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Official Journal – Issue No. 22 (bis) on 03 June 2013
an evaluation scale that are not available for the litigation as well as such matters are
inappropriate to be raised explicitly within the courts. Hence, the SCC shall solely
determine - when considering the nature of the matters regulated by the challenged
texts - whether the texts before it are considered as "political acts", so they shall be
excluded from its mandate of controlling constitutionality, or not and hence they shall
be subject to its control.
Whereas the legislative text referred from the Administrative Court to examine the
constitutionality thereof vest the jurisdiction to consider the resolutions issued by the
People's Assembly and Shura Council non-designated members on the election of the
CCA to the entity concerned with the judicial control on the constitutionality of laws.
Hence, whatever the opinion in this referred legislative text is, referral has been done
within the area of the judicial jurisdiction of this court and it practice of its judicial
mandate in controlling the constitutionality of laws.
Whereas the aforesaid is not affected by saying that law No. 79/2012 – which
included the referred text – has been issued in a matter related to the issuance of the
constitutions that are considered from the political matters in the case law of this court
which takes it out of its judicial control; since this comment is only a criticism of the
law itself due to exceeding the limits of the jurisdiction of the legislative authority and
intruding the circle where the full jurisdiction is given to the constituent authority.
This requires imposing the control of this court upon this law as it assumes judicial
control over the constitutionality of the laws and regulations.
Whereas the State Lawsuit Authority has also ruled to decline the present lawsuit due
to the infringement of the interest condition; since the two plaintiffs in the
constitutional lawsuit has no direct personal interest in settling the dispute thereof;
since the present lawsuit seeks determining the rule of the constitution with regard to
the text which determined the standards of selecting the CCA members. The said text
has not been applied on any of the two plaintiffs in a manner that has violated the
rights ensured by the constitution which accordingly inflicted harm directly thereon.
This shall not be affected by the fact that one of the two plaintiffs has been a
candidate for the CCA membership; since he has not gained a legal position, as he has
not been elected as a CCA member yet. Thus, he only has a hope that does not give
him a direct personal interest in challenging the standards of its formation.
Whereas this judgment is refuted that the origin of the legal basis is that it comes into
force since the date of its enforcement on the facts that take place under it until its
annulment. If the legislator replaced it with a new basis, it should be applied as of the
date of its enforcement and the old basis should be neglected as of the date of its
annulment. Accordingly, the range of the enforcement of each of the two bases with
respect to the timing. The legal positions that have been established – in presence and
impact – under the old legal basis remain subject to it solely; whereas the positions or
facts established under a legal basis and their presence has not been completed, then a
new legal basis has been issued that governs this position or that fact, the provision of
the new legal basis shall be enforced.
Whereas law No. 79/2012 on the standards of the election of CCA members, which
was issued on 11/7/2012, enforced as of the day following its publication on
12/7/2012, stipulates in article 1 thereof that considering the resolutions issued by the
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