Yaqeen Journal for Legal Studies

The Role of the constitutional Judiciary in Establishing Constitutionalism

Shereen Ahmed Saddallah — 2024-05-30

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.

The Problem of Characterising Binaural Beats as a Psychoactive Substance: Bridging the Gap Between Traditional Drug and Electronic Fraud Approaches

FAHIL ABDULBASIT A. ADBULKAREEM — 2024-05-30

Basing on the current laws in Iraq's criminal legislative system, this research addresses the issue of identifying a legal framework for characterising digital drugs and thereby establishing criminal culpability. On the one hand, and on the other hand, we have tried to urge the Iraqi federal and Kurdistan regional legislators to synchronise the repercussions of the emerging cybercrime and predicate the future consequences of such crimes, based on the principle of protecting the security, stability, and safety of society by enacting modern laws to confront cybercrime, and not impunity for the perpetrators.

Therefore, in order to understand the topics of the research, we divided the research into two sections: in the first topic, we studied what digital drugs are (the definition) by defining the mechanism of action of these drugs, while in the second topic, we studied the legal mechanism for characterising digital drugs through two approaches: in the first of them, we tried to characterise digital drugs as conventional drugs, while in the second approach, we tried to characterise this drug as a digital fraud.

Problems facing the work of the constitutional justice in Iraq

Sivan Bakrad Mesrob — 2024-05-30

The Federal Supreme Court of Iraq is an important constitutional institution and a pillar The State of Law has the competence to be regarded as the guardian of constitutional legality and the safeguard of security for the protection of rights and freedoms in Iraq However, the work of Iraq's Federal Supreme Court may be problematic and challenging when exercising Its function, whether political or legal, affects its work and independence, where decisions The Court has a clear impact on political life and the extent to which political reality clearly influencesits its decisions. The most important issue is the formative and organizational aspect of the constitutional text. The mechanism for the formation of the court must be determined in the Constitution's texts, not by law establishing the ordinary legislator. Therefore, the Federal Court's First Amendment Act was unable to keep pace with legislative developments. It has created many legal problems that have become controversial and negatively reflected on the political reality in the country. Thus, he did not develop a radical solution to the problem, but rather came up with real-time treatments; Therefore, the most important recommendations made are the need to regulate the composition of the Federal Court in the texts of the Constitution. With the need to legislate a new law that addresses problems and imbalances in the amended law, its provisions are consistent with the provisions of the Constitution in order to ensure the Court's independence from other authorities Ensuring that the State's public authorities abide by the provisions of the Constitution by exercising their primary role in oversighton on the constitutionality of laws.

The Authorities Responsible for Examining Disputes Between Depository Centers

Amr Sayed Marei Shalgami — 2024-05-30

One of the most important positive appearances of attracting investment in the country, especially foreign investment, is the establishment of a legislative environment that encourages investment and preserves the national economy. Among these legislations are those governing the settlement of investment disputes. Therefore, in this study, we discuss the natural and alternative litigation methods for settling disputes of companies and securities depositories, which are among the most important companies operating in the field of securities.

We divided this study into two sections. In the first section, we discussed the judicial jurisdiction for considering these disputes, clarifying the identification of the competent authorities in all the legislations under study. We concluded that there is an independent economic judiciary in these legislations, and we also concluded that the Saudi and Emirati judicial systems, concerning disputes of these companies, are more flexible than those included in the Egyptian and Jordanian legislations. We also discussed in this section how to appeal the rulings issued by these judicial bodies and the extent of their specificity, departing from the requirements of the general rules due to their special nature.

In the second section, we discussed alternative methods of dispute settlement related to companies and securities depositories, clarifying the role of arbitration in settling these disputes and the advantages and disadvantages included in these comparative legislations in this regard. We concluded that arbitration in these disputes has become optional, not obligatory, for the parties to the dispute. We also discussed conciliation and mediation as alternative means of resolving these disputes, concluding that all the comparative legislations have included the regulation of this method, except for the Jordanian legislation, which does not include the regulation of such a matter. We found that there are relevant authorities in each of the countries of the Arab comparative legislations that undertake the tasks of conciliation and mediation in these disputes

Legal Regulation of Administrative Mediation

Ali Younes Ismael — 2024-05-30

Abstract

Due to the overwhelming backlog of cases and complicated judicial procedures, much modern legislation have adopted an alternative means and methods to resolve cases out of the courts. This aim to avoid the court but only as a last resort in which alternative methods fail to satisfy the parties.

