Constitutional analytical look
Dr.. Saad Ali Imran
* Researcher at the center of the Euphrates Development and Strategic Studies
Fixed rules of jurisprudence in the common law that the legislature is her inherent jurisdiction to legislate However considerations process has given the executive branch the right to legislate in some exception matters by regulations that are called in some countries, "regulations".
And systems is a administrative decisions of regulatory whereby the Administration develop a new legal rules of general and abstract applied to an unlimited number of cases and individuals, and issued by the Department in accordance with the Constitution, because the subsidiary legislation (regulations) are exceptional power enjoyed by the administration in the field of legislation, so it must be based on any constitutional basis must be provided for by the Constitution as a possible release of the executive branch, and these regulations including those issued under normal circumstances natural Kalonizh for the implementation of those laws and for the establishment, management and regulation of public utilities in the state. And what comes out of them in unusual exceptional circumstances, including the necessity and regulations or delegated regulations systems. Typically, these systems are enjoying it despite the force of law issued by the executive branch, but on condition that stipulated in the Constitution itself, it can be assumed these legal force her assumption (1).
In the midst of what Iraq is going through political, economic and social conditions extremely difficult Turn the Prime Minister "d. Haider al-Abadi "and under public pressure led by the religious authority wise, to launch inter reforms that are supposed to include aspects of her whole life, and under the pressure mentioned in the media honest with the House of Representatives by introducing other reforms package are also invited to apply. Among those reforms by the government to provide a system, any administrative decision organizational, to fix the salaries of state employees and it was the most important features of this alleged reform Cancel and reduce the range of allocations support for the salaries of state employees, with the increase and decrease of basic salary (nominal) contained in the salary scale in force since Under the 2008 law amending the salaries of state employees and the public sector No. (22) and Law University Service No. (23) of 2008 amended (2). And get ready to be sent to the Federal Ministry of Finance to apply since 01/11/2015, and this reformist trend needs us pause for analysis of the constitutional and legal point of view. To this end, we will show the concept of the legislative authority in accordance with the general constitutional origins in the first section, and then we will discuss in its analysis according to the Iraqi Constitution in section II.
Legislative authorization in accordance with the general constitutional origins
First: the concept and the organization of the legislative mandate:
May the Parliament mandated the chief executive -rias State or Prime Minister-exercise legislative function, meanwhile, that the Executive Chairman replace Parliament in direct this function in the limits specified by the authorization law and it follows that the gain resolutions chief executive properties and the strength of the legislative work of parliament , any law, and shall have to establish or modify or cancel the list of legal rules dealing with specific topics set out in the authorization law (3). Thus, the legislative mandate can we know that "Parliament is entrusted to exercise some legislative powers to the executive branch for a specified period of time and topics specific mandate in the law."
Constitutions that have adopted the idea of the legislative mandate explicitly regulated in the folds Among those constitutions, we find the French Constitution of 1958 has tended has been stated in article (38) that (the government in order to implement its program to ask the Parliament mandate to take via command during a limited period of measures usually intervene in the law, and be approved orders in the Council of Ministers after taking the opinion of the Council of State which apply upon their publication but become void if the draft ratification to parliament law did not provide before the expiration date specified in the authorization law, it can not be approved unless explicitly and the end of the period mentioned in The first paragraph of this article can not be modified orders in the materials used in the field of legislation, but the law and in the materials that go into the legislative domain).
The text of the Egyptian Constitution of 1971, repealed in Article (108) that (the president when necessary and in exceptional circumstances and on the authority of parliament a two-thirds majority of the decisions that have issued force of law and the authorization must be for a specific period, and during which the subjects of these decisions and the reasons are and the resolutions must be submitted to Parliament in the first session after the expiration of the mandate or if they are submitted and not approved by the Council continues to have the force of law). And went Moroccan constitution in 2011 to adopt a legislative mandate also in Article 70, which stipulates that (parliament vote on the laws .... The law to authorize the government to take a limited period of time, and very specific, by decree, measures normally falling purview of the law being Once these work decrees published, but it must be presented to Parliament for ratification, at the end of the term set by the law to issue permission ....).
