The role of the constitutional judiciary in establishing the principle of the independence of the judiciary A comparative study
Keywords:
Judiciary, Constitution, Independence, AuthorityAbstract
The judiciary in most Third World countries suffers from a real crisis whose essence of which is how to issue its rulings on the facts that raised without influence. And the source of this problem does not go back to parties external to the legal structure of the authorities in the state, but rather from those authorities, whether they exercise legislative or executive powers, especially the executive authority, which often persists in its work and exceeds its powers drawn up for it, if it does not establish these powers by itself, as happens in military coups when the coup governments establish a constitution that embodies their passion for maintaining power and actual control over all the details of governance in the state under names that show democracy and hide tyranny and the elimination of the other.
In this regard, legal jurisprudence predicts what might happen to the judiciary in countries that suffer from democratic transformations and the accompanying disturbances and imbalances that negatively affect the independence of the judiciary, since every emerging democracy in which democracy has not matured and these principles have not settled in the conscience of the nation, the executive authority is the strongest of all authorities, the legislative authority penetrates and controls it, and the judiciary is undermined and its independence is diminished. The effective remedy for this situation is to work on strengthening the judiciary, and one of the most important factors of its strength is working on its complete independence in the face of the executive authority. It also needs the support of the constitutional institutions in the state in strengthening its independence in the face of other authorities, especially the constitutional judiciary.
In Iraq, we find the prominent role of the constitutional judiciary is represented by the Federal Supreme Court, in establishing this principle through many of its decisions that addressed the principle of the independence of the judiciary in the face of other authorities, based on its conviction that the existence of an independent judiciary blocks the path of rulers or those holding power in their attempts to undermine public freedoms and rights, which are often within the reach of their goals to reach the mechanism that ensures their continued rule. Moreover, the existence of an independent judiciary limits the issue of achieving justice and equality among people to judges and no one else, as they are qualified to carry out this task due to their impartiality and integrity.
References
First/ Books:
1- Dr. Sobhi Mahmasani, Legislative Conditions in Arab Countries, Past and Present, Dar Al-Ilm Lil-Malayin, Beirut, 1957.
2- Dr. Atef Salem Abdel Rahman, The Role of the Constitutional Judiciary in Political-Social-Economic Reform, A Comparative Analytical Study between Egypt and the United States, Al-Rahma Printing, Cairo - 2011.
3- Dr. Adnan Ajil Obaid, The Impact of Judicial Independence from the Government on the State of Law, Arab Center for Publishing and Distribution, Cairo - 2018.
4- Farouk Sobhi Abdel Halim Al-Kilani, Judicial Independence, Dar Al-Nahda Al-Arabiya, Cairo - 1977.
5- Dr. Muhammad Asfour, Judicial Independence, Atlas Press, Cairo - no publication year.
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7- Dr. Mahmoud Najeeb Hosni, The Constitution and Criminal Law, Dar Al Nahda Al Arabiya, Cairo - 1992.
Second/ Research:
1- Dr. Baraa Munther Abdul Latif and Badr Hamada Saleh, Towards Strengthening the Independence of the Iraqi Judiciary, a Critical Legal Study, a research published in the Tikrit University Journal for Legal and Political Sciences, Issue 3, 2009.
2- Dr. Khalil Hamid Abdul Hamid, The Principle of Judicial Independence between Theory and Practice, a research published in the Journal of Al-Mamoun University College, Issue 16, 2010.
3- Dr. Rizgar Muhammad Qadir, Judicial Independence as a Pillar of Fair Trials, a Comparative Study in Positive Law and Islamic Sharia, a research published in Al-Rafidain Journal of Law, Volume 11, Issue 39, 2009.
4- Dr. Asim Hakim Abbas Al-Jubouri and Dr. Hakim Fneikh Ali Al-Khafaji, Characteristics of the American Judicial System and Justifications of the Supreme Court in 1789, a research published in the Journal of the Babylon Center for Human Studies, Volume 7, Issue 1, 2017.
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7- Judge Calford Wallace, Independence How and Why?, an article published in the New York University Annual Report on American Law, 2002.
8- Dr. Mohd Jaloul and Dr. Houidiq Othman, The Specialization of the Judge and His Role in Strengthening His Legal Position and Protecting His Independence, from Internet publications via the website: http://dspace.univ-eloued.dz/.
9- Mohammed Salih Saber, The Role of the Federal Supreme Court in Preserving the Independence of the Judiciary, a research published in the Journal of the University of Kirkuk, College of Law for Legal and Political Sciences, Volume 8, Issue 30, 2019.
