Conflict of Jurisdiction between the Federal Supreme Court and the Administrative Judiciary in Iraq
Analytical Study
DOI:
https://doi.org/10.35246/jols.v37i2.559Keywords:
Dispute, Functional Specialization, Jurisdiction, Federal Supreme Court, Administrative JudiciaryAbstract
It is recognized, that the constitutional text is the binding rule for all persons of the state, whether rulers or ruled, with all the contents of the constitutional texts, and thus the three authorities; Legislative, judicial, and executive are bound by the content of these texts, as it is not possible for any of these authorities to confer their own visions and perceptions on the constitutional text, so it is necessary to return to the will of the constitutional founder, in order to clarify the meaning that he seeks by placing that text. This includes the content of Article (93/Third) of the Constitution of Iraq for the year 2005, which referred to the disputes that the Federal Supreme Court is competent to consider. 83) of the amended 1969, one of the issues that arise before the courts, as a result of the interactions that can occur when adapting the legal relationship, and assigning it to one court rather than another, and to the developments witnessed by the Iraqi judicial system after its transition from the unified judicial system to the dual judiciary, Which is a qualitative leap in devoting the functional jurisdiction of the judiciary, as the competencies and their diversity are evidence of the sophistication and diversity of society, but in a case that can be described as rare, we find that there is a conflict of jurisdiction that arose between the Federal Supreme Court and the courts of first instance. The Employees Judiciary Court) in the administrative courts, and this rarely happens in international legal systems, as disputes that occur between courts are often between the courts of the judicial authority or the same degree. In the event of a conflict in jurisdiction between the courts of the ordinary judiciary and the courts of the administrative judiciary, here the authority for appointing the reference can address according to the provisions of the State Council Law of 1979. Or it may occur between the courts of the same judiciary, so the Supreme Court has the final word in this judiciary.
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References
Books
i. Abdul Hakam Fouda, 1995,Controls of Judicial Retribution in Civil, Criminal, Administrative and Shariah Matters in the Light of Jurisprudence and Judicial Rulings, Mansha’at Al Maaref, Alexandria.
ii. Abdullah Tolba, 1997,Administrative Law, Judicial Control of Administration Activities, Aleppo University Publications.
iii. Ali Khattar Shatnawi, 2004,Encyclopedia of Administrative Judiciary, Part One, Dar Al-Thaqafa for publishing and Distribution, Jordan.
iv. Dr. Mahmoud Mustafa, 1988,Explanation of the Criminal Procedure Law, Dar Al-Nahda Al-Arabiya, Cairo.
v. Fawzia Abdel Sattar, 1986,Explanation of the Criminal Procedure Law, Dar Al-Nahda Al-Arabiya, Cairo.
vi. Ghannam Muhammad Ghannam, 1999,The Theory of Absence in Criminal Procedures, Kuwait University, Authoring, Arabization and Publishing Committee.
vii. Jalal Tharwat, Suleiman Abdel Moneim,1996, Principles of Criminal Trials, University Foundation for Studies, Publishing and Distribution, Beirut.
viii. Mamoun Muhammad Salama, 1988, Criminal Procedures in Egyptian Legislation, Dar Al-Fikr Al-Arabi for Printing and Publishing.
ix. Muhammad Walid Al-Abadi,2008, Administrative Judiciary, Conditions for Accepting the Cancellation Case, Part Two, 1st Edition, Jordan, Al-Warraq for Publishing and Distribution.
x. Ramses Bahnam, 1984, Criminal Procedures Rooting and Analysis, Mansha’at al-Maaref, Alexandria.
xi. Suleiman Al-Tamawi, 1952, The Administrative Judiciary and its Oversight of the Work of the Administration, A Comparative Study, Cairo, Dar Al-Fikr Al-Arabi.
xii. Wissam Sabbar Al-Ani,2015, Administrative Judiciary, first edition, Al-Sanhouri Library, Iraq.
