Conflict Of Jurisdiction Between The Governor And The Governorate Council In Iraq
DOI:
https://doi.org/10.55640/eijmrms-05-08-05Keywords:
Conflict of jurisdiction, governor, provincial councilAbstract
The legislator adopted decentralization in the organizational structure of governorates not organized into a region after 2003. However, it did not link the governor to the central government according to the administrative hierarchy of employees, nor did it link him to the governorate council with a functional link, but rather a supervisory link. This may lead to a conflict of jurisdiction between him and the governorate council, as a result of a lack of full awareness of his position in the state's organizational structure, when he made his connection to the governorate council greater than it is in the federal authority, with his function mediating the political and institutional organization between the federal authority and the governorate community, which must allow communication between the supreme leader and the parties within the framework of the executive performance of the official bodies in the state. This led to undermining the opportunities for advancement and development in the governorates. The article concluded that this problem must be reconsidered legislatively, by formulating a text based on an understanding of the governor's function in the political and administrative organization of the country.
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Article (44), Clause (a) of the law stipulates that: “A court shall be formed in Iraq by law and shall be called the Federal Supreme Court.” Clause (e) stipulates that: “The Federal Supreme Court shall consist of nine members. The Supreme Judicial Council shall initially, in consultation with the judicial councils of the regions, nominate no less than eighteen to twenty-seven individuals to fill vacancies in the aforementioned court. It shall subsequently nominate three members in the same manner for each subsequent vacancy arising from death, resignation, or removal. The Presidency Council shall appoint the members of this court and name one of them as its president. In the event that any appointment is rejected, the Supreme Judicial Council shall nominate a new group of three candidates. A court shall be formed in Iraq by law and shall be called the Federal Supreme Court.” The Law of Administration for the State for the Transitional Period of 2004, repealed. ( ) d. Hassan Al-Sayed Bassiouni: The Role of the Judiciary in Administrative Disputes (Riyadh: Alam Al-Kutub, 1981), p. 163.
“A legislative vacuum emerges in practical reality when there is no legal text to govern a new event or when its ruling is ambiguous. This leads the ambiguous text to enter the legislative vacuum. Judges must then resort to mechanisms to fill the legislative vacuum, namely analogy, legal stratagems, and justice. These mechanisms aim to address the legislative vacuum and bridge the gap between the text's inability to accommodate the disputed event and the developments occurring in life, creating compatibility and harmony between the legal text and the new event. This can be achieved by adapting legal texts and giving them broad provisions, or by drawing on the legislative wisdom of the text or the purpose it seeks to achieve, in order to arrive at a just ruling.” Dr. Hussein Yassin Al-Obaidi: Judicial Reasoning and Its Impact on Filling the Legislative Gap (Al-Baheth Al-Arabi Magazine, Vol. 4, No. 3, 2023), p. 147.
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The letter "waw" indicates that the conjoined word shares the ruling with the conjoined word. Ahmed Farid Al-Muzaidi: Explanation of the Text of Al-Ajrumiyyah in the Rules of Arabic by Al-Ashmawi (Beirut: Scientific Books, 2012), p. 148.
The Permanent Constitution of the Republic of Iraq of 2005, in force.
According to Article (2) of the First Amendment to the Federal Supreme Court Law No. (25) of 2021.
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According to Article (94) of the Permanent Constitution of the Republic of Iraq of 2005, which is in force.
According to Article (5/Second) of the Permanent Constitution of the Republic of Iraq of 2005, which is in force.
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The decision is published in PDF format on the following website: (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://964media.com/storage/2023/11), and the principle states: “The jurisdiction of the Federal Supreme Court is specified in Articles 53 and 93 of the Constitution of the Republic of Iraq for the year 2005 and Article 4 of the Federal Supreme Court Law No. 30 of 2005 amended by Law No. 25 of 2021 and some other special laws. Among these jurisdictions and powers is nothing that gives the court jurisdiction to interpret laws except on the occasion of challenging their unconstitutionality. It also does not have jurisdiction or authority to answer inquiries submitted to it by official bodies or one of the authorities in the state or unions or federations, including the Iraqi Central Federation for Bodybuilding and Fitness, to clarify the limits of the duties of the aforementioned federation regarding granting licenses for practicing the game and opening bodybuilding halls, and whether another party has the right to practice this work based on its law, because The court is not a body that issues fatwas or expresses opinions, and the subject in question may be subject to dispute before judicial authorities.
