The Judiciary… Between the hammer of reality and the anvil of texts

The Judiciary… Between the hammer of reality and the anvil of texts

2022-09-10 21:23:00

The judge, like any citizen in society, diagnoses the error or negativity of a social, political or economic phenomenon and suffers from its negative impact as part of society, but his suffering is even greater because he finds himself unable to exercise his role as a judge to address this mistake and hold the perpetrator accountable as it is at the heart of his duties as a judge, and this inability is caused by the absence of a constitutional provision on the constitutional breach or the absence of a legal provision regarding the act that some believe must be held accountable because the judge is bound by the constitutional rule stipulated in article (19/2nd) of the Constitution of the Republic of Iraq of 2005, which stipulates that (There is no crime or punishment except by law). As well as the legal rule stipulated in Article (1) of the Penal Code No. (111) of 1969 as amended, which stipulates that "there shall be no punishment for an act or omission except on the basis of a law that provides for its criminalization at the time of its committal."

Therefore, constitutional violations or acts that are socially and morally unacceptable can not be held accountable by the judge, whether institutions or individuals, except in the presence of an explicit provision punishable in accordance with the legal conditions regulated by the constitutional or legal text, for example, the judiciary is fully aware of the negative effects of constitutional violations that occurred after the legislative elections in October 2021, represented by non-compliance with the constitutional timings in the formation of the executive authority, both the President of the Republic and the Council of Ministers in accordance with the text of article (66) of the Constitution, Despite the clarity of this constitutional violation, the judiciary was not able to address this breach or hold the perpetrators accountable because of the lack of a constitutional provision allowing it to do so, and this is what we have seen clearly in the decision of the Federal Supreme Court number 132 and its unified cases 17 lawsuits / federal / 2022 issued on 7/9/2022 regarding the lawsuit requesting the dissolution of the Council of Representatives, although the judiciary agrees with the plaintiff in that case realistically that there are constitutional violations committed by the Council of Representatives and diagnosed those violations clearly, but the constitutional judiciary dismissed the case by requesting the dissolution of the Council of Representatives because the penalty for this violation (dissolution of the Council) was entrusted by article (64) of the Constitution to the Council of Representatives. The Council may be dissolved by an absolute majority of its members, either at the request of one third of its members or at the request of the Prime Minister and with the approval of the President of the Republic.

The Federal Supreme Court also justified its decision - and rightly so- by saying that its competencies are constitutionally defined by article 93 and that there is no power among it to dissolve the Council of Representatives, and given the clarity of this provision, there is no justification for jurisprudence other than what is stated in it.

This and other cases necessitate a review of the drafting of the articles of the Constitution that impede the formation of constitutional authorities and that caused the political impasse and the accompanying unfortunate events by stipulating the penalty for violating any constitutional text with the same text in a clear wording that is not amenable to jurisprudence or interpretation.

Faiq Zaidan

10 September 2022




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