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The rules of consensual international law have witnessed a tremendous development recently, so that international treaties and the other international rules that take their ruling have become – the most important means of organizing cooperation and communication between members of the international community in all fields, which made the issue of oversight over the constitutionality of international treaties of great importance, as it is related to the protection of His Highness The constitution and its sanctity before international legislation, in addition to the fact that this oversight, in its ideal form, constitutes an impenetrable dam against any violation of the sovereignty of the state, and prevents the threat to its interests, especially when there appears to be a conflict between these interests and the interests of some other international entities under the circumstances in which interests are intertwined.
Hence the great importance of addressing the issue of constitutional control of international treaties in Egypt, and the importance of holding lectures and discussion sessions on this vital topic, which raises problems related to the relationship between international law and internal law, the treaty’s rank in the hierarchy of legal rules within the state, and how to monitor the constitutionality The treaty after its entry into force, the consequences of ruling the treaty’s unconstitutionality, what is the role of the constitutional judiciary specifically in this field, what parts of the treaty around which the constitutional judge’s jurisdiction revolves, and what are the parts away from his oversight, all without addressing the new jurisdiction that The law bestowed it on the Supreme Constitutional Court under Law 137 of 2021 amending its Law No. 48 of 1979, which is to monitor the constitutionality of the decisions of international organizations and bodies and the rulings of foreign courts that are required to be implemented in the face of states. This new jurisdiction is completely far from what we are dealing with in this research.
The issue of oversight of the constitutionality of international treaties raises many problems, perhaps the most important of which is related to the issue of distributing constitutional competencies between the public authorities in the state, and between contracting or ratifying the treaty, as well as the issue of the legal value of the international treaty in the internal system, the extent to which it is considered one of the sources of legitimacy, and the position of international treaties regarding The issue of the constitutionality of laws oversight and the relationship of treaties to national constitutions will be dealt with in turn:
Definition of international treaties:
An international treaty is defined by jurisprudence as a written agreement between two or more persons of international law, whatever the name given to it, concluded in accordance with the provisions of international law with the aim of producing legal effects.
This definition is derived from Article 2, Paragraph 1/A of the Vienna Convention on the Law of Treaties of 1969, as well as from the corresponding article of the Convention on the Law of Treaties between States and International Organizations signed in Vienna on March 21, 1986.
It is learned from this definition that the international treaty is based on basic elements: (1):
That the agreement is between two or more persons of public international law.
The agreement must be in writing.
That the agreement be concluded in accordance with the provisions of international law.
To aim to create or arrange legal effects.
The Supreme Constitutional Court has dealt with the definition of the treaty “that the phrase international treaty is nothing more than a general term that extends to all forms of international agreement between two or more states if this agreement is included in one or more documents, and whatever issues it regulates, or its subject matter, and then It includes under it what is related to its concept of the forms of this agreement, whether it is a covenant, a charter, a declaration, a protocol, a system, or an exchange of two notes” (2)
The international treaty – in the judiciary of the Supreme Constitutional Court – accommodates all of these types, all of which fall under the description of “the agreement”.
The constitutional judge’s oversight of international treaties:
The constitutional judge’s oversight of the constitutionality of the international treaty has different patterns that differ according to the different systems established to control the constitutionality of laws, and these differ according to different constitutions. Remedial practice on laws after their publication and implementation.
With regard to treaties, the matter is not much different, if the legal systems’ paths regarding subjecting them to the oversight of the constitutional judge are not the same.
In some countries, the previous method of censorship is sufficient, and not others, as in France, Senegal, and Mauritania.
In other countries, treaties are basically subject to the method of prior control, with the possibility of subjecting them also to post control, like the rest of the legislation.
As is the case in Congo, Portugal, Spain, Algeria and Germany (3).
The supervision of the constitutional judge can take place in one of two ways, the direct method and the indirect method.
Monitoring in a direct manner: It means subjecting the draft treaty itself to the oversight of the constitutional judge, and his oversight is directly focused on it. It works in this way in France, Portugal, Spain and Algeria.
As for oversight through the indirect method, in which the oversight is focused on the ratification law of the treaty, like the rest of the legislation. This method is described as indirect because the judge’s examination of the constitutionality of the ratification law can lead him to examine the constitutionality of the treaty itself.
Whether the treaty is subject to previous oversight, directly or indirectly, the examination of its constitutionality does not focus only on reviewing its substantive provisions, but must also address the oversight of the form of the treaty to ensure that the provisions of its convening do not violate the constitution, and also to ensure respect for the rules of distributing jurisdiction.
