Supreme Constitutional Court review of the legislative omission in Egypt in light of international experiences

Abstract

This study examined the concept of legislative omission and distinguished it from several similar concepts. It also showed the reasons for its occurrence and analyzed the conditions that must be met for the phenomenon to be considered a legislative omission. Furthermore, the study reviewed some international experiences related to the judicial constitutional oversight of the practice of legislative omission. The study concluded that some countries regulate constitutional judicial review over legislative omission by the provisions of the constitution and other countries by the provisions of the law.

1. Introduction

The constitution in any country is an essential reference for the work of each of the three authorities founded in it [1], as it defines the competencies of each of them, its obligations, and the limits of exercising these competencies without questioning any authority on the competencies of the other, in the implementation of the principle of the separation of powers [2,3], taking into account that other authorities must exercise these competencies and not misuse them, within the framework of constitutional legitimacy [4].

It is well established in most countries that the legislative authority is the most capable of elucidating the general interests of citizens because it expresses their will in response to being directly elected by them. The legislative authority is considered representative of the people; therefore, it enjoys considerable freedom in determining legislative priorities through its policies. It also selects the most appropriate legislative issues, among several alternatives, which it believes achieve the community's general interest, all without any oversight other than that of public opinion and the electorate [5].

Despite this, mutual control between the three authorities is considered one of the pillars of direct democracies. This control narrows in countries that adopt an absolute separation of powers but expands in countries that adopt the principle of flexible separation. The oversight of the constitutionality of laws is one form of judicial oversight over the laws enacted by the legislative authority. Today, hardly any state constitutions are devoid of regulation of this oversight [6].

Supposing the legislator regulates one of the rights or freedoms stipulated in the constitution in a defective manner violates the constitution. In that case, the Supreme Constitutional Court may rule that the flawed text is unconstitutional. Organizing without it is considered a breach of the guarantees the Constitution has provided. This violation of the constitution must be suppressed by the intervention of the Supreme Constitutional Court, the implementation of its constitutional control over the legislator's omission, and the ruling that the text is unconstitutional in terms of regulation that it did not include.

Some countries have explicitly regulated constitutional oversight over legislative regulation's assumed shortcomings. Conversely, other countries have not specified this explicitly, even though the constitutional courts have de facto implemented this type of constitutional oversight over legislation. Some countries have dealt with this issue very distinctly since the supreme courts of these countries can address it on their own or at the request of individuals and monitor shortcomings in the legislative organization, whether in whole or in part. Some countries suffice only by merely announcing cases' shortcomings or addressing the legislative authority in this matter. As for Egypt, the Constitutional Court has been exposed to several cases from which it can be concluded that it sometimes monitors a legislative omission when it is relative or partial. In other instances, its rulings are simply directives to the legislators urging them to intervene to address legislative shortcomings in cases of total omission.

1.1. Research problem

In the past, there has been no agreement on a definition of legislative omission in constitutional jurisprudence. Despite this, some countries have identified cases of legislative omission by referring to it in the constitution or the law regulating the Supreme Constitutional Court. The constitutional judicial review of a legislative omission is one of the essential tools granted by constitutions or laws to the Supreme Constitutional Court to achieve legal security and legislative justice. However, in some countries, such as Egypt, the constitution or the law does not regulate the constitutional judicial review over legislative omission. Moreover, the Supreme Constitutional Court has implemented its constitutional review over the legislative oversight.

Therefore, this study attempts to define accurately what legislative omission means and the reasons for the emergence of this phenomenon. The study will also try to answer the central question:

How can the constitutional judicial review of legislative omission achieve legislative justice and legal security?

Finally, the study will also attempt to address some of the questions that derive from this question, which are as follows.

• a)What is meant by legislative omission, and what distinguishes it from other similar concepts?
• b)What are the conditions for implementing a constitutional judicial review of legislative omission and the reasons for its occurrence?
• c)How did some countries constitutionally and legally organize constitutional judicial review over the legislative omission?
• d)What frameworks govern and regulate constitutional judicial review over legislative omission in countries that do not have constitutional frameworks regulating the constitutional judicial review over legislative omission?

1.2. Research significance

The importance of the research originates from the presenting side to address the oversight of the Supreme Constitutional Court in the legislator's omission to regulate one of the legal aspects that will not be completed without addressing it, as it is crucial to analyze the philosophy on which the Supreme Constitutional Court is based in this field and focus on whether this constitutes an infringement of it and infringes on the jurisdiction of the legislative authority, as the latter has the freedom to either intervene and regulate one of the legislative matters or leave them unregulated, which is all within the framework of searching for the best ways to achieve justice in the event of a legislative omission.

2. Methodology and scope

Research design: This research relied on two main approaches. It utilized content analysis to analyze the rulings of the Supreme Constitutional Court in Egypt related to the treatment of legislative omission to stand on constitutional grounds in exercising this jurisdiction and establishing its oversight philosophy. A comparative approach was also used to review other constitutional systems adopting this type of control to achieve justice and legal security.

This study seeks to answer the following questions.

• ⁃What is the definition of legislative omission?
• ⁃What are the conditions for implementing a constitutional judicial review of legislative omission and the reasons for its occurrence?
• ⁃What is the constitutional and legal framework for the judicial review of legislative omission in some other countries?
• ⁃What is the framework of judicial constitutional review in countries that do not have a constitutional or legal framework for the judicial review of legislative omission?

The study defined legislative omission precisely and distinguished it from several similar concepts. It also analyzed the conditions that must be met to rule that the law is unconstitutional for the legislative omission. Moreover, the study dealt with the reasons that led to the phenomenon of legislative omission. The constitutional frameworks regulating constitutional judicial control over a legislative omission in Brazil and the legal framework for constitutional judicial control over a legislative omission in Hungary were also examined.

Data collection and analysis: The study examined several other studies of books and scientific articles in English or Arabic. It relied on English-language sources published in indexed journals and databases such as Scopus, Web of Science, and EBSCO. It also relied on multiple sources in the Arabic language when studying the cases of Egypt and Kuwait and analyzing the legal frameworks for each of them on the jurisdiction of the Supreme Constitutional Court. Several laws and constitutions were also consulted: the Brazilian, Hungarian, Egyptian, and Kuwaiti constitutions, the Brazilian Federal Supreme Court Law, the Hungarian Supreme Constitutional Court Law, the Egyptian Supreme Constitutional Court Law, and the Kuwaiti Constitutional Court Law.

Several results were presented in light of Brazil's and Hungary's experiences and how these experiences can benefit Egypt and Kuwait; subsequently, recommendations were made accordingly.

3. The definition of legislative omission

Legislative omission is considered a global phenomenon, as deficiencies in legislation or weaknesses are deemed inevitable, intentional on the legislator's part, or unintentional, such as through negligence [7]. It is agreed that legislation is the product of human work. No matter how accurate and experienced the legislator is in the field of legislation, it will not reach perfection, as it is very difficult for the legislator to envision or anticipate all emerging problems [8,9] and then develop solutions or legislative regulations for them [10].

