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Established in 2006 as a Community of Reality

Welcome to the Neno's Place!

Neno's Place Established in 2006 as a Community of Reality


Neno

I can be reached by phone or text 8am-7pm cst 972-768-9772 or, once joining the board I can be reached by a (PM) Private Message.

Established in 2006 as a Community of Reality

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    The discretionary power of the House of Representatives at the time of amendment and legislation

    Rocky
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    The discretionary power of the House of Representatives at the time of amendment and legislation Empty The discretionary power of the House of Representatives at the time of amendment and legislation

    Post by Rocky Mon 22 Mar 2021, 2:20 pm

    [size=30]The discretionary power of the House of Representatives at the time of amendment and legislation[/size]





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    Hussein Haj Hamad





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    The discretionary power of the House of Representatives at the time of amendment and legislation

    [ltr]2021.03.22 - 21:43[/ltr]




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    (Commentary on amending the Federal Supreme Court Act instead of enacting its law)  
    The legislator has discretionary power when exercising his legislative competence, the essence of which is to determine the content of the law, the time of its promulgation, and its suitability with the data that called for its legislation, in accordance with the approved legislative policy.  
      
      
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    [size=20]As far as the matter is related to one of the contents of the discretionary power that the legislator enjoys at the time of issuing the legislation, the general rule that governs this is the independence of the legislator in estimating the time for the enactment of the law, as the legislator is independent to choose the appropriate time for legislation according to political, social and economic considerations without oversight. Unless the constitution specifies a specific time or circumstance that the legislator must abide by, otherwise it is considered contrary to the constitution.  
    As a result, the constitutional judge abstained from discussing the suitability of the time for legislation; It is one of the elements of legislative policy adopted by the legislator that the constitutional judge refrains from interfering with it.  
    The oversight carried out by the constitutional judge is a technical oversight of a legal nature aimed at conforming the legislative text with the provisions of the constitution, and does not go beyond it to assess the suitability at the time of issuance of the law, unless the constitutional legislator specifies a specific time or circumstance for its promulgation.  
    With reference to the issue of when the Federal Supreme Court law was issued in accordance with what Article 92 of the Constitution decreed, it is noticed that the constitutional legislator does not specify a specific time for the issuance of that law, which leaves the discretionary power of the House of Representatives to determine the appropriate time for legislation. However, the implementation of this obligation is independent of the legislator at the time of its implementation.  
    Regardless of the obligation placed on the House of Representatives to complete the legal structure of the Federal Supreme Court as soon as possible, as well as the state of legislative abstention that has been achieved throughout the existing period from the issuance of the 2005 Constitution until the legislation of the First Amendment Law of the Court Law, it is not possible to rule that this amendment is unconstitutional because of The House of Representatives resorted to amending the court’s law in force instead of legislating a new law for it. The assessment of resorting to the amendment, and reluctance to legislate until another time is a matter that the House of Representatives is independent at its discretion, without being subject to the control of the constitutional judge.  
    If the House of Representatives has a discretionary power based on a comparison between the alternatives that it assesses their suitability for organizing the court, whether by amending its enforceable law or by enacting a new law for it according to the considerations preferred by the parliament, then this removes the unconstitutionality of the first amendment law of the Federal Supreme Court Law in this respect only .  
    If we assume that the House of Representatives organizes the court by amending its enforceable law without issuing a completely new law while adhering to Article 92 of the constitution - as will come later - this confirms the constitutionality of the amendment as long as its content is consistent with the constitution.   
    However, the recognition of the constitutionality of the amendment law does not accommodate the other violations included in the law, as it is observed that it violates the constitution in terms of form and substance.  
    It has been shown previously that the amendment of the Federal Supreme Court law can only be done by resorting to the application of Article (92 / second) and the formal procedure that it entails, which is that the amendment must obtain a majority of two-thirds of the members of the House of Representatives, which is what the parliament disagreed with when the amendment was issued by a simple majority according to the general rule mentioned In Article (59 / Second) the matter that contradicts the text of Article (92 / Second) that specified the majority required for the legislation of the court law, and the amendments that could be made to it or to its enforceable law.  
    Moreover, the amendment law violated the constitution from the objective point of view when it kept the formation of the court limited to judges only, contrary to what Article (92 / second) specified that the court must be composed of judges, experts in Islamic jurisprudence, and legal scholars.  
    To say otherwise undermines the court’s foundation. If the 2005 constitution recognized the existence of the Federal Supreme Court formed in accordance with the Law of Administration for the Iraqi State for the Transitional Period 2004 and approved the enforcement of its Law No. 30 of 2005, then any amendment to that law can only be done through Article ( 92), unless the court to which the law is intended is other than the one to which the constitution refers, which makes the purpose of the first subject to the impurity of unconstitutionality, and is subject to annulment by the court whose members may not be convinced of this after the amendment law was the basis for their membership in it.  
      

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