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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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Established in 2006 as a Community of Reality

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    Draft Federal Court Bill

    Rocky
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    • Post n°1

    Draft Federal Court Bill Empty Draft Federal Court Bill

    Post by Rocky Mon 01 Jan 2024, 2:22 pm

    [size=38]Draft Federal Court Bill[/size]


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    January 1, 2024[You must be registered and logged in to see this link.]
    Baghdad/Al-Masala Al-Hadath: Al-Masala publishes the new basic principles contained in the new draft of the draft law on the Federal Supreme Court prepared by the government committee.
    Advisor to the Prime Minister for Constitutional Affairs, Hassan Al-Yasiri, said, “The committee assigned by the Prime Minister to develop a new draft of the draft law for the Federal Supreme Court, headed by him and with the membership of representatives from the Presidency of the Republic, the State Council, and the General Secretariat of the Council of Ministers, has completed its work and submitted the draft law to the Prime Minister in order to present it to the Council of Ministers.” Ministers to vote on it and then enter into negotiations with the political forces regarding it before referring it to Parliament.”
    He stated, “He conducted a series of discussions and deliberations in his capacity as head of the committee charged with drafting the project with the relevant authorities, represented by the President of the Republic, the President of the Supreme Judicial Council, and the President of the Supreme Federal Court. These discussions dealt with the main and new principles contained in the draft project,” describing them as discussions. Positive and fruitful, as these principles were presented to the aforementioned authorities and their proposals were taken into account.
    He pointed out that “the government sought, through the draft of the new draft law, to reconsider some of the issues and texts that were the subject of objection to the draft law in previous parliamentary sessions, as the draft law was improved from the formal, substantive and drafting aspects, in order to remove the previous causes of disagreement, and to confirm support for the draft law.” The government is committed to the independence of the judiciary, and in compliance with the Constitution, which granted more powers to the Federal Supreme Court than it currently enjoys under its current Law No. 30 of 2005, as amended.”
    Al-Yasiri noted that “the government is determined to deliberate with all national political forces on the new draft of the draft law in a way that ensures the completion of building constitutional institutions.”
    He explained that “the amendments to the draft law include adherence to the constitution, which required that the court be composed of judges, legal scholars, and Islamic jurisprudence experts,” noting that “the new draft stipulated that the president of the court and his deputy be exclusively judges.”
    Al-Yasiri continued, “The new principles in the draft law of the Federal Supreme Court restricted the nomination of the court’s judges to the judicial authority,” explaining that “this does not affect the independence of the court, which is guaranteed by the Constitution and confirmed by the draft of the new draft law, which is based on the fact that it is an independent body not linked to and not subject to any Authority - whether executive, legislative, or judicial, because its submission is only to the Constitution and the law, and to say otherwise is a flagrant violation of the Constitution, an attack on it, and a violation of constitutional legitimacy that is unimaginable, let alone adopted.”
    He stressed that “nominations for members of the Federal Supreme Court, according to the draft of the new project, will come from competent authorities that will undertake the nomination process, represented by the Supreme Judicial Council, which will undertake the task of nominating members of the court from the category of judges, while a specialized committee in the Ministry of Higher Education consisting of the Minister Chairman and membership of the President of the State Council, the Minister of Higher Education in the regions, and the Chairman of the Committee of Deans of Law Faculties in Iraq carry out the task of nominating members of the court from the category of legal jurists - while the draft law currently in Parliament limits the power to nominate these jurists to the Ministry of Higher Education only, which may It loses transparency in nominations, while the Endowments offices are tasked with nominating court members from the category of Islamic jurisprudence experts. These nominations then go to a higher central committee consisting of the President of the Republic, the Prime Minister, the Speaker of the House of Representatives, the President of the Supreme Judicial Council, and the President of the Federal Supreme Court, which selects from among these names. The candidate, not from outside.”
    He stated that “the task of the Central Committee will be to maintain a kind of balance, represent the multiple competencies from the colors of the Iraqi spectrum, and reassure everyone, as some of the concerned parties for the nomination may nominate a group of those who meet the conditions but are of a certain political or component color, which may make the rest of the components feel uneasy.” Reassurance, so the existence of the Central Committee is for reassurance without prejudice to the principle of independence. Because the committee will adhere to the outcome of what is nominated by the judiciary and other competent authorities concerned, and it will not be the one that makes the appointment on its own, meaning that it will choose seven judges - for example - from among the twelve judges nominated by the Supreme Judicial Council, and it will choose a specific number from the nominations of the competent committee. In the Ministry of Higher Education, and the same applies to the nominations of the Endowments offices, then it is a body that does not appoint the members of the court from its own beginning, but rather chooses from what is nominated by the bodies that the draft law assigned to nominate, and this is what preserves the independence of the judiciary and the independence of the court, and above all that, the new draft was keen to include all of The Chairman of the Supreme Judicial Council and the President of the Federal Supreme Court are on the committee, in order to strengthen independence and reduce political influence.”