However, legislators may sometimes not wish to regulate a specific issue in society, and this is where what is called a legislative vacuum or shortcoming develops, as a loophole appears in the legal system in force in the community [10]. At other times, the legislator may organize an issue incompletely; that is, he sets certain legal rules to regulate a specific issue, but he does not cover all aspects of this topic, which leads to what some jurists call ‘legislative omission’ [11].

The idea of constitutional judicial review of the omission of the legislator or his legislative shortcomings is considered one of the ideas that do not receive sufficient attention, whether on the theoretical or practical level; however, recently, this idea began to garner its share of jurisprudential attention on the academic level as well as on the practical side through the rulings of the various constitutional courts, and this is not in a specific country but at the level of most countries [4,7].

Constitutional jurisprudence did not agree on the definition of legislative omission or rely on a single term indicating this phenomenon [12]. This situation is due to the overlapping and similarity of several concepts [11].

Accordingly, the paper will discuss the definition of ‘legislative omission’ from three perspectives, but first, the paper will address the historical background of this concept.

3.1. The historical background of legislative omission

The term ‘legislative omission’ appeared for the first time when dealing with German constitutional jurisprudence on the occasion of the ruling of the Federal Constitutional Court related to Article 1712 of the German Civil Code, where it considered that the failure to include equal conditions for legitimate and illegitimate children is regarded as an omission by the legislative authority. In this ruling, I urged her to address this omission before the end of the legislative term [[13], [14]].

The theory of legislative omission—with suspicion of unconstitutionality—began to emerge in the 1970s in Europe [15]; the Italian Constitutional Court used this theory as a basis for many of its decisions that deal with some provisions not included in the legislation by issuing decisions adding to the legislation [16]. Subsequently, the idea of judicial constitutional review of legislative omission formed a large part of Portuguese constitutional jurisprudence in light of the provisions related to control over the constitutionality of laws in the context of the Portuguese constitution promulgated in 1976 [10].

Despite this beginning in the theory of judicial constitutional review of legislative omission, this idea did not receive sufficient attention at the global level until the Fourteenth European Constitutional Courts Conference was held in 2008, with the title ‘Problems of Legislative Omission in Constitutional Jurisprudence’, where reports concerned national constitutional courts in Europe and then explained what is meant by legislative omission and the problems raised by a judicial constitutional review of this omission [17].

3.2. Constitutional and legal definition of legislative omission

None of the constitutional or ordinary legislators defined legislative omission, although some systems explicitly stipulated this type of judicial review. Some constitutional and legal systems have recognized the authority of the Constitutional Court to review legislative omissions and set controls for this oversight and the criteria employed to conduct it. However, it did not provide a specific definition for this type of oversight.

Regarding the constitutional definitions of the oversight of omissions, the Brazilian Constitution promulgated in 1998 contented itself in Article (103/2), merely stipulating that legislative omission is considered unconstitutional if it would prevent the activation of a constitutional rule, thereby creating a gap or legal loophole [18].

As for the legal definitions, by reviewing Constitutional Court Law in the State of Hungary, issued in 2011, it appears that the law has identified three cases of what is considered legislative omission in violation of the constitution, as follows (Section 46 of Act CLI of 2011 on the Constitutional Court of Hungary) [19]:

‘a) Negligence of the legislative authority in performing necessary acts if derived from an international treaty. b) The failure of the legislative authority to enact a law despite an explicit referral from a constitutional text. c) That the law that implements the constitutional provisions is not complete or sufficient to implement the constitution.

As for the Arab constitutions, whether in Egypt, Kuwait, Bahrain, or elsewhere, their situation is the same as that of the majority of countries in that their constitutions or even their regular or subsidiary legislation do not stipulate the jurisdiction of the Supreme Constitutional Court or the Supreme Court, and accordingly, there is no concept of legislative omission; therefore, both jurisprudence and constitutional judgments have tried to define legislative omission, which will be discussed in the following two points.

3.3. Jurisprudential definition of legislative omission

The idea of legislative omission oversight appeared in the decision of the Federal Supreme Constitutional Court in Germany, issued on May 29, 1969. The court considered that Article 1712 of the Civil Code conflicts with the provisions of the Constitution since it does not include equal conditions between legitimate and illegitimate children and urged the legislative authority to address this oversight by creating conditions that guarantee equality between them before the end of the legislative term [10,7].

In Spain, the Constitutional Court stated in its Decision No. 24/1982, issued on May 13, 1982, that legislative omission only occurs in cases where the Constitution imposes on the legislator the necessity of enacting legislative rules to develop constitutional texts, and the legislator does not do so [16,12]. The same court also held in its decision No. 98/1985 issued on July 29, 1985, that it is not possible to conclude that a rule is unconstitutional due to the failure to regulate a particular issue unless there is an explicit constitutional mandate aimed at legislating this rule itself, and not another rule [15,44].

The idea of legislative omission emerged in German jurisprudence [20]. This idea also appeared in the writings of Italian jurisprudence at the beginning of the seventh decade of the twentieth century [7]. Legal theorists in Portugal devoted a wide area of jurisprudential discussions to it in light of the constitutional legislator's approval of control over legislative omissions [11]. In Egypt, public law jurisprudence did not pay attention to legislative neglect until the beginning of the new millennium.

Opinions in public law jurisprudence have varied regarding defining what legislative omission means and the main features that comprehensively define its nature. Despite this, all jurisprudential attempts made to clarify the terminological meaning of legislative omission have explained its elements without developing a comprehensive definition, considering the relative newness of this term within the scope of constitutional jurisprudence and jurisprudence [21].

There have been myriad jurisprudential definitions of the concept of legislative omission. Some have defined it as a deficiency or ambiguity contained in the legislation issued by the legislator; this can lead to a breach of one of the pillars of the legislative organization that causes the deficiency of the legal text, which is an aspect of the constitutional violation [11,22]. According to this opinion, to consider the incomplete legislative regulation of a subject as a de facto legislative omission must lead to the prejudice of one or some of the provisions of the constitution, and that is what the legislator did not include in terms of regulation on a specific issue [23].

However, this definition confuses legislative omission and legislative inadequacy. The latter occurs due to the ambiguity of the legal rules, their lack, or their distance from the political, economic, and social reality, which will be explained in detail in the treatment of the concept of legislative inadequacy.

A second body of opinion in jurisprudence defines legislative omission as the legislator's refusal to legislate as per their obligations stipulated in the constitution [24]. However, this definition expresses what is called a legal loophole, as the total legislative omission is considered by jurisprudence as such, and this definition does not address partial or relative legislative omission [12], which we are dealing with in this research.

A third body of opinion in jurisprudence tended to define the concept of legislative omission that violates the constitution as the regulation of a minor legislator for one of the issues that he is competent to organize, so he does not take note of all its aspects, which leads to a violation of one or some of the provisions of the constitution [18,40].

Hence, the legislative omission, according to this opinion, expresses the inadequacy of the legislative content to meet the constitutional requirements [25]. When the constitution guarantees the principle of equality, the legislative regulation of any subject is supposed to be effective in realizing this right [16]. It follows that any legal organization limiting this principle is invalid and necessitates a ruling on its unconstitutionality. Therefore, the rules neglected or overlooked by the legislative authority must be those required by constitutional existence [26].

