Places signage near certain locations and buildings.
  • Takes all measures related to the naming and upgrading of roads and the creation of pedestrian areas in hazardous zones.
  • Issues authorization prior to the commencement of any works on the public road, whether undertaken by national companies or private individuals. In the event that works are completed and the road is not reopened, the President of the Municipal People’s Council reopens the public road at the expense of the permit holder, using his regulatory powers as an administrative police authority at the municipal level.

Article 14 of Decree No. 81-267 further stipulates that the Mayor must take measures necessary to preserve public tranquility and public morals and suppress anything likely to disrupt them. Article 16 grants him the authority to regulate public artistic performances by issuing prior authorization, while Article 17 provides that the municipal police and inspectors of public services operate under the authority of the Mayor in this field, enabling him to requisition the police, the National Gendarmerie, and any public official to assist him in performing his duties.

In the field of urban planning, the President of the Municipal People’s Council has the authority to grant building permits and demolition permits in accordance with procedures established by law,[30] as well as to regularize completed constructions by issuing a certificate of conformity in accordance with the procedures provided for in Law No. 08-15 of 20 July 2008 establishing rules for the conformity of buildings and the completion of their construction,[31] or pursuant to Executive Decree No. 22-55 of 2 February 2022 determining the conditions for the regularization of buildings not conforming to building permits,[32] or pursuant to Executive Decree No. 15-19.[33]

In the field of regulating markets, exhibitions, and vegetable markets, he possesses policing authority pursuant to Executive Decree No. 12-111.[34] He has the power to close any commercial establishment in order to preserve public order in all its elements by issuing an administrative closure decision. He also has the authority to regulate itinerant trade, a power granted by Executive Decree No. 13-140,[35] whose Article 05 provides: “In addition to registration in the commercial register, a license from the President of the Municipal People’s Council is required to obtain a space within exhibitions and areas designated for this purpose.”

In the field of environmental protection, Law No. 05-12, as amended and supplemented,[36] grants him the authority to issue a decision concerning the operation of public water services through direct management or by granting a concession for the management of these services, following deliberation by the Municipal People’s Council. Management is entrusted to legal entities subject to public law. He also has the authority to manage waste, combat pollution, and process household waste in order to preserve environmental cleanliness.

With reference to Law No. 01-19,[37] it emphasizes the necessity of establishing a municipal waste management plan under the authority of the President of the Municipal People’s Council to address harmful solid waste and ensure its disposal. In the field of pollution control, Executive Decree No. 91-176 grants the President of the Municipal People’s Council the authority to suspend the activity of any factory producing gases or smoke, after informing the Wali and obtaining the opinion of the Minister of Environment.

Executive Decree No. 06-198 also grants him, within the same framework, the authority to issue an operating permit for establishments classified in the third category, where the criteria for granting such permits are based on the principle of the establishment’s level of risk and importance.[38]

In the field of protecting vegetation cover, Law No. 84-12[39] grants the President of the Municipal People’s Council powers aimed at promoting and protecting the forestry sector. To achieve this, he is required to undertake the following:

  • Prohibit the dumping of waste and debris in forest property.
  • Prevent the placement or abandonment of any object that may cause forest fires.
  • Prohibit the installation of tents, huts, enclosures, or areas for storing wood within national forest property and within a distance of 500 meters thereof.

2- Administrative Police Powers of the President of the Municipal People’s Assembly in Exceptional Circumstances

When an exceptional situation occurs, such as war, disasters, or serious crises, it becomes necessary to depart from certain constraints and rules of legality in order to give precedence to the public interest, which is considered paramount. Consequently, administrative police powers expand and the administration is granted discretionary authority to determine whether circumstances are exceptional and to adopt the measures necessary to address them.[40]

The Algerian legislator has granted the President of the Municipal People’s Assembly the authority to take all measures and actions aimed at limiting or mitigating the risks accompanying exceptional circumstances in order to preserve public order. Article 89 of Law No. 11-10 relating to the municipality, as amended and supplemented, provides that the President of the Municipal People’s Assembly shall, within the framework of the laws and regulations in force, take all necessary precautions and preventive measures to ensure the safety and protection of persons and property in public places where any disaster or accident may occur. He also orders the activation of the municipal emergency relief plan in accordance with the applicable legislation and regulations. This obligation is stipulated in Article 90 of Law No. 11-10, as amended and supplemented, which states that in the event of a natural or technological disaster within the municipal territory, the President of the Municipal People’s Assembly shall order the activation of the municipal emergency relief plan in accordance with the legislation and regulations in force. Article 91 further recognizes the possibility for the President of the Municipal People’s Assembly to requisition persons and property after notifying the Wali.

