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- SATURDAY, 04-30-2022, AM 9:15
- KARAR AL ASADI
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Dr.. Osama Shehab Hamad Al-Jaafari
Many jurists in Iraq resorted to expressing a legal opinion that the caretaker government is not entitled to submit the draft budget law for 2022, and if this government submitted and sent this draft to Parliament and approved it as a law, it is subject to appeal and then it is easy to invalidate it altogether and In detail, they based their legal opinion on two legal foundations:
The first: The Council of Ministers is considered resigned when Parliament is dissolved and early elections are held, and it continues to conduct business in accordance with Paragraph (Second) of Article (64) of the Iraqi Constitution of 2005, which states that: (Second: The President of the Republic shall, upon dissolving the Parliament, call for to general elections in the country within a maximum period of sixty days from the date of dissolution, and the Council of Ministers in this case is considered resigned, and continues to run daily affairs
Second: The caretaker government was prevented from proposing draft laws in accordance with the text of Paragraph (Second) of Article (42) of the Cabinet’s Bylaw No. 2 of 2019 which stipulated that: (Second: The conduct of daily business means: taking decisions and actions that cannot be postponed Which would lead to the continuation of the work of state institutions and public utilities regularly and consistently, and does not include, for example, proposing draft laws, contracting loans, appointing or exempting senior positions in the state, or restructuring ministries and departments).
However, this interpretation is a traditional interpretation that interprets the law according to the will of the legislator at the time of setting up the legislation, not at the time of its application. contained in the text to conclude the legal ruling. And this method was not keen in interpreting the texts to find guidance to solve social problems and satisfy existing and emerging needs as much as it was meant to refer the solution to the wording of legislation. As long as it is the law.
And based on Article (3) of the Iraqi Evidence Law, the legal text cannot be interpreted in isolation from the developments of the social environment that govern society and the state. From the formation of the executive authority (the Presidency of the Republic and the Prime Minister) and the constitutional terms have passed and the new Iraqi parliament has not produced the executive authority that, according to the traditional interpretation, is intended to have exclusive jurisdiction to present the draft budget law for 2022, and the caretaker government is still present in the administration of Iraq. Because of the continuation of the political blockage and we are on the verge of the end of half of the fiscal year and Iraq is living without a budget,And this political blockage had a direct reflection on the life of Iraqi society and the state’s facilities. The budget is of great importance to the Iraqi people of all classes, especially the poor and middle ones, because their daily interests and basic needs are related to the budget.And since the caretaker government is constitutionally committed under Paragraph (Second) of Article (64) of the Iraqi Constitution of 2005 and legally in accordance with Paragraph (Second) of Article (42) of the Council of Ministers’ Bylaw No. 2 of 2019 in the conduct and management of state business and Society Until the formation of the government with full authority, the scope of preventing the caretaker government from submitting proposals for draft laws contained in Paragraph (Second) of Article (42) of the Cabinet’s Bylaw No. 2 of 2019 is not absolute at all, but is a relative ban related to laws Which are not related to the conduct of the daily life of the society and the state and the permanence of their public utilities, and this prohibition does not affect the authority of the caretaker government to propose draft laws that are directly related and are fundamentally related to the conduct of the basic life of society and the state, as evidenced by its constitutional and legal commitment itself. Despite her resignation, she managed the basic life of society and the state.And the conduct of basic business must be subject to the principle of legality, which requires that the management work undertaken by the government is subject to the rule of law, whether it is a caretaker government or a full-fledged government, according to Article (5) of the Constitution, which stipulates the rule of law, so the caretaker government needs laws Which facilitates and facilitates the implementation of its constitutional and legal obligation in the conduct of the normal life of society and the state.And the Federal General Budget Law is at the forefront of laws related to the life of Iraqi society, especially the poor and middle classes who depend entirely on the budget to cover the expenses of its basic needs such as food, security, education, water, electricity, health, maintenance of the road network, sewage and salaries The wages and salaries of the social protection network for widows, divorced women, the disabled, the injured, and those who are unable to work due to physical or mental disabilities, programs to empower young people in their small and medium enterprises, and appointments of the unemployed from the armies of graduates with primary and higher degrees... and other things from Basic services that are related to the basic life of the community and that the public utilities of the state undertake to provide to the community in a transparent manner through the federal general budget.In addition to the fact that the General Budget Law is an annual law and not a permanent law, as it enjoys temporary status according to Paragraph (Second) of Article (1) of the Financial Management Law No. 6 of 2019, which indicates that it is a law whose primary mission is to run the basic life of society and the state because it keeps pace with Social changes of society and the state.
One of the characteristics of the legal rule is that it is an abstract rule, that is, it deals with a typical unified situation that is surely repeated, and social developments were not calculated in the mind of the legislator when he put the law, and that the typical situation of the caretaker government is its continuation for a period of thirty days, and this period is short-term, but how can the facilities Is it possible for the state’s general public to satisfy the basic needs of society and run its daily life if the political blockage and the caretaker government continues for six months or an entire year? And what if the Iraqi political scene evolved from a political blockage to a political wandering for years! Could the law be an obstacle to the continuation of life and be a natural means in the hands of those who want to disrupt the daily life of society and the state? that the state must continue and that society must continue,
The federal general budget in accordance with Paragraph (Second) of Article (1) of the Federal Financial Management Law No. 6 of 2019 is a table that includes expenditures and revenues that cover public expenditures, both current and investment expenditures. Food is distributed to the poor and middle classes of the Iraqi people for Through the ration card program, salary raises and bonuses for state employees, appointments of new generations of Iraq’s youth who hold bachelor’s, master’s and doctoral degrees, appointment of contract owners of Resolution No. 315, and provision of the necessary funding for ministries in order to carry out their legal duties towards the citizen regarding public services such as electricity, justice, oil, health, industry, agriculture, education and other state ministries and public utilities,These are all included in the section of current expenses required by state institutions and public utilities to carry out their daily activities with the aim of continuing their daily normal activity and perpetuating it and preventing it from stopping. The state and its perpetuation by increasing the production capacity and prolonging the useful life of fixed assets in public utilities according to its definition according to Article (1 / V) of the Iraqi Federal Financial Management Law. It does not mean anything but to keep the fixed asset away from damage and not to harm it by preserving its useful life and extending its life and obtaining the maximum of its intended benefits for the benefit of its original owner (the people) through its development and improvement.As for the establishment of new projects, they are not included in the daily work of the state. They should not be included in the 2022 budget, because they do not fall under the daily and usual work of the caretaker government, and it can be removed from this budget because the content of the budget for 2022 and approved by the caretaker must come in the form Which does not conflict with the conduct of the basic affairs of society and the state.
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