متابعة : سحر جادو
قد قضت المحكمة الدستورية العليا، بعدم دستورية الفقرة الأولى من المادة 10 من قانون التظاهر، وسقوط الفقرة الثانية، وذلك في الدعوى المقامة من طارق العوضى رقم 160 لسنة 36، مع رفض باقي الطلبات، وتغريم الحكومة 200 جنيه أتعاب محاماة، كما قضت المحكمة برفض الدعوى 234 لسنة 36 المطالبة بعدم دستورية المادتين 7 و19 من قانون التظاهر.

وقد قام المحامى الشهير خالد على بالاجابة على بعض الاسئلة لتوضيح معنى حكم اليوم على صفحته على التواصل الاجتماعى فكتب :-
السؤال الأول: كيف نصل للمحكمة الدستورية؟
الإجابة: فى نظامنا القضائى المصرى لا نملك أن نذهب للمحكمة الدستورية مباشرة، بل يجب أن يكون هناك نزاع أمام محكمة الموضوع، وأثناء النزاع ندفع بعدم دستورية النص أو يترأى للمحكمة عدم دستورية النص، فإما تقرر محكمة الموضوع إحالة الطعن للدستورية، أو تصرح للمحامى بإقامة الطعن أمام الدستورية، وفى الحالتين يتم وقف الفصل فى موضوع النزاع أمام محكمة الموضوع حتى تفصل الدستورية فى مدى دستورية النصوص المعروضة عليها.
السؤال الثانى ما هى القضايا التى ذهبت للمحكمة الدستورية؟
الإجابة: كان هناك قضية بالقاهرة وقضية بقنا
قضية قنا لمجموعة كانوا يحاكموا بقانون التظاهر أمام محكمة الجنح فدفعوا بعدم دستورية بعض المواد ومنهم ٧ مادة التجريم، و ١٩ مادة العقاب .
أما القضية الثانية فقد تقدم زميلى الأستاذ طارق العوضى بإخطار لقسم حدائق القبة بأنه وعدد من المواطنين يعتزموا التظاهر يوم ٢ مايو بسبب غلاء الأسعار، وفى يوم ١ مايو القسم أبلغه برفض التظاهرة فرفعنا قضية أمام مجلس الدولة طعنا على هذا القرار، وقد ودفعنا بأن وزير الداخلية لا يملك حق رفض التظاهرة لأن الدستور أتاح التظاهر بشرط إخطار الداخلية، والمادة ١٠ تخالف الدستور لأنها حولت الإخطار إلى إذن أو ترخيص يتوقف على موافقة الداخلية، فالإخطار يعنى إعلام الداخليه بالتظاهرة لتقوم بتأمينها دون أن يكون لها الحق فى قبولها أو رفضها، فصرح لنا القضاء الإدارى بالطعن على المادة ٨ التى تحدد قواعد الإخطار والمادة ١٠ التى منحت الداخلية سلطة إلغاء التظاهرة أو تأجيلها أو تغيير مسارها أو تغيير مكانها
السؤال الثالث: ماذا أوصت هيئة المفوضين بالمحكمة الدستورية العليا؟
الإجابة: توجد هيئة بالمحكمة الدستورية تسمى هيئة المفوضين تقوم بإعداد تقرير استشارى عن النزاع للمحكمة، تذكر فيه الوقائع ومستندات أطراف النزاع ودفوعهم ثم توصى برأيها حول المواد المدفوع بعدم دستوريتها وللمحكمة أن تأخذ بهذا الرأى أو تهمله.
وفى قضية قنا أوصى التقرير بالحكم بعدم دستورية المادتين ٧، ١٩ من قانون التظاهر.
أما فى قضيتنا أوصى التقرير بالحكم بدستورية المادتين ٨ ،١٠
وانعقدت جلسة بالمحكمة الدستورية للرد على التقارير، وحضر زميل عن قضية قنا وقدم مرافعة جيدة وطلب حجزها للحكم.
أما فى قضيتنا طلبنا أجل للرد على تقرير المفوض، وحصلنا على الأجل وبعدها قدم فريق الدفاع عدة مرافعات دفاعاً عن عدم دستورية المادتين
وحجزت المحكمة الحكم لجلسة اليوم، والجميع كان يتوقع أن المحكمة سوف تأخذ برأى المفوض بمعنى أنها ستحكم بدستورية المادتين ٨ و ١٠ ، وستحكم بعدم دستورية المادتين ٧ و ١٩ لكن المحكمة اليوم خالفت هذه التوقعات.
السؤال الرابع: وما هو حكم اليوم؟
الإجابة: المحكمة فى قضية قنا قضت بدستورية المادتين ٧ و ١٩، وفى قضيتنا حكمت بدستورية المادة ٨ وبعدم دستورية المادة ١٠
السؤال الخامس: وما هو تأثير هذا الحكم؟
الإجابة: طبعاً كنا نتمنى جميعاً أن تقضى المحكمة بعدم دستورية ٧ و١٩ لأن ذلك كان سيساعد على إطلاق سراح كل المحبوسين استناداً للمادتين، أما وأن المحكمة رفضت القضية فمعنى ذلك أنها ترى دستورية المادتين، وبالتالى لا يجوز الطعن عليهما مرة أخرى وهو ما ينطبق على المادة ٨ أيضا.
أما المادة ١٠ فالقضاء بعدم دستوريتها يفيد بإلغائها وسقوطها من التشريع، مما يترتب عليه أنه يحق للمواطن أن يخطر بالتظاهرة وفى هذه الحالة لا يجوز للداخلية أن ترفض التظاهرة أو تغير مكانها أو تاريخها أو مسارها،
فالداخلية بموجب هذا الحكم لا تملك قبول أو رفض التظاهرة فالأمر أضحى غير متوقف على إرادتها، وعليها واجب تأمين التظاهرة
.ح.

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