The role of judicial control over the constitutionality of laws In the protection of public rights and freedoms | ||
| CONTEMPORARY ISLAMIC STUDIENS MAGAZINE | ||
| Article 1, Volume 3, Issue 7, October 2012, Pages 1-32 PDF (0 K) | ||
| Author | ||
| Maytham Hussein Shafei | ||
| Abstract | ||
| That the principle of legality becomes worthless and empty of any substance unless it is determined a penalty for violations of the state authorities of different law. And so says Dean Degy: (it is not enough to decide the principle of the rule of law in theory only, but rather must be regulated by a penalty for violation the provisions of that principle). This penalty can not be imposed except by a judicial authority shall decide on the conflict that arises between the person concerned and the state. and should be available to the judiciary all guarantees of independence, impartiality and efficiency. and if you include the legal rules required of His Highness the constitutional rules the legislative and regulatory rules, the lack of control over the constitutionality of laws that prejudice inevitably fade and the consequent violation of the rights and freedoms of the public. In this respect, States to organize the different control laws to ensure consistency with the Constitution. And divides the men of jurisprudence methods that are the control of the constitutionality of laws, two methods to control by a political body, and control by a judicial body. And judicial control, to symbolize the status of any body to which it exercises undertaken by the judicial body. And while varied picture of judicial control a great variety but can be divided according to the impact that the implications for the law is unconstitutional to the two main types: control of abstinence and control of the cancellation. And under the control not to be for the judge to ignore the rule of law is constitutional which shall not apply in the case before it. It remains the law with the force and effect rule in other cases that could be where that.. The control phase, it allows the judge to invalidate the law is constitutional in the face of all. And the consequences of this elimination as a law, if not from the date of its issuance, or at least canceled for the future only, and that as determined by the provisions of the Constitution in this regard. and often that all courts shall exercise control to refrain often realized as a result of non payment constitutionality of the law to be applied during the original examination of a lawsuit before it. The control phase, is most likely to be entrusted with this type of control to one court, taking the idea of centralized control, and that since this way the risk and resolve the severe consequences as it leads to the abolition of the law and considered as not in the erga omnes, while turning control to refrain the continuation of the law and force, where limited impact on the non-application of law in the instant case in particular. It is therefore illogical to exercise all courts in the state controlled the cancellation, and then concentrated control in one court, which is but to be the Supreme Court in the judicial system, such as Court of Cassation and the Constitutional Court to be specialized are created specifically for this purpose, for example, the Supreme Constitutional Court in Egypt, where he is currently a way to take judicial control (central) on the constitutionality of laws and regulations. The Federal Supreme Court in Iraq. | ||
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