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Official Gazette – Issue No. 8 bis (a) May 26, 2013
article (162) of the constitution; fall - based on the ruling of this court - within
"Laws" with objective meaning thereof. Hence, the said decrees must be published
in the Official Gazette in application of article (223) of the same constitution, this
shall not cancel what is included in the presented text stipulating the publication of
such decrees in two widely-circulated dailies; since such publication is not
considered an alternative for publication in the Official Gazette as stipulated by
the constitution. Therefore, since the aforementioned text omitted the obligation to
publish in the Official Gazette, it shall be in violation of articles (162) and (223)
of the constitution.
4- Paragraph 3 of article (13) of the draft law allowed the competent governor to
impose a criminal penalty represented in ordering the removal of the posters and
all the other campaigning means used in violation of the provisions of the rules
stated in article (13) of the draft law; at the expense of the person who
contravened the rules. Hence, such text has infringed the principle of power
separation and stipulated the intervention of one of the executive authority bodies
in the works of the judicial authority which lessens the independence thereof and
wasted the bases of justice in managing the matters relevant to the citizens' rights
and freedoms. Accordingly, the text referred thereto is in violation of articles (6),
(55), (168) and (228) of the constitution.
Sixth: article (16) of the draft law stipulated that "the President of the Republic may,
in exceptional circumstances, shorten the time limit stipulated in articles 7, 10 and 15
of the present law".
Whereas articles (55), (200), (208) and (288) of the constitution stipulate that the
constitution legislator has vested the law with regulating the exercise of the rights of
election and candidacy, tasked the NEC solely with managing the electoral process
from A to Z by result announcement, provided that HEC undertakes full supervision
of the first legislative elections following the enforcement of the constitution, and
ensured the independence of the independent bodies. Furthermore, article 132 of the
constitution stipulates that "The President of the Republic shall exercise his powers in
the manner stated in the constitution" as he is the president of the state and the head of
the executive authority. This indicates that the task of managing the electoral process
is entitled, as a general basis, to HEC – as a transitional provision – without the
intervention of the President of the republic, as the head of the legislative power, to
achieve election's integrity and impartiality which the constitution obliged all the
state's bodies to ensure. Since article (16) of the draft law allows the intervention of
the President of the Republic in managing the electoral process, by shortening the
aforementioned dates, which is among the matters relevant to such management.
Thus, the present text has violated the principle of the election's integrity and
impartiality and lessened the independence of each of the NEC and HEC in the
electoral process management. Accordingly, the aforementioned text violates articles
(55), (132), (200), (208) and (228) of the constitution.
Seventh: Last paragraph of article (19) of the draft law stipulated that "If a
candidate’s position becomes vacant in the list…, if the outcome of the elections
results in an incomplete party list winning a number of seats exceeding the number of
the remaining seats therein, the required number shall be completed through a byelection using party lists, in accordance with paragraph 5 of article (3) hereof".