Second: the conditions of validity of the legislative mandate:
If the above is the position of the constitutions of the idea of adopting legislative mandate explicitly, we must of the most important conditions that are, in fact, restricted to the exercise of the executive power of its jurisdiction in issuing a statement delegated regulations are as follows:
The first item: the conditions relating to the conditions of the exercise of the legislative mandate: require for the exercise of legislative authority that there are circumstances unusual justify the exercise of this jurisdiction, although not required by the Constitution explicitly (4), the constitutional situation whereby it would be a mandate for a specified period, and Altoqat not be in normal circumstances, but is associated with conditions Accordingly, the special application of the legislative mandate has to be under unusual circumstances (exceptional) (5).
The second item: the conditions relating to the Commissioner and the Commissioner him: there are conditions to be achieved in the Commissioner any parliament, it must be the latter in session and the convening of Parliament is what distinguishes the case of delegated regulations as other regulations issued by the executive branch to exercise the legislative function under exceptional circumstances, is This does not mean the need for the continuation of the parliament length of the authorization period (6), and as well as the Parliament also must be issued authorization from Parliament legislative mandate is to issue a law called the Authorization Act shall be promulgated legislative procedures the same place (7), Parliament does not delegate The government on its own to regulate the relevant issues, but it must be done at the request of the government (. As for the respect of the terms of the Commissioner him any chief executive must be receiving a permission from Parliament for the exercise of delegated authority to issue regulations, it may have to be on the head of state to consult certain parties (9).
Third item: the conditions relating to the duration and the subject of the mandate: divided these conditions into two types, one regards the period of time that the chief executive can, during which the regulations delegated issued on the authority of parliament to him, and the other includes the statement of the topics that may be addressed by regulation under the Authorization Act:
To be a mandate for a limited period: You must determine the length of time the regulations delegated precisely the reason for this is to the keenness of the constitutional legislator not to the continuation of the mandate for an indefinite period as an exception exhibitors it is a departure from the principle of the separation of powers, so the failure to determine the law of the authorization period it void (10), so it may not parliament that makes determining the duration of the mandate of the executive authority estimates that by linking the achievement of the objective of the delegation, which (the implementation of the program) (11), but must determine the mandate law precisely, period during which entitles the government in Measures belonging to the field of law (12). It is noted that the duration of the mandate should not take the time remaining for on behalf of Parliament because it is down substantially from the legislative authority a fortiori, but this period extends to the mandate of the new Council (13), if during the mandate law to determine this period became void of losing one of the fundamental conditions and it may be challenged unconstitutionality (14), and this emphasis on the need to limit the duration of the mandate law emanated from the fact that the legislative mandate is to be exceptional exhibitors and a departure from the principle of separation of powers must therefore this out to be temporary until the balance is not disturbed between the authorities (15).
To have a specific mandate topics: topics that authorization law must be specific purpose and therefore the subjects (16). It must determine the mandate and the law precisely what the topics to be addressed by the law of the mandate and therefore will be organized by the government in its regulations delegated authority if specific topics within the law did not count that absolute power of executive power in the legislation (17).
Which is supported by the French Constitutional Council in many of its provisions he has spent in that 11.1.1977 (when the government asks parliament to authorize legislation through the legislative orders must be precisely what measures they intend to take turns and we must take these measures in order to implement program), as well as spent in 1986 that (the Government to indicate the area of intervention is it's not a binding statement on the substance of the legislative orders) (18).
It is clear that he must identify the subjects in which the regulations delegated issued, Valtvweid should be partly focused on specific topics The overall mandate, it is not permissible because it serves as a waiver of Parliament for legislative powers and that is not owned, but must also clarify the foundations of the regulations delegated evident this basis in the light of the reasons driving to the issuance of the legislative mandate itself (19), and not to identify the subjects involved in the authorization law means the absolute authority of the head of the executive authority in issuing delegated regulations on any subject, and that means giving up the parliament for its competence in the legislation, which is constitutionally permissible (20), and he notes that he has to be obtaining these specific mandate in the law of topics and limited to closely necessarily exceptional cases (21).
