Constitutional Judiciary Authority in Addressing: A Comparative Study Between Egyptian and Iraqi Laws

Authors

Mona Elsayed Omran

 

Abstract

This study examines the authority of constitutional judiciary in the context of judicial review, through a comparative analysis between Egypt and Iraq. The rulings of the constitutional judiciary serve as an effective tool for delineating the boundaries of legality as determined by the constitutional system of the state. The sources and nature of constitutional judicial rulings define their effectiveness in addressing public authorities. Consequently, the constitutional judge engages in various disputes within their jurisdiction and issues rulings that align with the principles of the applicable constitution. The procedures for examining constitutionality are activated through several mechanisms, which may include the original direct constitutional lawsuit before the constitutional judiciary, or a motion for dismissal before other courts by individuals meeting the standing requirements, followed by referral or through judicial review, which is the focus of our research. Constitutional courts exercise their review powers using various approaches in their interaction with constitutional lawsuits, and the extent of this practice varies according to the judicial organization within each state. Furthermore, courts may engage in judicial review not only through their authority over the constitutionality of laws but also incidentally while exercising their other functions as courts of first instance in cases brought before them. This is based on a number of philosophical and legal standards that govern judicial practice, aiming to achieve the primary objective of granting these courts oversight authority to uphold constitutional principles and ensure constitutional legitimacy. The scope of invoking the concept of judicial review differs across various judicial systems. It is more expansive in the context of constitutional judiciary while being practiced to a limited extent in ordinary courts and significantly in administrative courts. The reasons for these variations can be attributed to several philosophical and legal foundations that provide legitimacy for the judiciary to deviate from the general rule and extend beyond the limits of the lawsuit before it, which contradicts the general principle of party sovereignty. This principle dictates that the judge must adhere to the scope of the case regarding the parties, the subject matter, and the cause of action, so as not to exceed its personal limits by ruling on behalf of or against a party that is not adequately represented. Moreover, the judge is not permitted to alter the grounds or the substance of the claims presented. Although this principle is fundamental and relates to public order in ordinary courts, it does not apply in the same manner within constitutional judiciary due to its unique nature, as it derives its authority from the constitution, which is the supreme law. Therefore, the constitutional judiciary must monitor cases of unconstitutionality and address any provisions that contradict the constitution, even if they are not included in the petition challenging the constitutionality. Thus, this study addresses the definition of judicial review, outlining its limits and the foundation for judicial review in constitutional judiciary from both philosophical and legal perspectives. It then explores the mechanisms of judicial review exercised by the Supreme Constitutional Court and the Federal Supreme Court.

DOI: 10.51958/AAUJBL2025V9I2P2