[size=38]The Federal Court Triumphs Over The Principle Of Separation Of Powers[You must be registered and logged in to see this link.]2022/02/19 | 2:18 PM
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books / d. Salah al-Safi...
The basic idea on which the principle of separation of powers is based is summed up in the necessity of distributing the main functions of government:Legislative, executive and judicial bodies have separate and equal bodies that are independent of each other in the exercise of their functions so that the power is not concentrated in one hand and abuses it, and tyrannizes the governed in an tyranny that ends with the elimination of the impartiality of individuals and their rights, and if that idea is the essence of the principle of separation of powers, this principle is not It means the establishment of a physical fence that completely separates the powers of government, and prevents each of them from performing its function under the pretext of prejudice to the other. Based on the premise that “power limits or stops power,” which leads to achieving individuals’ freedoms, guaranteeing their rights, and respecting laws, according to their fair and proper application. of them in their area of competence.
The principle of separation of powers is one of the pillars on which the idea of the state of law is based, and it is one of the guarantees of freedom in the modern democratic state. This principle simply means the necessity of distributing the three functions of the state to three bodies, each of which assumes its function as a rule independently of the other two authorities, because Gathering power in one fist would end freedom (absolute power corrupts absolutely).
Referring to the Iraqi constitution regarding the principle of separation of powers, we see a contradiction between Article 47 and Article 75 Fourth, where the first article emphasized the exercise of the federal authorities (executive, legislative and judicial) of their powers in accordance with the principle of separation of powers, while the other article dealt with the state of vacancy The position of the President of the Republic, which stipulates that “the Speaker of the House of Representatives shall replace the President of the Republic in the absence of a deputy for him.”
Here, there is a clear and contradictory contradiction to the principle of separation of powers when the president of the legislative authority replaces the president of the republic (executive authority) when the position of the president of the republic becomes vacant, in which case the speaker of parliament combines the powers of the legislative and executive authorities together.
The Federal Court’s decision came on 12/13/2022, which decreed that the President of the Republic would remain in office until the election of a new President of the Republic. Although the Federal Court did not clarify that its decision was based on the principle of separation of powers stipulated in Article 47 of the Constitution of the Republic of Iraq, it The clarification has raised a clear and flawed contradiction from the folds of the constitution, which was sought by the Federal Court in its recent decisions, some of which we addressed in our previous articles. bodes well.