The fourth item: the requirement for presentation regulations to parliament: Constitutions mentioned have required should a draft ratification of the decisions delegated issued by the government to the parliament law before the end of the authorization period and the consequent lack of display demise to have the force of law, and then end effects and considered null (22 ). If these decisions were presented to Parliament in this offer, the same does not change the legal nature - Kqrarat administrative - which makes the door open to appeal towards cancellation (23), which is backed by the French Constitutional Council in a ordinances issued on 27/2/1972 that ( ... after the deposit of the ratification of the draft law is to keep the entry into force of the legislative orders, which does not address at all the legal nature, ... and so remain subject to review case of abuse of power and the plea of illegality) (24).
Must refer to the Parliament the owner of inherent jurisdiction in the legislation at the end of the authorization period to say his word in those regulations (25), and this requires of course that the parliament be located If the expired mandate did Parliament not exist should display these regulations (resolutions Rules) to the Council New in its first meeting (26). If these regulations presented to the Council of Representatives has approved and believes, however, that ratifies and confers upon the force of law, it has refused to explicitly approved in this case shall cease to have the force of law (27).
Third, judicial control over the competence of the head of the executive authority delegated to issue regulations:
Elimination of the French Council of State has settled on the regulations (orders) delegated are administrative decisions have the force of law before ratification by Parliament and therefore subjected to its competence to verify the legitimacy (28), and that the State Council spent on December 8, 2000 in the lawsuit filed by Mr. (Hoover and others) on the request to cancel the Order No. 525 of 1998 issued on June 24 1998 and on control over the deportation of funds abroad for the territory of the Overseas suspended the implementation of this matter came in judgment that (it contested issued pursuant to Article 38, and that the regulations issued pursuant to this article shall be considered as subject to the administrative control of legality by the State Council, before ratification by Parliament while these regulations become a legislative value from the time of signing by Parliament and then not subject to the supervision of the administrative judiciary) (29).
But in light of the Egyptian regime, these regulations judiciary has settled on its promise just administrative decisions before ratification by the parliament but after that Vtakhts consideration of the Supreme Constitutional Court of being a sacrifice laws (30), and on that Court of Administrative Justice in Egypt that (should the President of the Republic during exercise As authorized it to issue decisions and laws pursuant to Article 108 of the Constitution not exceed plotted his border constitutionally and affect public rights and liberties by claiming that he aims to achieve the public interest, but legal to the extent commensurate with the necessary conditions and extraordinary, but it was his actions tainted by defect the wrongfulness Mistojba challenged ... ) (31).
Legislative authority in the Constitution for Iraq in 2005
And we will explore whether there is the idea of the legislative authority in accordance with the provisions of the Constitution "first" and then in accordance with the mandate of the parliamentary "II".
First, the legislative mandate and in accordance with the provisions of the Constitution:
As noted previously, the executive branch's ability represented by its president to issue administrative decisions of regulatory (regulations or delegated systems) have the force of law any post its decisions mentioned to amend and repeal the provisions of applicable law or that no new legal rules, needs to be provided for explicitly in the Constitution, and as organized by the constitutions mentioned in the above. What is the position of our Constitution on this issue over the search?
Extrapolation of the provisions of the Iraqi Constitution show us clearly not to take the Iraq Constitution the idea of legislative authority to the government and this means that the Iraqi federal government's ability to issue mandatory decisions have the force of law (32). And thus head of the Iraqi Council of Ministers can not constitutionally be issued any decision contrary to federal laws do not force the cancellation or amendment does not Balanchae. This is because the decisions made by the executive power levels all it is only the administrative decisions and is known as the administrative decision can not be for him to never violate the law because it is less than the strength and impact, but that the law can abolish the executive branch decisions. And you can not rely on any text in the Constitution to justify the government issued its "reformist" about the salaries of state employees and among them university professors who are ruled by another law, a university Service Law No. (23) for the year 2008 average.
Second, the legislative mandate and in accordance with the parliamentary mandate:
It might be said that the parliament authorized the Prime Minister to take all corrective measures, including the amendment of laws relating to women with the salaries of state employees and university service and thus have to tweak and eliminates the window, but the legal rules and establish other new rules.