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Dr. Muhammad Abd al-Qadir al-Daghistani: Military Theory, Military Doctrine, and Military Doctrine (Amman: Academics, 2021).
Dr. Muhammad Ali Suwailem: Constitutional Judiciary (Cairo: Egyptian University, 2020).
Al-Mu'allim Butrus al-Bustani: Muhit al-Muhit (Beirut: Scientific Books, 2009).
Yahya Mahmoud Saati: Al-Musta'sim Billah al-'Abbasi (Beirut: Arab Encyclopedias, 2008).
Yamama Muhammad Hassan: The Legal System for the Establishment and Organization of Federal Units: A Comparative Study (Cairo: National Center for Legal Publications, 2015).
Second: University Theses and Dissertations
- Abdul Hamid Abdul Mahdi: The Impact of the Development of Administrative Activity on the Exercise of Presidential Power (University of Baghdad: PhD, 2003).
- Qasim Muhammad Ghunaimat: The Mongolian Army in the Period (1218-1335) (University of Jordan: PhD, 2003).
- Salah Jasim Saleh: The Powers of the Governor in Iraq from 1958 to 2016: An Analytical Study (University of Baghdad: Master's, 2017).
Third: Journals
- Dr. Jaafar Al-Sadiq Mahdi Attia: The Nature of the Relationship between Governors and Federal Authorities According to Local Organization Legislation in Iraq after 2003 (Journal of International Studies, Issue 99, 2024).
- Dr. Hussein Yassin Al-Obaidi: Judicial Reasoning and Its Impact on Bridging the Legislative Gap (Al-Baheth Al-Arabi Journal, Vol. 4, No. 3, 2023).
- Hanan Talal Jassim and Sawsan Adel Naji: The Iraqi Constitution of 1925 (Journal of Studies in History and Archaeology, No. 68, 2019).
- Dr. Khaled Rashid Ali: An Analytical View of the Selection of Governors and Their Powers According to the Law of Governorates Not Organized into a Region: A Comparative Study (Journal of Legal Sciences, University of Baghdad, Vol. 24, No. 1, 2009).
- Dr. Rasha Muhammad Jaafar and Marwa Muwaffaq Mahdi: The Authority Responsible for Resolving Conflicts of Jurisdiction Between the Administrative and Ordinary Judiciaries in Iraq (Journal of Legal Sciences, Vol. 35, No. 3, Part 1, 2020).
- Dr. Saleh Abdul-Ajili: Methods for Appointing and Dismissing Heads of Administrative Units in Iraq After the Dissolution of Non-Regional Provincial Councils Under Law No. (27) of 2019 (Tikrit University Journal of Law: Issue 7, Vol. 7, No. 1, Vol. 1, 2022).
- Dr. Nazir Thabet Muhammad Ali: Texts Regulating Central Authority Oversight of Local Authorities and Their Impact on the Success of the Administrative Decentralization System in Iraq (Al-Nahrain Journal of Legal Sciences: Special Issue of the Second International Scientific Conference, 2023).
- Wissam Hussein Muhammad: The Legal Nature of Provincial Councils in Iraq (Al-Qarar Journal of Scientific Research: Issue 1, Vol. 3, No. 7, 2024).
Fourth: Legislation
- Coalition Provisional Authority Order No. (71) of 2004 regarding the definition of powers and responsibilities of governorates based on the principle of administrative decentralization (Iraqi Gazette: No. 3983, dated April 6, 2004).
- The Interim Constitution of the Republic of Iraq of 1964 (Iraqi Gazette: No. 949, dated May 10, 1964).
- The Interim Constitution of the Republic of Iraq of 1968 (Iraqi Gazette: No. 1625, dated September 21, 1968).
- The Interim Constitution of the Republic of Iraq of 1970 (Iraqi Gazette: No. 1900, dated July 17, 1970).
- The Permanent Constitution of the Republic of Iraq of 2005, in force (Iraqi Gazette: No. 4012, dated 12/28/2005).
- District Administration Law No. (16) of 1945 [Baghdad: Government Press, Collection of Laws and Regulations of 1945], amended by Amendment Law No. (70) of 1963 (Iraqi Gazette: No. 829, dated 7/13/1963).
- District Administration Law No. (58) of 1927 (Baghdad: Government Press, 1927).
