Official Journal – Issue No. 22 (bis) on 03 June 2013
17
election of the second CCA members. Furthermore, the State Lawsuit Authority and
the jointly interfering litigants raised a plea that the Administrative Court does not
have jurisdiction on the state level to hear the lawsuit based on law No. 79/2012
issued on 12/7/2012, of which article 1 stipulates that the resolutions of the nondesignated members of the People's Assembly and the Shura Council on the election
of CCA should be subject to the control on the constitutionality of the laws and
parliamentary decrees. If this court sees that the resolution issued by the nondesignated members of the People's Assembly and Shura Council on the election of
the members of the CCA which is the subject matter of the substantive lawsuit is not a
parliamentary act, nor a legislation in the objective sense according to which the SCC
imposes its judicial jurisdiction thereupon; however it is in fact an administrative
resolution whose legality shall be decided by the State Council at an Administrative
Litigation Authority, hence article 1 of law No. 79/2012 infringes the provision of
article (48) of the constitutional declaration issued on 30 March 2011 which vested
settling the administrative disputes in the State Council. It also infringes article (21) of
the aforesaid constitutional declaration which bans laws from stipulating the
immunization of any administrative act or resolution against judicial control.
Accordingly, this court has decided in 23/10/2012 session to stop the lawsuit
proceedings and refer its papers to the SCC to decide on the constitutionality of this
text regarding what it indicates that the resolutions of the People's Assembly and
Shura Council non-designated members on the election of the CCA members shall be
subject to the control on the constitutionality of the laws and parliamentary decrees.
Whereas article 1 of law No. 79/2012 on the standards of the election of the CCA
members stipulates that "without prejudice to the provision of article (60) of the
constitutional declaration, non-designated members in the People's Assembly and
Shura Council shall elect a constituent assembly composed of 100 members to
prepare the country's new draft constitution, as well as 50 alternative members. There
resolutions in this regard shall be subject to the control on the constitutionality of the
laws and parliamentary decrees".
Whereas the State Lawsuit Authority has raised a plea that the SCC does not have
jurisdiction to hear this lawsuit based upon the fact that the legislative text referred
thereto includes a provision that is considered from the proceedings of issuing
constitutions that are inherently from the political acts which the SCC case law has
decided to exclude from the scope of its control.
Whereas this judgment is refuted that what should be taken into consideration in
determining the legal framing of the "political acts", and based upon the law case of
this court, is the nature of the act itself, not the descriptions that the legislator may
apply thereto whenever its nature is in contrast to such descriptions; since the
exclusion of the "political acts" from the constitutional litigation mandate comes only
to achieve the political considerations which require - due to the nature of these acts
and their close connection to the state's political system or internal or external
sovereignty, to take them away from judicial control in response to preserving the
state, defending its sovereignty and guarding its supreme interests. This requires
granting the entity executing these acts, either it is the legislative or executive
authority, broader discretion to achieve the country's good and safety, without
entrusting the litigation with the power to comment on the decisions it takes in this
regard; since considering and commenting on them requires information, regulations
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