Conflict of Jurisdiction Between the Federal Supreme Court and The Court of Administrative Justice in Challenging Administrative Decisions in Iraq

International Journal of Law And Criminology

37

https://theusajournals.com/index.php/ijlc

VOLUME

Vol.05 Issue07 2025

PAGE NO.

37-57

DOI

10.37547/ijlc/Volume05Issue07-07

Conflict of Jurisdiction Between the Federal Supreme
Court and The Court of Administrative Justice in
Challenging Administrative Decisions in Iraq

Ameer Hussein Alawi Al-Ukayshi

Najaf Technical Institute, Department of Forensic and Judicial Evidence Techniques, Iraq

Received:

22 May 2025;

Accepted:

18 June 2025;

Published:

20 July 2025

Abstract:

A conflict occurs between two or more courts, such as the conflict that occurs between the ordinary

judiciary and the administrative judiciary in countries that adopt a dual judicial system. All or some of the courts
refuse to consider the case, claiming that it is not within their jurisdiction, so they refer it to another court, or
each court maintains its jurisdiction to consider the case. In this case, the competent authority must be
determined from among the judicial authorities or bodies with judicial jurisdiction. The Iraqi legislator adopted
this principle by Law No. (106) of 1989, the second amendment to the Council of State Law No. (65) of 1979, and
the federal system adopted it by virtue of the Law of Administration of the State for the Transitional Period in
2004 and the Permanent Constitution of 2005, due to the possibility of a conflict of jurisdiction occurring between
the ordinary judiciary and the administrative judiciary. This article aims to define this conflict and its application
in the event that a conflict of jurisdiction occurs between the Federal Supreme Court and the Administrative
Judiciary Court in appealing administrative decisions in Iraq.

Keywords:

Conflict of jurisdiction, Federal Supreme Court, Administrative Court, appeal against administrative

decisions.

Introduction:

The issue of conflict of jurisdiction

emerged in Iraq after the issuance of the Second
Amendment Law to the State Shura Council Law No.
(106) of 1989, which established the Administrative
Judiciary Court and subsequently created the judicial
function in the Council. If a conflict of jurisdiction arises
between it and any civil court, a panel of seven persons
is appointed to resolve the dispute. The President of
the Court of Cassation selects three of them from
among the members of the court, and the President of
the State Shura Council selects three others from
among the members of the Council. The panel meets
under the chairmanship of the President of the Court of
Cassation, and its decisions, issued by agreement or
majority, are binding and final. However, the increasing

tasks of the State Council’s judicial institutions related

to the Administrative Judiciary Courts and the
Disciplinary Council, and what is entrusted to it in terms
of adjudicating employee service rights claims and
considering appeals related to decisions to impose

disciplinary penalties and others, especially after the
number of bodies specialized in administrative judiciary
increased as a result of the doubling of the number of
employees, after the significant expansion witnessed
by the government apparatus after the year (2003), led
to the inability of this amendment related to the
General Disciplinary Council and the Administrative
Judiciary Court to carry out its duties in an optimal
manner, which made the Iraqi legislator issue the Fifth
Amendment Law No. (17) of (2013), which created the
Supreme Administrative Court, and replaced the
General Disciplinary Council with the Employee
Judiciary Court; so that the name would be more
indicative of the powers of the formation and more
comprehensive, and stipulated the formation of courts
for administrative judiciary and others for employee
judiciary divided geographically in Iraq into the
northern, central, middle and southern Euphrates
regions, and authorized the Minister of Justice to issue
a statement based on the proposal of the Presidency to

International Journal of Law And Criminology

38

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

form other courts for administrative judiciary and
employee judiciary. In this regard, this article will
examine the research objectives, problem, scope, and
methodology, as follows:

First: Objectives of the Article

The primary objective of this article is to highlight the
problem arising from a conflict of jurisdiction between
the Federal Supreme Court and the Administrative
Judiciary

Court

regarding

appeals

against

administrative decisions in the Republic of Iraq, as
stipulated in the applicable amendment law, and to
propose a solution.

Second: The Problem of the Article

The research problem lies in the possibility of a conflict
of jurisdiction between the Federal Supreme Court and
the Administrative Judiciary Court regarding appeals
against administrative decisions, as per Iraqi judicial
bodies.

Third: Scope of the Article

The scope of the research is limited to examining the
conflict of jurisdiction between the Federal Supreme
Court and the Administrative Judiciary Court regarding
appeals against administrative decisions, as per Iraqi
judicial bodies.

Fourth: Methodology of the Article

The article employs a descriptive and analytical
approach, extracting information from its sources,
indexing and presenting it, and then describing and
analyzing it to achieve the desired objective.

Fifth: Article Plan

This article is divided into two parts:

The first part clarifies the concepts that must be
defined in a manner that avoids any doubt or confusion
with others, as they are more general than those used
in other scientific fields. This section covers five topics.
The first topic defines conflict of jurisdiction, the
second defines the Federal Supreme Court, the third
defines the Administrative Judiciary Court, the fourth
defines appeal, and the fifth defines administrative
decisions.

The second part deals with the methods of appeal
before the Federal Supreme Court and the
Administrative Judiciary Court.

Unit One: Concepts

Defining the concepts underlying studies in general,
and legal studies in particular, is an important
requirement (1). Defining them facilitates the
expression of the researcher's intended ideas (3) and
prevents the researcher from provoking controversy
with others (2). These terms, in any given research, are

merely effective tools or mechanisms for investigation
(4) and an important link between the researcher and
the reader and the intended explanation (5). Therefore,
dispensing with a clear definition of them is considered
a methodological shortcoming (6). Therefore, this
section is devoted to explaining the following concepts:
(conflict of jurisdiction, Federal Supreme Court,
Administrative Judiciary Court, appeal, administrative
decisions).

Because most of these concepts appear in legal thought
as a combination of two words, each with an
independent meaning and another within the concept
formulated in the form of addition (7), inclusion (8), or
a revealing and specific characteristic (9); Because most
scientific concepts consist of two or more words (10) in
an additional, mixed, or hybrid construction (11),
scholars and thinkers sometimes use the term to mean
the general, absolute term, and other times to refer to
the specific meaning used in that field exclusively.
Therefore, it is necessary to address them as follows:

First Topic: Defining Conflict of Jurisdiction

First Section: Defining the Two Terms in Linguistics

First: Conflict: A noun derived from the root (n z ' a),
meaning disagreement and dispute (12). Originally, it
denotes uprooting (13), which implies violence,
difficulty, and resistance. This is because something
easy cannot be removed, but rather is removed (14).

Second: Specialization: Originally, it is derived from the
root (ikhtisas) (15), which denotes singling out a person
for something or singling out a thing to the exclusion of
others absolutely (16). Therefore, it denotes exclusivity
in grammar (17).

Second Section: Defining Conflict of Jurisdiction in
Terminology

The compound concept, according to legal scholars, has
not deviated greatly from the linguistic meanings of the

two words. Therefore, they defined it as: “A dispute

between

two

judicial

bodies

regarding

the

consideration of a specific subject, such as the dispute
that occurs between the regular judiciary and the
administrative judiciary in countries that adopt the dual

judiciary system” (18), which the Iraqi legislator

adopted in the Second Amendment Law to the State
Council Law - No. (65) of (1979) (19 ) - No. (106) of
(1989) (20 ), and it was adopted by the federal system
after the year (2004) pursuant to the State
Administration Law for the Transitional Period of the
year (2004) (21) and the Permanent Constitution of the
year (2005) (22); Due to the possibility of a conflict of
jurisdiction occurring between the ordinary judiciary
and the administrative judiciary (23). This conflict
between two or more courts is sometimes negative,

International Journal of Law And Criminology

39

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

meaning that all or some of the courts refuse to hear
the case, claiming that it is not within their jurisdiction,
and so on. At other times, it is positive, meaning that
each court maintains its jurisdiction to hear the case
(24). In this case, it is necessary to "designate the
competent authority from among the judicial
authorities or bodies with judicial jurisdiction" (25).

Second Requirement: Definition of the Federal
Supreme Court

First Section: Formation of the Federal Supreme Court

The Federal Supreme Court was formed in accordance
with Article (44/A) of the Iraqi State Administration Law
for the Transitional Period of 2004 (26); In order to fill
the two vacuums (the judicial one, which constitutes a
source of numerous disputes) and the (legislative)
vacuum (27), which emerged after the invasion of Iraq
in 2003, its work was legislated by Federal Supreme
Court Law No. (30) of 2005 (28).

Then, after the permanent Constitution of the Republic
of Iraq of 2005, which is still in force, codified its
formation, Article 92/Second thereof also stipulated
that: "The Federal Supreme Court shall consist of: a
number of judges, (29) experts in Islamic jurisprudence,
and legal scholars; their number shall be determined,
and the method of their selection, and the work of the
court shall be regulated by a law enacted by a two-
thirds majority of the members of the Council of
Representatives" (30).

It thus became completely administratively and
financially independent (31) from the regular judiciary,
and any connection between them was severed (32).
Its headquarters was made in Baghdad, the federal
capital (33), and its decisions became final and binding
on all authorities (34), and its rulings and decisions are
final (35).

Section Two: Functions of the Federal Supreme Court

The Federal Supreme Court is considered the highest
authority in the Iraqi judiciary, as it is the highest
judicial authority therein. It has become the focus of
attention and the sole authority during the
administrative, political, and economic circumstances
Iraq has experienced, such as the election of the
country's president, the expiration of the constitutional
and legal deadlines for forming governments, and the
paralysis and inability of the Council of Representatives
to function due to sit-ins inside or outside the Council.

Article 93 of the Constitution stipulates: "The Federal
Supreme Court shall have the following jurisdiction:

First: Overseeing the constitutionality of applicable
laws and regulations.

Second: Interpreting the provisions of the Constitution.

Third: Adjudicating cases arising from the application of
federal laws, decisions, regulations, instructions, and
procedures issued by the federal authority. The law
guarantees the right of the Council of Ministers and
interested parties, whether individuals or others, to
directly appeal to the court.

Fourth: Adjudicating disputes that arise between the
federal government and the governments of regions,
governorates, municipalities, and local administrations.

Fifth: Adjudicating disputes that arise between regional
or provincial governments.

Sixth: Adjudicating accusations against the President of
the Republic, the Prime Minister, and ministers, and
this shall be regulated by law.

Seventh: Ratifying the final results of the general
elections for membership in the House of
Representatives.

Eighth: A - Adjudicating conflicts of jurisdiction
between the federal judiciary and the judicial bodies of
regions and governorates not organized within a
region.

B - Adjudicating conflicts of jurisdiction between the
judicial bodies of regions or governorates not organized
within a region (36).

The Federal Supreme Court Law stipulates its duties.
Article (4) stipulates that "the Federal Supreme Court
shall undertake the following duties:

First: Adjudicating disputes that arise between the
federal government and the governments of regions,
governorates, municipalities, and local administrations.

Second: Resolving disputes related to the legitimacy of
laws, decisions, regulations, instructions, and orders
issued by any entity empowered to issue them, and
annulling those that conflict with the provisions of the
Law of Administration for the State of Iraq for the
Transitional Period. This shall be based on a request
from a court, official div, or an interested plaintiff.

Third: Considering appeals filed against rulings and
decisions issued by the Administrative Court.

Fourth: Considering lawsuits filed before it on an
appellate basis, and its jurisdiction shall be regulated by
federal law (37).

The Federal Court exercises two types of functions:

First: Judicial or mission jurisdiction, which is the review
of lawsuits and disputes.

Second: Referendum jurisdiction, which is the response
to requests submitted by federal authorities to
interpret any unclear constitutional text or one that
may be interpreted in a different way. It then delves
deeper into its interpretation, taking into account the

International Journal of Law And Criminology

40

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

public interest of the country, and then issues its
opinion (38).