    Al-Yasiri continued, “One of the new principles in the draft law is the distinction between the right to appeal before the court and the request to interpret constitutional texts, as the right to appeal is guaranteed to everyone, while the request to interpret constitutional texts is for the constitutional authorities, as well as correcting the text of the previous draft, which was based on the court’s ruling. The unconstitutionality of a text that is implemented from the date of the ruling’s publication is a clear error that causes constitutional problems, and the correct view taken by the new draft draft is that the court’s ruling is implemented from the date of the ruling’s issuance, not from the date of its publication.”
    The Prime Minister’s advisor revealed “developing a disciplined mechanism to select reserve members on the court, in addition to removing ambiguity and ambiguity in the texts of the previous draft law, addressing the scattering of texts and the lack of unity of subject matter among them, as well as addressing the weakness of the wording and its clear weakness that cast a shadow over the weakness of the entire previous draft.”
    He explained that “one of the new principles in the draft is also to ban - prevent - a member of the Federal Court whose nine-year term ends or when he reaches the retirement age, which is set at 72 years, from being nominated in the elections for the House of Representatives, the provincial councils, and the Legislative Council in Kurdistan, for a period of three years to prevent conflicts.” interests, as well as preventing him from pleading - for that period - before the Federal Court as an agent for the opponents.”
    He noted that “the new draft organized new texts related to the mechanism for referring members of the court to retirement in the coming sessions, and how to submit resignation and its conditions.”
    Al-Yasiri stressed that “the Federal Supreme Court law is very vital and important, because the Federal Supreme Court represents the constitutional judiciary in Iraq, so it is considered one of the most important independent constitutional institutions in accordance with our 2005 Constitution, and it is specialized in monitoring the constitutionality of laws and interpreting the texts of the Constitution.”
    He continued, "The court is now working in accordance with Law No. 30 of 2005 as amended. This law was founded on the Iraqi State Administration Law for the Transitional Period of 2004, as the 2005 constitution had not been approved at that time. After the constitution was approved, he reorganized the Federal Supreme Court and expanded its scope." Its powers, and making its composition mechanism different from what it was in the State Administration Law, so the constitutional path requires enacting the court law, which the Constitution required in Article (92/second) thereof. However, it was the sharp disagreements between the political parties that aborted attempts to enact that law. Now it seems that the situation will be promising that its law based on the provisions of the Constitution will see the light, especially after adding new texts consistent with the Constitution and amending all the weak aspects of the previous draft law.”
    Al-Yasiri noted that “this court is a constitutional court, and not an ordinary court affiliated with the ordinary judiciary. Therefore, it differs from ordinary judicial courts - in all countries of the world - in terms of the mechanism of its composition, jurisdiction and subordination. In comparative constitutional jurisprudence, it consists of members with different specializations from the judiciary, law and administration.” And all other jurisdictions, and the constitutional experience in comparative constitutional jurisprudence proves to us that the general rule in the formation of this court is that the judges represent the minority in it. Indeed, there are constitutional courts in the world that do not have judges at all, such as the Chilean and Bolivian Constitutional Courts, and in Brazil, Indonesia, and Tunisia it is possible That the court does not have a judge according to the law unless he is appointed by appointment or something similar. It also differs in terms of the powers it has, as they are exclusively constitutional powers mentioned in the constitution. They also differ in terms of subordination, as they are completely independent and not affiliated with any party. It was unlike the ordinary judicial courts, which are subject to the supervision and control of the Supreme Judicial Council, and unlike the Administrative Judicial Court, which is subject to the Ministry of Justice in some countries.”
    He pointed out that “among the new principles in the draft is that it opened the door for all legal competencies in Iraq to apply directly to the committee, while the previous draft restricted nominations to university professors.”
    He pointed out that “many Iraqis do not distinguish between these types of judiciary in the countries of the world and in Iraq - resulting from not following up on comparative jurisprudence, which is what made them surprised that the court consists of judges, jurists and experts.”
    He continued, “Confirmation of this meaning was adopted by our constitution when it made the court a tripartite combination of members. It is not an ordinary judiciary, to be exclusive to judges. It is not, for example, a court of first instance, misdemeanors, or felonies, to be exclusive to the status of a judge.” Similar to this is the administrative judiciary. Those who administer it are not judges, but rather university professors who have been granted the title of advisor or assistant advisor in the State Council, and they perform a judicial function. Therefore, in all countries of the world, there is an ordinary judiciary that can only be carried out by judges, and there is an administrative judiciary and a constitutional judiciary that can be carried out by those who are not judges.”
    He concluded by saying: “Therefore, the constitutional courts in the countries of the world include lawyers, university professors, and those with expertise in the State Council or other state institutions, and some Islamic countries also include experts or jurists in Islamic law, such as the Emirates, for example.”
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