Within the framework of the police measures adopted, the President of the Municipal People’s Assembly must demonstrate that such measures were taken under exceptional circumstances not covered by ordinary laws, and that the measures adopted were unforeseeable. It is also required that the measure be necessary and mandatory and aimed at preserving public order. For this reason, the judiciary examines all factual circumstances and justifications underlying the adoption of such measures.[41]

Section II: Means and Limits of Exercising Local Administrative Policing Powers

In order to preserve public order in its various dimensions, local administrative bodies entrusted with exercising administrative policing powers rely on a range of means to achieve their objectives. These means are distinguished by two fundamental characteristics compared to those used by the executive authority in the exercise of its competencies. The first feature lies in the preventive nature of the means employed in administrative policing, which aim to avert threats to public order within society. The second characteristic is that administrative policing measures target legal situations and material means, whether through their creation, modification, or abolition.[42]

Local bodies, when exercising administrative policing powers, derive their authority from legislative provisions. These provisions grant them the right to act and determine the means that may be used, while also conferring discretionary power in the presence of exceptional circumstances. However, all of this takes place within the framework of legislation. Even in situations of war, when the application of laws may be suspended, such suspension occurs within the framework of a prior legislative decree.

Nevertheless, the exercise by these bodies of administrative policing powers for the preservation of public order is not absolute but is subject to a set of constraints. This is because, as previously indicated, the principle is the enjoyment of freedom, while restriction constitutes the exception. Consequently, these measures must be subject to several limitations to prevent abuse in their application.[43]

A): The Means of Exercising Local Administrative Policing Powers

The means placed at the disposal of local authorities for exercising administrative policing powers are diverse and are intended to achieve the objective for which they are employed, namely the preservation of public order. These means must be lawful, that is, subject to the provisions of the law. Accordingly, any measure taken by local administrative authorities to preserve public order within the framework of their administrative policing powers must not depart from the principle of legality.[44]

The means used by local authorities to exercise administrative policing powers vary between material and human resources, and legal means.

1- Material and Human Resources for Exercising Local Administrative Policing Powers

To enable local authorities to exercise administrative policing powers, the law has placed at their disposal a set of material and human resources. Material resources consist of the equipment and facilities mobilized by local authorities for the exercise of their policing powers and placed at their disposal. They also include any equipment or tools that enable and facilitate local authorities in carrying out their administrative policing functions in order to preserve public order within their territorial jurisdiction. Article 91 of Law No. 11-10 relating to the municipality, as amended and supplemented, provides for the possibility for the Mayor to requisition persons and property when activating the emergency organization and intervention plan, after notifying the Wali. Likewise, Article 119 of Law No. 12-07 relating to the Wilaya establishes the possibility for the Wali, within the framework of preparing, updating, and implementing emergency organization plans in the Wilaya, to requisition persons and property.

As for human resources, local authorities may requisition public forces such as the National Gendarmerie and the police. Article 93 of Law No. 11-10, as amended and supplemented, provides: “For the exercise of his powers in the field of administrative policing, the President of the Municipal People’s Council relies on the municipal police corps, whose statutory framework is determined by regulation.”

The President of the Municipal People’s Council may, where necessary, requisition the territorially competent police forces or National Gendarmerie in accordance with the modalities determined by regulation. Article 116 of Law 12-07 also provides: “When exceptional circumstances so require, the Wali may request the intervention of police forces and the National Gendarmerie present within the territory of the Wilaya through requisition.” Article 118 of the same law further stipulates: “Security services shall be placed at the disposal of the Wali for the implementation of decisions taken within the framework of the duties provided for in Articles 112 to 117 above.” In implementation of this, the previously mentioned Wilaya security committee is established, which assists the Wali in adopting decisions related to administrative policing.