Therefore, it issued its decision No. (24/Federal/2023)
on (2/27/2023) in a case whose facts are summarized
in the fact that the head of the Iraqi Central Federation
for Bodybuilding and Fitness submitted a request to the
Federal Supreme Court to interpret the paragraph on
granting licenses to practice a specific game or sport in
clubs, centers and academies and supervising them,
contained in Article (30/first) of the National Sports
Federations Law No. (24) of (2021) (39), and the
Federation disputed with other parties claiming such a
right in their legislative laws, including (the Iraqi
Athletes Syndicate), and the court decided to reject the
inquiry request in form; for lack of jurisdiction (40).

Here are some observations made by a group of jurists
(41):

1 - The court decided that it is not competent to
consider requests for interpretation of laws as a matter
of principle, but rather as a subsidiary matter, when
considering the constitutionality of a law; given that the
conformity or conformity of the contested law with the
Constitution inevitably requires its interpretation by
the court, and this is an indisputable matter. It decided
that it is not competent to answer inquiries submitted
to it by an official div, a state authority, unions, or
federations; given that the court is not a div that
issues fatwas and expresses opinions, which is a sound
approach that is consistent with the status of the
Supreme Court in terms of both subject matter and
jurisdiction. Thus, the grounds for its decision stated
that the Federal Supreme Court finds that the request
must be rejected on the basis of formal lack of
jurisdiction. The powers and jurisdiction of this court
are exclusively stipulated in Articles (52) and (93) of the
Constitution of the Republic of Iraq of 2005, Article (4)
of the Federal Supreme Court Law No. (30) of 2005, as
amended by Law No. (25) of 2021, and some other
special laws. None of these powers and jurisdictions
grant the court jurisdiction to interpret the provisions
of laws, except in the event of a challenge to their
unconstitutionality. It also does not have jurisdiction or
authority to answer inquiries submitted to it by official
bodies, any state authority, unions, or federations...;
this is because the Federal Supreme Court is not a div
that issues fatwas and expresses opinions. The
operative part of the decision indicated that it will not
accept a request to interpret legislation from any party,
including state authorities, whether federal or local.
This is a sound approach that is consistent with the
Constitution and the Court's law. 2 - The Federal
Supreme Court defined the controls for legislative
interpretation in its Decision No. (48/Federal/2021)
dated 6/6/2021. It stated that it has the authority to

interpret legislation if it is in force, that its
interpretation be in connection with a dispute before
this court to decide on the constitutionality of the law
subject to interpretation, and that the interpretation
be in connection with an inquiry submitted exclusively
to it by one of the federal authorities. It considered its
jurisdiction to interpret legislation in this case an
exception stemming from its original jurisdiction to
interpret the constitution.

In accordance with this decision, it permitted the
acceptance of requests for legislative interpretation as
a matter of principle if they came from one of the
federal authorities. However, it partially amended this
rule of the decision in accordance with the principle
contained in Decision No. (24/Federal/2023) dated
2/27/2023, the subject of the comment. It stated that
requests for interpretation from official bodies or any
other authority are not acceptable.

Federal authorities are not entitled to request the
original interpretation of legislation. Because it falls
outside the court's jurisdiction, and because its internal
regulations lack any reference to the conditions,
controls, and information required for submitting the
original request for legislative interpretation, this is
outside the court's jurisdiction stipulated in Article (93)
of the Constitution.

3 - The summary of Resolution No. (24/Federal/2023)
dated February 27, 2023, states that it does not have
jurisdiction to consider requests for legislative
interpretation as a matter of principle, as it is not a
div that issues fatwas or expresses opinions. Its
jurisdiction remains in place to interpret legislation,
when considering the constitutionality of laws, or when
resolving disputes that arise between the federal
government and regional, governorate, and local
municipal governments, as well as when resolving
disputes that arise between regional and governorate
governments, as stated in the court's jurisdiction
mentioned in the Constitution and the law. This
approach prevents the court from being distracted by
requests for interpretation from its primary mission of
protecting the Constitution. The Third Requirement:
Defining the Administrative Court

The Iraqi State Council is at the forefront of the legal
hierarchy of state institutions, and a towering edifice
toward which the hearts of those who believe in the
values of freedom, truth, and justice turn, because it
plays a pivotal role in public life in the country (42).

Its establishment has gone through several stages,
which we summarize as follows:

First: The issuance of the Legal Codification Bureau No.
(49) of 1933 (43), whose mandate included: providing
opinions, fatwas, legal advice, and administrative

International Journal of Law And Criminology

41

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

adjudication regarding employees, in accordance with
the General Disciplinary Council for Employee
Adjudication (44), which was established pursuant to
the State Employees Discipline Law No. (41) of 1929
(45).

Second: The issuance of the State Shura Council Law
No. (65) of 1979 (46), which assigned it the task of:
providing opinions and administrative adjudication,
drafting and reviewing legal legislation, and providing
legal advice. It was linked to the Ministry of Justice. Like
the judiciary, following the French principle of
separating the working administration from the judicial
administration, most of its powers were closer to the
executive branch, as it was established to assist the
executive branch in resolving problems related to it.
Administrative courts subsequently worked to create a
balance between the interests of individuals and the
state, and to limit the arbitrariness of administrative
authority (47). Then, the Second Amendment Law to
the State Shura Council Law

–

No. (65) of 1979

–

No.

(106) of 1989

–

determined how it was formed in Iraq

(48). However, its connection to the Ministry of Justice
remained, even after the issuance of the Fifth
Amendment Law to the State Council Law

–

No. (65) of

1979

–

No. (17) of 2013 (49), which, in accordance with

Article (7/Seventh), ordered the formation of the
Administrative Judiciary Court (50). This Court later
became the div competent to consider and resolve
administrative orders and decisions issued by bodies in
government departments, the public sector, and
employees. At that time, the Citizens' Judiciary was
completed (51).

Third: The Iraqi legislator, for technical, judicial and
other reasons after the year (2003), limited the types of
administrative courts to include: (the Supreme
Administrative Court, the Administrative Judiciary
Court, and the Civil Service Judiciary Court), which were
examining thousands of lawsuits, supported by the
jurisdiction of the administrative judiciary, fatwas and
drafting in the Council of State; in accordance with
Article (101) of the Permanent Constitution (52), so the
(State Shura Council) was transformed into the (State
Council) and received the assistance of the executive
and legislative authorities in issuing the State Council
Law No. (71) of (2017) (53), thereby abolishing its
connection to the Ministry of Justice, and becoming
independent, enjoying a legal personality represented
by the President of the Council, and finding for it an
independent entity that guarantees its neutrality and
independence in exercising its powers, which include
its jurisdiction over the administrative judiciary, while
being linked to the executive authority (54), in
accordance with what was stipulated in the State
Council Law No. (71) of (2017). The administration

conceals the judiciary’s legal issues for the sake of

good, which leads to administrative judiciary on the
administration and its components, in addition to
depriving the administration of all its rights from the
rights of unlawful lawsuits through cancellation and
compensation

for

those

affected

through

compensation or administrative contract. This
contributes to increasing the effectiveness of the

administration’s performance, and this requires an

actual judiciary. After a long wait, State Council Law No.
(71) of 2017 established an independent div called
the State Council. However, this law, despite its
importance, may be incomplete if it all issues a fatwa
with State Council Law No. (65) of 1979 and its
amendments to the new State Council, which inherited
the State Council. Therefore, every explicit State
Council Law and the various and multiple electronics on
the State Council, and even the important issue in the
State Council Law for the reason (2017), which is the
establishment of the State Council, which represents
the administrative judiciary as a div independent of
the executive aut

hority, except that the legislator’s

formulation in this aspect only is ambiguous, while it
stipulated that the State Council is (an independent
div) without clarifying why, and this matter opened
the door to controversy about the nature of the Iraqi
State Council, and from there to the search for the
nature of the Council The state. This study has
identified the constraints that limit the effectiveness of
the Council of State in improving administrative work.
The study followed an analytical theory to achieve its
objectives. Therefore, the study analyzed legal
constitutional texts, rulings, and decisions, and drew on
previous studies to achieve its objectives. The study
concluded that the Iraqi Council of State has not
received the same attention from the public and
executive authorities as it did in France and Egypt.
Despite the passage of three decades since the
establishment of the administrative judiciary in Iraq,
the experience of the Council of State in some of its
functions, which dates back to the establishment of the
now defunct Office of Documentation in 1933, has only
been limited by the Iraqi legislator to the full
effectiveness of the Iraqi Council of State. In the short
term, the executive authority shares this responsibility,
as it does not provide sufficient financial resources to
support the effectiveness of the Council of State.
Therefore, to increase the effectiveness of the Council
of State, pressure must be applied to the public and
executive authorities to secure all available legal means
to hold these two authorities accountable (55). Article
(1) of State Council Law No. (71) of 2017 authorized the
establishment of the State Council as an independent
div tasked with administrative judiciary duties,
issuing fatwas, and drafting legal opinions. The

International Journal of Law And Criminology

42

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

Council's chairman was granted the powers of the
competent minister, thereby gaining complete
independence from the executive authority (56). The
legislator thus departed from the unified judiciary
system and adopted the dual judiciary system, creating
an administrative judiciary system alongside the
regular judiciary system (57).

Fourth Requirement: Definition of Appeal

Linguistically: The root word for "to be challenged" is
"to be challenged." It is said: "to challenge" or "to
challenge", meaning to slander someone with the
intent of killing them, insulting them, verbally abusing
them, defaming them, or tarnishing their reputation
among people, their judgment, their lineage, or their
slander, betraying them, or deceiving them. "To
challenge a matter" means to object to it, raise
suspicions about it, or cast doubt on it (58).

Technically, it is an objection to a court ruling, whether
in person or in absentia (59), and a review of it (60).
Appeal is only permissible by the convicted party.
Appeal is not permissible against rulings issued during
the course of a lawsuit, nor does it conclude the
dispute. There are several methods for appeal,
including: the normal methods, which are opposition to
the ruling, appeal, cassation, or a request for review
(61).

The fifth requirement: Defining administrative
decisions

Several attempts have emerged to define an
administrative decision (62); because jurisprudence
has not agreed on a clear definition of its concept (63).
Iraqi jurisprudence has limited itself to mentioning its
elements without providing a comprehensive and
exhaustive definition (64). Others have defined it as:
"The administration's declaration of its binding will,
based on its authority pursuant to laws and regulations,
with the intent of establishing or amending a legal
position whenever it is possible and legally permissible,
and the goal is to achieve the public interest. It is the
same whether the administration's declaration of its
will is explicit or implicit" (65). Unit Two: Appeals before
the Federal Supreme Court and the Administrative
Judiciary

First Requirement: Appeals before the Federal
Supreme Court

Article 13

/First of the Constitution stipulates that: “This

Constitution shall be the supreme and highest law in
Iraq, and shall be binding in all its parts without

exception.” (66), linking the principle of constitutional

supremacy to the principle of legality (67), which
means the supremacy of the rule of law, meaning that
the public authorities of the state (legislative,

executive, and judicial) are subject in all their actions
and activities to the provisions of the law (68).

To ensure this supremacy, the various authorities and
bodies may not deviate from the constitutional rules
and violate the principles contained therein (69). The
legislative authority may not issue a law that
contradicts its principles. It becomes effective once the
necessary formalities for its issuance are met, and it
applies to all, and ordinary courts are not empowered
to contravene it. Because its mission is limited to
implementing the law, the constitution should have
included the protection of its sovereignty and
established the necessary mechanisms for this.
Jurisprudence almost unanimously agrees that
oversight of the constitutionality of laws is the best
means of protecting the rights contained therein. This
oversight results in an inevitable outcome of its
supremacy. Judicial oversight is almost the dominant
method of constitutions in most countries, and this is
currently the case in Iraq, where the Federal Supreme
Court

undertakes

judicial

oversight

of

the

constitutionality of laws (70), as stated in Article
93/First (71).

