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A member of the Court of Cassation talks about the quorum of the Federal Court

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A member of the Court of Cassation talks about the quorum of the Federal Court Empty A member of the Court of Cassation talks about the quorum of the Federal Court

Post by rocky on Wed 08 Apr 2020, 6:44 am

[size=35][size=35]A member of the Court of Cassation talks about the quorum of the Federal Court[/size]
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08-08-2020 | 05:31
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[size=18]On Wednesday, Judge Hassan Fouad, a member of the Federal Court of Cassation, spoke about the quorum of the Federal Court.


He said, "The [url=https://www.alsumaria.tv/Entity/3812751506/%D8%A7%D9%84%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D8%A7%D8%AA%D8%AD%D8%A7%D8%AF%D9%8A%D8%A9 %D8%A7%D9%84%D8%B9%D9%84%D9%8A%D8%A7/ar/]Federal Supreme Court[/url] issued the book numbered 22 / T / 2020 on 3/16/2020, by which I addressed the President of the Republic for the purpose of withdrawing the republican decree appointing a retired judge (Muhammad Rajab Al-Kubaisi) as an original member of the court and returning it to retirement, and in an attempt to In order to cut the debate about whether the quorum is complete or not, and remove fears and doubts surrounding the possibility of holding it and exercising its legal competencies, the court asked the President of the Republic in the second paragraph of its book to agree to use the reserve members appointed by Republic decrees, in order to complete the formation of the court and the conduct of affairs Constitutional Nha, and until the issuance of the Federal Court Act provided for in article 92 of the Constitution, or the amendment of Article 3 of the current law No. 30 for the year. "






 
He added, "We believe that this idea cannot be taken into consideration due to the constitutional and legal problems it raises when applied in the ground. We explain it with the following paragraphs:
 
1- All judges who were previously appointed as reserve members in the court according to Republican decrees, including Judge (Muhammad Rajab Al-Kubaisi) were referred to retirement to reach the legal age for referral for retirement and also exhausted all periods of extension, and they are currently outside the judicial service and thus it is impossible to use any of them to complete The quorum of the court, because one of the conditions of the court member, whether original or precautionary, is to be one of those who continue to serve, and there is no legal basis for returning a retired judge to work in the Federal Court, especially since the quality of permanence mentioned in paragraph 6 of Article 3 of the Court [url=https://www.alsumaria.tv/Entity/781954978/%D8%A7%D9%84%D9%82%D8%A7%D9%86%D9%88%D9%86 %D8%B1%D9%82%D9%85 30 %D9%84%D8%B3%D9%86%D8%A9 2005/ar/]Law No. 30 of 2005[/url] includes the original member and I withdraw from the reserve which was referred to retirement in order to reach the legal age and exit from the judicial service, in addition to the use of a retired judge for the purpose of completing the quorum of the court creates the same constitutional and legal problems created by the appointment of the judge (Muhammad Rajab Al-Kubaisi) and be like the one who “explains the water after the effort with water.”


 
2- The Constitution of the [url=https://www.alsumaria.tv/Entity/47585/%D8%AC%D9%85%D9%87%D9%88%D8%B1%D9%8A%D8%A9 %D8%A7%D9%84%D8%B9%D8%B1%D8%A7%D9%82/ar/]Republic of Iraq[/url] for the year 2005 in Articles 92-94 of it spoke about a [url=https://www.alsumaria.tv/Entity/3812751506/%D8%A7%D9%84%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D8%A7%D8%AA%D8%AD%D8%A7%D8%AF%D9%8A%D8%A9 %D8%A7%D9%84%D8%B9%D9%84%D9%8A%D8%A7/ar/]Federal Supreme Court[/url] that has not been formed yet and its law has not been issued, and it is not the existing court at the present time, because this court was not formed according to the constitution and therefore it is not possible to invoke him about completing the quorum of the court from Lack thereof.
 
Article 44 of it provided that the [url=https://www.alsumaria.tv/Entity/3812751506/%D8%A7%D9%84%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D8%A7%D8%AA%D8%AD%D8%A7%D8%AF%D9%8A%D8%A9 %D8%A7%D9%84%D8%B9%D9%84%D9%8A%D8%A7/ar/]Federal Supreme Court[/url] consists of nine members, and the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url], in consultation with the regional councils of the regions, nominates no fewer than eighteen to twenty-seven individuals for the purpose of filling vacancies in the court and in the same way later nominates three members for each subsequent vacancy It occurs due to death, resignation, or dismissal. The [url=https://www.alsumaria.tv/Entity/1167578439/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D8%B1%D8%A6%D8%A7%D8%B3%D8%A9/ar/]Presidency Council[/url] appoints the members of this court and designates one of them as its president. In the event that any appointment is rejected, the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] nominates a new group of three candidates. It is clear from the reading of this text that the candidates must be judges For continuing to service and not retired as long as the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] is, who is nominated.
 