2- Legal Means for Exercising Local Administrative Policing Powers

The legal means used by local administrative policing authorities consist of administrative decisions and compulsory execution.

2.1- Administrative Decisions

Administrative decisions are a set of legal acts issued by administrative policing authorities through their unilateral will. Administrative decisions constitute one of the most important means through which administrative policing authorities exercise their functions in preserving public order, whether these decisions are individual or of a particular nature. By particular nature, it is meant that they are based on a general provision but target a specific individual, a group of identified individuals, or particular situations in order to preserve public order. These decisions take various forms, including prohibition, authorization, and orders.[45]

For administrative decisions to be valid and lawful, a set of conditions must be observed:[46]

  • The objective of the decision must be the preservation of public order and security.
  • There must be proportionality between the measure adopted and the requirements of public order.
  • The legislator must not require a specific regulatory instrument prior to the issuance of the decision.
  • The decision must be issued by the competent local authority.
  • The decision must be lawful.
  • The decision must be based on material circumstances that necessitated its issuance, otherwise it is considered defective.
  • The decision must constitute the only means for preserving public order.
  • In the case of an individual decision, exceptional circumstances must exist, and the measure must be the only means of confronting them.

Administrative police decisions take different forms. They may assume the form of an order to perform a specific act or to refrain from performing a particular act due to the likelihood of its contravention of public order. They may also take the form of an order to implement laws and regulations, or appear in the form of permits and authorizations.

2.2- Compulsory Execution

Compulsory execution constitutes one of the most serious administrative police powers granted to the local administration for the preservation of public order. It refers to the administration’s recourse to the enforcement of its police decisions through the use of coercive force whenever voluntary compliance proves impossible. Such force may be used without the need to obtain prior judicial authorization.[47]

2.2.1- Cases of compulsory execution:

Legal doctrine agrees on three situations in which administrative police authorities are permitted to exercise compulsory execution:

  • The existence of an explicit legal provision authorizing recourse to compulsory execution. An example is the demolition order issued by the President of the Municipal People’s Assembly upon recording a construction violation by the competent officer, which must be reported within seventy two hours to the President of the Municipal People’s Assembly and the Wali, and the demolition decision must be issued within eight days from receipt of the violation report.
  • The existence of a situation of necessity requiring compulsory execution. Necessity refers to the presence of an imminent danger threatening public order that cannot be addressed through administrative decisions. In such a case, compulsory execution may be employed as a means of preserving public order without the need for a legal provision authorizing it, provided that a serious threat to public order exists and cannot be addressed through ordinary legal means.
  • The absence of sacrifice of individual interests in favor of the public interest except to the extent required by necessity.

2.2.2- Conditions of compulsory execution

  • The objective of recourse to compulsory execution must be the public interest represented in preserving public order.
  • The implementation of the administrative police measure must have encountered resistance.
  • Compulsory execution must be limited to the extent necessary to repel the imminent danger disrupting public order.[48]

B) Limits on the Exercise of Local Administrative Policing Powers

The legislator has granted local administrative policing bodies administrative policing powers in order to preserve public order. In exercising these powers, the rights and freedoms of individuals may be subject to restriction. However, the exercise of these powers is not absolute. The legislator has established specific limits that must not be exceeded and has imposed conditions that must be fulfilled, with the aim of achieving a balance between the rights and freedoms of individuals on the one hand and the requirements of maintaining public order on the other.