The rank of the international treaty means its position among the legal rules within the state, i.e. its position in the legislative hierarchy, if it is known that the principle of gradation of laws is a principle that depicts the legal structure in a hierarchical way of successive degrees in which each degree is restricted to its higher degrees. It shows how to establish the general legal rules called legislation. Moreover, the content of this legislation may be determined in a general way. It defines the body that undertakes the creation of the law, and shows its method for that, followed by that legislation, which is the rules that the constitution shows how and how to establish it, followed by the regulations , then administrative decisions (4). The relationship between these previous rules is one of gradation and dependency, as the rule derives the basis of its existence from the rule that established it.
Comparative constitutional systems have known different models to determine the rank of international treaties among other legal rules within the state, as follows:
Countries whose constitutions and legislation are devoid of a text that determines the rank of international treaties.
Other countries have made international treaties a rank that transcends the constitution itself.
Third countries make treaties the same as law.
Fourth countries place treaties in the middle between the constitution and the law. They are lower than the constitution, but they are superior to ordinary legislation.
Finally, there are states that place the treaty in a position below the rank of laws.
There is no place for the details of all these systems (5).
In the Egyptian system:
Article (151) of the current Constitution of the Arab Republic of Egypt, issued in 2014, stipulates that “the President of the Republic represents the state in its foreign relations, concludes treaties and ratifies them after the approval of the House of Representatives, and they have the force of law after their publication in accordance with the provisions of the Constitution. Voters must be called for a referendum. On peace treaties and alliances and what is related to the rights of sovereignty, and they are not ratified except after announcing the result of the referendum with approval. In all cases, it is not permissible to conclude any treaty that contradicts the provisions of the constitution, or that entails ceding any part of the state’s territory.
What is learned from this article – in its first paragraph – is that the international treaty, after its ratification and publication in the Official Gazette in accordance with the established conditions, has the force of law, that is, on the same level as the law.
The rank of the treaty is of the same strength and quality as stipulated in successive Egyptian constitutions starting from the 1956 constitution in Article 43 thereof, the 1958 constitution in Article 56 thereof, Article (125) of the 1964 constitution, and Article 151 of the 1971 constitution.
The rank of international treaties has not changed over the course of Egyptian constitutional history.
Four conditions are required for it to be considered a law:
To be concluded with the knowledge of the person authorized by the constitution, i.e. the President of the Republic.
to be approved by the House of Representatives.
To be ratified by the President of the Republic after approval.
To be published in the Official Gazette in accordance with the prescribed conditions.
Talking about defining the role of the judge in oversight over the constitutionality of the treaty is uncommon when dealing with the constitutionality of the law, although we define a scope within which the oversight revolves and does not exceed it through what is called self-restriction.
But with regard to treaties, the matter is different, as many associate a treaty with acts of sovereignty.
The relationship between international treaties and acts of sovereignty or political acts is tainted by a lot of ambiguity, as many associate them. Treaties for them are always acts of sovereignty that do not enter into the judiciary, whether substantive or constitutional.
But it is not that easy, as many international treaties have nothing to do with the acts of sovereignty.
The basic principle in international treaties is that they adhere to the formal and objective conditions required by the constitution.
There are provisions in international treaties that deviate by their nature from the field of judicial oversight over constitutionality and fall under them several matters, perhaps the most important of which are:
If there is a breach of the provisions of the treaty issued by a contracting state.
Considering whether the entry into the treaty is related to conditions that no longer exist in view of the fundamental change that occurred in the circumstances surrounding the country.
Assessing whether a measure has been issued by one of the contracting states that entitles the national authority to respond to it by making a return, such as refraining from implementing the treaty, suspending it, or taking action to the contrary (7).
The constitutional judges have nothing to do with the decision to reserve the treaty or the decision to withdraw it.
Constitutional judges have nothing to do with the conditions agreed upon by the two contracting states for the temporary application of an international treaty, whether with respect to the provisions of the treaty in whole or in part.
The constitutional oversight body has nothing to do with the texts of the treaty that guarantees rights that are not granted to countries other than them.
It has nothing to do with amending an existing treaty.
The separation of some parts of the treaty from each other has nothing to do with the control authority.
Withdrawing from the treaty has nothing to do with the constitutional judge.
Termination of the treaty – in all cases – and whether it is issued within the framework of a consensus between the legislative authority and the President of the Republic or alone by either of them, this termination always remains a political act that by its nature deviates from judicial oversight (8).
Negotiations about international treaties, whoever is in charge of them, have nothing to do with the constitutional judge.
Joining an existing international treaty that the constitutional judge has nothing to do with, as it is at the heart of political actions.
The method of oversight under the Supreme Constitutional Court:
What is learned from the text of Articles (27, 29) of the Law of the Supreme Constitutional Court is that the method of oversight varies into three types, meaning that there are three methods, one of which can be exercised by the court over the constitutionality of laws, and these methods are:
The plea for unconstitutionality before the trial court.