4- Article 3 of [url=https://www.alsumaria.tv/Entity/781954978/%D8%A7%D9%84%D9%82%D8%A7%D9%86%D9%88%D9%86 %D8%B1%D9%82%D9%85 30 %D9%84%D8%B3%D9%86%D8%A9 2005/ar/]Law No. 30 of 2005[/url] stipulated that the court consist of a president and eight members who are appointed by the [url=https://www.alsumaria.tv/Entity/1167578439/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D8%B1%D8%A6%D8%A7%D8%B3%D8%A9/ar/]Presidency Council[/url] based on a nomination by the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] in consultation with the Judicial Councils of the regions in accordance with what is stipulated in Paragraph E of Article 44 of the Administration Law The state, and it is noted that this article did not provide for the presence of spare members in the court and how to appoint them, except that it referred to the mechanism stipulated in paragraph E of Article 44 of the State Administration Law previously referred to and included the treatment of filling vacancies that may occur due to death, resignation or removal , And based on e The article The reserve members were selected in the court to complete their quorum, whenever necessary, from the judges of the [url=https://www.alsumaria.tv/Entity/1783763311/%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D9%86%D9%82%D8%B6/ar/]Court of Cassation[/url] who continue to serve in it and replace with others if they were referred to retirement, and they were not chosen based on judicial norms, or because the president of the court at that time was the president of the authority The whole judicial, was coming
 
He stressed that "after the Federal Court revoked the authority of the Council to nominate the judges of the court mentioned in Article 3 of its law, and with the absence of an explicit legal text dealing with the issue of appointing the court judges, whether original or precautionary, we have become before a constitutional and legal vacuum and this vacuum will not fill the proposal mentioned in paragraph 2 of the court book The aforementioned, but the House of Representatives must assume its historical responsibility and expedite the legislation of the court law stipulated in the constitution, or amend its current law and find a legal text that fills the void created by the Federal Court and to ensure that the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] is concerned with naming the Candidates to work in the court to protect the principle of the independence of the judiciary and not to interfere in its affairs.
 
5- What confirms the need for a legal text regarding the appointment of original or reserve judges of the Federal Court that the judicial organization in Iraq in accordance with [url=https://www.alsumaria.tv/Entity/654218295/%D8%A7%D9%84%D9%82%D8%A7%D9%86%D9%88%D9%86 %D8%B1%D9%82%D9%85 160 %D9%84%D8%B3%D9%86%D8%A9 1979/ar/]Law No. 160 of 1979[/url] is governed by rules and texts that specify the mechanism for the formation of judicial bodies and how to fill vacancies in the necessary cases that require this, and was not left to due diligence It contradicts its seriousness and attaches it to the right to litigation guaranteed in the constitution and the law. Article 14 / second of the aforementioned law stipulated that the tribunals of the [url=https://www.alsumaria.tv/Entity/1783763311/%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D9%86%D9%82%D8%B6/ar/]Court of Cassation[/url], including the expanded body, be formed at the beginning of each year by a decision of the Presidency, and the member of the body is not to be replaced unless necessary. Accordingly, Article 17 / Second of it stipulated that the President and members of the [url=https://www.alsumaria.tv/Entity/2763192601/%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D8%A7%D8%B3%D8%AA%D8%A6%D9%86%D8%A7%D9%81/ar/]Court of Appeal[/url] and its bodies be named by a statement issued by the President of the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] based on a proposal from the President of the [url=https://www.alsumaria.tv/Entity/2763192601/%D9%85%D8%AD%D9%83%D9%85%D8%A9 %D8%A7%D9%84%D8%A7%D8%B3%D8%AA%D8%A6%D9%86%D8%A7%D9%81/ar/]Court of Appeal[/url] and the President or member may not be replaced unless there is an urgent need to do so, and in accordance with Article 30 / III of The law is to name the president and members of the criminal court The original and precautionary statement is issued by the President of the [url=https://www.alsumaria.tv/Entity/118981/%D9%85%D8%AC%D9%84%D8%B3 %D8%A7%D9%84%D9%82%D8%B6%D8%A7%D8%A1 %D8%A7%D9%84%D8%A3%D8%B9%D9%84%D9%89/ar/]Supreme Judicial Council[/url] based on the proposal of the President of the Appeal, and in the same context, Article 33 / II stipulated that the President of the Juvenile Court and the original arbitrators be named and precautionary with a statement issued by the President of the Judicial Council based on the proposal of the Chief Appeal, as for the judges to be removed from hearing the case The duty and the passport, the sensitivity of embarrassment, or the court could not be formed for legal reasons and the appointment of other judges or another court to consider the case, articles 91 to 97 of the Civil Procedure Code dealt with it according to the advanced legal viewpoint and in line with the general principles of the judicial system In Iraq, and in the absence of an explicit legal text dealing with the issue of appointing the judges of the Federal Court, we will be before a court that has no quorum in addition to being unconstitutional at first, which makes it unfit to consider and adjudicate the cases within its jurisdiction, and any talk of judicial norms or needs imposed by the political reality in the country or Literary and construction phrases justify the convening Court sessions, as this constitutes a violation of the constitution and the law and its decisions will not have any legal value and do not have the status of obligatory and not enforceable at all. We do not want this court, which carries out serious, massive and significant competences in the political, legal and social life of the country to fall from the eye of society and lose confidence in its decisions and lose its prestige In the confusion of the whims and personal interests in this sensitive circumstance that we all live in, which necessitates reaffirming the necessity of expediting the legislation of the court law stipulated in the constitution or amending its current law in order for it to exercise its powers Legal and that the House of Representatives disdains differences existing in this regard.


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