Validity of the Provisions of the Constitutional Justice in Terms of Time: A Comparative Study
Dr. Esam Saeed Alubaidi
Associate Professor of Public Law
College of Law – University of Sharjah – UAE
The purpose of this study is to examine the validity of the provisions of the constitutional justice which are unconstitutional in terms of time, especially the statement of the general constitutional or legal rule relating to the effect or temporal scope of these judgments in that they have immediate effect directly from the date of the issuance of the judgment or its publication, or retroactively from the date of issuance the law.
This research is of increasing importance since it is related to the temporal effect of the unconstitutional provision on the principle of legality and the principle of legal security, which raises many novel legal problems. Legal systems which consider the rule of retroactive grant priority to the principle of legality at the expense of the principle of legal security. On the other hand, systems that follow the rule of immediate or direct impact are considered by some jurists to achieve some balance between the principle of legality and the principle of legal security. However, these latter systems can also be seen as having negative effects on the application of the principle of legality, as long as the direct effect of the unconstitutional provision nulls the law that violates the Constitution from the moment of issuing the judgment and correct before the issuance of the judgment which violates the principle of equality before the law.
The research presented the main topics of the validity of the provisions of the constitutional judiciary in terms of time through two sections that deal with the concept of the rule of the retroactive effect, the immediate effect, the legal basis on which they are based and the exceptions thereto through adopting a comparative analytical approach that presents the positive and negative aspects of these general rules.
The research concluded with a preference for the rule of immediate or direct effect as opposed to the retroactive rule of unconstitutionality as long as it can be seen to achieve some balance between the principle of legality and the principle of legal security as the principle of legality applies to the present and the future as well as to the principle of legal security in relation to the past. The study also recommended that the Constitution shall provide for the immediate effect rule while empowering the constitutional judge to take decisions regarding exceptions where necessary.
Keywords: the temporal impact of unconstitutional rule, the immediate effect, the retroactive effect, the modification of the temporal effect, the principle of legal security, the principle of legality.