Citizens will soon be able to challenge a law they deem unconstitutional in court. A draft law laying down the terms and conditions for the application of Act 133 of the Constitution has just been unanimously approved by the House of Representatives.

Voted on Tuesday, August 8, Draft Organic Law 86.15 guarantee the right of the citizen to raise, during a trial, the unconstitutionality of a legislative provision deemed to be an infringement of their rights and freedoms provided for in the Constitution.

Part of the implementation of Article 133 of the Constitution, the law essentially aims at achieving two objectives: to enrich the national legislative system, and to remedy the shortcomings of the legal arsenal in force, which could be tainted with unconstitutionality.

The draft law sets out the rules governing appeals for unconstitutionality, the conditions for their admissibility and their consequences, and the follow-up to the decisions of the Constitutional Court. Pending its entry into force, the text is seen as a step forward in placing constitutional justice in the hands of citizen.

This project constitutes a “new mechanism for a posteriori control of the laws, which knew a constitutional vacuum in the organization of this control,” indicated the Ministry of Justice in a press release.

Article 133 stipulates that the Constitutional Court shall be competent to decide on any appeal concerning the unconstitutionality of a law raised during the examination of a case, if one of the parties considers that the law to be applied at the trial violates the rights and freedoms guaranteed by the Constitution.

In order to ensure a balance between the right of appeal for non-constitutionality of laws and judicial efficiency, the legislator has set the conditions for the admissibility of the action, in particular respect for the time-limits for decisions regarding the constitutionality of a law.

Draft Organic Law 86-15 was the only draft organic law adopted by deputies during the this summer session. However, it will still have to shuttle between the Chamber of Representatives and the Chamber of Councilors for its final adoption.

How does it work exactly?

According to the bill, the appeal may be brought before all kind of courts, including the Court of Cassation, in certain cases. However, Article 3 of the Act 133 of the Constitution specifies that such action must be initiated before a judgement is ready to be pronounced for the case.

To be admissible, the appeal for a constitutional exception must be notified by a written memorandum meeting a series of conditions. This must be submitted independently of the other documents relating to the case in question, whether they are initialed by one of the parties or by a lawyer registered with the state bar, in addition to the acquittal of the judicial tax.

The memorandum in question should also specify the violations of any rights and freedoms resulting from the application of the law in question. The court has a period of eight days to ensure compliance with the conditions of admissibility of the appeal. In case of a favorable opinion, the judge may suspend the case from the date of the appeal, unless the Court of Cassation or the Constitutional Court notifies him of the rejection of the action.

Clause 8 of this bill sets out a series of cases in which the judge can not suspend the trial of a case, despite the constitutional appeal. This applies in particular to investigations in civil and criminal matters or in cases where the law requires the observance of a time limit for deciding a case.

At the procedural level, appeals submitted to the courts of first instance or appeal are transmitted to the first president of the Court of Cassation. The court must rule on the application within three months, before submitting its reasoned decision to the Constitutional Court.

In the case of appeals for constitutional objection before the Constitutional Court, its internal rules will determine the procedures to follow. Article 16 of the law says, in this situation, to inform the head of the government and the presidents of both Houses of Parliament. The latter may submit memoranda relating to their remarks on the subject of the appeal, within a time limit set by the Constitutional Court.

Generally, the Court’s hearings on this type of case are public, except in cases where it decides to go in camera, in accordance with its rules of procedure. The court has 60 days to rule on the appeal, as long as it is filed, as provided for in section 21 of the bill.

The judgment of the Constitutional Court is regarded as a compulsory jurisprudence for the other judicial bodies, which must come in line with its interpretation of the text, the subject of the appeal. Article 24 states that notification of decisions concerning the unconstitutionality of a law will be conveyed to the King, the Head of Government, the Presidents of both Houses of Parliament and the parties, in addition to their publication in the Official Bulletin.

The provisions of this bill is scheduled to come into force one year after the establishment of the Constitutional Court.

Source: BNA