Official Gazette, Issue 24 App. (a) on 14 June 2012
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based on a ruling on the constitutionality of the text of Article 38 of the Constitutional
Declaration. This plea is denied, since the judicial supervision of the constitutionality
of laws and regulations exercised by the Supreme Constitutional Court in accordance
with the text of Article 49 of the Constitutional Declaration, and the Law of the Court
issued by Law No. 48/1979, has its general basis in the principle of the legitimacy and
the sovereignty of the law and the subordination of the state to the law.
On this basis and in accordance with the ruling of this Court, excluding political
actions from the scope of this judicial supervision is denied, based on the fact that the
nature of such actions cannot be subject to litigation, and the criterion for determining
the legal character of such actions is by the nature of the action itself and not the
characterizations that the legislator may attribute to it – when its nature may be
inconsistent with such characterizations. This is because excluding such actions from
the competence of the constitutional judiciary is rather meant to further political
considerations that – due to the nature of such actions and their close linkage to the
political order of the state or its domestic or international sovereignty – must be kept
outside the scope of judicial supervision in order to preserve the state, defend its
sovereignty, and uphold its higher interests. This requires that the body undertaking
such actions – whether the legislative or executive authority – be given a wider range
and broader scope of discretionary power to act in the interest of the nation and its
safety, and not entrust the judiciary with the power to review measures taken in such
matters, because examination and review necessitate information, controls, and scales
of assessment that are not available to the judiciary, and it is not appropriate to raise
such issues publicly in its forum.
The Supreme Constitutional Court alone is entrusted with examining the nature of the
issues regulated by the appealed provisions. If these provisions are political actions,
then they fall outside the Court's competence to conduct judicial supervision of
constitutionality; if they are not, then the Court is free to oversee them. For this
reason, and because the appealed provisions organize the stipulations governing
running for office in the People's Assembly, which must be examined alongside the
rest of the stipulations of the aforementioned Law No. 38/1972, in so far as they are
interwoven and interconnected to form an inseparable whole, and in light of the fact
that said stipulations specify the nature, framework and content of the legal system
adopted and enacted by the legislator to regulate the entire electoral process, which
according to its legislative nature and aforementioned content is not among the
political issues that fall outside judicial supervision over constitutionality. This
Court's exercise of judicial supervision over the constitutionality [of these provisions]
is not an infringement of, or challenge to the text of Article 38 of the Constitutional
Declaration, or an extension of its supervision over them, so this text and the rest of
the other provisions of the Constitutional Declaration remain the rules governing this
supervision. The plea to the jurisdiction of the Court to examine the case does not rest
on a sound basis, and so must be denied.
Whereas the motion by the State Cases Authority that the case not be accepted in
order to unify the venue of the merits case and the constitutional case is also denied,
since it is established that the jurisdiction of this Court is only connected with the case
in so far as it corresponds to conditions fixed by Article 29 of the [law establishing the
Court]. Hence, to realize the legislator's intention in this matter, the merits case must
rely solely on petitions other than the ruling that certain legal provisions are