Directing constitutional judiciary to activate the Jordanian ConstitutionTo enable its positive role in overseeing legislative omission

Abstract

The primary objective of constitutional review is to verify the compatibility of legislative texts issued by the legislative authority with the provisions of the Constitution, based on the principle of constitutional supremacy within the state’s legal system. However, the exercise of such review raises several complex issues, most notably the problem of legislative omission and the extent to which it may be subject to constitutional judicial review. Legislative omission refers to the legislator’s failure or reluctance to enact the necessary legislative regulation required to implement a constitutional provision or to ensure the effectiveness of a constitutionally guaranteed right, which may lead to the emergence of a legislative gap that could negatively affect the protection of rights and freedoms.

   This study is based on the assumption that legislative omission, whether total or partial, may become a source of constitutional violation when it results in the suspension of rights and freedoms or empties constitutional provisions of their substantive content. Accordingly, the research seeks to determine the limits of the role that constitutional judiciary may exercise in addressing such omission, and whether this role is confined merely to declaring unconstitutionality, or whether it may extend to guiding the legislator to remedy the omission within the framework of the principle of separation of powers.

    The study therefore examines the limits of the constitutional judicial role when confronting legislative omission: should it be limited to declaring unconstitutionality, or may it extend to guiding the legislator and setting a legislative timetable for addressing the omission? It also addresses the tension between the concept of the “constitutional judge as guardian of the constitution” and the requirements of the separation of powers, which prevents the judiciary from replacing the legislative authority in establishing general legal rules. To answer these questions, the research adopts a comparative analytical approach by examining models of constitutional review that have dealt with legislative omission through various mechanisms, such as legislative injunctions, declarations of unconstitutionality accompanied by a grace period, or interpretative decisions that remove constitutional inconsistency without creating new legal rules.

   The study concludes that judicial review of legislative omission can be exercised while respecting the principle of separation of powers, provided that the constitutional judiciary confines its role to identifying omissions that have constitutional implications and drawing attention to the necessity of legislative intervention to address them, without substituting itself for the legislative authority in establishing general rules or determining legislative policies.