Challenging the unconstitutionality of a law is done
through a lawsuit filed before the Federal Supreme
Court, in which the constitutionality of the law under
challenge is challenged. This lawsuit is the means by
which a ruling is reached on the unconstitutionality or
constitutionality of the challenged legal text (72).
Despite the hundreds of lawsuits heard by the Federal
Supreme Court and the rulings it issued, which are
available for everyone to view on its website and the
studies and research related to them, some people still
inquire about how to challenge laws that they believe
are unconstitutional or contain a paragraph or article
that conflicts with constitutional principles. From time
to time, inquiries are received from citizens and
sometimes from legal specialists about this method,
and some people claim that the legal text of the Federal
Supreme Court is not clear enough to explain this, even
though the law has detailed this in detail to the
specialist, and then detailed it in greater detail in the
internal regulations of the Federal Supreme Court No.
(1) of (2005) (73). Therefore, this requirement takes it
upon itself to explain the methods of challenging the
unconstitutionality of laws and regulations before the
Federal Supreme Court in Iraq, in sections, as follows
(74):

The first section: The concept of challenging
unconstitutionality

The Constitution mentioned the jurisdiction of the
Federal Supreme Court to monitor the constitutionality
of laws and regulations in force (75), but it did not

International Journal of Law And Criminology

43

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

clarify the organization of the mechanism for that
monitoring, but rather left it to the details of the
Federal Court Law in force or that will be enacted later.
This is a good approach, because most state
constitutions left those details to the legal texts. The
Federal Supreme Court Law in force No. (30) of 2005
(76) referred to that mechanism through the request
submitted by one of the legal or natural persons
referred to in Article (4/Second), which are (a court, an
official div, or an interested plaintiff). The phrase

“request” is understood to mean filing a legal action

before the Federal Supreme Court; Because the Code
of Civil Procedure is the primary law, it is referred to in
the absence of texts in a law relating to procedural
rules. Article (2) of the Civil Procedure Law No. (83) of

1969, as amended, defined a lawsuit, stating that: “A
lawsuit is a person’s request for his right from another
before the judiciary.” Federal Supreme Court Law No.

(1) of 2005 detailed the nature of the lawsuit and how
to file it, in accordance with the details contained in
Article (1) of that law. Article (4) of the Federal Supreme
Court Law granted the right to appeal to three parties:
the court, the official div, and the interested plaintiff.
Article (1) of the law clarified the manner in which the
interested plaintiff may file an appeal. Article (1) of the
law clarifies the manner in which the interested
plaintiff may file an appeal. This is:

First: He must be a natural person.

This means any individual who believes that a law has
infringed his constitutional rights. This mechanism is
the lawsuit filed by a citizen only, and can be filed in
two ways.

The Federal Supreme Court considers hundreds of
lawsuits annually filed by individuals in their personal
capacity. Second: The court and the official div

The law has granted the competent court to apply the
law at any level of litigation, whether it is the Court of
Cassation or any other court in the ordinary,
administrative, military, or internal security forces
judiciary. These have the right to request the Federal
Supreme Court to consider the unconstitutionality of a
law that has been invoked before this div (the court)
and that it deems unconstitutional, despite the
absence of a concerned party appealing. The
competent court has granted this right to appeal by
submitting a request directly to the Federal Supreme
Court, at which point it will be considered. The Federal
Court has issued dozens of decisions and rulings
declaring provisions in laws unconstitutional at the
request of a court. This mechanism is regulated by
Article (3) of the Federal Supreme Court's Internal
Regulations No. (1) of 2005, which states the following:
"If a court, on its own initiative, requests, during the

consideration of a case, a ruling on the legality of a
provision in a law, legislative decision, regulation, or
instruction related to that case, it shall send the
reasoned request to the Federal Supreme Court for
adjudication. This request is not subject to fees." Third:
The Official Body

Where some ministries and entities not affiliated with
a ministry encounter laws that they believe conflict
with the Constitution, and no legal action has been filed
against them, the law grants the head of that official
div the right to request a review of the
unconstitutionality of the law or of an article or
paragraph of its applicable articles. This mechanism is
regulated by Article (5) of the Internal Regulations,

which states the following: “If an official div, in the

context of an existing dispute between it and another
div, requests a ruling on the legality of a provision in
a law, legislative decision, regulation, instruction, or
order, it shall send the request as a lawsuit to the
Federal Supreme Court, with reasons and its grounds,
in writing signed by the competent minister or the head

of the entity not affiliated with a ministry.” (77).

Second Section: The Constitutional Suit as a Means of
Appeal

One of the common forms of challenging
unconstitutionality is through a constitutional suit.
Therefore, most of the constitutional judiciary laws,
and sometimes the Constitution itself, referred to it,
and in the Federal Supreme Court Law No. (30) of
(2005), it referred to the constitutional lawsuit, but left
its details to the internal regulations that were issued
later based on the provisions of Article (9) of the law,
and the method of filing that lawsuit was mentioned in
two forms:

First: That the lawsuit be filed directly before the
Federal Supreme Court

The internal regulations permitted, based on the
provisions of Article (4) of the Federal Supreme Court
Law No. (30) of (2005) in force, any citizen or any
person to file a lawsuit to challenge the
unconstitutionality of a law; Provided that he has been
harmed by the application of this law, which is what is
called the interest in filing that lawsuit, and according
to the mechanism set out in Article (1) of the internal

regulations, which states the following: “The subject of

the dispute shall be submitted by a lawsuit in
accordance with the following procedures: First: When
submitting his petition, the plaintiff shall attach to it
copies equal to the number of defendants and a list of
documents, and he or his representative must sign
each of the submitted papers, acknowledging that they
are identical to the original. Second: The petition shall
not be accepted if the documents stipulated in the first

International Journal of Law And Criminology

44

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

paragraph of this article are not attached to it. Third:
The petition shall be signed by the president of the
court or his authorized representative, and the fee shall
be collected for it and it shall be registered in the
special register according to the priority of its
submission, and the court seal and the date of
registration shall be placed on it, and the plaintiff shall
be given a receipt signed by the employee responsible
for receiving it, stating the number of the lawsuit and

the date of its registration” (78).

Second: In connection with a lawsuit being heard by the
competent court in the ordinary judiciary.

A law is challenged in connection with a lawsuit being
heard by a court of the ordinary judiciary, for example:
courts of first instance, personal status, investigation,
criminal courts, and other courts, including the Federal
Court of Cassation. This order is made by a plea
submitted by one of the parties to the lawsuit to the
court hearing the ordinary lawsuit. That court then
orders him to submit the appeal by petition or request,
and then orders him to pay the fee. After that, it
decides to send the request, along with the documents,
to the Federal Supreme Court to decide on the appeal
of the unconstitutionality of the contested law. It then
decides to postpone consideration of the lawsuit until
the outcome of the appeal is received. However, if it
refuses to send the request containing the plea of
unconstitutionality; Its decision to reject the appeal is
subject to appeal before the Federal Supreme Court, in
accordance with the provisions of Article (4) of the
Federal Supreme Court's Internal Regulations, which
states: "If a court requests a ruling on the legality of a
provision in a law, legislative decision, regulation,
instruction, or order based on a plea of illegality from
one of the parties, the party shall be required to submit
this plea in a lawsuit. After collecting the fee, the court
shall decide on the admissibility of the lawsuit. If it
accepts it, it shall send it, along with the documents, to
the Federal Supreme Court to decide on the plea of
illegality, and shall decide to retain the original lawsuit
for the outcome. However, if it rejects the plea, its
decision to reject shall be subject to appeal before the
Federal Supreme Court." (79).

Filing a constitutional lawsuit, in either of the two forms
above, applies to both individuals in their personal
capacity and legal entities. The lawsuit must include the
name of the plaintiff (the appellant) and the name of
the defendant, who is usually the head of the div that
enacted the law (the House of Representatives) and
authorized its issuance (the President of the Republic).
This is what Article (6) of the Internal Regulations
indicates. Other conditions that must be met in the
petition of claim are mentioned in accordance with the

following text: “If a plaintiff requests a ruling on the

legality of a provision in a law, legislative decision,
regulation, instruction or order, the request shall be
submitted in a lawsuit that meets the conditions
stipulated in Articles 44, 45, 46 and 47 of the Civil
Procedure Code. The lawsuit must be submitted
through a lawyer with absolute authority, and the
lawsuit must meet the following conditions: First: The
plaintiff in the subject matter of the lawsuit must have
a current, direct interest that has an impact on his legal,
financial or social position. Second: The plaintiff must
provide evidence that he has suffered actual harm as a
result of the legislation requested to be repealed.
Third: The harm must be direct and independent in its
elements and can be removed if a ruling is issued
declaring the legislation to be repealed illegal. Fourth:
The harm must not be theoretical, future or unknown.
Fifth: The plaintiff must not have benefited from any
aspect of the text requested to be repealed. Sixth: The
text requested to be repealed must have been applied
to the plaintiff in fact or is intended to be applied to

him.”

Section Three: Requests from Courts and Official Bodies

The appeal process is not limited to constitutional
claims. Rather, the Federal Supreme Court's internal
regulations allow both (the court and the official div)
to submit a request to consider the unconstitutionality
of a particular law. This request may be made without
a petition. An official div is any department, ministry,
or institution affiliated with the state.

The text refers to (another court) under the title (the
court).

It does not refer to the judge or members of a court
composed of more than one judge, such as the Court of
Appeal, the Criminal Court, or any other court.

Perhaps this approach implies a wisdom, namely that
the work and composition of courts is regulated by
Judicial Organization Law No. (160) of 1979, as
amended (79). The meaning of the word "court" in this
law is that which hears cases and is composed of judges
whose presence is required in the case. If the court is
composed of a retired judge, then it is not a court, and
its decisions are of no effect. If it hears a matter outside
its jurisdiction, then it is not considered a properly
constituted court, and all its decisions are null and void.
Therefore, the court intended by the Federal Supreme

Court’s Internal Regulations No. (1)

of 2005 is the court

that is properly constituted, and in accordance with the
law. This leads us to who has the authority to present
the request to the Federal Supreme Court when
requesting an appeal of unconstitutionality. In courts
formed by several judges, for example: the Criminal
Court, the decision to present the request is by
majority, because it is a judicial decision. If the court is

International Journal of Law And Criminology

45

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

formed of only two members, and it is originally
composed of three judges, then this decision is
incorrect and has no effect. Since the criminal courts
are composed of a judge in the misdemeanor and
investigation courts and a judicial div in the criminal
courts, they are not correct and their rulings are not

valid if the public prosecutor’s representative does not

attend the trial, because the law prohibits the
convening of those courts except in the presence of the

public prosecutor’s representative, and in accordance

with what is stated in the text of Article (8) of the Public
Prosecution Law No. (49) of 2017, which states the

following: “The sessions of the criminal courts and

juvenile courts are considered not to be held when a

member of the public prosecutor is not present” (80);

Thus, the court that has the right to request
unconstitutionality includes members of the judiciary
in criminal cases or the judge of the court in
misdemeanor courts, and the representative of the
public prosecutor; Because it is the second party to the
trial, and it does not take place except with the meeting
of both parties, therefore, the one who has the right to
request the presentation of the challenge of
unconstitutionality is the Criminal Court and the judge
of

the

Misdemeanor

Court.