1- Limits of Local Regulatory Powers in Ordinary Circumstances

There are defined limits governing the exercise of regulatory powers by local bodies in ordinary circumstances. These limits are as follows:

  • Compliance with the principle of legality: This requires that all measures adopted by local bodies within the framework of administrative policing conform to the law and do not contravene it. Legality implies the supremacy of law, meaning that all administrative policing measures issued by local bodies must be exercised within the legal framework.[49] Whenever these bodies deviate from this principle, their measures become subject to challenge before the courts. Legality, in its general sense, denotes the supremacy of law. For a regulatory measure to be lawful, it must be adopted for the preservation of public order in all its components.[50] When observing the principle of legality, the administrative policing body must comply with the following requirements:[51]
  • The adoption of a regulatory measure must be linked to and accompanied by the existence of a necessity that requires its adoption in order to preserve public order, since the rule is that freedom constitutes the principle and restriction the exception.
  • The regulatory measure adopted must be proportionate to the seriousness of the threat. Consequently, a balance must be maintained between safeguarding rights and freedoms and preserving public order within society.
  • Subjection of local administrative policing powers to judicial review. Since the authority adopting the administrative policing measure is an administrative authority, it is subject to the review of administrative courts. This review is exercised through two mechanisms: annulment review and compensation or liability review.[52] In principle, under ordinary circumstances, the review conducted by the administrative judge focuses on the legality of the regulatory measure by examining the elements of legality, particularly the element of cause, namely the situations that constituted a threat to public order, and by verifying the purpose of the regulatory measure, which is the preservation of public order, in accordance with the rule of purpose specification.

However, in certain cases, the administrative judge’s review may extend to an assessment of appropriateness by examining the means used by the local administrative policing body to preserve public order. Among the indicators that assist the judge in exercising this review are the element of place, whether public or private, and the element of time, whether day or night.[53]

2- Limits of Local Administrative Policing Powers in Exceptional Circumstances

Exceptional circumstances require local administrative policing authorities to apply a specific form of legality different from that applied under ordinary conditions, provided that the exceptional circumstance exists. Adherence to ordinary legality in such situations would inevitably undermine public order in its various dimensions and components. Under exceptional circumstances, the powers of administrative policing authorities expand. In France, for example, some French jurists have considered them material situations with a dual effect, suspending the authority of ordinary legal rules on the one hand, and on the other applying a special legality whose requirements are determined by the judge.[54]

While French jurisprudence has defined the theory of exceptional circumstances as abnormal and extraordinary phenomena that threaten public safety, public security, and order in the country, and expose its existence to disappearance, Algerian jurisprudence has not provided a definition. Rather, it has merely referred to it as a theory developed by judicial practice. The competences and powers of administrative policing authorities expand under such circumstances. However, administrative policing measures in this context remain subject to two conditions:[55]

  • The objective must be directed toward preserving public order. This principle must therefore be respected and not extended to other objectives, whether lawful or unlawful. Accordingly, the administrative judge may annul any measure or action whose purpose was not the preservation of public order.
  • The administrative policing measure adopted must be proportionate to the exceptional circumstance. Discretionary power is granted to local administrative policing authorities to assess the exceptional situation and determine the measure required to address it, while ensuring proportionality between the circumstance and the magnitude of the risk. Judicial review by the administrative judge focuses on examining whether such proportionality exists.

Conclusion

Through examining the mechanisms of local administrative policing, it becomes evident that its purpose and objective are the achievement of public order in its various dimensions and components. To attain this objective, certain freedoms and rights may be subject to some degree of restriction, particularly when exceptional circumstances arise. Accordingly, a number of conclusions may be drawn:

  • The theory of administrative policing as a whole is founded on the principle of achieving public order, public security, safety, and tranquility.
  • Local policing authorities are granted discretionary power to exercise administrative policing powers. However, this discretionary authority is not absolute, but rather subject to a set of principles, namely legality and proportionality.
  • The exercise by administrative authorities of administrative policing powers under exceptional circumstances does not abolish the exercise of freedom in itself, but rather limits it, since freedoms are constitutionally guaranteed.
  • A policing measure must be necessary and required when the danger is serious. Minor risks do not authorize the administration to adopt policing measures.
  • The principle of equality must be respected when applying policing measures. Accordingly, such measures must be general in nature toward individuals who are in the same situation.
  • Broad policing powers have been granted to local authorities, whether under the laws relating to the Wilaya and the municipality or under other laws and various regulations, enabling them to perform the extensive tasks entrusted to them, namely preserving public order and security, as this constitutes the only means of achieving development.

