الإختصاص الولائي للمحكمة الاتحادية العليا في العراق “دراسة مقارنة”

Rp-The Jurisdiction of the Federal Supreme Court in Iraq "A Comparative Study".pdf

Abstract
This study relates to one of the important procedural issues within the constitutional judiciary, which were not regulated by the Iraqi legislator in the Federal Supreme Court Law No. (1) of 2005 amended by Law No. (25) of 2021, nor in its internal system No. (1) of 2022, but rather was referred to the amended Civil Procedure Law No. (83) of 1969. The Federal Supreme Court exercises state jurisdiction to consider requests for issuing state orders because it is one of the means authorized by the Iraqi legislature to preserve rights and legal positions from the danger of urgency that they may be exposed to due to the long duration of constitutional litigation procedures. The study also highlighted the most important immediate and future reasons that drive the parties to the litigation to submit applications for the issuance of state orders according to a set of general conditions and the special authority emphasized by the legislator. The availability of these reasons and conditions leads the Federal Supreme Court to consider the subject of those requests by issuing the state order, or refusing to issue it within the scope of all the jurisdictions of the Federal Supreme Court.
As a result of this study, it was found that the Iraqi legislation suffers from a legislative deficiency in the issue of organizing state jurisdiction in the field of constitutional judiciary. This forced the constitutional judiciary to refer to the general procedural rules in the Civil Procedure Law to consider requests for issuing state orders that are submitted to the court during the hearing of the original constitutional case. In addition, the nature of state jurisdiction within the scope of the constitutional judiciary differs from that within the scope of the ordinary judiciary. This is due to the different nature of these two jurisdictions, which makes some of the procedural rules stipulated in the Civil Procedure Law unfit for application within the scope of the constitutional state judiciary. Therefore, the study recommended the development of a legislative organization that defines Litigation procedures before the constitutional judiciary and setting up a regulation of state jurisdiction within the scope of the constitutional judiciary. This is because of its importance in protecting rights and legal positions from the risk of delay that they may be exposed to due to the length of the procedures followed before the court, leading to the final judgment in the dispute.