Independence of the Judiciary between Slogan and Implementation

Independence of the Judiciary between Slogan and Implementation

2021-05-08 13:37:00

    When some people talk about (Judiciary Independence) and how to maintain it, they make me recall the slogans of the former regime when it makes up with the slogan like (unity, freedom, and socialism) which took place at the public squares, schools, and the State Institutions, but in practice, there wasn’t any (unity, freedom, and socialism).

Two do not disagree that the principle of the rule of law and the independence of the judiciary is the main pillar on which it is based to build a respected Statesand and the reason for its progress, therefore, all political parties were keen after the removal of the former regime in 2003 to drafting this principle in the preamble of its program and electoral slogans. Unfortunately, we saw that (some) of these parties took this principle as a garnish for its slogans to win the affection of the mass of the electors, but in practice, it violated the principle of rule of the law and the judiciary independence in many occasions intentionally or unintentionally. Today we witness a shape of violating this constitution attempts on the occasion of the Iraqi Council of Representatives endeavor to approve the law of amending the order No. (30) for 2005 (the Federal Supreme Court Law) which issued by the Prime Minister in that time (as it regarded a temporal law) until approving the original law stipulated in the article (92) of the constitution. Its approval wasn’t possible because of the political disputes about the items of this law.

Here we clarify that the Supreme Judicial Council previously warned from the state of the (constitutional vacuum) created by the Federal Court in its decision No. (38/2019 on 21/5/2019) which adjudged by annulling the article (3) of order No. (30) for 2005, and it was the only valid text in that time and it was in effect since 2005 until 21/5/2019. According to this law, nominating and appointing the head and members of the Federal Court, unfortunately, not many of those involved paid attention to this warning which its credibility was clear seven months ago because of referring a member of the Federal Court to retirement and the court became ineffective from that since because of the decision aforementioned. Since it is customary in the legislative and legal field that in case of unsatisfaction with the existence of a specific text for any reason, it will go to the amendment proposal or annulling this text. The challenged text remains in effect until enacting and the replacement text become in effect. But the Federal Court took the opposite direction when it annulled the valid text, and it requested from the Iraqi Council of Representatives to enact a replacement text. This matter made the Judiciary falls into the state of (constitutional vacuum) and this state considered regretfully abnormal constitutionally and legally caused by the Federal Court itself, while it should be the superintendent defender for the states of the constitution and the law violations, whether from the legislative power or the executive power, but the Federal Court is the body who violates the constitution and the law! It’s a shame. This procedure by the Federal Court opened the door for some political parties to exploit the case of the (constitutional vacuum) to present suggestions that pretending it will treat this case by notions, most of it forms a shape of Judiciary independence and rule of law violation shapes. Maybe we will announce it at the right time.

For the safety of the constitutional judiciary in Iraq, we call upon all gentlemen who considered the decision-maker inside and outside the Iraqi Council of Representatives to notice the text of the article (90) of the constitution which stipulated (the Higher Juridical Council shall oversee the affairs of the judicial committees) and the article (91/1st) which stipulated (to manage the affairs of the judiciary and supervise the federal judiciary). Therefore, these texts must take the point of view of the Supreme Judicial Court when enacting the amendment of order No. (30) for 2005 (the Law of the Federal Court) considering that the article (92) of the constitution had defined the Court as independent (judicial body) financially and administratively, and it’s fully independent of the Supreme Judicial Council, but the last mentioned remains the only body to nominate the Judges of this court as it considered the administrative responsible body of all judges, and it’s the body which knows who meets the conditions for the presidency or membership of this court. We also call the legislator gentlemen to keep in mind professionalism and objectivity as the right criterion in drafting laws because the legal rule is defined as an abstract general rule (not separated) on the scale of a particular person or entity, and their calculations are based on the fact that Iraq's interest is above all consideration and that they maintain the independence of the judiciary and the rule of law, which they have long called for to preserve what is left of the state institutions, namely the judiciary.



Faiq Zidan

19 September 2020

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