and the legality of government actions. This avenue appears to be aimed at
organs of government instead of individuals and civil society. Only the following may make a request to the Constitutional Assembly: the President of the
Republic, the Prime Minister, the Ombudsman, the President of the Assembly
of the Republic and the Attorney-General. Ordinary citizens only qualify if they
manage to join a group of at least 2 000 people. 5 In accordance with Article
245(2), these may request the Constitutional Council for a declaration on the
unconstitutionality of a law or the illegality of other normative acts of the
state’s bodies. It is no wonder that this mechanism has never been applied.
279.
Only two examples could be identified where the Constitutional Council was
consulted. One was in 1996, when the General Assembly approved a law
that tried to institute Islamic holidays. By request from the President of the
Republic, the Supreme Court, then acting as the Constitutional Council, gave
its decision on the unconstitutionality of that law. On the basis of the court’s
decision, the President sent the proposed Islamic Holiday Law back to the
General Assembly, which did not advance the matter again. In a more recent
case in December 2004, which pertained to the approval of the Law on Combating Corruption, the President requested the Constitutional Council for an
opinion before enactment of the law. The request was denied, based on the
fact that the Constitution did not grant the Constitutional Chamber the powers
to decide on the unconstitutionality of a particular law or other normative law
before that law or Act had been approved and became operative. The Law on
Combating Corruption was eventually approved by the General Assembly after
some changes were suggested by the President.
280.
Excessive powers of the Executive vis-à-vis the Legislature and Judiciary lead
to the perception that members of the Executive are above the law and violations of the law by government officials will go unchallenged.
Periodic Political Competition and Opportunity for Political Choice
281.
The Constitution and the GPA guarantee multiparty democracy and the electoral system as the basis for electing national political leadership. Protocol II of
the GPA guarantees the existence of political parties for the primary purpose of
giving expression to the political will of the people, and enunciates principles
ensuring that they operate freely and pursue patriotic goals. Political parties
are to be equal before the law and have the right to propound their policies
freely and publicly. They are given guarantee of access to the mass media and
public funding by the Electoral Act, and no citizen is allowed to suffer discrimination by virtue of his or her membership of a political party. In return, political
parties must avoid the use of acronyms or symbols that can incite violence or
5
This only became possible with the Constitution of 2004, as the Constitution of 1990 did not allow common
citizens to bring cases of unconstitutional law or other normative acts before the Constitutional Council.
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