Likewise,

the

representative of the Public Prosecution before this
court has the right to request, on his own, that the
Federal

Supreme

Court

consider

the

unconstitutionality of a law he encounters when
considering one of the cases being heard by the court
in which he works as a representative of the Public
Prosecution. In addition, the explicit text of Article
(5/11) of the Public Prosecution Law No. (49) of (2017),

which states: “Challenge of the unconstitutionality of

laws and regulations before the Federal Supreme

Court” (81). In this sense, what is meant by the Public

Prosecution is the Presidency of the Public Prosecution,
as well as the representative of the Public Prosecution
before the competent courts. These, individually or
through the Presidency of the Public Prosecution, have
the right to appeal, just like their fellow judges who
hear civil or criminal cases, noting that all members of
the Public Prosecution, from the Chief Public
Prosecutor to the Deputy Public Prosecutor, at the
present time, are exclusively judges assigned to work in
the Public Prosecution in their various judicial ranks. As
for official bodies, their supreme head is the only one
who has the exclusive right to request a challenge to
the constitutionality of a law, in accordance with Article
(5) of the internal regulations referred to above.
Therefore, the mechanism for challenging the
unconstitutionality of a law is very simple, and the legal
texts facilitate the process for all those seeking to
preserve their constitutional rights, as stipulated in the
current Iraqi Constitution. The Federal Supreme Court

has played a significant role in protecting these rights
and ruling on the unconstitutionality of laws that
represent a violation of these constitutional principles.
This has had a significant impact in encouraging citizens
to adhere to the supremacy of the constitution and the
law. Anyone who examines the volume of lawsuits and
requests heard by the Federal Supreme Court will see
the extent of citizens' confidence in our constitutional
judiciary, which has been commended by friends and
brothers who specialize in the judiciary and
constitutional jurisprudence.

The Second Requirement: Appeals before the
Administrative Court

Article (100) of the Permanent Iraqi Constitution of

2005, in force, stipulates that: “It is prohibited to

provide in laws that immunize any administrative

action or decision from appeal.” (82).

This principle was emphasized through the issuance of
Law No. (17) of 2005, effective and amended by Law
No. (3) of 2015 (83), repealing legal texts that prohibit
appeals against administrative decisions, actions, and
orders before the judiciary. Many decisions of the
dissolved Revolutionary Command Council, under the
former dictatorial regime, stipulated that the judiciary
be barred from considering appeals filed against
administrative orders and decisions. Furthermore,
there were some laws that prohibited this in some of
their provisions, such as the Ministry of Higher
Education Law No. (40) of 1988, as amended (83), and
the Ministry of Education Law No. (22) of 2011 (84).
However, after the fall of the regime and the advent of
the new democratic system, and under the existing
constitution and new legal system, these prohibitive
decisions and laws were repealed, as they restricted
and prevented individuals from seeking legal redress
for their rights, which they might feel wronged by. They
also serve the public interest and achieve judicial
oversight by identifying any errors the administration
may have committed. Recourse to the judiciary is
considered a sound and correct path for rectification
and correction, provided that these appeals and
objections are appropriate and productive, not merely
unnecessary and unnecessary objections.

Administrative law is a branch of internal public law
that includes the set of legal rules applicable to the
administration, whether by this I mean their organic or
substantive meaning. It governs the administration
with regard to its composition, organization, and the
activities it issues (85).

As for the judicial jurisdictions mentioned above, they
are as follows:

1 - The Administrative Judiciary Court: It adjudicates
the validity of administrative orders and decisions,

International Journal of Law And Criminology

46

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

whether individual or regulatory, whenever the
legislator has not specified a reference for appeal;
Based on a request from a known, actual, and possible
interested party. However, a potential interest is
sufficient if there is reason to fear harm to the
interested parties (86). The law has specified the
reasons for appeal, including that the decision includes
a breach or violation of the law at all levels, or that it
was issued contrary to the rules of jurisdiction, or is
defective in its form, procedures, or the element of
work, or reason, in addition to the defect that affects
the administrative decision whenever it includes an
error in the application of the law, or its interpretation,
or contains abuse, or abuse of power, or deviation from
it (87). After the court accepts the case in form by
fulfilling certain conditions, such as a grievance and
adherence to the deadlines, it has the right to annul the
decision under appeal or uphold it and dismiss the case,
or amend it, and it has the right to rule on
compensation if there is a reason for it based on the

plaintiff’s request (88). The jurisdiction of the

Administrative Judiciary Court, based on the text of
Article 7 of the State Council Law, is to adjudicate the
validity of individual and organizational orders and
decisions issued by employees and bodies in ministries,
entities not affiliated with a ministry, and the public
sector, for which the law has not designated a
reference for appeal. This is based on a request from a
known, actual, and potential interested party. A
potential interest is sufficient if there is reason to fear
harm to the concerned parties. The Administrative
Judiciary Court is formed under the chairmanship of the
Vice President for Administrative Judiciary Affairs or an
advisor, and two members from among the advisors or
assistant advisors. The Iraqi Administrative Judiciary
Court forms part of the judicial bodies of the Iraqi
Council of State. Based on State Shura Council Law No.
(65) of 1979, as amended, which stipulates in Article
7/Fourth thereof th

at: “The Administrative Court shall

have jurisdiction to adjudicate the validity of individual
and organizational orders and decisions issued by
employees and bodies in ministries, entities not
affiliated with a ministry, and the public sector, for
which no authority has been designated for appeal,
based on state departments and the socialist sector,
after the entry into force of this law, which did not
designate an authority for appeal based on a request
from a known interested party and a possible case.
However, a potential interest is sufficient if there is

reason to fear harm to the interested parties.” (89).

From this text, it is noted that the legislator has tended
to define the jurisdiction of the Administrative Court
exclusively. Thus, we find that there are disputes that
have fallen outside the jurisdiction of the
Administrative Judiciary, even if the administration is a

party to them. Some believe that the jurisdiction of the
Administrative Judiciary Court, as defined in Article
Seven, is limited and modest. The legislator has
specified exceptions stipulated in Article (7/Fifth),

stating: “The Administrative Court shall not have

jurisdiction to consider appeals related to the
following:

A - Acts of sovereignty, including decrees and decisions
issued by the President of the Republic.

B - Administrative decisions taken pursuant to the
directives of the President of the Republic, in
accordance with his constitutional powers.

C - Administrative decisions, for which the law has
established a process for grievance, objection, or
appeal.

The legislator established a general rule for
determining the jurisdiction of the Administrative
Court by requiring that an administrative decision be
issued by an administrative div. Disputes brought
before the Administrative Court are of a special nature,
and this nature requires that they be addressed with
substantive and procedural solutions that differ from
those addressed by private law. Preparatory work and
requests fall outside the jurisdiction of the
Administrative Court, as they are preparatory work and
procedures that precede the final decision. The

Administrative Court’s applications in this regard

include its decision dated: (9/29/1990), as the facts of
the case are summarized in that the Ministry of
Agriculture and Irrigation had submitted a request in its
letter numbered (4731) on: (2/21/1990) to cancel the
rights of disposal in the plots numbered (10/1, 10/4,
10/8, 10/10, 10/12) in the (12) Al-Dughaila Al-Dakhiliya
district in the Al-Shamiya district in the Al-Qadisiyah
Governorate, and in accordance with the provisions of
the Law on the Unification of State Land Classifications
No. (52) of (1976) (90), two persons filed a lawsuit
before the Administrative Court requesting that the
Minister of Agriculture and Irrigation be obligated, in
addition to his position, in which he requested the right
to dispose of the alternative plots. As a result of the
pleading, the Administrative Court decided, with the
number (File 57/Administrative Judiciary/1990), to
dismiss the lawsuit; Since the contested order is not an
administrative order or decision, but rather a request
subject to the discretion of the Committee for the
Granting and Amending of Disposal Rights in Al-
Qadisiyah Governorate, the decision was ratified by the
General Assembly of the State Shura Council (91).

2 - Civil Service Court: which has jurisdiction over:
disputes arising between employees and the
administration regarding rights arising from the civil
service, in accordance with the laws regulating it, as

International Journal of Law And Criminology

47

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

well as the disciplinary penalties stipulated in (Article
7/Ninth A-B) of the State and Public Sector Employees
Discipline Law No. (14) of (1991) (92).

The Civil Service Court, based on Article 7, Clause 9, is
competent to consider lawsuits filed by employees
against government departments and the public sector
regarding rights arising from the Civil Service Law and
the laws and regulations governing the relationship
between the employee and the entity for which he
works. This court is also competent to consider lawsuits
filed by employees to challenge disciplinary penalties
stipulated in the State and Public Sector Employees
Discipline Law No. (14) of 1991, the types of which were
determined by the aforementioned law, specifically

Article 8 thereof, namely: “

The penalty of warning, the

penalty of salary severance, the penalty of reprimand,
the penalty of salary reduction, the penalty of
demotion, the penalty of dismissal, and the penalty of

dismissal.” These penalties are not imposed arbitrarily.

Rather, there are guarantees for the employee that
ensure limiting the control of the administrative

authority in imposing the penalty, including: “the

legitimacy of the penalty, its personality, its non-

retroactivity, and the principle of unity of punishment.”

If the imposed penalty does not meet these conditions
and legal guarantees, it is flawed and destined to be
invalid. There are other details related to this that do
not There is enough space to mention them, and there
are lawsuits related to employment rights resulting
from the laws regulating them, such as the Civil Service
Law No. (24) of 1960, as amended (93), the University
Service Law No. (23) of 2008, as amended (94), the
State and Public Sector Employees' Salaries Law No.
(22) of 2008 (95), and other laws and regulations
governing the employee's relationship with the
department in which he works. Examples of these
lawsuits include: (salaries, allowances, promotions,
granting bonuses, calculating service, appointment
decisions, resignation, dismissal, transfer), and other
lawsuits for which the law has designated the Civil
Service Court as a reference in the event of an appeal.
The Civil Service Court was previously called the
General Disciplinary Council, and its name was changed
based on Article (9) of the amended State Council Law.

3 - The Supreme Administrative Court: This court is
responsible for examining appeals filed against
decisions and rulings issued by the Administrative
Judiciary Court and the Civil Service Court. In addition
to resolving the dispute arising regarding the
appointment of jurisdiction in the event of a dispute
between the two aforementioned courts, and resolving
the dispute arising regarding the implementation of
two contradictory rulings that have acquired the status
of finality, issued by those two courts (96), in

accordance with what is stipulated in (Article
2/Fourth/C) of the Fifth Amendment Law No. (17) of
(2013) to the State Shura Council Law No. (65) of (1979)
( ).

The Supreme Administrative Court, based on Article
Two of the State Council Law, is competent to hear
appeals against decisions and rulings issued by the
Administrative Judiciary Court and the Civil Service
Judiciary Court, as the Supreme Court. Its decisions are
considered final, binding, and not subject to appeal, as
it exercises the powers exercised by the Federal Court
of Cassation in the ordinary judiciary. This court is
composed of the President of the State Council or
whoever he authorizes from the advisors, and a
membership of (6) advisors and (4) assistant advisors
(97). As for the Administrative Judiciary and Civil
Service Courts, Article 7/First stipulates that they be
formed in four regions: the northern region,
represented by the city of Mosul and including the
governorates of Nineveh, Kirkuk, and Salah al-Din; the
southern region, defined by Basra Governorate,
including the governorates of Dhi Qar, Maysan,
Muthanna, and Basra; the middle Euphrates region,
represented by Babil Governorate, including Karbala,
Najaf, Diwaniyah, and Babil; and the central region,
represented by the capital, Baghdad, including Anbar,
Diyala, Wasit, and Baghdad. However, this division has
not yet been implemented, as the Administrative
Judiciary Court and the Civil Service Court are located
only in Baghdad, meaning that the text is still not
implemented (98). There are specific formal methods
for appealing before the Administrative Judiciary, and
it is necessary to observe the legally stipulated appeal
deadlines. When appealing to the Administrative
Judiciary Court, the grievance must be filed with the
competent administrative authority within 30 days
from the date of notification of the administrative
decision or order or its consideration as notified. This
authority must decide on the grievance. Upon
expiration of the period and the court's non-decision,
the complainant has the right to appeal to the court
within 60 days from the date of the grievance's
rejection, whether de facto or de jure. The court's
decision may be appealed before the Supreme
Administrative Court within 30 days from the date of
notification of the court's decision or its consideration
as notified. The Supreme Administrative Court's
decision shall be final, binding, and not subject to
appeal.

