The Role of the constitutional Judiciary in Establishing Constitutionalism: Comparative Study

Abstract

Abstract

The subject of the research, )The role of the constitutional judiciary in establishing  constitutionalism), is one of the significant constitutional topics. As, Constitutionalism is a civilized necessity, because it protects the interests of society, and the principle of (constitutionality) has become one of the basic principles in contemporary legal systems, under which all state authorities abide by the provisions of the constitution. The legislative authority, by issuing legislation compatible with the provisions of the Constitution, operates within its limits. And the executive authority  when it conveys constitutional principles In drawing up public policy, its role is no less than that of the legislative authority.  The judiciary also, adheres to the constitution through the judge not abstaining from deciding any case brought before him on the pretext that there is no legal basis to apply it to the dispute, as well as his commitment to refrain from applying the law that is contrary to the constitution, as well as his role in giving life to the provisions of the constitution through his interpretations.  It supports the issue of constitutionalism by being a real guarantee for the protection and development of the constitution.  In this study, we will focus on the second aspect by explaining the role of the constitutional judiciary in making the constitution a continuous and vibrant work.

 Thus, constitutionalism means the supremacy of the rule of the constitution, and this is achieved from two aspects, the first of which is the commitment of the rulers and the ruled to the provisions of the constitution, and the second is represented by activating and developing the provisions of the constitution, as far as the subject of our research is concerned.

 The research aims to identify the role played by the constitutional judiciary in protecting constitutionalism by focusing on the constitutional judiciary in America, France, the Republic of Egypt and the Republic of Iraq.  At the end of the research, the research concluded that the constitution as a basic law of the state has witnessed an important transformation in recent decades, and that achieving the principle of constitutionalism has become one of the biggest challenges facing any society that wants advancement and progress.  And that the independence of the judiciary is one of the most important components of constitutionalism, as the institutions of judicial oversight, in addition to the constitution document, have had other references that the constitutional judge uses while he is in the process of a interpretation .  He may resort to the means of transformation in order to preserve the constitutionality by ensuring the application of the provisions of the constitution.

 Among the most important proposals involved in the research;  That the interpretation of the Iraqi Federal Supreme Court must be a justification to affirm the constitutionality and a greater guarantee of rights. Rather, its interpretation must be a contemporary interpretation of the constitution in a way that does not include a constitutional amendment on the one hand and allows it to shift in its rulings on the other hand, as it is clear from the extrapolation of its rulings that it works within  the  texts of the constitution to be issued  Its judgments are consistent with the provisions of the constitution, however, in some of them it deviated from that, and it did not follow specific standards during its judicial work in developing the provisions of the constitution, especially when it used the means of transformation.

 Keywords: constitutionalism, Iraqi Federal Court, constitutional judiciary, evolutionary interpretation of the constitution, judicial transformation.