Khaberni - This series of articles mentioned earlier that the Constitutional Court issued its first magazine installment at the end of last year, and it dedicated this issue to the judgments and decisions issued since its inception until the end of the year 2024; the judgments are those issued by the court when it exercises its role in monitoring the constitutionality of laws and regulations, while the decisions are those issued when it takes on its other role, which is the interpretation of constitutional texts.
Regarding the control over constitutionality, the legislator has limited its scope to the effective laws and regulations (Article 59 of the Constitution), and in implementing the explicit constitutional text, the first issue of the court's magazine informs us of several judgments where the court distanced itself from reviewing the constitutionality of a law or regulation when it is "not in effect," such as judgment number (1) of the year 2016; it stated: "... and whereas the plea of the unconstitutionality of the regulation ... came after the cancellation of this regulation and the challenge thereby focuses on a cancelled system and its amendments, and whereas the court ... is competent to monitor the constitutionality of the effective laws and regulations only, our court is therefore not competent to consider the challenge presented in this lawsuit, which requires its rejection as a matter of form."
Moreover, this issue includes several judgments where the court followed the same approach, as in its judgment number (1) of the year 2022, judgment number (2) of the year 2022, and judgment number (4) of the year 2024, the court— in these cases—rejected the challenge formally because it concerned a non-effective (cancelled) text.
Regarding this issue, it can be said that a legal text may be cancelled, yet it remains—despite that—mandatory on the dispute that occurred under the circumstance or action concerned, as reaching retirement age under a particular law will make that law applicable to the dispute related to that issue even if a lawsuit is filed after a new law takes effect, which is known as the principle of immediate effect of the legal rule and non-retroactivity.
The requirement that the legislation be "in effect" might contradict the philosophy behind the plea of unconstitutionality, as the legislator, by allowing the parties of the lawsuit to raise the plea of the unconstitutionality of the text applicable to the dispute, aimed to protect individuals from the application of an unconstitutional text on the dispute, whereas limiting the scope of monitoring to the effective laws and regulations exempts some legislations from the constitutional court’s review; thus serving as a form of immunization for those texts.
On the other hand, the requirement that the legislation be "in effect" may lead to the inability to review some legislation; for example, the Defense Law is only effective during an emergency situation, and its enactment is announced through a Royal Decree based on a cabinet decision (Article 124 of the Constitution).
Applying the condition of effectiveness in such a case would lead to the impossibility of challenging the constitutionality of the Defense Law at times when it is not effective, and none of the official bodies (the Senate, the House of Representatives, and the Cabinet) would be able to challenge this law directly except during its effectiveness, that is, during the emergency circumstance, nor would it be possible for the parties of a lawsuit to raise the plea of unconstitutionality in the lawsuit being considered after the announcement of the suspension of this law; since it has become non-effective.
In light of the foregoing, to ensure that parties of the lawsuit can employ the Constitutional Court to protect them from the application of a legal text contrary to the Constitution, it might be appropriate to amend Articles (59, 60) of the Constitution to remove the condition of effectiveness, allowing parties of the lawsuit to raise the plea of unconstitutionality of a text applicable to the dispute (even if the text is cancelled), and to suffice with the "seriousness" condition existing in Article (60) of the Constitution.
Furthermore, eliminating the condition of effectiveness would also allow for the opportunity to monitor the constitutionality of the Defense Law during the period when it is not in effect, as previously indicated.
It should be noted that this series of articles extended throughout this year to shed light on the achievement made by the Constitutional Court since its establishment; thus, its title indicated that, despite its importance, everything mentioned in the series is considered a "margin" when compared to the volume of outputs of the Constitutional Court and its added value in the field of constitutional law.
Today, as the Constitutional Court is about to issue the second issue of its magazine, this series of articles has reached its final lines.
I ask Allah—exalted is He—to accept this work of mine, and to place it in the balance of good deeds for my father (Ahmad Al-Rahmaneh/Abu Bakr), who preferred to spend on our education, sharpening us with knowledge and love of the country, which culminated in the martyrdom of my brother (Omar Al-Khair) defending the nation during the events of Wadi Al-Azraq—February 2019.