As for the Civil Service Judiciary Court, based on the text
of Article (7/Ninth/B), it states: "Claims shall not be
heard after the lapse of (30) days from the date of
notification of the administrative decision if the
decision is within Iraq and (60) days if the decision is

International Journal of Law And Criminology

48

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

outside it." It does not require filing a grievance before
the administrative authority unless other relevant laws
stipulate otherwise, as in Article (15/Second) of the
State Employees Discipline Law No. (14) of 1991, which
stipulates that a grievance must be filed with the
administrative authority issuing the disciplinary penalty
within (30) days from the date of notification of the
administrative decision. In the event of a rejection,
whether de facto or de jure, an appeal may be filed
before this court within 30 days. The court's decision
may also be appealed before the Supreme
Administrative Court within 30 days from the date of
notification of the court's decision. Failure to comply
with the legal formalities stipulated by law and failure
to observe the appeal period will result in the case
being formally dismissed and not being heard by the
judiciary, as this would undermine the stability of legal
positions and prevent them from being destabilized.
Consequently, unappealed administrative decisions,
decisions for which the appeal period has passed, and
decisions issued by the Supreme Administrative Court
are all considered final and binding and may not be
appealed again. Regarding the laws followed by the
administrative judiciary in its procedures in matters not
explicitly provided for in the State Council Law, the
provisions of the Civil Procedure Law No. (83) of 1969,
the Evidence Law No. (107) of 1979, the Criminal
Procedure Law No. (23) of 1971, and the Judicial Fees
Law No. (114) of 1981 apply.

A conflict of jurisdiction, both positive and negative,
between the administrative and civil judiciaries (99),
shall be resolved by the Authority Appointment Board,
which consists of the President of the Court of
Cassation and (6) members (3) selected by the
President of the Court of Cassation and (3) selected by
the President of the Council of State. The Board shall
meet under the chairmanship of the President of the
Court of Cassation, and its decision, by agreement or
majority, shall be final and binding (100). The same
conflict of jurisdiction, if it occurs between
administrative judiciary courts, shall be resolved by the
Supreme Administrative Court, given its jurisdiction to
consider it (101). The competent authority appoints a
seven-member panel: three members selected by the
President of the Court of Cassation from among the
members of the court, and three other members
selected by the President of the State Shura Council
from among the members of the council. The panel
meets under the chairmanship of the President of the
Court of Cassation, and its decision, issued by
consensus or majority, is final and binding.

CONCLUSION

The Article reaches several conclusions and proposals:

First: Conclusions

1 - Conflict of jurisdiction: A complex concept. The first
is a root word derived from the root (n z '), meaning
disagreement and dispute. Originally, it denotes
uprooting, which entails violence, difficulty, and
resistance. This is because something easy cannot be
removed; instead, it is removed. The second is
originally a root word meaning to single out a person
for something, or to monopolize something. Therefore,
it denotes exclusivity in grammar. It was defined in light
of the linguistic meanings of the two terms as a dispute
between

two

judicial

bodies

regarding

the

consideration of a specific subject, such as the dispute
that occurs between the regular judiciary and the
administrative judiciary in countries that adopt the dual
judiciary system, which the Iraqi legislator adopted in
the Second Amendment Law to the State Council Law -
No. (65) of (1979) - No. (106) of (1989) and was adopted
by the federal system after the year (2004) under the
State Administration Law for the Transitional Period of
the year (2004) and the Permanent Constitution of the
year (2005); due to the possibility of a conflict of
jurisdiction occurring between the regular judiciary and
the administrative judiciary.

2 - Conflict of Jurisdiction: This occurs between two or
more courts. Sometimes it is negative, meaning that all
or some of the courts refuse to hear the case, claiming
that it is not within their jurisdiction, and they refer it
to another court, and so on. At other times, it is
positive, meaning that each Court maintains its
jurisdiction to hear the case. In this case, the
competent authority must be determined from among
the judicial authorities or bodies with judicial
jurisdiction.

3 - The Federal Supreme Court was formed under
Article (44/A) of the Iraqi Administrative Law for the
Transitional Period of 2004, in order to fill the two gaps:
the judicial one, which constitutes a source of
numerous disputes, and the legislative one, which
emerged after the invasion of Iraq in 2003. Federal
Supreme Court Law legislated its work No. (30) of 2005.
Then, after the permanent Constitution of the Republic
of Iraq of 2005 was codified, Article 92/Second also
stipulated its formation, stating that: The Federal
Supreme Court shall consist of several judges, experts
in Islamic jurisprudence, and legal scholars. Their
number, the method of their selection, and the work of
the Court shall be determined by a law enacted by a
two-thirds majority of the members of the Council of
Representatives. The Federal Court exercises two types
of functions: the first is judicial jurisdiction, which
involves considering lawsuits and disputes, and the
second is referential jurisdiction, which involves
responding to requests submitted by federal

International Journal of Law And Criminology

49

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

authorities to interpret any unclear constitutional text
or one that may be interpreted differently. It delves
into its interpretation, taking into account the public
interest of the country, and then issues its opinion. It
has thus become completely administratively and
financially independent from the regular judiciary, and
any connection between them has been severed. Its
headquarters have been made in Baghdad, the federal
capital, and its decisions have become final and binding
on all authorities, and its rulings and decisions are final.
4 - The Court decided that it is not competent to
consider requests for interpretation of laws as a matter
of principle, but rather as a matter of subsidiary, when
considering the constitutionality of a law; considering
that the agreement or conformity of the law under
challenge with the Constitution inevitably requires its
interpretation by the Court, and this is an indisputable
matter. It decided that it is not a div competent to
answer an inquiry submitted to it by an official div or
one of the authorities in the state or unions or
federations; since the Court is not a div that issues
fatwas and expresses opinions, which is a sound
direction that is consistent with the status of the
Supreme Court in terms of subject matter and
jurisdiction. The grounds for its decision stated that the
Federal Supreme Court found that the request must be
rejected in form due to a lack of jurisdiction. The
powers and jurisdiction of this Court are exclusively
stipulated in Articles (52) and (93) of the Constitution
of the Republic of Iraq of 2005, Article (4) of the Federal
Supreme Court Law No. (30) of 2005, as amended by
Law No. (25) of 2021, and some other special laws.
None of these powers and jurisdictions grant the court
jurisdiction to interpret the provisions of laws, except
in the event of a challenge to their unconstitutionality.
It also lacks jurisdiction or authority to answer inquiries
submitted to it by official bodies, state authorities,
unions, or federations; this is because the Federal
Supreme Court is not a div that issues fatwas or
expresses opinions. The operative part of the decision
stated that it would not accept requests to interpret
legislation from any party, including state authorities,
whether federal or local. This is a sound approach that
is consistent with the Constitution and the Court's law.
5 - The Federal Supreme Court set the controls for
legislative interpretation in its decision No.
(48/Federal/2021) dated (6/6/2021), and stated that it
has the authority to interpret legislation if it is in force,
and that its interpretation should be in connection with
a dispute before this Court to decide on the
constitutionality of the law subject to interpretation,
and that the interpretation should be in connection
with an inquiry submitted to it exclusively from one of
the federal authorities. It considered its jurisdiction to
interpret legislation in this case an exception branching

from its original jurisdiction to interpret the
Constitution. ThisThis decision allowed for the
acceptance of requests for legislative interpretation as
a matter of principle provided they were submitted by
one of the federal authorities. However, it partially
amended this rule of the decision by the principle
contained in decision No. (24/Federal/2023) dated
(2/27/2023), the subject of the comment, states that a
request for interpretation from official bodies or one of
the authorities is not accepted. The federal authorities
do not have the right to request the original
interpretation of legislation; Because it falls outside the
jurisdiction of the Court, and because its internal
regulations lack any reference to the conditions,
controls, and data for submitting the original request,
in interpreting legislation; this is because it falls outside
the jurisdiction of the Court stipulated in Article (93) of
the Constitution.

6 - For technical, judicial, and other reasons, the Iraqi
legislator, after the year (2003), limited the types of
administrative courts to include: (the Supreme
Administrative Court, the Administrative Judiciary
Court, and the Civil Service Judiciary Court), which were
considering thousands of lawsuits, supported by the
jurisdiction of the Administrative Judiciary, Fatwa, and
Drafting in the Council of State; By Article (101) of the
Permanent Constitution, the (State Shura Council) was
transformed into the (State Council) and received the
assistance of the executive and legislative authorities in
issuing State Council Law No. (71) of 2017, thereby
abolishing its connection to the Ministry of Justice and
becoming independent, enjoying a legal personality
represented by the President of the Council, and
finding for itself an independent entity that guarantees
its neutrality and independence in exercising its
powers, including its jurisdiction over administrative
judiciary, while being linked to the executive authority,
by what was stipulated in State Council Law No. (71) of
2017. Article (1) of State Council Law No. (71) of 2017
authorized the establishment and creation of the State
Council as an independent div that undertakes the
tasks of administrative judiciary, fatwa, and legal
drafting, and granted the President of the div (the
Council) the powers of the competent minister. Thus,
the Council gained complete independence from the
executive authority. The legislator thus departed from
the (unified judiciary) system and adopted the (dual
judiciary) system by creating an administrative judiciary
system alongside the regular judiciary system.

7 - The root of the word "appeal" is the verbal noun "to

be stabbed" (ṭa'inā) and "to be stabbed." It is said, "to
be stabbed" (ṭa'na ʿala) and "to be stabbed" (ṭa'na fi),

meaning to prick someone with the intent to kill them,
insult them, verbally abuse them, defame them, or

International Journal of Law And Criminology

50

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

tarnish their reputation among people, or their
judgment, lineage, slander them, betray them, or

deceive them. "To be stabbed" (ṭa'na fil) means to

object to it, raise suspicions about it, or cast doubt on
it. Technically, it is an objection to a court ruling,
whether in person or absentia, and seeks
reconsideration. Appeal is only permissible from the
convicted person. Appeals are not allowable against
rulings issued during a lawsuit, as they do not end the
dispute. There are several methods for appeal,
including: ordinary methods, which are opposition to
the ruling, appeal, cassation, or a request for
reconsideration. 8 - Several attempts have been made
to define an administrative decision; Because
jurisprudence has not agreed on a clear definition of its
concept, Iraqi jurisprudence has limited itself to
mentioning its elements without providing a
comprehensive, exhaustive, or consistent definition. It
has been defined as: "The administration's declaration
of its binding will, based on its authority under laws and
regulations, with the intent of establishing or amending
a legal position whenever it is legally possible and
permissible, and the goal is to achieve the public
interest. It is equally valid whether the administration's
declaration of its will is explicit or implicit."

Second: Proposals

1 - The article finds it necessary for all legal
professionals, employees, and those interested in legal
and functional matters to be informed and interested
in them, so that they are familiar with the relevant
laws, instructions, and administrative controls.

2 - It deems it necessary for employees and workers in
government departments to attend development and
knowledge

courses

in

functional

legal

and

administrative affairs to enhance and develop their
legal culture and knowledge related to their work,
ensuring their rights and fairness, and preventing the
loss of their legally stipulated entitlements.

