And complete our previous article, and say:
The third axis: the legitimacy of the Federal Cassation Court:
Federal Court of Cassation come in importance after the Federal Supreme Court within the judiciary institutions Bmekanikih the inauguration of the President of the Court imposed by paragraph / 3 of Section / 2 contained by order of the Coalition Provisional Authority Order No. 35 of 2003 which necessitated that is headed by President of the Federal Court of Cassation, the Supreme Judicial Council, and that The President of the Court of Cassation had to be according to the law No. judicial organization of 160 in 1979, its article 47 / V, and as stated in the first part of it is 35, and the judiciary to draw attention to the naming of The Presidency of the Federal Court of Cassation and clearly according to the law and judicial traditions that used to label members of the configuration of the various courts and the bodies away from any legal debate about the legitimacy of the presidency of the Court of Cassation and its discriminatory and health decisions issued after the extension of service of judges No. 39 of 2012 Act, which may result in raised this particular time into a constitutional, legal and judicial setback might not be borne by the judiciary in attempts cohesion and independence from government and party conflict in Iraq now, there are several legal opinions addressed the legitimacy of the presidency of Mr. Medhat al-Mahmoud of the Federal Court of Cassation, Sotnolha in several observations, as follows:
First: that is the Coalition Authority No. (35) making the head of the Court of Cassation is the head of the Supreme Judicial Council and that the text did not apply because of the chairs of the Supreme Judicial Council is the President of the Federal Supreme Court and Article 61 of the Iraqi Constitution stipulates that the appointment of President of the Federal Court of Cassation is through the approval of the House of Representatives and this unless you happen Court of Federal discrimination chaired Judge Medhat al-Mahmoud since 2003, and without the issuance of a decree to appoint him to the Federal Court of Cassation, pursuant to Article 47 of the Judicial Organization Act (appointed by the President of the Court of Cassation by a presidential decree) According to (Article 61 / V / a) of the Constitution of 2005, assuming the presidency of this court of any judicial figure, must have the consent of the House of Representatives should be in addition to the issuance of a presidential decree in accordance with (Article 73/7) of the Constitution.
Second: that of the acting head of the Federal Court of Cassation is the Senior Vice-President of the Federal Court of Cassation and Mr. (Medhat al-Mahmoud) did not participate in the issuance of any decision of the Federal Court of Cassation since 2003 and so far, and that the chairmanship of Mr. Medhat al-Mahmoud of the Federal Court of the Supreme not conferred the presidency of the Council of the Judiciary Supreme and the Presidency of the Federal Cassation Court, because the judicial system and the law of the extension of judges and members of the Public Prosecution Service Act is determined by the Judicial Service, and is now defunct Coalition Provisional in Iraq No. 35, the authority for the year 2003 clearly stated that the head of the Supreme Judicial Council is the President of the Federal Court of Cassation, not President of the Federal Supreme Court and keep Mr. Medhat al-Mahmoud, headed by (the Supreme Judicial Council and the presidency of the Federal Court of Cassation and the Presidency of the Federal Supreme Court), a major judicial authority of the joints, and is a departure from the provisions of the Judicial Organization Law No. 160 of 1979, and is now defunct Coalition Provisional in Iraq No. 35, the authority for the year 2003 and the law of the extension service judges and public prosecutors No. 39 of 2012, a window of the laws and due followers and application which enables him to remain president of the Federal High Court alone and only referred to retire.
But saying that the Federal High Court Act, Mr. President of the Federal Supreme Court authorizes stay in the judicial function; the argument believe violates the constitution and the law and functional norms.
Third, after the extension of service of judges No. 39 of 2012 and determine the age of President and members of the Federal Cassation Court no later than 68 years, the continuation of the current chairman of the Court of Cassation law is contrary to the provisions of Article (1 / II) of the Code of extension above, and the survival of this breach continues despite more than 3 years after the publication of legislation in the facts of Iraq is flawed judicial authority, which must submit the rest of the authorities in the implementation of constitutional and legal rules, but to say that the President of the Judicial Council, the current does not manage Federal Court of Cassation, and his deputy, the oldest is the one who administered it is not correct for a group of reasons:
Thousand-based on the provisions of the Judicial Organization Law No. 160 of 1979 that Joost exclusively took the Senior Vice-President of the task President discrimination Court in cases of absence or presence of mind legal (CG 63) thereof, that is the subject of act as Vice-President of the Court of Cassation must be on the way associated with the temporary absence exception or legal inhibitor on kinship or affinity to the President of the Court with some members of the discriminatory bodies or legal impediment on the parties to the lawsuit.