Some jurists [12] have argued that legislative omission has two components. The first is the negative behavior of the legislative authority regarding its legislative duties. The second is that this behavior leads to a violation of constitutional standards. Therefore, a legislative omission occurs if the legislator neglects an aspect of one of the topics mentioned in the constitution, and this omission would limit the effectiveness of the topic in terms of regulation. This omission would also fail to activate the constitutional text [27].

This attempt is criticized for not being concerned with establishing a specific definition of legislative omission as much as it was concerned with explaining the elements and components of legislative omission [11,28], which cannot be relied upon in defining the new legal concept if it is considered that the legislator's negative behaviors are multiple and fall within the scope of other concepts, such as failure to Negative jurisdiction and legislative abstention [28,4].

On the other hand, this aspect of jurisprudence used the word “omission” to find a definition of legislative omission, which is not correct to use, as the reality of legislative omission is not clear by using that word. There will be a need to define the word omission itself mentioned in the definition [14,15], and this definition only refers to one of the consequences of the omission, which is not activating the constitutional text. It did not explicitly indicate the most critical consequence resulting from the presence of the omission, which violates the provisions of the Constitution [29].

Another aspect of jurisprudence [30] holds that legislative negligence is the abandonment of the legislator, represented in the elected parliament, from exercising his constitutional jurisdiction in legislation and not intervening to regulate the issues assigned to him under the provisions of the Constitution [31]. Despite the existence of the constitutional requirements of “normative rule” [32], the legislator has enacted inadequate or incomplete legislation [33,32].

Hence, according to this jurisprudential aspect, an unconstitutional legislative omission occurs when the legislator violates the obligations imposed by the Constitution or because they were not fulfilled completely, clearly, and explicitly as stated in the provisions of the Constitution [15,22,45].

It is noted that the last opinion explained the elements of legislative omission, its forms, and its impact. Still, it linked the existence of an obligation on the legislator to intervene with legislation and the occurrence of legislative omission, even though legislative negligence may occur without the presence of a constitutional obligation on the legislator to legislate [12]. This opinion also attributed the occurrence of legislative omission to the legislator's will by intentionally abandoning his constitutionally established legislative jurisdiction. However, legislative oversight may occur without the legislator's will due to his negligence, lack of knowledge of constitutional provisions, or inaccurate drafting of laws [34].

3.4. Supreme Constitutional Court and the supreme Court's definition of ‘legislative omission’

Constitutional courts or supreme courts in several countries have been exposed to the concept of legislative omission when considering constitutional cases related to the legislator's negligence, silence, or refusal to regulate a specific right given by the constitution's provisions. The Federal Supreme Court in Brazil defined legislative omission as ‘the state's failure to adopt the necessary measures to put constitutional principles into practice, so that they become effective and enforceable, as a result of refraining from carrying out the prescribed constitutional duty, which constitutes a violation of the text of the constitution negatively, and which results in legislative omission, unconstitutional, it may be wholly, when no measures are taken, or in part where the actions taken by the legislature are insufficient’ [12].

The Egyptian constitutional judiciary stated in one of its rulings that ‘if the legislator regulates a right or freedom in a deficient way, by ignoring or neglecting an aspect of the legal texts that this regulation is not complete without, this is a violation of its guarantees that the constitution has prepared for it, and in that is a violation the Constitution’ [35].

The Supreme Constitutional Court in Egypt decided that the legislator's breach of an obligation of an international treaty is tantamount to legislative omission subject to constitutional control. The court affirmed that the state represented by the legislator must amend its internal laws to meet its international obligations arising from the international agreement [36].

The Egyptian Court of Cassation adopted the Supreme Constitutional Court's concept of legislative omission and decided in one of its rulings that constitutional oversight does not only include what the legislator has violated directly in the rights guaranteed by the constitution. However, it also deals with what the legislator has forfeited or neglected of these rights, which is called judicial oversight of insufficiency of the legislative text or oversight of omission, which means that the legislator neglected to establish some rules in the legislative text, which leads to a breach of the controls and restrictions stipulated in the constitution and renders this omission a constitutional violation [37].

4. Legislative omission and other similar concepts

Considering the agreement in constitutional jurisprudence on a specific concept of legislative omission and the divergence of the terminology used to express this phenomenon [12] in a situation where these terms overlap and are similar to each other [22], such as ‘legislative omission’, ‘legislative inadequacies’, ‘insufficient legislative’, ‘infiltration from jurisdiction’, ‘non-negative jurisdiction’, ‘legislative abstention’, ‘legislative silence’, ‘legislative deviation’ and ‘legal loophole’. The following points will explore and distinguish these terms from legislative omission.

4.1. Legislative abstention or legal loophole

Legislative abstention is when the legislator fails to fulfill his legislative obligations stipulated in the constitution, termed a ‘legal loophole.’ This is in the case of a total abstention from issuing legislation that the legislator should have issued in accordance with the constitution, and partial abstention is in the case of regulating one of the issues, but the legislator neglects to regulate one of its aspects [22,24].

According to this view, the legal loopholes resulting from legislative abstention stem from the absence of a legal base on which the state's public authorities can decide on a legal issue or problem since the legal issue does not have a legal regulation by which it can be resolved [27].

Accordingly, legislative abstention takes place in two forms, namely, total legislative abstention and partial legislative abstention. The first case is total legislative abstention, when the legislator abstains from exercising his ability to enact legislation entirely about one of the essential issues the constitution obliges him to organize, resulting in a legislative vacuum [5,38]. The second case is partial legislative abstention, where the legislator enacts legislation in a limited way so that it does not encompass all aspects, in which case, the legal regulation is incomplete [39].

4.2. Non-negative jurisdiction [11] or infiltration from jurisdiction

The constitution defines the competencies of each public authority in the state [3] and grants it everything necessary to do so [8,12]. Accordingly, the legislative authority must exercise its competencies to enact legislation and not abandon it in favor of another authority.

Additionally, it must do so entirely if the legislative authority abandons the enactment of legislation comprehensively, whether in the case of authorization or in the case of silence on another authority issuing a regulation for a matter that is supposed to fall within the direct jurisdiction of the legislative authority. Alternatively, it may be represented partially by the legislative authority's excessive enactment of non-specific, disciplined legislation characterized by extreme generality and referral to the executive regulations issued by the executive authority to supplement the legislation or elaborate its details. Accordingly, denying legislative jurisdiction means ‘the legislative authority's abandonment of exercising its constitutional powers—in whole or in part—for the executive authority to exercise it in its stead’ [40].

A part of the jurisprudence has emphasized that the issue of robbing the legislative jurisdiction is achieved when the authority that has the legislative jurisdiction ignores the scope of its constitutional jurisdiction, as the legislator abandons organizing one of the issues that the constitution obligated them to regulate [29,41].

Accordingly, infiltration from legislative jurisdiction is that path by which the legislative authority intends to –avoid, intentionally or unintentionally, practicing the legislative competencies entrusted to it by the provisions of the constitution. The infiltration of jurisdiction is achieved by one of the following methods.