On this basis, a set of recommendations is proposed as follows:

  • Involving the Municipal People’s Council and strengthening its role in the field of administrative policing powers at the municipal level.
  • Enhancing the awareness of Presidents of Municipal People’s Councils regarding the various policing powers granted to them, and holding them accountable in cases of failure to exercise those powers.
  • Removing all forms of obstacles that hinder local administrative policing authorities in exercising their policing powers and providing them with legal protection.
  • Strengthening the policing authority of local administrative bodies in the field of environmental protection within the draft law on local authorities currently under preparation and review.

Citations:

[1]-YoussefNasser Hamad Al-Dhafiri: Administrative Control and the Limits of Its Powers in Normal and Exceptional Circumstances, Journal of Legal and Economic Research, Faculty of Law, Mansoura University, Egypt, Vol. 10, No. 74, December 2020, p. 1503.

[2]-Nesrine Cherifi et al.: Administrative Law, Legal Studies Series, Dar Belqis Publishing, Algeria, 2014, p. 17.

[3]-Saidi El Sheikh; Heni Rachida: Limits of the Exercise of Administrative Police by Local Authorities, Journal of Legal Studies, Tahar Moulay University, Saida, Algeria, Vol. 8, No. 1, May 2021, p. 387.

[4]-Presidential Decree No. 20-442, dated 15 Jumada al-Awwal 1442 AH, corresponding to 30 December 2020, concerning the promulgation of the constitutional amendment approved in the referendum of 1 November 2020, Official Gazette, No. 82, issued on 15 Jumada al-Awwal 1442 AH, corresponding to 30 December 2020, p. 21.

[5]-Kliouat El-Saïd: Administrative Police in Algeria under Political Pluralism, Journal of Law and Political Science, Ziane Achour University, Djelfa, Algeria, Vol. 4, No. 2, October 2011, p. 186.

[6]-Larbi Werdia: Concise Explanation of Administrative Law: Introduction and Administrative Organization, Ibn al-Nadim Publishing and Distribution, Oran, Algeria; Legal Book Foundation, Boumerdes, Algeria, 1st ed., 2023, p. 132.

[7]-Law No. 12-07, dated 28 Rabiʿ al-Awwal 1433 AH, corresponding to 21 February 2012, relating to the Wilaya, Official Gazette, No. 12, issued on 07 Rabiʿ al-Thani 1433 AH, corresponding to 29 February 2012, p. 19.

[8]-Slimani Hindoun: Administrative Police: Powers and Controls, Dar Houma Publishing and Distribution, Algeria, 2017, p. 62.

[9]-Executive Decree No. 91-416, dated 25 Rabiʿ al-Thani 1412 AH, corresponding to 02 November 1991, determining the conditions for the creation and operation of sports facilities, Official Gazette, No. 54, issued on 6 Rabiʿ al-Thani 1412 AH, corresponding to 3 November 1991, p. 2131.

[10]-Law No. 03-10, dated 19 Jumada al-Awwal 1424 AH, corresponding to 19 July 2003, relating to environmental protection within the framework of sustainable development, Official Gazette, No. 43, issued on 20 Jumada al-Awwal 1424 AH, corresponding to 20 July 2003, p. 6.

[11]-Saidi El Sheikh; Heni Rachida, op. cit., p. 392.

[12]– Ben Ali Khaldoun: Competences of Local Authorities in the Field of Administrative and Judicial Police, Journal of Law and Human Sciences, Ziane Achour University, Djelfa, Algeria, Vol. 15, No. 1, April 2022, pp. 2293–2294.

[13]-Law No. 11-10, dated 20 Rajab 1432 AH, corresponding to 22 July 2011, relating to the Municipality, Official Gazette, No. 37, issued on 01 Shaʿban 1432 AH, corresponding to 03 July 2011, p. 17.

[14]-Law No. 23-18, dated 14 Jumada al-Awwal 1445 AH, corresponding to 28 November 2023, relating to the protection and preservation of State lands, Official Gazette, No. 76, issued on 16 Jumada al-Awwal 1445 AH, corresponding to 30 November 2023, pp. 5–6.