3 - It seeks to activate the legal text related to the
presence of administrative courts in four regions of
Iraq, rather than limiting their presence to the capital,
Baghdad. This leads to an increase in lawsuits and a
delay in their resolution, thus weakening the objective
and purpose of appealing administrative orders and
decisions. It also facilitates the aggrieved party's
recourse to the judiciary, given the proximity of these
administrative and judicial formations and the speed
with which their cases are resolved.

4 - It is preferable to create a website for the Council of
State that periodically publishes the principles and
decisions issued by the administrative courts, making
them available to the interested recipients. It is also
possible to issue a legal journal that publishes all

matters related to administrative laws and relevant
judicial decisions. 5 - Giving the administrative judiciary
curriculum in law schools the necessary attention and
expanding students' awareness of the judicial structure
and duties related to the administrative judiciary and
its differences from the ordinary civil judiciary. This is
especially important given that lawyers have the right
to represent clients in cases brought before
administrative courts. Consequently, they must be
familiar with the relevant procedures and details, as
well as the self-development of lawyers, legal
professionals working in government departments, and
even employees in general, by reviewing laws,
instructions, administrative regulations, and the
principles of rulings issued by administrative judiciary
courts. All of this contributes significantly to spreading
judicial and legal awareness and culture, as the desired
goal of the judiciary is to achieve justice and guarantee
the right to litigation for all, as stipulated in Article
19/Third of the Permanent Iraqi Constitution of 2005.

And Allah is the Grantor of success.

REFERENCES

First: Theses

Kamal Rahim Aziz Al-Askari: The Extension of
Jurisdiction in the Civil Judiciary: A Comparative Study
(University of Karbala: Master's Thesis 2021).

Wafaa Dahel Al-Kaabi: The State's Function in
Compensating for Unconstitutional Laws (University of
Maysan: Master's Thesis, 2021).

Second: Books

Abu Faris Al-Dahdah: Explanation of Ibn Malik's
Alfiyyah, 3rd ed. (Riyadh: Al-Ubaikan, 2012).

Ahmed Farid Al-Muzaidi: Explanation of Al-Ajrumiyyah
Text in the Rules of Arabic by Al-Ashmawi (Beirut:
Scientific Books, 2012).

S. Dahshti Siddiq Muhammad: Administrative Judiciary
and Conflicts of Jurisdiction with the Regular Judiciary:
A Comparative Study (Cairo: National Center for Legal
Publications, 2016).

S. Dahshti Siddiq Muhammad: Administrative Judiciary
and Conflicts of Jurisdiction with the Regular Judiciary:
A Comparative Study (Cairo: National Center, 2016).

S. Sakar Hussein Kaka Mahd: The Responsibility of
Public Employees Who Refrain from Implementing
Judicial Rulings (Cairo: Arab Center for Scientific Studies
and Research, 2018).

S. Nissar Abdul Qader Al-Jabari: The Defect of Lack of
Jurisdiction in Administrative Decisions and Judicial
Oversight Thereof (Cairo: Arab Center for Scientific
Studies and Research, 2018).

Patricia L. Smith and Tilman J. Ragen: Instructional

International Journal of Law And Criminology

51

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

Design, translated by Mujab Muhammad Al-Imam,
(Riyadh: Al-Obeikan, 2012).

Dr. Ajyad Thamer Nayef Al-Dulaimi: Rulings on
Interrupting the Proceedings of a Civil Suit and Its Legal
Implications (Cairo: Arab Center for Scientific Studies
and Research, 2018).

Dr. Ahmed Mukhtar Omar: Dictionary of Contemporary
Arabic (Beirut: Alam Al-Kutub, 2008).

Dr. Azhar Hashim Al-Zuhairi: Oversight of the
Constitutionality of Administrative Regulations and
Decisions under the Constitution of the Republic of Iraq
of 2005 (Cairo: Arab Center for Scientific Studies and
Research, 2017).

Dr. Jawad Mutlaq Muhammad Al-Ati: Negative
Administrative Decisions and the Provisions for
Appealing Them (Cairo: Al-Fikr wal-Qanun, 2015).

Dr. Hassan Al-Sayyid Basyouni: The Role of the Judiciary
in Administrative Disputes (Riyadh: Alam Al-Kutub,
1981).

Dr. Hamidi bin Youssef: Terminological Definition
(Amman: Academic Book, 2019).

Dr. Raja Wahid Duwaidri: Scientific Terminology in the
Arabic Language (Damascus: Al-Fikr, 2010).

Dr. Rasha Abdul Razzaq Jassim Al-Shammari: The
Finality of Administrative Decisions (Cairo: National
Center for Legal Publications, 2016).

Dr. Raad Mahdi Razouki and Dr. Nabil Rafiq
Muhammad: Thinking and Its Patterns Series (3),
(Beirut: Scientific Books, 2018).

Dr. Sarah Lagd: Scientific School Terminology (Amman:
Academic Book, 2021).

Dr. Saeed Al-Sayed Ali: Foundations and Rules of
Administrative Law (Cairo: Al-Nahda Al-Arabiya, 2008).

Dr. Samir Khairy Tawfiq: The Principle of the Rule of
Law: A Study in Legal Philosophy (Baghdad: Ministry of
Culture and Arts, 1978).

Dr. Adnan Ahmed Abu Dayyeh: Contemporary Methods
in Teaching Social Studies (Amman: Osama, 2011).

Dr. Ismat Abdul Majeed Bakr: Problems of Legislation:
A Comparative Theoretical and Applied Study (Beirut:
Scientific Books, 2014).

Dr. Ali Ahmed Khader Al-Maamari: Reshaping the
World (Amman: Academics, 2021).

Dr. Ali Kahlon: Commentary on the Journal of Civil and
Commercial Procedures (Tunis: Al-Atrash, 2016).

Dr. Fouad Muhammad al-Nadi: The Principle of
Legitimacy and Controls of the State's Subordination to
the Law in Islamic Jurisprudence (Alexandria: University
Book, 1980).

Dr. Karwan Izzat Muhammad Doski: The Role of the
Judiciary in Protecting the Federal Constitution: A
Comparative Study (Erbil: Spires, 2006).

Dr. Muhammad Ali Suwailem: Constitutional Judiciary
(Cairo: Egyptian, 2019).

Dr. Muhammad Ali Suwailem: Constitutional Judiciary
(Cairo: Egyptian, 2020).

Dr. Muhammad Yusuf Allam: The Principle of Two-
Stage Litigation between Positive Laws and Sharia
(Cairo: National Center for Legal Publications, 2012).

Dr. Mahmoud Abd Ali al-Zubaidi: The Legal System for
the Expiration of Administrative Suits Without a Ruling
on the Substantive Matter (Cairo: Arab Center for
Scientific Studies and Research, 2018).

Dr. Maysoun Ali Abdul Hadi Al-Hasnawi: The Legal
Organization of the Supreme Administrative Court in
Iraq: A Comparative Study (Baghdad: Legal Library,
2021).

Shuaib Ahmed Suleiman: Arbitration in Disputes Over
the Implementation of the General Economic Plan
(Baghdad: Ministry of Culture and Information, 1981).

Sa'b Naji Al-Dulaimi: Formal Defenses Before the
Administrative Judiciary in Iraq (Beirut: Modern Book
Foundation, 2010).

Taha Jaber Al-Alwani: From the Literature of
Disagreement to the Rejection of Disagreement (USA:
International Institute for Thought, 2017).

Issam Nour Al-Din: The Intermediate Dictionary of Nour
Al-Din (Beirut: Scientific Books, 2005).

Ali bin Muhammad Al-Jurjani: The Commentary on Al-
Mutwal (Beirut: Scientific Books, 2008).

Ali bin Muhammad Al-Juma: Dictionary of Economic
and Islamic Terms (Riyadh: Al-Obeikan, 2000).

Liwaa Abdul Hassan Attia: The Lexical Companionship
(Beirut: Scientific Books, 2018).

Muhammad ibn Abdul Ghani al-Ardabili: Explanation of
the Model in Grammar by al-Zamakhshari (Beirut:
Scientific Books, 2016).

Muhammad ibn Ali al-Sabban: The Commentary on al-
Ashmouni (Beirut: Scientific Books, 2014).

Muhammad ibn Ali ibn Tulun al-Salihi, Explanation of
Ibn Malik's Alfiyya (Beirut: Scientific Books, 2002).

Muhammad ibn Manzur: Lisan al-Arab (Beirut: Al-Fikr,
2015).

Mr. Abbas Qasim Mahdi al-Daqouqi: Judicial Reasoning
(Cairo: National Center, 2015).

Al-Mu'allim Butrus al-Bustani: Muhit al-Muhit (Beirut:
Scientific Books, 2009).

Yamama Muhammad Hasan Kashkoul: The Legal

International Journal of Law And Criminology

52

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

System for the Establishment and Organization of
Federal Units (Cairo: National Center, 2015).

Third: The System, the Law of Administration of the
State for the Transitional Period, the Permanent
Constitution, and Laws

1 - The System

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005 (Iraqi
Gazette: No. 3997, dated 5/2/2005).

2 - The Law of Administration of the State for the
Transitional Period, the Constitution of the Republic of
Iraq, and the Legality of the Federal Supreme Court

The Law of Administration of the State for the
Transitional Period of 2004 (Iraqi Gazette: No. 3981,
dated 12/31/2003).

The Federal Supreme Court Law No. (30) of 2005 (Iraqi
Gazette: No. 3996, dated 3/17/2005).

The Permanent Constitution of the Republic of Iraq of
2005, in force (Iraqi Gazette: No. 4012, dated
12/28/2005).

The First Amendment to the Federal Supreme Court
Law - No. (30) of 2005 - No. (25) of 2021 (Iraqi Gazette:
No. 4635, dated 6/7/2021).

The Federal Supreme Court Decision: Published in PDF
format on the following website: (chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https:
//964media.com/storage/2023/11).

3 - State Shura Council Laws

State Shura Council Law No. (65) of 1979, published on
the website: (https://www.iraqilaws.com/2023/10/65-
1979.html).

Second Amendment Law to the State Shura Council
Law - No. (65) of 1979 - No. (106) of 1989, (Iraqi
Gazette: No. 3285, dated 12/11/1989).

Fifth Amendment Law to the State Shura Council Law -
No. (65) of 1979 - No. (17) of 2013, (Iraqi Gazette: No.
4283, dated 7/29/2013).

Iraqi Council of State Law No. (71) of 2017 (Iraqi
Gazette: No. 4456, dated 8/7/2017).

4 - General Laws

National Sports Federations Law No. (24) of 2021 (Iraqi
Gazette: No. 4632, dated 5/31/2021).

Public Prosecution Law No. (49) of 2017 (Iraqi Gazette:
No. 4437, dated 3/6/2017).

The First Amendment to the Law Repealing Legal Texts
Preventing Courts from Hearing Lawsuits - No. (17) of
2005 - No. (3) of 2015 (Iraqi Gazette: No. 3454, dated
3/2/2015).

The Ninth Amendment to the Ministry of Higher

Education and Scientific Research Law - No. (40) of
1988 - No. (17) of 2024, (Iraqi Gazette: No. 4785, dated
7/22/2024).

University Service Law No. (23) of 2008, as amended,
(Iraqi Gazette: No. 4074, dated 5/12/2008).

Civil Service Law No. (24) of 1960, as amended, (Iraqi
Gazette: No. 4133, dated August 17, 2009).

Civil Procedure Law No. (83) of 1969, as amended,
published

on

the

website:

(https://www.iraqilaws.com/2023/10/83-1969.html).

State Employees' Discipline Law No. (41) of 1929,
(Baghdad: Government Press, 1929).

State and Public Sector Employees' Discipline Law No.
(14) of 1991, as amended, (Iraqi Gazette: No. 3356,
dated June 3, 1991).