The first method: The legislative authority grants the executive authority an excessive mandate to exercise its constitutional powers related to enacting legislation violating the rules of jurisdiction stipulated in the constitution [41,23].

The second method: The legislator issues legislation that is extremely general in its rules, in addition to expanding the referral to the executive regulations, in contrast to the generally accepted principle that when the legislative authority enacts the legislation, it sets the general rules that govern the issue, and leaves the executive authority with the task of setting the necessary executive rules to implement the law as the authority so mandated on the implementation of laws [42].

The third method: The legislator assigns the organization of a specific issue to the executive authority, although the constitution obliges them to regulate this issue through the enactment of legislation [43].

4.3. Legislative inadequacies or insufficient legislative

Some define legislative inadequacies as the inadequacy of the legal text in terms of the prevailing social and political life in society at the time of its application [20]. In other words, existing legal texts cannot keep pace with fundamental societal developments.

Legislative inadequacies result from the failure of the law or its inability to address or regulate a subject [44]. Conversely, a legislative omission occurs due to the legislator's failure to fulfill constitutional requirements in undertaking regulation [17].

4.4. Legislative silence

Some of the constitutional jurisprudence distinguishes between legislative silence and other forms of the legislator's relinquishment of their authority to enact legislation or their refusal to use it or use it in a limited manner, in that legislative silence transpires in matters wherein the legislator has discretionary power. Thus, there is no constitutional obligation on the legislative authority to interfere with enacting a specific piece of legislation; therefore, the legislative authority refraining from performing its legislative function and not interfering with it cannot be considered a constitutional violation [45].

Here, the difference between legislative silence and legislative omission appears in that in the former, the organization of the subject is a purely discretionary authority for the legislator, as they alone decide to intervene and organize a specific topic or decide not to interfere. This case is characterized as legislative silence if they decide not to interfere. However, if the legislator intervenes and regulates the matter by an insufficient legal text, this process describes legislative omission.

4.5. Legislative deviation

A part of constitutional jurisprudence has held that legislative deviation means deviation from the purposes of legislation represented mainly by the pursuit of the public interest, and this appears mainly when the ordinary legislator aims to achieve a specific outcome for a specific individual, a particular group or a specific party other than what is required by the public interest [46], which was previously confirmed by the jurist Abd Al-Razzaq Al-Sanhouri when he defined legislative deviation as the legislator's use of his power to achieve an interest different from the public interest [47].

The difference between legislative omission and legislative deviation is that the former is represented by mere silence or failure in the legislative text to cover all aspects of the matter under regulation. Conversely, in legislative deviation, the legislator deliberately does not seek to follow the public interest. The element of similarity and convergence between the two concepts is when legislative omission represents a deviation simultaneously, and this occurs when the legislator deliberately neglects the legislative omission to achieve an interest different from the public interest; this case constitutes both omission and legislative deviation.

5. The reasons for the occurrence of legislative omission

The drafting of legislation requires a good knowledge of the provisions of the constitution so that the legislation does not contradict the provisions of the constitution on the one hand [48]; on the other hand, the legislator must have a certain amount of legal knowledge to enact legislation reflecting society's political, social and economic reality [21]. The legislator's neglect of the two previous assumptions may threaten stability in transactions, which could lead to a breach of legal security in society [33]. The reasons are as follows.

5.1. Members of the legislative authority do not have legal and constitutional knowledge and experience

When practicing its jurisdiction, the legislative authority must adhere to the constitution's provisions so that its organization of rights and freedoms fulfills all its constitutional guarantees. The constitution prepared the legislator for this subject. If the legislator does not do so, the organization becomes deficient and defective if it overlooks or neglects any aspect that violates a constitutional guarantee provided by the constitution on this subject [47].

Thus, the lack of knowledge of the constitutional rules and principles on the part of the members of the legislative authority and their insufficient knowledge of them that govern their work and set limits and restrictions for their legislative work is considered one of the reasons for the occurrence of legislative omission that is contrary to the constitution [49].

5.2. Weakness of legislative drafting

The weakness of the legislative drafting and its inaccuracy are among the main reasons, and perhaps even the most important of them, for the occurrence of legislative omission, as it occurs against the legislator's will. This is based on the assumption that the latter does not wish to violate the constitution, but it may not encompass all the constitutional guarantees and neglect some of them without its will, and by the human nature of its members, lead to omission or neglect of a constitutional guarantee that the legislator ignored when enacting the legislation [40].

5.3. Political party affiliations

Partisan blocs within parliament, pressure groups, and parliamentary committees are among the factors influencing the legislation industry, and these factors are considered one of the reasons for putting pressure on the legislative authority when exercising its legislative competence [50]. Therefore, partisan affiliations and discipline of partial instructions are considered one of the reasons for the occurrence of legislative omission, as deputies are often forced to vote according to the biased vision of the parties to which they belong, regardless of their own views [20]. This may lead to incompletely producing legislative rules and failing to address all the constitutional guarantees as wanted by the constitutional legislator by omitting or neglecting an aspect of the subject matter in a way that violates these constitutional guarantees [17].

5.4. The increasing legislative role of the executive authority

The role of parliament in contemporary times has undeniably diminished, and it is now mainly conducting the work proposed by the executive authority. The practical reality shows that the legislative authority does not reject any law that the executive authority wishes to promulgate without careful study. This leads to the issuance of distorted laws marred by many flaws, which may violate constitutional rights and guarantees [6,28,40].

The executive authority's growing legislative role significantly affects the legislative authority's work and the control of the former over the latter's work in all its stages, in addition to the development and ramifications of the executive authority's functions. The parliament's inability to confront them has made some believe that the role of the legislative authority is limited in the current era to merely confer constitutional legitimacy based on what the executive authority desires to conduct its business [51].

5.5. Political and economic motives of the government

Legislative omission must be without the legislator's will [7], given the composition of parliaments from elements that do not specialize in drafting legislation. However, it may happen that the legislative authority deliberately enacts a piece of legislation that does not meet some constitutional requirements and guarantees for political, economic, or other reasons [12].

5.6. Drafting the principle of the separation of powers in the constitution

The drafting of the principle of the separation of powers is inaccurate if it allows the executive authority to direct the legislative action by giving its legislative proposals priority for discussion and enactment, in addition to the government's control over the agendas of parliament in many countries may lead to a failure to address legislative issues which are integrated adequately [27].

There is a lack of understanding by both the executive and legislative authorities of their role by the principle of the separation of powers and what this requires, and following some constitutional rules has led to a decline in the role of parliament in practicing its competency in favor of the executive authority [20].

6. Conditions for implementing the constitutional judicial review of legislative omission

For a specific legislative text to be considered tainted by the defect of omission, the text must express a constitutionally guaranteed right, and there should be a legal rule that neglects the regulation of a specific aspect that entails prejudice to one of the constitutional rights or guarantees [52]. A link is also essential between the contested text as unconstitutional and the unconstitutional right [12]. Therefore, the occurrence of legislative omission as a constitutional defect requires the presence of the following conditions.

