Official Journal – Issue No. 22 (bis) on 03 June 2013
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confirmed by Article (5) of the Constitutional Declaration, which does not deviate in
aim from the Law as, as established in the administration of justice in this court, as an
instrument of realizing such justice. The law shall not be just unless it achieves goals
thereof. If the legislature deviates from them, and violates the true values they
embrace, as pursued in the provisions appealed against, they would terminate the
accord within the scope of their implementation, and shed in vain every value of their
presence, and contradict – accordingly – the bases of justice.
Whereas the aforementioned constitutional defect extends to include the entire
election system determined by the legislature and included in the provisions appealed
against, whether it is the two-third percentage allocated to closed-party lists or the one
third allocated to the individual system, since the limitation thereof to the latter
system alone leads to, besides what was previously mentioned, the violation of the
principles of equity and equal opportunity among political-party candidates, according
to the type of the electoral system based on which they were nominated. Also, the
competition between party candidates and independents for the one third allocated for
the individual system had a significant effect on the two-thirds allocated for closedparty lists. If it were not for such competition, party lists would have been rearranged, according to the priorities of each party; hence affecting the opportunities of
the candidates of such parties for winning the membership of the Shura Council.
Whereas in the light of all the above, it is evident that the whole of the first paragraph
of Article (2), the first paragraph of Article (8), and Article (24) of law No. 120/2011
on the Shura Council, amended by decree laws 109 and 120 of the year 2011,
determining their extent as stated before, are in violation of the aforementioned
provisions of the Constitutional Declaration, which requires ruling them
unconstitutional.
Whereas Article (5) of the current constitution provides "Sovereignty is for the people
alone and they are the source of all authorities. The people shall exercise and protect
this sovereignty, and safeguard national unity in the manner specified in the
Constitution" and whereas Article (225) thereof says "This Constitution shall enter
into force as of the date of announcing the public approval of it in a referendum, based
on a majority of valid votes of the referendum participants."
Whereas popular sovereignty, as established in the administration of justice in this
court, shared by all citizens, since they are the basis and source of such sovereignty,
which they shall exercise and protect through national unity, via enforcing the
provisions of the constitution which overtop all other authorities in the state.
Consequently, the provisions of the Constitution shall be enforced upon the enactment
thereof, in accordance with the result of the constitutional referendum that was held.
The SCC may not review or monitor such provisions since the Constitution is the
reflection of the popular will and the aggregation of the diversified aspects thereof at
the entire regional level. The SCC's adoption of the Constitution shall emphasize the
intention thereof to run the state, including all structures thereof, affairs according to
the provisions thereof, with the Constitution being the basis of the ruling regime
therein, a binding framework of the people's duties and freedoms, and a pillar of all
aspects of the constitutional sphere. This is whether the Constitution meets the
aspirations a sound state-citizen relationship or neglects/avoids some aspects thereof.
The Constitution will always be above every defect on top of the legal hierarchy.
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