Independence of Judiciary Between Slogan and Implementation

Independence of Judiciary Between Slogan and Implementation

2020-09-21 11:29:00

When some people talk about the independence of the judiciary and the necessity of preserving it , I remember the slogans of the ex-regime which are unity, freedom and socialism that were placed in public squares, schools and institutions of the state but actually there were not unity , freedom and socialism.

There is no disagreement that the principle of the rule of the law and in dependence of the judiciary are  the basic pillar of the state and its progress therefore most of the political parties were keen on put this principle at forefront of their electoral programs and slogans after the change of the political system in 2003. Unfortunately, some of these parties have taken this principle merely to beautify their slogans to win the approval of the electorate. However, they violated this principle with or without intent. Today, we see the attempt to violate this  principle when the Council of the Representatives endeavors to pass law to amend the Order No.(30) of 2005 , Federal Court Code  which was issued by Prime Minister as temporary law until the approval the original law that stipulated in article (92) of the Constitution which could not be approved due to political disputes over the provisions of this law.

Supreme Judicial Council had previously warned about the situation of constitutional vacuum created by the Federal Court in its decision No. 38/2019 on May 21, 2019, in which it decided to cancel Article (3) of Order No. (30) of 2005, which is the only in force at the time, and it was in force from 2005 until May 21, 2019, according to which the president and members of the Federal Court are nominated and appointed, but unfortunately not many concerned people paid attention to this warning, which its credibility has been approved since seven months because the a member of the court retired. The work of the court has been suspended since then due to the aforementioned decision, as it is accepted in the legislative and legal field in the event that there is no conviction in a specific text for any reason, a proposal to amend or cancel this text will be made, and the objectionable text will continue until the alternative text is enacted and enforced. However, the Federal Court tended to the opposite, as it canceled the enforceable text and asked the Council of Representatives to legislate an alternative text and thus the judiciary has become in  constitutional vacuum. This anomalous legal and constitutional situation is caused by the Federal Court itself, while it is assumed that this court is the superintendent that addresses cases violating the Constitution and the law, whether from the legislative authority or the executive authority. It is a flawed matter that the Federal Court to be the one who violates the constitution and the law because it allowed some political parties to take advantage of the constitutional vacuum to put forward proposals under the pretext of treating this case with ideas, most of which breach the principle of the independence of the judiciary and the rule of law and we  may disclose them in due course.


Therefore, in the interest of the constitutional judiciary in Iraq, we call upon the decision-makers inside and outside the Council of Representatives to note the text of Article (90) of the Constitution which states that the Supreme Judicial Council shall manage the affairs of judicial bodies and Article (91 / First) which stipulates the jurisdiction of the Supreme Judicial Council to administrate Judicial Affairs and watch the Federal Judiciary. Therefore, we think it is necessary in regard to these texts to take into consideration the viewpoint of the Supreme Judicial Council into account when enacting the Order Amendment Law (30) of 2005 ,Federal Court Code, considering that Article 92 of the Constitution defines the court as a judicial body that is financially and administratively independent, and it is really completely independent from the Supreme Judicial Council, but the latter remains the only source for nominating judges for this court, as it is the authority administratively responsible for all judges and is the most knowledgeable of who fulfills the conditions eligible for the presidency or membership of this court. We call upon the legislators that they should take into account  their professionalism  and objectivity  as the correct criterion in drafting laws because the legal rule is defined as an abstract general rule not separating on the scale of a specific person or entity. The interest of Iraq shall be  above all else and they must preserve the independence of the judiciary and the rule of law, which is the slogan they have always called for in order to preserve what remains of the state's institutions, namely the judiciary.



Faiq Zidan


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