6.1. Legislator's omission or negligence in including a legal rule in organizing a specific topic

From the point of view of some, the constitutional judicial review of legislative omission cannot be raised if the constitutional legislator grants discretionary power to the ordinary legislator, given that the constitutional provision that grants the ordinary legislator this discretionary power gives him license to assess the necessity of interfering with legislation or not and deciding on the appropriate time to intervene [10].

However, others decided that legislative omission may occur in the latter case if the legislator intervened [53]. The ordinary legislator is free to intervene or not. However, if he intervenes, he must abide by the provisions of the constitution [49], and there must be negligence on the part of the legislator, failing to include one of the legal rules in the legislation regulating a specific subject.

6.2. Omission must violate any of the constitutional rules or provisions

For it to be possible to recognize the existence of an unconstitutional legislative omission, this omission must be characterized by an infringement or a breach of constitutional guarantees and rules. Still, if it is otherwise, the legislative omission is not considered to violate the constitution, and it is impossible to say that there has been a legislative omission unless there is a violation of the rules and provisions of the constitution [12].

In other words, if the omission of the legislation does not contradict constitutional rules, then it cannot be considered in contravention of the constitution, and therefore, it is considered valid. To say that the legislative omission has occurred, the rule that the legislator neglected to rule on should be present in the legislation according to the constitution [16]. This is because the constitutional rules are binding and may not be violated by the legislative authority or other authorities [30].

6.3. The constitutional rule in question must not be directly applicable

The constitutional rule must not be subject to direct enforcement for an omission to occur, and direct enforcement does not require the legislator's intervention [29]. This happens if the constitutional legislator directly organizes some rights and freedoms without referring to the legislation [32].

Hence, the constitutional legislator may see that some rights will not change in the short term; thus, he reserves his authority to reconsider the organization of this right if societal conditions change, so he does not leave the legislator a discretionary power regarding them [54]. Accordingly, it is inconceivable that the issue of omission would arise on this occasion [32] since legislative omission results from the legislative authority's omission, not the constitution's constituent power.

Whenever the right is not amenable to legislative regulation, and it is inconceivable that the legislator intervened to regulate it, given that the constitutional legislator took sufficient time to organize it, the occurrence of legislative omission contrary to the constitution is precluded [55].

Thus, the constitutional oversight of legislative omission cannot be triggered except if the constitutional basis for application or direct enforcement is insufficient; moreover, it requires the intervention of the ordinary legislator [31]. Thus, it is not conceivable that a legislative omission would occur except in the case of texts requiring the ordinary legislator's intervention.

7. Constitutional judicial review of legislative omissions according to the constitutional and legal frameworks: the case of Brazil and Hungary

7.1. Constitutional framework for judicial constitutional oversight of legislative omission in Brazil

The Brazilian constitutional legislator has entrusted the Federal Supreme Court with the task of protecting the constitution, making it the competent authority to monitor the constitutionality of laws and regulations, whether this oversight is represented in the review of the explicit provisions contained in the contested text, or represented in a legislative omission that resulted in a breach of the rules and provisions of the constitution [38]. The following will discuss the constitutional framework for judicial constitutional oversight of legislative omission in Brazil.

7.1.1. Competent authority to initiate constitutional lawsuits over legislative omissions

The Brazilian Constitution specifies the holders of certain offices of the right or competence to initiate constitutional cases in general. They are the President of the Republic, members of the Federal Senate, members of the House of Representatives, members of the legislature, the governor of the state, the attorney general, the Bar Association, political parties represented in Congress, trade union federations and national professional associations [18].

Constitutional lawsuits over legislative omission are considered direct constitutional lawsuits in Brazil. Thus, any of those above in the previous paragraph has the right to initiate a constitutional lawsuit over a legislative omission. Therefore, ordinary individuals do not have the power or right to file a direct lawsuit before the Federal Supreme Court [38]. However, individuals may initiate an indirect constitutional lawsuit through a referral from the trial court to the Federal Supreme Court [7].

7.1.2. Scope of constitutional review of legislative omission

The oversight of legislative omissions in Brazil is not only on the omissions that occur from parliament but also those that occur from the administrative authorities [18], which the Federal Court must confront, the deletion issued by the legislative authority. It has the power to notify the legislative organ concerned to intervene in addressing the omission.

As for what the Federal Court has to do in confronting the omission issued by the administrative authorities, the court may notify the administrative authority concerned with addressing the omission within thirty days and specify a time frame for the administrative authorities without the legislative authority that the first can take quick measures to address the omission from it. This is a luxury that the legislative authority does not possess because it needs longer than thirty days to complete the procedures for enacting the necessary legislation [7].

7.1.3. Authority of the Federal Supreme Court regarding constitutional cases over legislative omissions

Given the Brazilian Constitution's organization of the authority of the Federal Supreme Court about oversight of omission, it appears that it has granted the court the power to do two things; the first is to announce the existence of a legislative omission and inform the competent legislative authority if the legislative authority issues the deletion, and the second is represented in granting the administrative body responsible for the omission thirty days to remedy the omission. Accordingly, the Federal Supreme Court does not have the authority to add or modify the article to match the constitutional provisions [18].

The authority of the Federal Supreme Court did not reach the point of ruling to annul or invalidate the legislative text marred by an omission contrary to the Constitution. The constitutional organization was limited to exercising the court's power to announce the existence of an omission only or the presence of deletion and request that it be addressed within thirty days if the administrative authorities issued it. Therefore, the Federal Supreme Court does not have the power to remedy legislative omissions on its own [38] or make a direct order to Congress [56].

Although the Constitution does not give the court power to order Congress, in some of its rulings, the court has given Congress a certain leeway to intervene and adopt specific legislative measures [38].

7.2. Legal framework for judicial constitutional oversight of legislative omission in Hungary

The Constitution of the State of Hungary did not include regulation on the issue of constitutional judicial review of legislative omission. However, that did not prevent the ordinary legislator from stipulating that by the law of the Supreme Constitutional Court, given that the Hungarian Constitution stipulated the competence of the Supreme Constitutional Court to supervise the constitutionality of laws and left the ordinary legislator the task of detailing this jurisdiction in court law. The law of the Supreme Constitutional Court in Hungary included organizing the constitutional judicial review of legislative omissions. The legal frameworks governing the constitutional judicial review of legislative omission in Hungary will be explained in the following points.

7.2.1. Competent authority to initiate constitutional lawsuits over legislative omissions

The system of oversight of the constitutionality of laws in Hungary does not know the direct constitutional lawsuit. Constitutional lawsuits, whether related to legislative omission or other types of oversight, are indirect, that is, by referral from ordinary courts [33,56].

The system for initiating direct constitutional lawsuits via ‘popular oversight’ was in effect in Hungary until 2011. Ordinary or legal individuals can initiate direct constitutional lawsuits whether they have a personal interest in them [57]. However, this type of lawsuit was canceled unless these individuals had a personal interest in challenging the supposed unconstitutionality [58].

Additionally, the courts can stop any pending cases and refer them to the Constitutional Court to consider the constitutionality of a legal or statutory provision that should be applied to the subject matter of the dispute brought before it. The Supreme Constitutional Court must decide on this case within 90 days [19].

