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Notes on the draft law of the Federal Supreme Court
08/28/20140
Ended the Iraqi parliament, the second reading of the draft law to the Federal Supreme Court, that Court, which is the law is passed its own is very important and represents the state of completion, a big step in the framework of building state institutions, the fact that the court will play an important role in the application of the Constitution correctly and put its provisions into practice away all the passions and partisan favoritism. And while we appreciate the sincere efforts that have been made in the preparation of this project, we and through our review of the provisions of the bill note - As a matter of contributing to the evaluation - some observations that we found it necessary to mention in this area, we say: First: He said the draft law in the first article that the President of the Court is the head of the judiciary and this statement does not comply with the provisions of Article 89 of the Constitution, which indicated that he (The federal judiciary, from the Supreme Judicial Council, the Supreme Federal Court, the Federal Court of Cassation, and the device Public Prosecution, and Judicial Oversight Commission, and other federal courts that are regulated in accordance with the law) Court of the Federal portion of the federal judicial power and not governing the rest of the bodies so Saying in the first article of the bill that the president be the president for the federal judiciary involves the following:
1 say that he does not support him from the Constitution.
2 President of the Court considered that the head of the judiciary means an increase in the burdens and responsibilities of the President may not be able to carry out her assigned tasks and reduces its effectiveness in managing his work as head of the judiciary not to mention the Federal Court.
3 President of the Court held that the responsibilities of the court alone means a full-time to eliminate the constitutional and effective monitoring, which means that it is better not to be the Chairman of the Federal Court head of the judiciary.
Second: She Article 2 of the bill a second paragraph that reserve members selected by the President of the Court in consultation with the members of the court and noted that the text did not say whether that opinion after binding advice to the president or not? Because non-compulsory means, that the words of the President of the Court will be effective no matter how serious the advice that did not take out the President, any even if it came reverse the will of all the other members, so you must specify the legal value of this advice, you'd better be selected reserve members of the judges, the same mechanism that elected by the members of the original, and this is what I went to in paragraph (b) of the same article regarding the experts of Islamic jurisprudence and law, why ruling differs between members of his judges in the case law and jurisprudence experts? , Then why should I be reserve members from among the judges of the Court of Cassation exclusively if every judge of first class service and has twenty years in the judiciary can be an original member of the Court, in accordance with Article 3 of the draft law itself?
Third, Article 3 of the draft law defined the terms of the members of the court and did not ensure that those conditions the fact that the members who are nominated are not covered by the law of accountability and justice, especially since the President of the Court and its members Kingdom held positions has been awarded the President of the Court of privileges and rights of the head of the legislative and executive either members of the court Vmnhawwa validity Minister according to the provisions of Article ten, paragraph A and B of this draft law.
Fourth: I talked Third paragraph of Article III of the draft law on the subject of choosing the members of the court through the formation of a body composed of the President and the Prime Minister and the President of the House of Representatives and the head of the judiciary to choose the members of the joint meeting is noticeable here Miley
Paragraph 1 that gave the two votes of the executive power and the sound of two of the President and the Prime Minister while gave one vote for each of the legislative branch and the judicial
Paragraph 2 did not explain the mechanism of choice to vote or consensus Are? Then tighter equal votes? Then you vote on individual members, or in the form of a group? .
3 - paragraph pointed out that the President of the Republic shall issue a decree for the appointment after the selection, but the tighter the failure of the President to issue the decree? , Is not it better that they can be to determine the duration after Amadaaha, is a choice that has been prohibited, in this case the survival of this paragraph unchanged.
4 that the constitutional legislator in the lower court from which this court (Court of Cassation) law makes it compulsory in Article 61, paragraph V of the Constitution, the approval of the House of Representatives on the appointment of the Chairman and members of this court, is it reasonable to leave the selection of members of this court (Federal Supreme Court), the highest court The terms of reference of exercise is very important and its president, head of the judiciary (as described by the project) to the approval of only four people [You must be registered and logged in to see this image.]??