Referral from the trial court.
The right to appeal to the Supreme Constitutional Court.
Talking about these methods is outside the scope of our research, but what we would like to point out is that these methods are the same ones that are followed when dealing with the issue of the constitutionality of international treaties on the grounds that after ratification and publication, they have become a law like all other laws.
Constitutional checks of international treaties according to the judgment of the Supreme Constitutional Court:
Of course, before discussing the constitutionality of the international treaty, it must be interpreted. There are some rules that govern the interpretation of international treaties. In principle, the rules of treaty interpretation go back to the rules by which contracts are interpreted in the field of private law, and the original rule in the interpretation of treaties was mentioned in Article 31 of the Vienna Convention on the Law of Treaties, which states “the necessity of interpreting a treaty in a manner consistent with And in good faith, and in light of the usual meaning that should be given to its terms and terms, and in their context or in a way that does not prejudice their subject or purposes.
In the interpretation of treaties, the understanding of the treaty, its context, its appendices, its preamble, and every agreement related to it between its parties are included.
It also takes into account every subsequent agreement made between the states parties to it with regard to the interpretation of the treaty or the application of its provisions.
The implementation of the effect that the legislator arranges regarding the unconstitutionality of a criminal text, from considering the conviction judgment as if it were not, even if it was final, is different from the effect that the legislator arranges in the Penal Code, when implementing the rule of law that is best for the accused, stipulated in the text of the third paragraph of Article (5) of this law.
The legislator’s acknowledgment of the text of the fourth paragraph of Article (49) of the Supreme Constitutional Court Law promulgated by Law No. 48 of 1979, considering the conviction ruling as if it had not been, does not require judicial intervention for its approval, as it is an effect arranged by the law, through the procedures taken by the Attorney General in In this regard, the Supreme Constitutional Court monitors the implementation of this effect through its jurisdiction, by adjudicating implementation disputes that obstruct the implementation of its rulings issued in this regard, as stated in Article (192) of the Constitution, and Article (50) of its law promulgated by Law No. 48 of 1979.
The Supreme Constitutional Court has the final say in the opposition to the final criminal judgments that obstruct the implementation of its provisions, not as a body to challenge these provisions, but by examining what impedes the requirement to implement its provisions, in accordance with its jurisdiction referred to in the text of Article (50) of its law promulgated by Law No. 48 for the year 1979.
Since the legality of crimes and punishments is one of the features of constitutional legitimacy in the Penal Code, the judgment of conviction issued in violation of this legitimacy does not have any validity even if it has the force of the decree, because the considerations of constitutional legitimacy outweigh the considerations of the force of the decree, all provided that To issue a ruling from the Supreme Constitutional Court recording the violation of this constitutional legitimacy. In pursuance of this legal logic, the Supreme Constitutional Court did not hesitate to rule the unconstitutionality of the criminal text, which it deems to be contrary to the Constitution, despite its amendment or cancellation thereafter. The same applies when a law is issued that is more suitable for the accused, on the basis that the agreement of the subsequent and previous laws with the provisions of the Constitution is a preliminary condition for considering the most suitable of them for the accused.
Acts of the effect of the unconstitutionality of a criminal text in relation to final criminal judgments constitute a special application of the idea of the best law for the accused, which the Supreme Constitutional Court gave a constitutional value in its rulings, so it held that the retroactive implementation of the rule of law that is best suited to the accused is not considered an exception to the law. The rule of non-retroactivity of the criminal law, nor is it a limitation on it, but rather considered it a branch of it and an inevitable result of it, and both together – according to the words of the Supreme Constitutional Court – are considered a necessary extension of the rule of legality of crimes and punishments and together they have the same constitutional value as I also went – to “the scope of The real principle of the legality of crimes and punishments is determined in the light of two guarantees that guarantee the purposes it sought: the first: the clarity of the punitive texts without ambiguity, and the second: their assumption of non-retroactivity of the criminal law, but the launch of this rule loses its meaning, because personal freedom, although threatened by the worst criminal law, This law nurtures and protects them if he is more kind to the accused, whether by ending the criminalization of offenses committed by a previous criminal law, or by modifying their adaptation or structuring some of the elements on which they are based, including It completely erases its penalties or makes it less difficult, bearing in mind that the exaggeration or insignificance of the penalty is determined in the light of the accused’s position in the field of its application in relation to him. If reaction is more beneficial to the legal position of the accused in the face of the indictment, it is inevitable.
The constitution is the supreme basic law that lays down the rules and principles upon which the system of government is based, defines public authorities, outlines their functions, sets limits and controls over their activities, establishes freedoms and public rights, and arranges basic guarantees for their protection.
