حق التقاضي في الدستور : دراسة مقارنة

Abstract

abstract After a full study about the discussion of the right to sue through different constitutions, it was clear that; this right is constitutional right to all people without exception from the time... to here to for. Islamic and democratic governments does grant this right. The research is divided into three bases. The first one is and interpretation of the conception of the right to sue. We fount that is was a right given to all citizens to direct their courts with its different kinds and degrees and not to prevent any group of them by the reason of race, six, language all religion. It’s a citizens’ right to their natural judge, without putting them before private trial which might prevent them to defense themselves. Provides them all chances according to the law, without privilege to any group by the reason of social or financial position. After we interpreted this concept of this right, we spoke about how this right was emerge and we concluded that sharia gave more importance to insure this right without limitation. And all people were equal before judicial, governor or citizen. In constitution, the right to sue was emerged by the emerging of the state, and its three authorities was constitute. Which one of them was judicial authority. I Then we answered the question which cited much controversy that, does the right to sue is a constitutional right or a law full one. Our answer to this question was more clear than our opinion against the discussion of the administrative andjudicial court and supreme a administrative court in Egypt. The two court considered this right as a law full one. We took position against the supreme court in Sudan, because it was conclude to a similar decision. Afier this we spoke about the basic right and general freedoms. Generally we found that this right can not give its ‘fruits unless it was guard by the right to sue Then we divided this right according to its gradation in constitution according to its absolutely or limitation. We found that the right to sue was belonged to the right which mentioned in the constitution absolutely. This means that the constitution guards the original of this right and demands instrument to the law. So the right to sue is considered as absolutely a constitution right. After that we moved to the second class which was long one, because we spoke about the right to sue in all international charters and some foreign systems such as in Egypt, USA and U.K system. ‘In frame of our discussion of this matter in the international charters we found some sections which stated expressly this right in. Addition to some sections which considered as general principles of this right. Through this charters we found some sections stated the protection of rights and freedom . All these general principle ascertain the guarantees of this right. We realized that these section of charters didn’t state any privilege to any specific direction or specific a dminsitive discussion or to take any processing against civil citizen before Militarism or government security courts. Upon this charters, we noticed that it guard the right to sue with out limitation. In frame of our discussion of this matter in Egypt we found the guarantee of the right to sue passed by two stages. The first one was previous to 1971 constitution law. This term didn’t express a section about this right, but there was just general principles which guard this right, such as principles of independence of judicial, principles of dissociation of authorities, principle of judicial supervisory control to the works of legislator, principle of equality before the law and principle of protection of basic rights and general freedoms. The second stage was considered as stage of expressive state to guarantee the right to sue that stated at the 1971 Egypt constitution law. Section (68). After that we spoke about the limitation that cited to this right. We discussion it under three topics here in after. 1) Finality administrative decision. 2) Special trails. 3) Works of sovereignty. This matter was discussion with some details and we gave our opinion clearly. After we were finished the discussion of this matter in this system we moved to discussed it in American and English systems. ' We noticed through our exhibition there was no express section to guard the right to sue but there were just clear general principles which certain this rt. We discussion this principles in each system alone, then we spoke about limitations which cited to this right in each system we gratified by position of American and English court it’s dealt with this right we found the court in this two systems took positive position beside the suitor although of existence of sovereignty of congress in American and parliament. In English. After we finished the discussion of this matter in international charters and some foreign systems we moved to discus it in Sudan. So that we specialized complete full class to have this matter and divided into four sub chapters as follow:- First sub chapter spoke about the fust stage we have in this matter at the term of self-government to the temporary term 1985. We notied that all Sudanese constitution at this term did not state expressly guard right to sue although is guards it implivtly. Although of cleamess of the section at this term did not state expressly guard right to sue we found the Supreme Court in Sudan made mistake because it considered this right as lawful right and not constitutional right. This appeared through thejudicial precedents, which I discussed in this matter. The second sub chapter was the stage of the temporary constitution 1985 which stated this right clearly in section (26). At the third sub chapter we have the thirteen decree and 1998 constitution. From our discussion of this matter in three stage from self- government to here to after, we found that the constitution comprises express sections and general principles to right to sue under the following topics:- 1) Judicial independence. 2) Discussion between authorities. 3) Judicial supervisory (control) of the work of legislator. 4) Sovereignty of the law or equality before the law. 5) Protection of basic rights and general freedoms. - Also we discussion the limitation which cited to the right to sue under the following topics:- 1) Finality of administration decision. 2) Private trial. 3) Sovereignty works. We gave our opinion clearly in each matter, then I moved to chapter four under address Alhisba and Almthalem. I spoke in it about Alhisba and Almthalem and the extent of relation of its with the Judicial system. As a summary we can said that the right to sue is the right that which fixed or stated many constitution in the world. There is no democratic system that did not limit it. So that we call and implore to constitute democracy in all societies to guard protection citizen basic right and general freedoms. Notjust for theoretic side but also for practical one.