[15]-Law No. 90-29, dated 14 Jumada al-Awwal 1411 AH, corresponding to 01 December 1990, Official Gazette, No. 52, issued on 15 Jumada al-Awwal 1411 AH, corresponding to 2 December 1990, p. 1652.

[16]-Presidential Decree No. 91-196, dated 21 Dhu al-Qaʿdah 1411 AH, corresponding to 04 June 1991, declaring the state of siege, Official Gazette, No. 29, issued on 29 Dhu al-Qaʿdah 1411 AH, p. 1087.

[17]-Ibid., p. 1087.

[18]-Presidential Decree No. 92-44, dated 05 Shaʿban 1412 AH, corresponding to 09 February 1992, declaring the state of emergency, Official Gazette, No. 10, issued on 05 Shaʿban 1412 AH, corresponding to 09 February 1992, p. 285.

[19]-Law No. 91-23, dated 29 Jumada al-Awwal 1412 AH, corresponding to 06 December 1991, relating to the participation of the National People’s Army in missions of protecting public order outside exceptional circumstances, Official Gazette, No. 63, issued on 30 Jumada al-Awwal 1412 AH, corresponding to 07 December 1991, p. 2396.

[20]-Article 05, Ibid., p. 2397.

[21]-Article 07, Ibid., p. 2397.

[22]-Executive Decree No. 20-69, dated 26 Rajab 1441 AH, corresponding to 21 March 2020, relating to measures for the prevention and control of the spread of the Coronavirus (COVID-19), Official Gazette, No. 15, issued on 26 Rajab 1441 AH, corresponding to 21 March 2020, p. 6.

[23]Organic Law No. 12-01, dated 18 Safar 1433 AH, corresponding to 12 January 2012, relating to the electoral system, Official Gazette, No. 01, issued on 20 Safar 1433 AH, corresponding to 14 January 2012, p. 19.

[24]-Order No. 21-13, dated 22 Muharram 1443 AH, corresponding to 23 August 2021, amending and supplementing certain provisions of No. 11-10 dated 20 Rajab 1432 AH, corresponding to 22 June 2011, relating to the Municipality, Official Gazette, No. 67, issued on 22 Muharram 1443 AH, corresponding to 31 August 2021, pp. 5–6.

[25]-For further reading, Asri Ahmed; Ahmed Ben Malek: Legal Issues of the Selection and Appointment of the President of the Municipal People’s Assembly in Light of Order No. 21-13 Amending and Supplementing the Municipal Law in Algeria, Journal of Legal and Political Research, Mohamed Seddik Ben Yahia University, Jijel, Algeria, Vol. 07, No. 01, June 2022, p. 751 et seq.

[26]-Articles 43 and 44, Law No. 11-10, op. cit., p. 11.

[27]-Ben Ali Khaldoun, op. cit., p. 288.

[28]-Article 94, Law No. 11-10, op. cit., p. 16.

[29]-Article 02, Executive Decree No. 81-267, dated 10 October 1981, relating to the powers of the President of the Municipal People’s Council in matters of public order, Official Gazette, Algeria, 1981, p. 1423.

[30]-Executive Decree No. 15-19, dated 4 Rabiʿ al-Thani 1436 AH, corresponding to 25 January 2015, determining the procedures for the preparation and delivery of urban planning permits, Official Gazette, No. 07, issued on 22 Rabiʿ al-Thani 1436 AH, corresponding to 12 February 2015, p. 4.

[31]-Law No. 08-15, dated 17 Rajab 1429 AH, corresponding to 20 July 2008, determining the rules for the conformity of buildings and completion of their construction, Official Gazette, No. 44, issued on 01 Shaʿban 1429 AH, corresponding to 3 August 2008, p. 19.

[32]-Executive Decree No. 22-55, dated 01 Rajab 1443 AH, corresponding to 2 February 2022, determining the conditions for the regularization of buildings not conforming to the issued building permit, Official Gazette, No. 09, issued on 2 Rajab 1443 AH, corresponding to 3 February 2022, p. 7.