7.2.2. Scope of constitutional review of legislative omission

The scope of the constitutional judicial review of legislative omission in Hungary extends to partial or relative legislative omission as well as total or absolute omission, a ‘legislative omission’. The court has the power to initiate constitutional action whether the omission stems from the legislative authority on the occasion of its enactment of a law or the omission stems from the executive authority on the issuance of regulations [7].

Legislative omission occurs if the legislation does not adhere to the constitutional rules and provisions. It also occurs if the legislator breaches an obligation arising from an international treaty. The legislator must not violate the rules and provisions of international treaties while enacting a specific piece of legislation [19].

The Constitutional Court Law in the State of Hungary issued in 2011 has identified three instances of what is considered legislative omission in violation of the constitution, as follows (Section 46 of Act CLI of 2011 on the Constitutional Court of Hungary) [19].

• a)Negligence of the legislative authority in performing necessary acts if derived from an international treaty.
• b)The failure of the legislative authority to enact a law despite an explicit referral from a constitutional text.
• c)The law that implements the constitutional provisions is not complete or sufficient to implement the constitution.

7.2.3. Authority of the Supreme Constitutional Court regarding constitutional cases over legislative omissions

According to the law regulating its work and jurisdiction, the Constitutional Court's authority in Hungary is limited to simply addressing the legislative authority or directing an invitation to it to fulfill its legislative obligations by the provisions of the constitution, but without the court has the authority to impose a penalty on the legislative authority, or to set a specific deadline for it to fulfill its legislative obligations [34].

However, the legislative authority, if it is invited or addressed by the court to handle cases of unconstitutionality related to legislative omission, must take the initiative to correct this omission and not violate the court's decision, as violating the court's decision would lead to the violation of the provisions of the constitution. Although this does not entail legal responsibility in the rights of parliament, its members appear before the voters as a waste of their rights and an infringement of their freedoms in violation of the constitution's provisions [7].

8. Frameworks for constitutional judicial review of legislative omission in countries that do not have constitutional and legal frameworks regulating the oversight of legislative omissions: the case of Egypt and Kuwait

8.1. Frameworks for constitutional judicial review of legislative omissions in Egypt

The Egyptian Supreme Constitutional Court monitors legislative oversight in multiple ways. Sometimes, it sets controls and standards that are considered an addition to the unconstitutional legal article [39]. Thus, there is no need for legislative intervention to amend the unconstitutional legal article to be compatible with the Constitution's provisions [53]. Also, the Egyptian Supreme Constitutional Court may rule that the legislative omission is unconstitutional but does not issue additional controls or standards. Here, the unconstitutional legal article is only partially applied, and the unconstitutional part is not applied [55]. In this case, the judicial authority will not find standards or controls when considering the substantive dispute. Therefore, for its part, it will establish these controls or standards and apply them to the subject of the dispute [21]. The constitutional ruling that the legislative omission is unconstitutional may require intervention by the legislator to regulate the issue that was ruled unconstitutional due to the legislative omission [31]. Here, the legal article is suspended until the legislator intervenes to amend it consistent with the constitution's provisions [7].

The Supreme Constitutional Court in Egypt derives its authority to review the legislative omissions from the Egyptian Constitution, which stipulates that ‘the Supreme Constitutional Court exclusively undertakes oversight of the constitutionality of laws and regulations … …’ [59].

The Supreme Constitutional Court Law also reinforced the constitutional text by stipulating that ‘the Supreme Constitutional Court is exclusively concerned with the following: Judicial oversight of the constitutionality of laws and regulations’ [60].

Although the constitution does not stipulate the jurisdiction of the Supreme Constitutional Court explicitly in the judicial review of legislative omissions, the Egyptian Supreme Constitutional Court has reviewed legislative omissions, and the basis of its review of legislative omissions is based on the rule of applying texts rather than neglecting them. According to the constitutional and legal text regulating the court's authority, an omission is implied because of necessity. The control over the constitutionality of laws and regulations includes the execution of the text through the judiciary that it is unconstitutional, and it also includes correction by stipulating the unconstitutionality of its omission of a particular aspect while defining this aspect [8].

The Egyptian Supreme Constitutional Court is suspending the application of the article tainted by the defect of omission, as the Egyptian Supreme Constitutional Court ruled in one of its rulings that “unconstitutional the text of Clause (3) of (Second) of Article (75) of Law No. 90 of 1944 regarding judicial fees and documentation fees in Civil matters, since it did not include setting controls and objective foundations for the system of investigating the true value of lands intended for construction located on the outskirts of cities and collecting a fee for the increase that appears in this value …” [61].

In this case, the Supreme Constitutional Court did not specify in its ruling the foundations and controls that make the investigative system a constitutional system, and therefore, the text ruled unconstitutional remains suspended and ineffective, as the state authorities cannot implement the omitted text until the legislator intervenes by issuing a new legislative text that includes A set of controls and objective foundations that ensure the compatibility of the investigative system with the provisions of the Constitution [2,48,50].

The constitutional judge's ruling that the legislative omission is unconstitutional may not result in halting the application of the contested legislative text completely but halting only some of the provisions in this text. An example of this is the ruling of the Egyptian Supreme Constitutional Court: “First: the unconstitutionality of the second paragraph of Article 103 of the Income Tax Law promulgated by Law No. 157 of 1981 amended by Law No. 187 of 1993 in what it included authorizing the Tax Authority not to take into account the declaration and determining revenues and profits by estimation, without setting controls or criteria for this assessment …” [36].

Some jurisprudence has held that the legislative text in the cases referred to becomes suspended under the ruling of the constitutional judge for not specifying the nature of the substantive conditions imposed and their details until the legislator intervenes to clarify the details of the restrictions imposed. If he refrains from interfering, the text becomes suspended and may not be implemented [15,20].

The ruling of the Supreme Constitutional Court in the first case referred to requires that the constitutionality of determining the value of agricultural lands and the supplementary fees due on them remain dependent on the legislator's legislative intervention to establish the foundations and controls of the system for investigating the value of those lands. If the legislator does not establish those controls and foundations, assessing the value of agricultural land through the investigation mentioned in the text above is invalid [29,30].

The Egyptian Supreme Constitutional Court also supplements unconstitutional legislation by adding conditions or cases due to legislative omission. This is what the Supreme Constitutional Court explained by saying, “… ruling that the Article above 71 is unconstitutional in terms of restricting the addition of the additions and additional periods stipulated in Articles (8) and (9) of this law to civil servants in the state and the public sector exclusively, It leads automatically and without the need for legislative intervention to the equality of the plaintiffs addressed by its provisions in the field of their use of the rights guaranteed to them, and if the Constitution originally authorized the legislative authority to enact legal texts, considering that this is within the scope of the natural circle of its activity, it does not protect it from being subject to judicial oversight. The Supreme Constitutional Court exercises its constitutionality, and it is a supervision whose goal is to nullify what violates the Constitution, even if it is in terms of the rights that it implicitly squandered, whether its violation of them was intentional in the first place or occurred by accident …” [62].