Law Amending the Judicial Organization Law - No. (160)
of 1979 - No. (8) of 2014, (Iraqi Gazette: No. 4822,
dated: April 14, 2025).

Law Unifying the Classification of State Lands No. (52)
of 1976, (Iraqi Gazette: No. 2537, dated: July 5, 1976).

Law on the Salaries of State and Public Sector
Employees No. (22) of 2008, (Iraqi Gazette: No. 4074,
dated: May 12, 2008).

Ministry of Education Law No. (22) of 2011, published
at: (https://www.dorar-aliraq.net/threads).

Legal Codification Bureau No. (49) of 1933 (Iraqi
Gazette: Issue No. 1280, August 3, 1933).

Fourth: Areas and Conference

1 - Journals

Jaber Hussein Al-Tamimi: Examining the Limits of the
Jurisdiction of the Federal Supreme Court in
Supervising the Constitutionality of Laws in Iraq: A
Comparative Study (Wasit Journal of Humanities: Vol.
18, No. 1, 2022).

Jaber Hussein Al-Tamimi: Examining the Limits of the
Jurisdiction of the Federal Supreme Court in
Supervising the Constitutionality of Laws in Iraq: A
Comparative Study (Wasit Journal of Humanities: Vol.
18, No. 1, 2022).

Dr. Hossam El-Din Mohamed Morsi: Controls of
Administrative Decisions (Journal of the Faculty of Law
for Legal and Economic Research at Alexandria
University: Vol. 4, No. 1, 2018).

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).

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

International Journal of Law And Criminology

53

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

Sciences, Vol. 35, No. 3, Vol. 1, 2020).

Dr. Sanaa Taama Mahdi: The Authority Responsible for
Resolving Conflicts of Jurisdiction Between the
Administrative and Ordinary Judiciaries in the Council
of State (Journal of the College of Law and Political
Science, No. 8, 2021).

Dr. Fares Hatem: The Effectiveness of the Iraqi Council
of State under State Council Law No. (71) of 2017: A
Comparative Study (Journal of the Kufa Center for
Studies, Vol. 1, No. 59, 2021).

Salem Rawdan Al-Mousawi: Methods of Challenging
the Unconstitutionality of Laws Before the Federal
Supreme Court (Al-Hewar Al-Mutamadin Magazine:
Issue: 6344, dated: September 7, 2019), available at:
(https://www.ahewar.org/debat/show.art.asp?aid=64
8723).

Qahtan Muhammad Salih Al-Hiti: Litigation Procedures
Before the Administrative Judiciary Court and the Civil
Service Judiciary Court (Al-Hewar Al-Mutamadin
Magazine: Issue: 8148, 2024), published on the
website:
(https://www.ahewar.org/debat/show.art.asp?aid=84
6868).

2 - Conference

Dr. Othman Yassin Ali: The Legislative Development of
the Administrative Judiciary in Iraq and its Continuity in
the Kurdistan Region (The Fourth International
Conference on Legal Issues - Faculty of Law, Tishk
International University, 2019).

Fifth: Websites

Dr. Ghazi Faisal: The Legal Nature of the Council of
State, available at: (https://council-state.iq/?page=47).

The Scientific Committee of Sky News Arabia in
Baghdad: The Federal Supreme Court of Iraq: Its
Powers and Responsibilities, (Article: 2022), available
at:

(https://www.skynewsarabia.com/middle-

east/1553270).

Dr. Ahmed Talal Al-Badri: The Federal Supreme Court is
not primarily competent to interpret legislation,
(Article:

B.T.),

published

at:

(https://iraqfsc.iq/news.4956).

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).

Council of State: The Historical Foundations of the

Council of State and Its Functional Competencies in the
Republic of Iraq, available at: (https://council-
state.iq/?page=7).

Arabic References

Dr. Hamidi bin Youssef: Terminological Definition,
(Amman: Academic Book, 2019), p. 41.

Dr. Raja Wahid Duwaidri: Scientific Terminology in the
Arabic Language, (Damascus: Al-Fikr, 2010), p. 145.

Taha Jaber Al-Alwani: From the Literature of Difference
to the Rejection of Disagreement, (America: The World
Institute for Thought, 2017), p. 266.

Dr. Adnan Ahmed Abu Dayyeh: Contemporary Methods
in Teaching Social Studies, (Amman: Osama, 2011), p.
309.

Patricia L. Smith and Tilman J. Ragen: Instructional
Design, translated by Mujab Muhammad Al-Imam,
(Riyadh: Al-Obeikan, 2012), p. 334.

Dr. Ali Ahmad Khader Al-Maamari: Reshaping the
World (Amman: Academics, 2021), p. 41.

Abu Faris Al-Dahdah: Commentary on Ibn Malik's
Alfiyyah, 3rd ed. (Riyadh: Al-Ubaikan, 2012), p. 262.

Muhammad ibn Ali Al-Sabban: Commentary on Al-
Ashmouni (Beirut: Scientific Books, 2014), vol. 2, p. 138.

Ali ibn Muhammad Al-Jurjani: Commentary on Al-
Mutawwal (Beirut: Scientific Books, 2008), p. 118.

Dr. Raad Mahdi Razouqi and Dr. Nabil Rafiq
Muhammad: The Series on Thinking and Its Patterns
(3), (Beirut: Scientific Books, 2018), p. 172. Liwaa Abdul-
Hassan Attia:The Lexical Companionship (Beirut:
Scientific Books, 2018), p. 20.

Dr. Sarah Lagd: Scientific School Terminology (Amman:
Academic Book, 2021), p. 100.

Issam Nour El-Din: Nour El-Din El-Wasit Dictionary
(Beirut: Scientific Books, 2005), p. 449.

Al-Moallem Butrus Al-Bustani: Muhit Al-Muhit (Beirut:
Scientific Books, 2009), vol. 9, p. 98.

Muhammad ibn Manzur: Lisan Al-Arab (Beirut: Al-Fikr,
2015), vol. 3, p. 834.

Muhammad ibn Ali ibn Tulun Al-Salihi, Commentary on
Ibn Malik's Alfiyyah (Beirut: Scientific Books, 2002), vol.
2, p. 149.

Ali ibn Muhammad Al-Jumu'ah: Dictionary of Economic
and Islamic Terms (Riyadh: Al-Ubaikan, 2000), p. 34.

Muhammad ibn Abd Al-Ghani Al-Ardabili: Commentary
on Al-Anmodel in Grammar by Al-Zamakhshari (Beirut:
Scientific Books, 2016), p. 188.

Dr. Rasha Muhammad Jaafar and Marwa Muwaffaq
Mahdi: The Authority Responsible for Resolving
Conflicts of Jurisdiction Between the Administrative

International Journal of Law And Criminology

54

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

and Ordinary Judiciary in Iraq, (Journal of Legal
Sciences: Vol. 35, No. 3, Part 1, 2020): p. 414.

State Shura Council Law No. (65) of 1979, published on
the website: (https://www.iraqilaws.com/2023/10/65-
1979.html).

Second Amendment Law to the State Shura Council
Law - No. (65) of 1979 - No. (106) of 1989, (Iraqi
Gazette: No. 3285, dated 12/11/1989).

The Law of Administration for the State of Iraq for the
Transitional Period of 2004 (Iraqi Gazette: No. 3981,
dated 12/31/2003), [repealed by the Permanent
Constitution of the Republic of Iraq of 2005, effective,
except Articles 53/A and 58, (Iraqi Gazette: No. 4012,
dated 12/28/2005)].

The Permanent Constitution of the Republic of Iraq,
adopted in 2005, is in effect.

Dr. Othman Yassin Ali: The Legislative Development of
the Administrative Judiciary in Iraq and its Continuity in
the Kurdistan Region, (Fourth International Conference
on Legal Issues - Faculty of Law, Tishk International
University, 2019), p. 242.

Shuaib Ahmed Suleiman: Arbitration in Disputes Over
the Implementation of the General Economic Plan,
(Baghdad: Ministry of Culture and Information, 1981),
p. 298.

Dr. Muhammad Ali Suwailem: Constitutional Judiciary
(Cairo: Egyptian, 2020), p. 472.

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 court above. It shall
subsequently nominate three members in the same
manner for each subsequent vacancy arising due to
death, resignation, or removal. The Presidency Council
shall appoint the members of this court and name one
of them as its president. If 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 was repealed.

Dr. Hassan Al-Sayed Basyouni: 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
granting them broad provisions, or by drawing on the
legislative wisdom of the text or the purpose it seeks to
achieve, leading to a just ruling." Dr. Hussein Yassin Al-
Obaidi: Judicial Reasoning and Its Impact on Filling the
Legislative Vacuum (Al-Baheth Al-Arabi Journal, Vol. 4,
No. 3, 2023), p. 147.

Federal Supreme Court Law No. (30) of 2005 (Iraqi
Gazette: No. 3996, dated 17/3/2005), as amended by
First Amendment Law No. (25) of 2021 (Iraqi Gazette:
No. 4635, dated 7/6/2021).

The letter "waw" indicates that the conjoined partakes
of the conjoined part in the ruling. Ahmad 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,
adopted in 2005, is in force.

By Article (2) of the First Amendment Law of the
Federal Supreme Court Law No. (25) of 2021.

Ms. Abbas Qasim Mahdi Al-Daqouqi: Judicial Reasoning
(Cairo: National Center, 2015), p. 95.

Ali Saber Al-Ruwaimi: The Authority of the
Administrative Judiciary in Iraq, (Article) published on
the website: (https://www.iraqfsc.iq/news.5063).

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.

Yamama Muhammad Hasan Kashkoul: The Legal
System for the Establishment and Organization of
Federal Units (Cairo: National Center, 2015), p. 151.

The Permanent Constitution of the Republic of Iraq,
adopted in 2005, is in force.

Federal Supreme Court Law No. (30) of 2005, as
amended.

The Scientific Committee of Sky News Arabia in
Baghdad: The Federal Supreme Court of Iraq: Its
Powers and Responsibilities, (Article: 2022), available
on

the

website:

(https://www.skynewsarabia.com/middle-
east/1553270).

National Sports Federations Law No. (24) of 2021, (Iraqi

International Journal of Law And Criminology

55

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

Gazette: Issue: 4632, dated: May 31, 2021).

The decision is published in PDF format on the
following

website:

(chrome-

extension://efaidnbmnnnibpcajpcglclefindmkaj/https:
//964media.com/storage/2023/11).

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 those jurisdictions and powers, there is
nothing that grants the court jurisdiction to interpret
laws except in the event of challenging their
unconstitutionality. It also does not have jurisdiction or
authority to answer inquiries submitted to it from
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 federation above regarding
granting licenses for practicing the game and opening
divbuilding halls, and whether another party has the
right to practice this work based on its law, because the
court It is not a div that issues fatwas or expresses
opinions, and the subject in question may be subject to
dispute before judicial authorities.

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). Dr. Abbas Majeed Al-
Shammari: The concept of the supreme interest of the
State in the decisions of the Federal Supreme Court: A
comment 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).

Dr. Ismat Abdul Majeed Bakr: Legislative Problems: A
Comparative Theoretical and Applied Study (Beirut:
Scientific Books, 2014), p. 289.

The Legal Codification Bureau No. (49) of 1933 (Iraqi
Gazette: No. 1280, August 3, 1933).

