Hypotheses of the constitutional judiciary’s oversight of negative legislation

Abstract

If the legislator’s refusal to organize a specific subject is considered a deviation from the limits that the legislator should have adhered to in exercising his authority, the judicial treatment of this deviation requires a statement of the constitutional contexts that can be relied upon to compel Parliament to commit to exercising its legislative powers in the manner referred to in the Constitution, and At the same time, the constitutional judge is guaranteed his competence to monitor cases of the legislator's failure to enact legislation, which, if achieved, may declare a constitutional violation.

The judiciary’s silence about monitoring negative legislation means that there is an area of ​​legislation that is not monitored by the judiciary, which cannot be accepted even if the texts of some constitutional documents are devoid of reference to it. The judiciary should intervene to monitor the constitutionality of legislation, whether positive or negative.

It is known that the constitutional judge’s oversight of the positive jurisdiction of the legislator does not raise any problem, given that the role of the constitutional judge is mainly focused on verifying the extent of his commitment to the rules for distributing jurisdiction as defined by the Constitution, and it judges the unconstitutionality of laws if it is proven to him that the legislator has exceeded the limits of his mandate. But it is the legislator’s renunciation and refusal to exercise his legislative competence granted to him by the constitution that raises the problem, which raises the question whether the legislator’s silence and inactivity in exercising his legislative competence is considered a violation of the rules of the constitution?

Or does the violation include only cases in which the legislator regulates the issues that it is competent to organize in an incomplete way or is limited only to cases of non-compliance with the limits of the legislative mandate, or cases of referral to the executive authority to clarify and supplement the laws, and this is what we will try to address in the context of this study