These means and methods have been recognized by legal systems long time ago with no role and involvement of the courts such as mediation, arbitration, conciliation, or other methods. However, recently these methods have evolved with taking new model. For instance, the French legislator in the administrative justice code considered these means and methods within the judicial procedure with having the court a big role in its regulation. The administrative justice code introduced a new framework concerning mediation as an alternative solution to litigation before administrative courts. In this new model, the administrative judge is given a crucial role in resorting these means including proposing it, choosing the mediator, and approving the result. Furthermore, similar to the administrative petition, the legislator stipulated that mediation might cut off the deadline of filing the administrative lawsuit. In particular situations, the legislator made mediation a prerequisite for accepting a lawsuit before the judiciary in which the administrative case will be rejected unless preceded by mediation.

The position of Arab Civil Laws Derived From Islamic Jurisprudence

Ismat Abdul Majeed Bakr — 2024-05-30

Abstract

It has always been argued that current Arabic Civil Law is derived from Islamic (Shariah) Law. This subject has always been and continue to be a continued debate.

Does mentioning Islamic Law in the introduction of, or as a reference for, any Civil Law is an enough evidence to claim a link or origin from Islamic Law? On the other hand, does the Civil Law need to be an exact copy, with all details, to assume the strong link and origin from Islamic Law?

The need for current Arabic Civil Law to deal with, and answer, question related to all current Civil matters led to its significant variation and divergence from Islamic Law. Such variations were the consequence of adaptation and changes Civil Law at different Arab countries experienced based on evolution and circumstances in those countries.

This study is designed to discuss those circumstances leading to such change.

Key words: Civil Law, Islamic Law, direction of Civil Law, sources and references of Civil Law, future Civil Law.

Civil Liability for the Decreasing Groundwater Reserve

Aram Ablahad Mansour — 2024-05-30

Water is essential and life cannot be sustained without it. In a certain region, it turns life there into a new land in which it is impossible to live, as groundwater represents 30% of the fresh water available in the world, while the water of rivers and lakes represents only one percentage of interest, so this resource is preserved, which is It is an independent task, and preserving the supply of this water is a responsibility that involves individuals, and contributes to an important element of development. The Kurdistan Region has become heavily dependent on groundwater, and powerful wells are often drilled and thus lead to a beneficial effect for many, the most important of which is the drying up of neighboring wells, and thus is damaged. The owners of the nearby wells, so the owner of the well rectified this hadith and thus the light, this research inflicts civil damages arising from causing a decrease in the level of groundwater during which he contributed to the damage by demanding compensation for these damages.

Russia’s use of force in Syria in light of the rules of international law

Nezar Sadeq Saeed — 2024-05-30

Russia's justifications for its use of force in Syria, although looking at it at first sight seems logical and complies with the rules of public international law, especially the Charter of the United Nations, but research and analysis of them with comparison with what happened and is happening on Syrian territory confirms that these justifications are incompatible with what is stipulated in the rules of international law, the existence of the international treaty or the request of the Syrian government to intervene to help it does not mean that the use of Force by it is in accordance with international law, because this use is against the Syrian people and not against a country that used force against Syria, in addition to that this use of force is not only against terrorist groups, but also against the Syrian people, who demanded their legitimate rights through a large-scale popular movement in terms of geographical area or the number of participants in it, and that terrorism was only an argument to justify the use of force and intervention and not to commit to fighting terrorism as stipulated in international resolutions. The solution is to refer to the rules of international law, especially the Charter of the United Nations, and to abide by what is stipulated in Article (2/paragraph 4) and Article (51) of the Charter, and also to abide by the resolutions issued by the Security Council against terrorism and not to expand their concepts as they violate the foundations of international law and will bring humanity the scourge of war again.