Fifth: Article V of the draft law on the terms of reference of the court which appointed disciplines mentioned by the Constitution but noted that the para A indicated as follows: chapter in the conflict of jurisdiction between the federal judiciary and judicial bodies of the regions is not organized in a region and the text minus as it fell from the phrase ( and the provinces) after the words of the regions being present in the constitutional text of Article VIII, paragraph 93 a.
VI, speaking of the second clause of Article VIII of the bill to the President of the Court that he will continue and three of its members to work in the court after the end of the specified period of ten years mentioned in the first item of the same article. Regardless of the wisdom of this matter, this raises the shenanigans the following item:
1 If the president of the court originally specified how is identifying other three members who will continue to work for a year? Then from that point are doing this specifically? Then what are the controls that will be adopted in this weighting User Lists for the other?
2 Are these members of the three judges are? Or by a judge and expert in Islamic jurisprudence and another in law?.
3 If the president does will continue as president of the court or a judge of the judges? .
Seventh: The first indicated Article IX of the bill that the President of the Court and its members and the deputy can not be removed unless the judgment on someone of a crime involving moral turpitude and has gained a degree of judgment bits, and is a non-resident to retire in this case. And this article in its present means the following:
1 member of the Court that even if one has committed crimes against the honor, it nonetheless will get his pension, we do not know what the wisdom of spending this pension by Wallis in cashed him what he suggests is equivalent to the member to do the crime against the honor? Wallis then incumbent upon those who will be in this place to refrain from committing any act of obscene even be trusted by others.
2 Article involve paradox, the civil servant simple punishable isolation when committing really serious or committed a felony arising out of his job or in his official capacity as advised him the law of the discipline of state employees in force No. 14 of 1991 as amended in (article 8, item VIII) from him while a member of the Federal Supreme Court is not isolated, but when he is committing a felony involving moral turpitude, and when isolated, it gives a pension.
3 walk with the text means the concept of the offense, the commission of a member of the court for the crime of not involving moral turpitude, this crime is not affecting the status career in court, as it continues to work, but what to do if given a custodial sentence of freedom Kalhabs or prison, does Snaidh the court after the end of his sentence? Is silent about the bill.
Eighth: indicated Article XIII of the bill to the verdicts and decisions of the Court are final and binding for all authorities required publication in the Official Gazette as she was, including the referee declared unconstitutional legislative text, and that text is canceled from the date of publication of the judgment, unless the text of the rule otherwise. And us to this article the following observations:
1-The term judgments and decisions synonym terms are synonymous or intertwined therefore necessary to determine when we are in front of the decision and when we are in front of the rule of eight Court has issued opinions explanatory of the constitution what is the ruling of these views you are binding and conclusive as well, or that the decision to be issued to the constitutionality of laws take the form of government and that was When will be the case in front of the decision, so Valajdr use other phrases to express what comes out of the court or characterization accurate description.
2 - article pointed to the necessity of publishing the decision of the unconstitutionality of the text, and that text is canceled from the date of publication rule, unless stated otherwise, and this trend raises problematic many may not be published judgment until after the period, which means that the text violator of the constitution will remain has legal force until the publication of unconstitutionality, then when otherwise specified base publication of the decision and what are the resources of this matter and controls? .
IX: Article XV of the bill identified the entities that have the right to request interpretation of the Constitution, and is noted here that this text omitted multiple destinations (eg head of the body is related to the Ministry, which is tantamount to the Minister, members of the House of Representatives and Bass determine the requirement of submission of the application of a specific number of them, or one of the committees of the House of Representatives).
Conclusion As we record these observations in haste on the draft law the Federal Supreme Court, we wish to be replaced considered and taken when the enactment of the law as it paves the way for building the most important institution of the constitutional institutions which that built upon a solid foundation, it will be a good help to consolidate the provisions of the law, which will contribute to the building the state and its institutions on the basis of clear legal and sound.
Senior Legal Advocate
Majid Hnati blessing
Master in Public Law
[You must be registered and logged in to see this link.]
