The Impact of the Formation and the Jurisdiction of the Constitutional Court (CC) on the Essential Rights and Freedoms in the Light of the 1952 Jordanian Constitution and its Amendments

Abstract

Judicature, generally, and constitutional judicature, specifically, are considered a guardian over the freedoms of the public and the rights of individuals in all countries of the world. From that basis, the Jordanian constitutional legislator founded an independent constitutional court that coincides with the constitutional amendments applied in 01/10/2011 and it specified the method of forming this court and determined its competences and jurisdictions. The formation and the extent of the court's jurisdiction are known to affect the essential rights and freedoms in one way or the other, especially when the Executive Authority solely appoints members of this court, which does not coincide with the independence of the judicial system. This is further shown when we compare how the Constitutional Court is formed in Jordan as appose to other countries. The result is that the Jordanian constitutional legislator does not benefit in any way from other countries' experiences while specifying the formation method of the Constitutional Court. Regarding the jurisdictions of the court, the amended Jordanian constitution has specified the court with jurisdictions of overseeing and monitoring the constitutionality of applicable laws and regulations as well as interpreting constitutional provisions while oversight. Oversight takes place in two methods; the first is the direct approach, which is exclusive to the House of Representatives, the House of Senates and the Cabinet. The second is the indirect approach, where one part of litigation demands the court not to enforce a regulation that is in breach of the constitution (defence of non constitutionality) in the pending case before the court. The court then, refers the defence to the court of Cassation which then considers its referral to the Constitutional Court (CC) to determine the constitutionality of the regulation.
Giving ordinary courts the authority to accept or overrule a defence, based on the validity of the defence takes away from the exclusivity of the CC to oversee constitutionality, therefore, jeopardizing essential rights and freedoms of individuals.