- Municipalities Administration Law No. (165) of 1964 (Iraqi Gazette: No. 1033, dated 11/22/1964).
- Municipal Administration Law No. (84) of 1931 [Baghdad: Government Press, Collection of Laws and Regulations for the year 1931], amended by Amendment Law No. (127) of 1960 (Iraqi Gazette: No. 431, dated 10/29/1960).
- Municipal Administration Law No. (84) of 1931, amended by Amendment Law No. (127) of 1960.
- State Administration Law for the Transitional Period of 2004 (Iraqi Gazette: No. 3981, dated 12/31/2003).
- Village Administration Law No. (16) of 1957 [Baghdad: Government Press, Collection of Laws and Regulations for the year 1957], amended by Amendment Law No. (160) of 1964 (Iraqi Gazette: No. 1028, dated 11/8/1964).
- National Sports Federations Law No. (24) of 2021 (Iraqi Gazette: No. 4632, dated 5/31/2021).
- Third Amendment Law to the Law of Governorates Not Organized into a Region - No. (21) of 2008, amended - No. (10) of 2018 (Iraqi Gazette: No. 4487, dated 4/16/2018).
- The Second Amendment to the Law of Governorates Not Organized into a Region No. (21) of 2008 (Iraqi Gazette: No. 4284, dated August 5, 2013).
- The Second Amendment to the State Shura Council Law - No. (65) of 1979 - No. (106) of 1989 (Iraqi Gazette: No. 3285, dated December 11, 1989).
- The Kurdistan Region Autonomy Law No. (33) of 1974, which has been amended several times, published at: (https://www.betnahrain.net/Arabic/Documents/H1974.htm).
- The Governorates Law No. (159) of 1969 (Iraqi Gazette: No. 1789, dated October 13, 1969).
- Law of Governorates Not Incorporated into a Region No. (21) of 2008, available at: (https://www.iraqilaws.com/2024/05/21-2008.html).
- Law of Governorates of the Kurdistan Region of Iraq No. (3) of 2009, (Iraqi Gazette for Kurdistan: No. 100, dated: April 3, 2009).
- Federal Supreme Court Law No. (30) of 2005, (Iraqi Gazette: No. 3996, dated: March 17, 2005), amended by the First Amendment Law No. (25) of 2021, (Iraqi Gazette: No. 4635, dated: June 7, 2021).
- Law Amending the Brigades Administration Law [No. (16) of 1945] No. (36) of 1959, (Iraqi Gazette: Issue No. 140, dated 3/14/1959).
- State Shura Council Law No. (65) of 1979, published on the website: (https://www.iraqilaws.com/2023/10/65-1979.html).
- Federal Court Decision No. (24/Federal/2023) dated 2/27/2023, published in PDF format on the following website: (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://964media.com/storage/2023/11).
Fifth: Articles
- Dr. Ahmed Talal Al-Badri: The Supreme Federal Court is not primarily competent to interpret legislation (Article: B.T.) published on the website: (https://iraqfsc.iq/news.4956).
- 66. Dr. Israa Alaa El-Din Nouri and Dr. Hussein Ali Maktouf: Administrative Systems: Centralization, Decentralization, and Their Applications in Iraq (Article: 2021), available at: (https://alhudamissan.com/index.php/2013-03-05-21-25-16/2013-03-05-21-25-11/5484-2021-06-22-20-01-08.html).
- Dr. Abbas Majeed Al-Shammari: The Concept of the Supreme Interest of the State in the Decisions of the Federal Supreme Court: A Commentary on Federal Supreme Court Decision No. (24/Federal/2022) issued on February 13, 2022, (Article: 2023), published on the website: (https://iraqfsc.iq/news.5102).
- Ali Saber Al-Ruwaimi: The Authority of the Administrative Judiciary in Iraq, (Article) published on the website: (https://www.iraqfsc.iq/news.5063).
- Sky News Arabia Scientific Committee in Baghdad: The Federal Supreme Court of Iraq: Its Powers and Responsibilities, (Article: 2022), published on the website: (https://www.skynewsarabia.com/middle-east/1553270).
Sixth: The Conference
- Dr. Osman Yassin Ali: The Legislative Development of Administrative Judiciary in Iraq and its Keeping Up in the Kurdistan Region (The Fourth International Conference on Legal Issues - Faculty of Law, Tishk International University, 2019)
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