[33]-Executive Decree No. 15-19, op. cit., p. 4.

[34]-Executive Decree No. 12-111, dated 13 Rabiʿ al-Thani 1433 AH, corresponding to 6 March 2012, determining the conditions and procedures for the establishment and organization of commercial spaces and the exercise of certain commercial activities, Official Gazette, No. 15, issued on 21 Rabiʿ al-Thani 1433 AH, corresponding to 14 March 2012, p. 25.

[35]-Executive Decree No. 13-140, dated 6 Jumada al-Awwal 1434 AH, corresponding to 18 March 2013, determining the conditions for exercising the activity of wholesale agent for fruits and vegetables, Official Gazette, No. 16, issued on 8 Jumada al-Awwal 1434 AH, corresponding to 20 March 2013, p. 10.

[36]-Law No. 05-12, dated 28 Jumada al-Thani 1426 AH, corresponding to 4 August 2005, relating to water, Official Gazette, No. 60, issued on 30 Rajab 1426 AH, corresponding to 4 September 2005, p. 3.

[37]-Law No. 01-19, dated 27 Ramadan 1422 AH, corresponding to 12 December 2001, relating to waste management, control and disposal, Official Gazette, No. 77, issued on 30 Ramadan 1422 AH, corresponding to 15 December 2001, p. 9.

[38]-Executive Decree No. 06-198, dated 04 Jumada al-Awwal 1427 AH, corresponding to 31 May 2006, regulating the framework applicable to classified establishments, Official Gazette, No. 37, issued on 08 Jumada al-Awwal 1427 AH, corresponding to 04 June 2006, p. 9.

[39]-Law No. 84-12, dated 23 Ramadan 1404 AH, corresponding to 23 June 1984, containing the General Forest Regime, Official Gazette, No. 26, issued on 26 Ramadan 1404 AH, corresponding to 26 June 1984, p. 959.

[40]-Ben Ali Khaldoun, op. cit., p. 2290.

[41]-Ibid., p. 2291.

[42]-Sabrina Jebaili: Concise Administrative Law: Organization and Activity, New University Publishing, Tlemcen, Algeria, 2023, pp. 165–166.

[43]– Maimouna Souad: General Principles in Administrative Law, Dar Al-Ayyam Publishing and Distribution, Algeria, 2022, p. 194.

[44]-Nacer Lebbad: Introduction to Administrative Law, Lebbad Publishing and Distribution, Algiers, Algeria, 2023, p. 142.

[45]-Ibid., p. 143.

[46]-Sabrina Jebaili, op. cit., pp. 169–170.

[47]-Ibid., p. 170.

[48]-Ibid., pp. 170–172.

[49]-Nacer Lebbad, op. cit., p. 145.

[50]-Maimouna Souad, op. cit., p. 194.

[51]-Sabrina Jebaili, op. cit., p. 185.

[52]-Nacer Lebbad, op. cit., p. 146.

[53]-Maimouna Souad, op. cit., p. 196.

[54]-Saidi El Sheikh; Heni Rachida, op. cit., p. 402.

[55]-Maimouna Souad, op. cit., p. 197.

Bibliography:

A- Books

  • Nesrine Cherifi et al., Administrative Law, Legal Studies Series, Dar Belqis Publishing, Algeria; 2014.
  • Larbi Werdia, Concise Explanation of Administrative Law: Introduction and Administrative Organization, 1st ed., Ibn al-Nadim Publishing and Distribution, Oran, Algeria; Legal Book Foundation, Boumerdes, Algeria; 2023.
  • Slimani Hindoun, Administrative Police: Powers and Controls, Dar Houma Publishing and Distribution, Algeria; 2017.
  • Sabrina Jebaili, Concise Administrative Law: Organization and Activity, New University Publishing, Tlemcen, Algeria; 2023.
  • Maimouna Souad, General Principles in Administrative Law, Dar Al-Ayyam Publishing and Distribution, Algeria; 2022.
  • Nacer Lebbad, Introduction to Administrative Law, Lebbad Publishing and Distribution, Algiers, Algeria; 2023.