An example of this is also the ruling of the Supreme Constitutional Court: “First: that the text of Clause 2 of Article 106 of the Social Insurance Law No. 79 of 1975 is unconstitutional. Second, the text of Clause 4 of Article 112 of the law mentioned above is unconstitutional in what it did not include regarding the husband's right to combine his pension.” On behalf of his wife and his pension as a beneficiary of the provisions of this law, as well as combining his pension on behalf of his wife with his income from work or profession, without limits” [37].

This also includes the ruling of the Supreme Constitutional Court “that the third paragraph of Article 11 of Law No. 48 of 1946 regarding the endowment provisions is unconstitutional in terms of the limited prohibition of revocation or change in the endowment of the mosque in the beginning or in what it was endowment on in the beginning, excluding the church …” [35] based on the fact that “Endowment Law No. 48 of 1946 has prohibited, according to the contested text, the return or change of the endowment of the mosque in the beginning or of what it was initially endowed with without the church adding to this ruling despite the fact that It is equal to the mosque in that each of them is a house of worship designated for the practice of religious rituals, and therefore unjustified discrimination has been established in this area, violating the principle of equality stipulated in Article 40 of the Constitution” [35].

The Supreme Constitutional Court may leave it to the judicial or executive authority to set the necessary controls or standards to implement the text. An example is the Supreme Constitutional Court's ruling, “Firstly, that the text of Article 25 of the Law Organizing the State Litigation Authority No. 75 of 1963 is unconstitutional. Secondly, the text of the third paragraph of Article 1 is unconstitutional.” 26 of the law mentioned above, insofar as it does not include the obligation to hear the member's statements during the investigation stage …” [63]; The court relied on the fact that “… the Constitution's guarantee of the right to defense, has been established as one of the fundamental pillars of the rule of law, guaranteeing the justice of the judicial dispute, and in a way that preserves its value. It falls under it that the decision should not be far from its evidence or denying the right to abort it by confronting it.” By destroying the documents and statements of witnesses, the structure of the dispute is an assault on the rights of one of the opponents, but rather an equal opportunity between them in proving or denying it to highlight its facts and connect with all its elements. Whenever this is the case and the text of the third paragraph of Article 26 of the Commission's law is Except for what makes it necessary to hear the statements of the member referred to the investigation, its content is in a vacuum, and an accusation may not be based on it” [63].

In this regard, the Supreme Constitutional Court also ruled “the unconstitutionality of the text of Article 23 of the Customs Law issued by Presidential Decree No. 66 of 1963, in what it did not contain regarding the necessity of giving reasons for the Customs Authority's decision to introduce data related to the value of imported goods recorded in documents, contracts, correspondence and invoices submitted by the owner.” The goods …” [64].

8.2. Situation of the constitutional court in Kuwait in terms of legislative omissions

The Kuwait Constitution specified the jurisdiction of the Constitutional Court, as it stipulated that ‘the law designates the judicial body that has jurisdiction to adjudicate disputes related to the constitutionality of laws and regulations and clarifies its validity and the procedures it follows. The law guarantees the right of both the government and stakeholders to challenge the constitutionality of laws and regulations before that body. If the authority above reports that a law or regulation is unconstitutional, it is considered as if it did not exist [65].

The law establishing the Kuwait Constitutional Court confirmed this jurisdiction, as it stipulated that a constitutional court shall be established with exclusive jurisdiction to interpret constitutional texts and to adjudicate disputes related to the constitutionality of laws and decrees by laws and regulations, and in appeals related to the election of the National Assembly or the validity of their membership. The ruling of the Constitutional Court shall be binding on all courts [66].

The practical reality in Kuwait highlights that the Kuwaiti Constitutional Court did not conduct a judicial review of legislative omissions. It decided that ‘this court is restricted in its judgment to the scope of the appeal and the basis for implementing its constitutional oversight. And according to its ruling. The basis of the appeal is the violation of the challenged legislative texts to a text in the constitution, and the court has no business in examining the appropriateness of these texts, nor what some shortcomings and shortcomings appeared as a result of their application, nor by claiming that these texts did not bear fruit and achieve their goals. These matters may require consideration of amending them if they are insufficient with the goals, and that is with the legal tool prescribed by the constitution, but they are not fit to be a reason to challenge them. After the constitutionality, this is beyond the scope of the judicial oversight of this court’ [67].

This makes it clear that the court does not exceed its jurisdiction, and it will not address the oversight of legislative omission because there is no explicit text to that effect; if it did so without the existence of a text, this would be considered—from its point of view—a violation of the principle of the separation of powers [28].

9. Conclusion

The study presented the specific concept of legislative omission. It distinguished it from similar and overlapping concepts such as legislative inadequacies, insufficient legislative, infiltration from jurisdiction, non-negative jurisdiction, legislative abstention, legislative silence, legislative deviation, and legal loopholes.

The reasons that led to the occurrence of the phenomenon of legislative omission were also discussed and were found to be divided into two parts. The first is due to the legislative authority, and the second is due to other reasons. The condition that must be met to be considered in the case of legislative omission is whether unconstitutional omissions were also addressed, as several conditions must be met for legislative omission to be considered violating the provisions of the constitution, requiring intervention to end its violation.

The experience and expertise of some countries were presented. Brazil organized a constitutional judicial review of legislative omission by establishing a constitutional framework organizing it. Hungary organized a constitutional judicial review of legislative omission by law. Conversely, Egypt and Kuwait have no constitutional or legal framework regulating the constitutional judicial review of legislative omission. Furthermore, there are texts authorizing the Constitutional Court to oversee the constitutionality of laws and regulations without mentioning omission oversight.

9.1. Results

The concept of legislative omission concurs with other similar concepts. There is enormous confusion between it and these concepts, and their treatment differs in the event of their occurrence. Additionally, after presenting the experience of Brazil, it was found that the constitutional framework governs the constitutional judicial review of legislative omissions but to no avail, as the Federal Supreme Court has no choice but to announce the existence of an omission or notify the administrative authorities of the presence of an omission. Moreover, the experience of the State of Hungary revealed that the legislator in the law of the Supreme Constitutional Court did not limit the constitutional judicial review of legislative omission to the omission's violation of the constitution nor its violation of an international treaty. However, the issue with this experience is that it is not sufficiently effective, as it ends up merely announcing the existence of a case of legislative omission and asking the legislator to do so without penalty if the legislator does not respond.

Generally, it is possible to distinguish between two types of legislative omission: absolute legislative omission, which is called legislative omission, and relative or partial legislative omission [32]. Legislative abstention means the absence of a legal article that regulates the right subject to the law [12]. Partial legislative omission means that the legal article that regulates the right has not fully regulated it [27]. Absolute legislative negligence relates to cases of legislator silence, and this type of legislative negligence is not subject to constitutional oversight by the judiciary in many legal systems, including the Egyptian legal system. Even for those systems that monitor legislative negligence, such as Brazil, Hungary, and also Portugal, they do not have real powers that enable them to play the role of legislator, which is called the “positive legislator,” as the powers of these courts do not go beyond the role of caller to fill the legislative vacuum, and are excluded from This is the role of the constitutional judge in South Africa, in which the constitutional judge has a role in legislation [7]. He is considered a partner of the legislative authority in exercising its jurisdiction in cases of total legislative omission [11].