Research
i. Alaa Ibrahim Mahmoud, 2018,The Role of Parallel Appeal in Determining the Jurisdiction of the Administrative Judiciary According to Iraqi Legislation, Resala al-Huqooq Journal, Tenth Year, Issue Three.
ii. Ali Saad Omran, 2009, The Jurisdiction of the Federal Supreme Court in Supervising the Judgments of the Administrative Court, Resala Al-Huqooq Journal, Volume One, Issue Two.
iii. Amer Zughayer Mohsen, 2016, Conflict of Jurisdiction in the Field of Administrative Judgment, Resala Al-Huqooq Journal, Eighth Year/Issue One.
iv. Aqil Taha Majeed, 2021,The Dispute over Specific Jurisdiction between the Courts of First Instance in Iraq/ Tikrit University Journal of Law, Year 5 Volume 5 Number 3 Part /1.
v. Dr. Hanan Muhammad Al-Qaisi, Conflict of Jurisdiction in the Iraqi Administrative Judiciary, research published on the website www.researchgate.net.
vi. Hussein Talal Malallah Al-Azzawi / Maryam Muhammad Ahmed2021, Supervision of the Supreme Administrative Court on the conflict of specific jurisdiction of the two administrative courts, Journal of Tikrit University of Law, Year 6 Volume 6 Issue 2, Part /2.
vii. Mohammed Falastin Hamzah, 2022,The principle of proportionality in the Iraqi administrative judiciary, Journal of the College of Law / Al-Mustansiriya University.
viii. Shaheen Ahmad Abbas/ Yasser Muhammad Abdullah/ Muhammad Abbas Hammoudi, 2015 ,Conflict of Jurisdiction in the Iraqi Military Judiciary, Journal of the College of Law and Political Science/ College of Law, University of Mosul, No. 15, Volume 4.
Thesis
i. Alaa Nasser Hussein Al-Baaj ,2001 Conflict of Jurisdiction in Criminal Procedures, PhD thesis, College of Law/University of Baghdad.
Laws
i. Civil Procedures Law 83 of 1969.
ii. Inclusion Law No. 12 of 2006.
iii. Investment Law No. 2 of 2009.
iv. Iraqi Evidence Law No. 107 of 1979
v. Iraqi Nationality Law No. 46 of 1990, which is repealed.
vi. Iraqi State Council Law No. 65 of 1979
vii. Judicial Authority Law No. 26 of 1963
viii. Judicial Organization Law No. 160 of 1997 amended.
ix. Law of the Federal Supreme Court of Iraq No. 30 of 2005.
x. Law of the Fifth Amendment to the State Council Law, 2013.
xi. Law of the Supreme Constitutional Court in Egypt No. 48 of 1979.
xii. Law repealing legal texts that prevent courts from hearing cases that arise from the application of Laws No. 17 of 2005
xiii. Passport Law No. 32 of 2015 in force
xiv. Political Dismissed Law No. 24 of 2005 as amended
xv. Resolution No. 44 of 1977.
xvi. Resolution No. 90 of 1996.
xvii. State and Public Sector Employees Discipline Law No. 14 of 1991 amended.
xviii. The Iraqi Nationality Law of 2006.
xix. The Law of Governorates Not Organized in a Region for the year 2008.
xx. The National Security Forces Service Law of 2010.
Judicial Decisions
i. Decision of the Federal Court of Cassation in Iraq, No. 625/Civil Commission/2022, sequence 6188, dated 1/8/2022.
ii. Decision of the Federal Supreme Court of Iraq, No. 118 / Federal / 2015 dated November 30, 2015.
iii. Decision of the Federal Supreme Court of Iraq, No. 85/Federal/2017 dated 10/10/2017.
iv. Decision of the Staff Judiciary Court in the case numbered (819/m/2022 on 5/16/2022 - Resolution No. 1176/2022).
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- 2023-01-04 (2)
- 2022-12-24 (1)
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