Article About The Crisis of Constitutional Review in Iraq: Balancing Constitutional Text and Judicial Application

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Constitutional review of laws is a fundamental pillar in protecting the rule of law and ensuring that the legislative authority does not exceed the limits established by the supreme law of the state. In Iraq, the Constitution of the Republic of Iraq of 2005 represented a significant turning point by establishing the Federal Supreme Court as an independent judicial body responsible for adjudicating constitutional disputes and reviewing the constitutionality of laws and regulations in force. This study provides an analysis of the nature of constitutional review in Iraq in light of the provisions of the Constitution of the Republic of Iraq of 2005 and the decisions of the Federal Supreme Court, with a focus on the Court’s role in safeguarding the supremacy of the Constitution and the scientific and practical challenges facing this judicial institution. First: The Constitutional and Legal Framework of Constitutional Review in Iraq : The Federal Supreme Court derives its fundamental jurisdiction from Article (93) of the Constitution of the Republic of Iraq of 2005, which defines its functions as reviewing the constitutionality of laws and regulations in force, interpreting constitutional provisions, adjudicating cases arising from the application of federal laws, and settling disputes between the federal government and the governments of the regions and governorates. The importance of this constitutional framework is reflected in the protection of the rights and public freedoms set forth in Chapter Two of the Constitution, as the Court has the authority to review legislative provisions and determine their compatibility with constitutional principles and provisions. Second: The Relationship Between the Legislative and Judicial Authorities : The exercise of the Federal Supreme Court’s power of constitutional review over legislation enacted by the Council of Representatives raises several legal issues. Constitutional law requires a balance between legislative decisions adopted in accordance with the popular will and the principle of the “supremacy of the Constitution,” which is safeguarded by the judiciary. Article (94) of the Constitution provides that the decisions of the Federal Supreme Court are final and binding on all authorities, meaning that they may not be challenged before any other body. This provision confirms the Court’s position within the Iraqi constitutional system. The Court also primarily exercises subsequent review of laws and regulations in force after their enactment and publication in the Official Gazette, “Al-Waqa’i Al-Iraqiya,” based on lawsuits and applications submitted before it in accordance with the applicable legal framework. Constitutional interpretation is also one of the most important functions of the Federal Supreme Court. Its interpretive decisions have contributed to clarifying the meaning of several constitutional provisions and determining their scope of application. However, this has raised doctrinal debate concerning the boundaries between judicial interpretation of constitutional texts and an expansive interpretation that may approach the exercise of legislative functions. Third: The Iraqi Judiciary and the Practical Applications of Constitutional Review : The Federal Supreme Court, as part of the Iraqi judicial system, plays an essential role in consolidating the rule of law and applying constitutional provisions. In practice, several important legal principles have been established that have contributed to safeguarding the federal system and regulating the relationship between Baghdad and Erbil. Nevertheless, constitutional review in Iraq faces a number of doctrinal and legal challenges, most notably the delay in enacting a comprehensive law governing the Federal Supreme Court in accordance with the requirements of Article (92/Second) of the Constitution, which requires a two-thirds majority of the members of the Council of Representatives to regulate its provisions.This has resulted in continued reliance on the previous legal framework and its amendments. A further doctrinal and legal debate concerns the boundaries between interpreting constitutional provisions and adopting an expansive interpretation that may lead to approaching the role of the legislator. This requires achieving a balance between the necessity of judicial interpretation and the need to respect the principle of separation of powers. Constitutional review in Iraqi law remains a safeguard for protecting democratic institutions and individual rights. Despite the political and legislative obstacles, the constitutional judiciary has established itself as a decisive authority for resolving complex constitutional disputes. To strengthen this experience, there is a need to complete the legislative framework governing the work of the Federal Supreme Court in accordance with Article (92) of the Constitution, thereby contributing to strengthening its legitimacy and structural stability and supporting its role in safeguarding the supremacy of the Constitution and consolidating the principle of the rule of law. Assistant Lecturer Zaid Fadhil. Al Mustaqbal University The First University in Iraq