When regulating the powers of the Supreme Constitutional Court, the constitutional legislator must not expand its powers related to legislative omission so as not to lead to cases of constitutional despotism [32]. Granting broad powers to the Supreme Constitutional Court to regulate rights that Parliament neglects would undermine the principle of separation of powers, as it could lead to the Supreme Constitutional Court ruling that laws are unconstitutional due to legislative negligence, so that we can play the role of the legislator, and here what is called constitutional despotism is formed, which is despotism with the authority of legislation based on its constitutional jurisdiction. The constitutional legislator must deal carefully with this issue [12].

Constitutional judicial rulings regarding total legislative negligence are only revealing or declarative decisions that do not have binding effects on all, such as obliging Parliament to issue legislation that it refrains from giving [22,48].

However, the Supreme Constitutional Court plays a vital role as a positive legislator in partial legislative neglect, setting controls and standards added to the legislative text [48]. This is not considered the creation of new legislative texts. Its purpose is to allow the constitutional courts to protect the constitution and not let these courts usurp the legislative authority of Parliament and perform the legislative role instead [31]. Meanwhile, allowing the Constitutional Court to add controls and standards complementary to the unconstitutional legal article due to legislative omission can be regarded as complementary to the incomplete legislation issued by Parliament [28]. This is the limits of the role of the Supreme Constitutional Court as a positive legislator. As for the total legislative omission or silence, the Supreme Constitutional Court does not have the authority to formulate the legal material in place of the silence [68,2]. All it has the authority to do is report or reveal this silence without interfering in regulating it [39].

Conversely, the Egyptian Supreme Constitutional Court censors legislative omissions despite an explicit text authorizing this. The deletion is unrelated to a specific legal text, as the legislator merely instructs its provisions. Finally, the Kuwait Constitutional Court does not oversee legislative omissions and the extent of its constitutionality because the constitution or law does not provide for this and considerations of the principle of the separation of powers and non-interference in the work of the legislative authority.

In light of the constitutional practices reviewed in Brazil and Hungary, a vision can be developed to address the legislative abstention by granting the Supreme Constitutional Court in Egypt the authority to report and reveal this abstention, in addition to the need for Parliament to commit to working to enact the necessary laws in light of the Constitutional Court's ruling [17,7]. Supreme. As for the partial legislative omission, it must be constitutionally regulated so that the Supreme Constitutional Court does not exercise constitutional despotism of legislation, and its authority is limited in setting standards or controls that are overlooked by the unconstitutional legal article due to legislative omission, in cases where this is possible. As for cases that require intervention from Parliament, its jurisdiction is to rule on legislative oversight only without setting standards or controls, provided that Parliament, within a specific period by the Constitution, enacts the new legal article and that it be presented to the Supreme Constitutional Court before issuing it, as a type of Previous oversight of the constitutionality of laws [7,12].

9.2. Discussion

The Egyptian Supreme Constitutional Court monitors legislative oversight in multiple ways. Sometimes, it sets controls and standards that are considered an addition to the unconstitutional legal article [39]. Thus, there is no need for legislative intervention to amend the unconstitutional legal article to be compatible with the Constitution's provisions [53]. Also, the Egyptian Supreme Constitutional Court may rule that the legislative omission is unconstitutional but does not issue additional controls or standards. Here, the unconstitutional legal article is only partially applied, and the unconstitutional part is not applied [55]. In this case, the judicial authority will not find standards or controls when considering the substantive dispute. Therefore, for its part, it will establish these controls or standards and apply them to the subject of the dispute [21]. The constitutional ruling that the legislative omission is unconstitutional may require intervention by the legislator to regulate the issue that was ruled unconstitutional due to the legislative omission [31]. Here, the legal article is suspended until the legislator intervenes to amend it consistent with the constitution's provisions [7].

The Supreme Constitutional Court in Egypt derives its authority to review the legislative omissions from the Egyptian Constitution, which stipulates that ‘the Supreme Constitutional Court exclusively undertakes oversight of the constitutionality of laws and regulations … …’ [59].

The Supreme Constitutional Court Law also reinforced the constitutional text by stipulating that ‘the Supreme Constitutional Court is exclusively concerned with the following: Judicial oversight of the constitutionality of laws and regulations’ [60].

Although the constitution does not stipulate the jurisdiction of the Supreme Constitutional Court explicitly in the judicial review of legislative omissions, the Egyptian Supreme Constitutional Court has reviewed legislative omissions, and the basis of its review of legislative omissions is based on the rule of applying texts rather than neglecting them. According to the constitutional and legal text regulating the court's authority, an omission is implied because of necessity. The control over the constitutionality of laws and regulations includes the execution of the text through the judiciary that it is unconstitutional, and it also includes correction by stipulating the unconstitutionality of its omission of a particular aspect while defining this aspect [8].

In this case, the Supreme Constitutional Court did not specify in its ruling the foundations and controls that make the investigative system a constitutional system, and therefore, the text ruled unconstitutional remains suspended and ineffective, as the state authorities cannot implement the omitted text until the legislator intervenes by issuing a new legislative text that includes A set of controls and objective foundations that ensure the compatibility of the investigative system with the provisions of the Constitution [2,48,50].

The constitutional judge's ruling that the legislative omission is unconstitutional may not result in halting the application of the contested legislative text completely but halting only some of the provisions in this text. An example of this is the ruling of the Egyptian Supreme Constitutional Court: “First: the unconstitutionality of the second paragraph of Article 103 of the Income Tax Law promulgated by Law No. 157 of 1981 amended by Law No. 187 of 1993 in what it included authorizing the Tax Authority not to take into account the declaration and determining revenues and profits by estimation, without setting controls or criteria for this assessment …” [[36], [69]].

The Egyptian Supreme Constitutional Court also supplements unconstitutional legislation by adding conditions or cases due to legislative omission [[62], [70], [71]]. The Supreme Constitutional Court may leave it to the judicial or executive authority to set the necessary controls or standards to implement the text [[63], [72]].

Regarding jurisprudence in Egypt, supporters and opponents of monitoring legislative omissions were divided. Kuwait has the exact constitutional text related to the powers of the Constitutional Court in monitoring the constitutionality of laws and regulations. However, it refused to exercise monitoring of legislative omissions on the pretext that the legislator did not grant it this authority. In addition, monitoring legislative omissions without a constitutional or legal basis violates the principle of separation of powers. As for the Supreme Constitutional Court in Egypt, it only has the solutions it has adopted, as Parliament is not obligated to respond to the rulings of the Supreme Constitutional Court related to legislative omissions, as Parliament is not obligated to amend laws by the ruling of the Supreme Constitutional Court. On the contrary, Parliament has the right to issue laws that are entirely different from the ruling of the Supreme Constitutional Court. However, in this case, it will be subject to being ruled unconstitutional, and then a conflict arises between Parliament and the Supreme Constitutional Court.

Data Availability

Data included in article/supp. Material/referenced in the article.

CRediT authorship contribution statement

Karem Sayed Aboelazm: Writing – review & editing, Writing – original draft, Conceptualization.

Declaration of competing interest

The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.