10- Judge Nadhim Hamid Alak, Judicial Independence from a National and International Perspective in a Legal Article, from Internet publications via the website: https://www.mohamah.net/.
Third/ Theses and Dissertations:
1- Ahmed Abdul Zahra Kadhem Al-Fatlawi, Independence of the Judiciary and the System of the State of Law, a Comparative Study between Iraq, Lebanon and Egypt, PhD Thesis, Faculty of Law - Islamic University in Lebanon, 2016/2017.
2- Intisar Hassan Abdullah, Constitutional Protection of the Independence of the Judiciary, a Comparative Constitutional Study, Master's Thesis, College of Law - Al-Mustansiriya University, 2009.
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4- Sora Fouad Muhammad Redha Al-Ruwaishdi, Legal Guarantees for Members of the Federal Supreme Court in Iraq, Master's Thesis, College of Law - University of Kufa, 2023.
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6- Muhammad Ali Hashim Tahir Al-Asadi, The Judicial Authority, Its Organization and Independence in Islamic Sharia, PhD Thesis, College of Jurisprudence - University of Kufa, 2008.
7- Hashim Yahya Al-Mallah, Judicial Independence under Iraqi Constitutions, Master's Thesis, College of Law - University of Mosul, 2009.
8- Hoda Sajjad Mahmoud Al-Khayat, The Federal Supreme Court in Iraq between Legitimacy and Independence, Master's Thesis, Faculty of Law - Islamic University in Lebanon, 2020-2021.
9- Husham Jalil Ibrahim Al-Zubaidi, The Principle of Separation of Powers and Its Relationship to the Independence of the Judiciary in Iraq, A Comparative Study, Master's Thesis, Faculty of Law - Al-Nahrain University, 2012.
Fourth/ Legislation:
1- The American Constitution of 1787.
2- The Italian Constitution of 1947.
3- The Turkish Constitution of 1982.
4- The Iraqi Constitution of 2005.
5- The Egyptian Constitution of 2014.
Fifth/ Judicial Decisions:
1- The ruling of the Egyptian Supreme Constitutional Court in Case No. (2) of 14 Q in the session of 4/3/1993.
2- The ruling of the Egyptian Supreme Constitutional Court in Case No. (23) of 16 Q in the session of 3/17/1995.
3- The ruling of the Egyptian Supreme Constitutional Court in Case No. (25) of 16 Q in the session of 7/3/1995.
4- The ruling of the Egyptian Supreme Constitutional Court in Case No. (34) of 16 Q in the session of 6/15/1996.
5- Ruling of the Egyptian Supreme Constitutional Court in Case No. (133) of 19 Q in session 4/3/1999.
6- Ruling of the Egyptian Supreme Constitutional Court in Case No. (151) of 21 Q in session 9/9/2000.
7- Ruling of the Egyptian Supreme Constitutional Court in Case No. (163) of 26 Q in session 12/2/2007.
8- Ruling of the Egyptian Supreme Constitutional Court in Case No. (1) of 35 Q in session 5/5/2018.
9- Ruling of the Egyptian Supreme Constitutional Court in Case No. (125) of 35 Q in session 11/3/2018.
10- Ruling of the Egyptian Supreme Constitutional Court in Case No. (82) of 41 Q in session 2/6/2022.
11- Decision of the Iraqi Federal Supreme Court No. (19/Federal/Media/2017).
12- Decision of the Iraqi Federal Supreme Court No. (66/Federal/2021).
13- Decision of the Iraqi Federal Supreme Court No. (67/Federal/2021).
14- Decision of the Iraqi Federal Supreme Court No. (72/Federal/2021).
15- Decision of the Iraqi Federal Supreme Court No. (218/Federal/2021).
16- Decision of the Iraqi Federal Supreme Court No. (21/Federal/2022).
17- Decision of the Iraqi Federal Supreme Court No. (84/Federal/2022).
Sixth/ Websites:
1- Website of the Iraqi Federal Supreme Court: https://www.iraqfsc.iq/.
2- Website of the Egyptian Supreme Constitutional Court: http://hrlibrary.umn.edu/arabic/.
Seventh/ Foreign sources:
1- DUVERGER Maurice, institutions politiques et Droit constitutionnel, Paris, 1973.
2- HAURIO Maurice, précis de Droit constitutionnel, Paris, 1929.
3- LAFERRIERE Julien, Manuel de Droit constitutionnel, Paris, 1947.
4- PRELOT Marcel, institutions politiques et Droit constitutionnel, dalloz, Paris, 1957.