B: that is well known that the President of the Supreme Judicial Council did not preside over virtually the General Authority for the Federal Court of Cassation since 2003, the great preoccupations in the management of the Judicial Council and the chair of the Federal Supreme Court, and if the Vice President of the Federal Court of Cassation is the task of the Presidency, the correlation imposed is power defunct CPA in Iraq No. 35 of 2003, section (2) of paragraph (3) which states that the President of the Court of Cassation, president of the Judicial Council, and so will the Attorney to be chairman of the Judicial Council and whether the Judicial Council wanted it or not, the question arises: from is a judicial figure who initiated the formation of the names of the judges who make up the discriminatory bodies since 2006 to the present day? Knowing there position of President of the Federal Court orders confirm the formation of his discriminatory bodies since 2006 to the last meal twenty judges who approved the appointment of the House of Representatives on 03.05.2012 as judges of the Federal Court of Cassation? And will become the President of the Judicial Council appointed the Federal Court of Cassation bodies may in practice March the role of President of the Federal Court of Cassation We have thus defied the selections Wort in the text of Article (1 / II), Law 39 of 2012.
There is a need to have the President of the Federal Court of Cassation name clearly and declared having regard to Article 128 of the Constitution and a number of substantive and procedural law, which stipulates that (export laws and judicial rulings on behalf of the people), and there is also a positive important now and in accordance with paragraph / 3 of Section / 2 contained an order authority Coalition Provisional No. 35 of 2003 which necessitated a provision that is headed by the President of the Federal Court of Cassation of the Supreme Judicial Council before any legislation Law 112 for the year 2012 and that the head of the Supreme Judicial Council is the President of the Federal Supreme Court.
The fourth axis: the legitimacy of judicial offices
There are several opinions have emerged through the writings of several affirming the legitimacy of judicial offices (president of the Cassation Court, the chief prosecutor, head of judicial supervision, the heads of fifteen appeal) because of non-observance of approval in the House of Representatives (Article (61 / V. a) of the Constitution, they are preparing of special grades, shall be appointed with the consent of the House of Representatives (Article (61 / V – b) the issuance of a presidential decree, and this was confirmed by order 35 of 2003, which stated in the first section of it (the appointment of judges and public prosecutors to work judicial office stipulated by regulation law Judicial number (160) of 1979 and the Law on Public Prosecution No. (159) for the year 1979) and judges who occupy these positions on the two classes class acting, not appointed with the consent of the House of Representatives, and the class was appointed by a presidential decree but without passing the House of Representatives means that the appointment contrary to the Constitution and the law.
And we say that these formalities are required and the task is not a must, but if we are, that we consider these positions are illegal we will be in front of toppling the entire state, because the majority of the positions designated by proxy, and the abolition of office we will be in front of cessation of many of the joints of the judicial institution, resulting in disabling work the entire state and the interests of those illegitimate and do not fit into the implications of justice and law.
Theme V: The question of the legal age of retirement:
All laws and decisions in force and instructions relating to the legal age for referring the employee or the judge or the President of the Court of Cassation to retire and most recently the extension of judges and members of the public prosecution service number 39 of the 2012 Act, found necessitate referral to retire when they reach the legal age of 63 years or 68 years for the President and members of the Federal Cassation Court Under the leadership of the now defunct Revolution applicable Council resolutions work under the provisions of Article 130 of the Constitution, and after reviewing the biography of the life of the President of the Supreme Judicial Council (filled with books brilliant legal studies) it turned out that he was born in 09.21.1933 any that in 2003 at the age (70 years ) was referred to retire any that violates the provisions of the laws has been appointed head of the Federal Court in 2005, at the age of 72 years and currently old (82 years) and this is clear evidence that he had never referred to retire, and that the Federal High Court Act No. 30 of 2005 came in the text of Article (6 / III) Chairman and members of the Federal Supreme Court to continue the service without specifying an upper age limit only if he wishes to leave the service, that is, if it reaches a hundred years old he continues to function, and that all instructions and decisions and laws and medical studies confirm The employee who is the legal age and wants an extension, be issued a medical support from the medical point in favor of his physical and intellectual integrity of the exercise of his work to the fullest, did not know the reasons not to transmit it to retire a Nahz age 70 years in 2003, although the law provided for is 68 In the legal age for referral to retire.
And complete the rest of our article on the second crossing.