This is to say that the payoff for the following reasons:
The lack of constitutional basis for the establishment of the Federal House of Representatives delegation of the Iraqi government legislatively because, as we have noted an exceptional competence of the government, because the concession owner of the legislative authority for its competence inherent legislation, and entrust the task to the government, and therefore need to be explicit provision in question, and only had the legislative authority to have lost its Sindh constitutional and thus violates the House of Representatives Constitution and the Constitutional shirk its obligations.
If we assume that this idea is organization in the Iraqi constitution, but could be considered constitutional norms complementary constitutional shortages, as happened under the French Constitution of 1875. we must note that this custom was the subject of intense criticism in France at the time of the unconstitutional that part of it the other hand, it is the application of any legislative mandate did not happen under the provisions of the Constitution so that we can say that the norm has arisen in his shadow.
The Iraqi Council of Representatives the government did not authorize the mandate legislatively proper sense customary in the rest of the other countries, because the conditions of validity of the legislative mandate which we have discussed in the above unrealized in its entirety, and the most important of the Iraqi Council of Representatives did not issue a law the same procedures followed in the enactment of laws, the government delegate Iraqi legislation on specific issues and for a specific time. But all that happened was that the vote on the "reform agenda" presented by the government as a way of her future work was not specified principles and issues to be addressed. That approval did not stem from a sincere desire to reform, but are the result of popular pressure mentioned and try to calm the media was the approval rather than actual. And here we must be noted that not all approved by Parliament is law, because the Constitution has been between that of the terms of reference of the House of Representatives to issue laws also has issued decisions are not up to the level of law and power (33), and some are issued by the authority constituent derivatives (34 ).
We conclude from this that the reference to the mandate of the Iraqi government's media of the House of Representatives does not have a bond constitutionally sound to cancel the decision of the women with the relationship of salaries and allowances of university service and the rest of the staff categories of law, and thus be the work of the government against the law and the Constitution.
Finally, it might be said that the salaries of state employees and the public sector Law No. (22) for the year 2008, has been awarded the Council of Ministers the power to amend salaries stipulated in the law on the basis of Article (3 / II). That this statement is inaccurate because the above-mentioned article states (the Council of Ministers adjust the amount of salary stipulated in the salary scale attached to this law in light of the high rate of inflation to reduce their impact on the standard of living of the general staff).
The text of Article very clear that the Council of Ministers the power to amend Salaries in cases where there is inflation in the market rates, with salaries unchanged for the Council of Ministers used this authority who shall increase the amounts of salaries and not reduce the amount of salaries, which deliberately to the Council of Ministers in the previous mandate when issued resolution No. (352) in 2013 (35). So the situation is completely reversed in light of this advanced speech. So, if the current Council of Ministers issued its rules on the basis of this article, the decision would be contrary to a clear violation of the Law of the salaries of state employees, especially Article (3 / II) it shall be subject to appeal it, as an administrative decision, in front of the competent judicial authorities for violating the legal legitimacy. At the Council of Ministers if this was based on the legal provision that increases the salaries were not detract from them.
Hopefully by the Council of Ministers and the boss to verify a lot before making impromptu decisions hasty do not achieve the public interest but, suffers damage, and that the Prime Minister is based on people with experience and competence in the law and in particular the common law, reckoning that the laws governing the regulatory status of the employees in Iraq are the most important the vocabulary of this law. And that does not reckoned to those views that are contrary to law and can not find the bond shall be his decision flawed legally, as well as social aftershocks and which ones to "reform package" I want her to be applied starting on state employees, especially university professors, after failing to take their way toward the rightful spoilers, do these professors and scientists are the doors of administrative and financial corruption in Iraq, or are they jellyfish science Astadhae by each of the exhibits through science ????
(1) d. Saad Ali Imran: Administrative Justice, 2nd Floor, Babylon, sincere Foundation for Publishing and Distribution 0.2015, p. 23 onwards.
2) The two laws were published in the Iraqi Gazette number 4047 dated 05/12/2008.
(3) d. Abdul Azim Abdul Salam: the legislative role of the head of state in a mixed order, Cairo, Arab Renaissance Publishing House, 2004, p. 85.
