This article examines the constitutionality of the Law of Election to the Jordanian House of Deputies No. (9) for 2010. This law was introduced as a Provisional Law by the Executive, owing to the absence of legislative authority. The power of the Executive to decree provisional laws is constitutionally recognised; nevertheless, specific conditions in Article 94 of the Jordanian Constitution still apply. The Provisional Law of Election raises concerns regarding its adherence to the provision of Article 94, which makes its compliance with the Constitution questionable. Therefore, this article examines to what extent the conditions of Article 94 apply to the new Law of Election so that, in the event that one or more of the conditions are missing, the law should be deemed unconstitutional. This article concludes that the condition of ‘a state of necessity’ is not applicable, and, as such, the new Law of Election could be classified as unconstitutional.
Mohammand Kamel Lailah, The Constitutional Law (Egypt: Al-Nahḅa al-Jadīda Press, 1967), 428. There is a different view that in the absence of the National Assembly or when it is dissolved, the principle of separation of powers disappears temporarily. Accordingly, the Executive takes over the roles of the legislative; see Ziad Ali Al-Kayyed (2000), Provisional Laws in the Legal System of Jordan, LLM Dissertation, School of Law, The University of Jordan, p. 151.
Taher H. Kanaan and Marwan Kardoosh, ‘Law Making Process for Trade and Investment Promotion in Jordan’, in ZEF Projekt: ‘Verbesserung der Wirtschaftsgesetzgebung in arabischen Ländern’ (überregionales Forschungsvorhaben)Zentrum für Entwicklungdforschung, Centre for Development Research, University of Bonn (Bonn, Germany, January 2005) p. 18.
Between 1961 and1967, the High Court of Justice claimed that it had no jurisdiction to examine the constitutionality of provisional laws and the ‘urgency factor’ thereof. See Court Case No. 46/61 and Court Case No. 88/61, published in the Bar Association Magazine, 9th edn., Year 9, pp. 455 and 707; and Court Case No. 41/63, published in the Bar Association Magazine, 4th edn., Year 11, p. 272. However, since 1967, the court has been scrutinizing the constitutionality of provisional laws, but without overseeing the condition of ‘urgency factor’. See Adel Al-Hiyari, supra note 18 at p. 670.
Russell E. Lucas, ‘Press Laws as a Survival Strategy in Jordan 1989-99’, Middle Eastern Studies, 39(4) (2003) 81-98.
In2009, the National Assembly rejected three legislations that had been passed as provisional laws: the Law Amending the Law of the Jordan Medical Council No. (25) of 1989, the Law Amending the Law of the Youth Welfare No. (59) of 2001 (see the Official Gazette, No. 4945, p. 6590, dated 4 January 2009) and the Law of the National Commission for Manufacturing No. (42) of 2002 (see Official Gazette, No. 4976, p. 4165, dated 16 August 2009). Also, in 2009, the National Assembly amended the Law Amending the Law of the General Sales Tax No. (23) of 2003 (see the Official Gazette, No. 4990, p. 5533, dated 25 October 2009).