The General Disciplinary Council is one of the essential
judicial bodies within the State Shura Council. The
historical origin of the General Disciplinary Council
dates back to 1929, and its jurisdiction is to consider
appeals filed against decisions issued by disciplinary
committees. Following the issuance of Civil Service Law
No. (103) of 1931, it was granted for the first time the
authority to consider employee rights arising from this
law. Following the issuance of the Legal Codification
Bureau Law No. (49) of 1933, which replaced the State
Employees' Discipline Law No. (41) of 1929, and
subsequently the State Employees' Discipline Law No.
(69) of 1936, which addressed the Council's powers in

detail. Then came the State Shura Council Law No. (65)
of (1979), which replaced the Law of the Legal
Codification Office, as Article Six stipulated the form of
the General Disciplinary Council and its connection to it
until the issuance of the Resolution of the
Revolutionary Command Council (dissolved) No. (1717)
on: (11/12/1981), which made the General Disciplinary
Council an independent div, and after the issuance of
the Second Amendment Law of the State Shura Council
No. (106) of (1989), whose Article Seven stated that:
"The Council shall exercise the functions of the
Disciplinary Council in the field of administrative
judiciary, and the President of the State Shura Council
shall be its president and its members shall be its
natural members, ..." Here, the General Disciplinary
Council was re-connected to the State Shura Council
with its new judicial div, which became alongside the
Administrative Judiciary Court established by the
Second Amendment Law of the State Shura Council.
Saab Naji Al-Dulaimi: Formal Defenses Before the
Administrative Judiciary in Iraq, (Beirut, Modern Book
Foundation, 2010), p. 19.

State Employees' Discipline Law No. (41) of 1929
(Baghdad: Government Press, 1929), pp. 1-16.

State Shura Council Law No. (65) of 1979.

S. Dahshti Siddiq Muhammad: Administrative Judiciary
and the Conflict of Jurisdiction between It and the
Ordinary Judiciary: A Comparative Study (Cairo:
National Center for Legal Publications, 2016), p. 8.

Currently replaced by the State Shura Council, the State
Council.

Fifth Amendment Law to the State Shura Council Law -
No. (65) of 1979 - No. (17) of 2013, (Iraqi Gazette: Issue:
4283, dated 7/29/2013), p. 28.

Second Amendment Law to the State Shura Council
Law - No. (65) of 1979 - No. (106) of 1989.

Council of State: The Historical Foundation of the
Council of State and its Functional Competencies in the
Republic of Iraq, at: (https://council-state.iq/?page=7).

Article (101) of the Constitution stipulates that: "A law
may establish a State Council, which shall be
competent to perform the functions of: administrative
judiciary, issuing fatwas, drafting, and representing all
public bodies before judicial authorities, except those
exempted by a special law." Permanent Constitution of
the Republic of Iraq of 2005, in force.

Iraqi Council of State Law No. (71) of 2017, (Iraqi
Gazette: Issue No. 4456, August 7, 2017).

Dr. Ghazi Faisal: The Legal Nature of the Council of
State, at: (https://council-state.iq/?page=47).

Dr. Faris Hatem: The Effectiveness of the Iraqi Council

International Journal of Law And Criminology

56

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

of State under State Council Law No. (71) of 2017: A
Comparative Study, (Journal of the Kufa Studies Center:
Vol. 1, No. 59, 2021), p. 191.

Fifth Amendment Law to the State Shura Council Law -
No. (65) of 1979 - No. (17) of 2013, p. 28.

As. Nissar Abdul Qader Al-Jabari: The Defect of Lack of
Jurisdiction in Administrative Decisions and Judicial
Oversight Thereof, (Cairo: Arab Center for Scientific
Studies and Research, 2018), p. 214.

Dr. Ahmed Mukhtar Omar: Dictionary of Contemporary
Arabic, (Beirut: Alam Al-Kutub, 2008), vol. 2, p. 1401.

Dr. Ali Kahloun: Commentary on the Journal of Civil and
Commercial Procedures, (Tunis: Al-Atrash, 2016), p.
325.

Dr. Muhammad Yusuf Allam: The Principle of Two-
Stage Litigation between Positive Laws and Sharia,
(Cairo: National Center for Legal Publications, 2012), p.
64.

Dr. Ajyad Thamer Nayef Al-Dulaimi: Provisions for
Interrupting the Proceedings of a Civil Suit and Its Legal
Effects, (Cairo: Arab Center for Scientific Studies and
Research, 2018), p. 69.

S. Sakar Hussein Kaka Mahd: The Responsibility of
Public Employees Refusing to Implement Judicial
Rulings (Cairo: Arab Center for Scientific Studies and
Research, 2018), p. 25.

Dr. Jawad Mutlaq Muhammad Al-Ati: Negative
Administrative Decisions and the Provisions for
Appealing Them (Cairo: Thought and Law, 2015), p. 23.

Dr. Rasha Abdul Razzaq Jassim Al-Shammari: The
Finality of Administrative Decisions (Cairo: National
Center for Legal Publications, 2016), p. 33.

Dr. Hossam El-Din Muhammad Morsi: Controls of
Administrative Decisions (Journal of the Faculty of Law
for Legal and Economic Research at Alexandria
University: Vol. 4, No. 1, 2018), p. 129.

The Permanent Constitution of the Republic of Iraq of
2005 (currently in force).

Dr. Fouad Muhammad al-Nadi: The Principle of
Legitimacy and Controls of the State's Subordination to
the Law in Islamic Jurisprudence (Alexandria: University
Book, 1980), p. 30.

Dr. Samir Khairy Tawfiq: The Principle of the Rule of
Law: A Study in Legal Philosophy (Baghdad: Ministry of
Culture and Arts, 1978), p. 11.

Dr. Muhammad Ali Suwailem: Constitutional Judiciary
(Cairo: Egyptian University, 2019), p. 446.

Dr. Azhar Hashim al-Zuhairi: Oversight of the
Constitutionality of Administrative Regulations and
Decisions under the Constitution of the Republic of Iraq

of 2005 (Cairo: Arab Center for Scientific Studies and
Research, 2017), p. 35.

The Permanent Constitution of the Republic of Iraq of
2005 (in force).

Dr. Karwan Izzat Muhammad Doski: The Role of the
Judiciary in Protecting the Federal Constitution: A
Comparative Study (Erbil: Spires, 2006), p. 88.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. 1 of 2005 (Iraqi Gazette:
Issue 3997, dated 5/2/2005). Jaber Hussein Al-Tamimi:
Examining the Limits of the Jurisdiction of the Federal
Supreme Court in Supervising the Constitutionality of
Laws in Iraq: A Comparative Study (Wasit Journal of
Humanities: Vol. 18, No. 1, 2022), p. 287.

Salem Rawdan Al-Mousawi: Methods of Challenging
the Unconstitutionality of Laws Before the Federal
Supreme Court (Al-Hewar Al-Mutamadin Journal: Issue
6344,

dated

9/7/2019),

available

at:

(https://www.ahewar.org/debat/show.art.asp?aid=64
8723).

Internal Regulations for the Conduct of Work in the
Federal Supreme Court No. 1 of 2005. Jaber Hussein Al-
Tamimi: Examining the Limits of the Jurisdiction of the
Federal

Supreme

Court

in

Supervising

the

Constitutionality of Laws in Iraq, a Comparative Study,
(Wasit Journal of Humanities: Vol. 18, No. 1, 2022), p.
287.

Federal Supreme Court Law No. (30) of 2005, as
amended, in effect.

Civil Procedure Law No. (83) of 1969, as amended,
published

on

the

website:

(https://www.iraqilaws.com/2023/10/83-1969.html).

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

Wafaa Dahel Al-Kaabi: The State's Function in
Compensating for Unconstitutional Laws, (University of
Maysan: Master's Thesis, 2021), p. 32.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

The Internal Regulations for the Conduct of Business in
the Federal Supreme Court No. (1) of 2005.

Law Amending the Judicial Organization Law - No. (160)

International Journal of Law And Criminology

57

https://theusajournals.com/index.php/ijlc

International Journal of Law And Criminology (ISSN: 2771-2214)

of 1979 - No. (8) of 2014, (Iraqi Gazette: No. 4822,
dated: April 14, 2025).

The Public Prosecution Law No. (49) of 2017, (Iraqi
Gazette: No. 4437, dated: March 6, 2017).

The Public Prosecution Law No. (49) of 2017.

The Permanent Constitution of the Republic of Iraq,
adopted in 2005, is in force.

The First Amendment Law to the Law Abolishing Legal
Texts Preventing Courts from Hearing Lawsuits - No.
(17) of 2005 - No. (3) of 2015, (Iraqi Gazette: No. 3454,
dated 2/3/2015).

The Ninth Amendment Law to the Ministry of Higher
Education and Scientific Research Law - No. (40) of
1988 - No. (17) of 2024, (Iraqi Gazette: No. 4785, dated
22/7/2024).

The Ministry of Education Law No. (22) of 2011,
published at: (https://www.dorar-aliraq.net/threads).

Dr. Saeed Al-Sayed Ali: Foundations and Rules of
Administrative Law, (Cairo: Al-Nahda Al-Arabiya, 2008),
p. 11.

(Article 7/Fourth).

(Article 7/Fifth).

(Article 7/Fifth).

(Article 7/Seventh/A) and (Article 7/Eighth/A).

The Second Amendment Law of the State Shura Council
Law No. (106) of 1989.

Law Unifying the Classification of State Lands No. (52)
of 1976, (Iraqi Gazette: No. 2537, dated 7/5/1976).

State and Public Sector Employees Discipline Law No.
(14) of 1991, as amended, (Iraqi Gazette: No. 3356,
dated 6/3/1991).

Civil Service Law No. (24) of 1960, as amended, (Iraqi
Gazette: No. 4133, dated 8/17/2009).

University Service Law No. (23) of 2008, as amended,
(Iraqi Gazette: No. 4074, dated 5/12/2008).

State and Public Sector Employees' Salaries Law No.
(22) of 2008, (Iraqi Gazette: No. 4074, dated
5/12/2008).

Dr. Maysoun Ali Abdul Hadi Al-Hasnawi: The Legal
Organization of the Supreme Administrative Court in
Iraq: A Comparative Study, (Baghdad: Legal Library,
2021), p. 23.

Fifth Amendment Law No. (17) of 2013 to the State
Shura Council Law No. (65) of 1979.

Dr. Mahmoud Abdul Ali Al-Zubaidi: The Legal System
for the Expiration of Administrative Suits without a
Ruling on the Substantive Matters, (Cairo: Arab Center
for Scientific Studies and Research, 2018), p. 142.

Ali Saber Al-Ruwaimi: The Authority of the
Administrative Judiciary in Iraq, (Article) published on
the website: (https://www.iraqfsc.iq/news.5063).

Dr. Mahmoud Abdul Ali Al-Zubaidi: The Legal System
for the Expiration of Administrative Suits without a
Ruling on the Substantive Matters, previous source, p.
158.

Qahtan Muhammad Salih Al-Hiti: Litigation Procedures
Before the Administrative Judiciary Court and the Civil
Service Court, (Al-Hewar Al-Mutamadin Magazine:
Issue: 8148, 2024), published on the website:
(https://www.ahewar.org/debat/show.art.asp?aid=84
6868). S. Dah Shti Siddiq Muhammad: Administrative
Judiciary and Conflicts of Jurisdiction with the Regular
Judiciary: A Comparative Study (Cairo: National Center,
2016), p. 145. Jurisdiction in civil courts is defined as:
"the authority legally granted to a civil court to
adjudicate a specific type of lawsuit within its territorial
jurisdiction." Kamal Rahim Aziz Al-Askari: Extension of
Jurisdiction in Civil Judiciary: A Comparative Study
(University of Karbala: Master's Thesis 2021), p. 1.

Article (7/Fourth) of the Second Amendment to the
State Shura Council Law No. (106) of 1989.

Dr. Sanaa Taama Mahdi: The Authority Competent to
Resolve Conflicts of Jurisdiction between the
Administrative Judiciary and the Regular Judiciary in
the State Council (Journal of the College of Law and
Political Science: Issue 8, 2021), p. 258.