08/28/20140
Ended the Iraqi parliament, the second reading of the draft law to the Federal Supreme Court, that Court, which is the law is passed its own is very important and represents the state of completion, a big step in the framework of building state institutions, the fact that the court will play an important role in the application of the Constitution correctly and put its provisions into practice away all the passions and partisan favoritism. And while we appreciate the sincere efforts that have been made in the preparation of this project, we and through our review of the provisions of the bill note - As a matter of contributing to the evaluation - some observations that we found it necessary to mention in this area, we say: First: He said the draft law in the first article that the President of the Court is the head of the judiciary and this statement does not comply with the provisions of Article 89 of the Constitution, which indicated that he (The federal judiciary, from the Supreme Judicial Council, the Supreme Federal Court, the Federal Court of Cassation, and the device Public Prosecution, and Judicial Oversight Commission, and other federal courts that are regulated in accordance with the law) Court of the Federal portion of the federal judicial power and not governing the rest of the bodies so Saying in the first article of the bill that the president be the president for the federal judiciary involves the following:
1 say that he does not support him from the Constitution.
2 President of the Court considered that the head of the judiciary means an increase in the burdens and responsibilities of the President may not be able to carry out her assigned tasks and reduces its effectiveness in managing his work as head of the judiciary not to mention the Federal Court.
3 President of the Court held that the responsibilities of the court alone means a full-time to eliminate the constitutional and effective monitoring, which means that it is better not to be the Chairman of the Federal Court head of the judiciary.
Second: She Article 2 of the bill a second paragraph that reserve members selected by the President of the Court in consultation with the members of the court and noted that the text did not say whether that opinion after binding advice to the president or not? Because non-compulsory means, that the words of the President of the Court will be effective no matter how serious the advice that did not take out the President, any even if it came reverse the will of all the other members, so you must specify the legal value of this advice, you'd better be selected reserve members of the judges, the same mechanism that elected by the members of the original, and this is what I went to in paragraph (b) of the same article regarding the experts of Islamic jurisprudence and law, why ruling differs between members of his judges in the case law and jurisprudence experts? , Then why should I be reserve members from among the judges of the Court of Cassation exclusively if every judge of first class service and has twenty years in the judiciary can be an original member of the Court, in accordance with Article 3 of the draft law itself?
Third, Article 3 of the draft law defined the terms of the members of the court and did not ensure that those conditions the fact that the members who are nominated are not covered by the law of accountability and justice, especially since the President of the Court and its members Kingdom held positions has been awarded the President of the Court of privileges and rights of the head of the legislative and executive either members of the court Vmnhawwa validity Minister according to the provisions of Article ten, paragraph A and B of this draft law.
Fourth: I talked Third paragraph of Article III of the draft law on the subject of choosing the members of the court through the formation of a body composed of the President and the Prime Minister and the President of the House of Representatives and the head of the judiciary to choose the members of the joint meeting is noticeable here Miley
Paragraph 1 that gave the two votes of the executive power and the sound of two of the President and the Prime Minister while gave one vote for each of the legislative branch and the judicial
Paragraph 2 did not explain the mechanism of choice to vote or consensus Are? Then tighter equal votes? Then you vote on individual members, or in the form of a group? .
3 - paragraph pointed out that the President of the Republic shall issue a decree for the appointment after the selection, but the tighter the failure of the President to issue the decree? , Is not it better that they can be to determine the duration after Amadaaha, is a choice that has been prohibited, in this case the survival of this paragraph unchanged.
4 that the constitutional legislator in the lower court from which this court (Court of Cassation) law makes it compulsory in Article 61, paragraph V of the Constitution, the approval of the House of Representatives on the appointment of the Chairman and members of this court, is it reasonable to leave the selection of members of this court (Federal Supreme Court), the highest court The terms of reference of exercise is very important and its president, head of the judiciary (as described by the project) to the approval of only four people [You must be registered and logged in to see this image.]??