(4) d. Suleiman Mohammed Tmaoa: the three authorities in Arab constitutions in the Islamic political thought, Cairo, Dar Al Arab Thought 0.1979, p. 87.
(5) d. Ahmed Badr safety: the legislative competence of the head of state in a parliamentary system, Cairo, Arab Renaissance Publishing House, 2003, p 326.
(6) d. Sami Jamal al-Din: Regulations necessity and a guarantee of judicial oversight, Alexandria, Knowledge facility 0.1982, p. 237.
(7) George Fidel, Pierre Dlfoalafi: Administrative Law Judge Mansour translation, the first part, i 1, Beirut, University Corporation for Studies and Publishing and Distribution 0.2001, p. 289.
( d. Mohammed Abdel-Hamid Abu Zaid: the extent of the authority of the ruling about the presumptive legislation, by law and positivism, 2nd Floor, Cairo, Arab Renaissance Publishing House, 1995, p. 177.
(9) Marwan Mohammed Mahrous teacher: Delegation of legislative jurisdiction, doctoral thesis, University of Baghdad, College of Law in 2000, pp. 117-119.
(10) d. Sami Jamal al-Din: ibid., P. 253.
(11) d. Salama Ahmed Badr: ibid., P. 333.
(12) George Vidal, Pierre Dlfoalafi: ibid., P. 290.
(13) d. Sami Jamal al-Din: constitutional law and constitutional legitimacy in the light of the elimination of the Supreme Constitutional Court, 2nd Floor, Alexandria, facility knowledge, 2005, p. 312.
(14) d. Abdul Azim Abdul Salam: ibid., P. 196.
(15) d. Mohammed Sennari: Constitutional Law - the theory of state and government -, Cairo, Arab Renaissance Publishing House, 1995 - 1996, p. 547.
(16) d. Suleiman Mohammed Tmaoa: ibid., P. 87.
(17) George Fidel, Pierre Dolfoalafi: ibid., P. 290, d. Sami Jamal al-Din: regulations necessary, the previous source, p. 250, d. Mohammed Abdel-Hamid Abu Zaid: the extent of the ruling authority about legislation, ibid., Pp. 177-178.
(18) George Fidel, Pierre Dlfoalafi: ibid., S289-290.
(19) d. Majid unwilling sweet: Political Systems and Constitutional Law, 1st Floor, Alexandria, facility knowledge, 2005, p. 665-666.
(20) d. Ibrahim Abdul Aziz Al Shiha, d. Mohamed Refaat Abdel Wahab: Political Systems and Constitutional Law, Alexandria, Conquest Press, 2001, p 786.
(21) d. Sami Jamal al-Din: constitutional law, ibid., P. 311.
(22) Andre Horiu: constitutional law and political institutions, Part II, Beirut 0.1977, p. 419.
(23) Andre Horiu: source above, p. 419.
(24) George Fidel, Pierre Dlfoalafi: ibid., P. 293.
(25) d. Saad bird: Egyptian constitutional order, Alexandria, Knowledge facility 0.1981, p. 139.
(26) d. Suleiman Mohammed Tmaoa: Political Systems and Constitutional Law, Cairo, Dar Al Arab Thought, 1988, S480-481.
(27) d. Mohammed Assar left: the theory of necessity in constitutional law and government legislation in the periods stop parliamentary life, Cairo, Arab Renaissance Publishing House, 1995, p. 53.
(28) d. Majid unwilling sweet: the elimination of administrative, Alexandria, facility knowledge, 2004, p. 284.
(29) MEMRI d. Salama Ahmed Badr: ibid., P. 364.
(30) d. Majid unwilling sweet: the elimination of administrative, former source, p. 284.
(31) mentioned d. Salama Ahmed Badr: ibid., Pp. 307-308.
32) d seen. Saad Ali Imran: cit., P. 29 source.
33) fell substances (60-64) and Articles (110 and 114) of the Constitution.
34) and articles (126 / I) and (142) of the Constitution.
35) and published in the Iraqi Gazette number 4288 dated 02/09/2013.
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