B- Journal Articles

  • Youssef Nasser Hamad Al-Dhafiri, Administrative Control and the Limits of Its Powers in Normal and Exceptional Circumstances, Journal of Legal and Economic Research, Faculty of Law, Mansoura University, Egypt, Vol. 10, No. 74; 2020.
  • Saidi El Sheikh; Heni Rachida, Limits of the Exercise of Administrative Police by Local Authorities, Journal of Legal Studies, Tahar Moulay University, Saida, Algeria, Vol. 8, No. 1; 2021.
  • Kliouat El-Saïd, Administrative Police in Algeria under Political Pluralism, Journal of Law and Political Science, Ziane Achour University, Djelfa, Algeria, Vol. 4, No. 2; 2011.
  • Ben Ali Khaldoun, Competences of Local Authorities in the Field of Administrative and Judicial Police, Journal of Law and Human Sciences, Ziane Achour University, Djelfa, Algeria, Vol. 15, No. 1; 2022.
  • Asri Ahmed; Ahmed Ben Malek, Legal Issues of the Selection and Appointment of the President of the Municipal People’s Assembly in Light of Order No. 21-13 Amending and Supplementing the Municipal Law in Algeria, Journal of Legal and Political Research, Mohamed Seddik Ben Yahia University, Jijel, Algeria, Vol. 07, No. 01; 2022.

C– Legal Texts

  • Presidential Decree No. 20-442, concerning the promulgation of the constitutional amendment approved in the referendum of 1 November 2020, Official Gazette, Algeria; 2020.
  • Law No. 12-07, relating to the Wilaya, Official Gazette, Algeria; 2012.
  • Executive Decree No. 91-416, determining the conditions for the creation and operation of sports facilities, Official Gazette, Algeria; 1991.
  • Law No. 03-10, relating to environmental protection within the framework of sustainable development, Official Gazette, Algeria; 2003.
  • Law No. 11-10, relating to the Municipality, Official Gazette, Algeria; 2011.
  • Law No. 23-18, relating to the protection and preservation of State lands, Official Gazette, Algeria; 2023.
  • Law No. 90-29, Official Gazette, Algeria; 1990.
  • Presidential Decree No. 91-196, declaring the state of siege, Official Gazette, Algeria; 1991.
  • Presidential Decree No. 92-44, declaring the state of emergency, Official Gazette, Algeria; 1992.
  • Law No. 91-23, relating to the participation of the National People’s Army in missions of protecting public order outside exceptional circumstances, Official Gazette, Algeria; 1991.
  • Executive Decree No. 20-69, relating to measures for the prevention and control of the spread of the Coronavirus (COVID-19), Official Gazette, Algeria; 2020.
  • Organic Law No. 12-01, relating to the electoral system, Official Gazette, Algeria; 2012.
  • Order No. 21-13, amending and supplementing certain provisions relating to the Municipality, Official Gazette, Algeria; 2021.
  • Executive Decree No. 15-19, determining the procedures for the preparation and delivery of urban planning permits, Official Gazette, Algeria; 2015.
  • Law No. 08-15, determining the rules for the conformity of buildings and completion of their construction, Official Gazette, Algeria; 2008.
  • Executive Decree No. 22-55, determining the conditions for the regularization of buildings not conforming to the issued building permit, Official Gazette, Algeria; 2022.
  • Executive Decree No. 12-111, determining the conditions and procedures for the establishment and organization of commercial spaces and the exercise of certain commercial activities, Official Gazette, Algeria; 2012.
  • Executive Decree No. 13-140, determining the conditions for exercising the activity of wholesale agent for fruits and vegetables, Official Gazette, Algeria; 2013.
  • Law No. 05-12, relating to water, Official Gazette, Algeria; 2005.
  • Law No. 01-19, relating to waste management, control and disposal, Official Gazette, Algeria; 2001.
  • Executive Decree No. 06-198, regulating the framework applicable to classified establishments, Official Gazette, Algeria; 2006.
  • Law No. 84-12, containing the General Forest Regime, Official Gazette, Algeria; 1984.

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