The judicial system, in common with other aspects of Algeria's culture, shares features of its French and Arab traditions. Throughout the French colonial period, secular courts prevailed as the final judicial authority, although Islamic sharia courts had jurisdiction over lower level cases, including civil cases, criminal offenses, family law, and other personal matters. Secular courts in Algeria owed their existence to the earlier Turkish administrative control, however, not French imposition. The French courts replaced the Turkish courts and, in so doing, modified them to reflect French principles of justice. The secular courts were authorized to review sharia court decisions, although for the majority of Algerians, the sharia court was the final source of judicial authority. Following independence in 1962, the government promised to create a new judicial system that would eliminate the French colonial legacy and reflect more accurately the ideological orientation of the new state, which was committed both to socialism and the Arab and Islamic tradition. The revised legal system was not created until 1975, under Boumediene, when new civil and criminal codes were announced.
These codes reflected the divergent nature of socialist and traditional Islamic notions of justice. Family law, personal status (especially regarding the rights of women), and certain criminal penalties were divisive issues and many were simply omitted from the new judicial codes. In the 1980s, Benjedid proposed a family code, which drew extensive public criticism but was ultimately passed in 1984.
Judges are appointed by the executive branch, and their appointment may be challenged only by the High Judicial Council. Judges are not tenured, although they remain relatively free from political pressure. The 1976 constitution asserted a judicial responsibility to uphold the principles of the revolution; this commitment has lessened in importance, however, as Algeria has moved away from its socialist origins.
The judicial tradition has stipulated that defendants be fully aware of the charges against them, that they have free access to legal counsel, and that they be able to contest a judicial outcome in a court of appeal. The constitution upholds basic principles of personal liberty and justice and prohibits the unnecessary holding of individuals for questioning for longer than forty-eight hours. Under Benjedid's political liberalization, constitutional respect for individual freedoms expanded. A number of political prisoners were released, and the elimination of exit visas and the legalization of political associations facilitated the exercise of free speech, movement, and expression.
Individual freedoms were, however, subordinate to military concerns and issues of national security and have been regularly suspended under periods of martial law. The military leadership in the early 1990s suspended almost all institutions of state, including those of the judicial branch. Islamist leaders and other criminal offenders have been tried by military tribunals and have received heavy sentences of imprisonment or death. The HCE, as the military presidency, is an authoritarian government responsible only to itself. Even at the best of times, the executive is not subordinate to the judicial branch, the president serving as head of the High Judicial Council. In the early 1990s, however, cases arising out of the state of emergency as opposed to ordinary civil or criminal cases have been assigned to the military tribunals.
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