Fifth: Article V of the draft law on the terms of reference of the court which appointed disciplines mentioned by the Constitution but noted that the para A indicated as follows: chapter in the conflict of jurisdiction between the federal judiciary and judicial bodies of the regions is not organized in a region and the text minus as it fell from the phrase ( and the provinces) after the words of the regions being present in the constitutional text of Article VIII, paragraph 93 a.
VI, speaking of the second clause of Article VIII of the bill to the President of the Court that he will continue and three of its members to work in the court after the end of the specified period of ten years mentioned in the first item of the same article. Regardless of the wisdom of this matter, this raises the shenanigans the following item:
1 If the president of the court originally specified how is identifying other three members who will continue to work for a year? Then from that point are doing this specifically? Then what are the controls that will be adopted in this weighting User Lists for the other?
2 Are these members of the three judges are? Or by a judge and expert in Islamic jurisprudence and another in law?.
3 If the president does will continue as president of the court or a judge of the judges? .
Seventh: The first indicated Article IX of the bill that the President of the Court and its members and the deputy can not be removed unless the judgment on someone of a crime involving moral turpitude and has gained a degree of judgment bits, and is a non-resident to retire in this case. And this article in its present means the following:
1 member of the Court that even if one has committed crimes against the honor, it nonetheless will get his pension, we do not know what the wisdom of spending this pension by Wallis in cashed him what he suggests is equivalent to the member to do the crime against the honor? Wallis then incumbent upon those who will be in this place to refrain from committing any act of obscene even be trusted by others.
2 Article involve paradox, the civil servant simple punishable isolation when committing really serious or committed a felony arising out of his job or in his official capacity as advised him the law of the discipline of state employees in force No. 14 of 1991 as amended in (article 8, item VIII) from him while a member of the Federal Supreme Court is not isolated, but when he is committing a felony involving moral turpitude, and when isolated, it gives a pension.
3 walk with the text means the concept of the offense, the commission of a member of the court for the crime of not involving moral turpitude, this crime is not affecting the status career in court, as it continues to work, but what to do if given a custodial sentence of freedom Kalhabs or prison, does Snaidh the court after the end of his sentence? Is silent about the bill.
Eighth: indicated Article XIII of the bill to the verdicts and decisions of the Court are final and binding for all authorities required publication in the Official Gazette as she was, including the referee declared unconstitutional legislative text, and that text is canceled from the date of publication of the judgment, unless the text of the rule otherwise. And us to this article the following observations:
1-The term judgments and decisions synonym terms are synonymous or intertwined therefore necessary to determine when we are in front of the decision and when we are in front of the rule of eight Court has issued opinions explanatory of the constitution what is the ruling of these views you are binding and conclusive as well, or that the decision to be issued to the constitutionality of laws take the form of government and that was When will be the case in front of the decision, so Valajdr use other phrases to express what comes out of the court or characterization accurate description.
2 - article pointed to the necessity of publishing the decision of the unconstitutionality of the text, and that text is canceled from the date of publication rule, unless stated otherwise, and this trend raises problematic many may not be published judgment until after the period, which means that the text violator of the constitution will remain has legal force until the publication of unconstitutionality, then when otherwise specified base publication of the decision and what are the resources of this matter and controls? .
IX: Article XV of the bill identified the entities that have the right to request interpretation of the Constitution, and is noted here that this text omitted multiple destinations (eg head of the body is related to the Ministry, which is tantamount to the Minister, members of the House of Representatives and Bass determine the requirement of submission of the application of a specific number of them, or one of the committees of the House of Representatives).
Conclusion As we record these observations in haste on the draft law the Federal Supreme Court, we wish to be replaced considered and taken when the enactment of the law as it paves the way for building the most important institution of the constitutional institutions which that built upon a solid foundation, it will be a good help to consolidate the provisions of the law, which will contribute to the building the state and its institutions on the basis of clear legal and sound.
Senior Legal Advocate
Majid Hnati blessing
Master in Public Law
[You must be registered and logged in to see this link.]
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