Among the most important of these guarantees is the existence of a constitutional judiciary, which preserves the lofty and highness of the constitution, and obligates every authority to its constitutional limits set by the constitution.
If the constitution defines the function of each authority and what falls within its jurisdiction, it places all of this in a flexible formula that allows a degree of freedom of action that varies narrowly and broadly according to the circumstances, and according to the nature of each authority, the reference for its formation, and the role of the people in this formation, which called some Jurisprudence to talk about the discretion of the constituent power, the legislature and the judiciary, and how to monitor this discretion and its extent.
The legislative authority comes at the forefront of the authorities that enjoy wide freedom to exercise its powers, but it is not absolute.
The legislator adheres to the rules stated in the constitution, and most likely adheres to the general natural principles that derive their existence from the existence of man and his humanity, and which the judiciary in Egypt and France recognized for their existence and for their obligation to the legislator even if there is no special text regarding them in the state constitution. But whatever those restrictions are, they leave the legislator with wide freedom, according to which he can set as many rules as he wants.
The original is the freedom of the legislature, and the exception is the restrictions set by the constitution, which are usually loose restrictions. And the legislative authority – within the scope of the freedom that the constitution leaves to it – chooses of its own free will, and without the hindrance of regulation that is consistent with the public interest.
If the constitution subjects ordinary legislation to certain restrictions with regard to form (that is, the stages that legislation goes through in order to become law), jurisdiction (that is, bodies that have the right to participate in legislation) and locality (that is, the substantive restrictions that the legislation cannot overcome, such as criminalizing general confiscation or revocation of nationality), then the Muslim It is that the legislative authority is independent in evaluating the objectives of the legislation because this is related to the scope of politics more than the law, and because the legislation must be colored by the dominant party, and as long as the legislation issued by Parliament does not violate a constitutional text or rule, whether the violation is direct or indirect, the assessment of the extent of the effects The social law of the law must be left to the legislator without comment on it except by public opinion in the way regulated by the constitution (whether that is through popular objection, popular proposal or popular referendum, which are manifestations of semi-direct democracy, or through elections when the parliaments are renewed in representative democracy).
The origin for the legislator is his freedom in the matter of legislation – as we mentioned – he is the one who determines the goal of the legislation, the desired interest and the extent of its suitability at a specific time as determines the motive for it. The people, because this enables them to develop legislation and move forward within the scope set by the constitution.
This does not, of course, negate the imposition of restrictions on the legislator with the knowledge of the constitutional judiciary in cases where the constitution has not subjected him to a specific restriction.
In general, the idea of the necessity of legislation or its lack of necessity and the extent of the need for it, and the legislator’s intervention in legislation in a particular issue at a specific time or his reluctance to intervene is the essence of the discretionary power of the legislator. The regulation of a subject and the extent of the need for the existence of legislation is a matter for the legislative authority according to the appropriateness it deems appropriate. The need for legislation and its constitutionality (1).
If the legislator refrains from addressing an issue with regulation, then it is not permissible to force him to intervene – as a principle – unless the constitution has obligated him to intervene and specified the time of his intervention, which is something that does not happen often.
And if the nature of the discretionary power of the legislator interferes in its crystallization and formation of several factors, the most important of which is the method of drafting the constitution itself, the extent to which the provisions it contains are detailed or brief, and the extent to which there are multiple objective restrictions that it imposes that are a consequence of the political philosophy that he embraces, which there is no room for detail here, except that this power is in any case. Not absolute authority.
However, the greatest difficulty is within the scope of the discretionary power that Parliament enjoys in the laws it approves, because the appreciation is not lust or dictation, but appreciation is the defect of all control.
It is assumed for its constitutional permissibility that the legislator differentiates according to logical foundations between alternatives that all jostle to present different solutions in the same subject, and that all of them revolve within the framework of the public interest and seeks to achieve them. And the deepest connection to the purposes that it aims at, and the interests that give it its effectiveness.
Estimation is nothing but the realization of the judgment of reason regarding different solutions, all of which conflict with the subject matter of regulation so that the legislator gives it its right of objective evaluation that is abstract from the manifestations of fabrication. It cannot be said that the judicial control over constitutionality within the scope of the legislator’s discretionary power is to substitute itself for the legislator in what he deems correct. This is because this supervisory authority does not present the legislator with an alternative that it deems more appropriate or more acceptable, but it is keen to achieve two things:
The first is to determine the final goals that the legislator envisages from the contested legislative regulation.
Second: To consider the means that the legislator has planned to achieve these purposes.
In light of these two aspects, the legislator’s work is not considered in accordance with the constitution unless there is a logical and understandable relationship linking the legal texts that he approved or issued to their objectives. It was as closely related to its goals as the provisions of the constitution required that the legislator work within the framework of a restricted, not discretionary authority (1).