Methods of the establishment of constitutions and the mechanisms that govern Status of the constitutional document


  • Dr. Idris Hader Hishan Fresh . College of Rights, University of Mosul, Nineveh, Iraq


- Constitutions. - constitutional referendum. - democratic method. - ruler.


Abstract: The non-democratic method in the emergence of constitutions is represented in the grant method, which is tantamount to a relinquishment by the ruler of some of his powers in the form of a grant or a gift to the people, while the other method is the contract between the ruler and the people following a revolution or coup. In compliance with the ruler, he loses all his powers. As for the first democratic method in the emergence of constitutions, it comes through the original Constituent Assembly (the Constituent Assembly) elected by the people, and when this assembly finishes its work, it becomes a constitution in effect without the approval of the ruler or other authorities. As for the second, it comes from The way of the constitutional referendum is to draft the constitution through a constituent assembly chosen by the people, a parliamentary committee, or a technical committee. . Accordingly, the authority to draft the constitution in the original Constituent Assembly is absolute, and jurisprudence goes against all the matters it contains by not obligating this body with any proposal that is put before it, because it is an original and sovereign authority, and chosen by the people, but there are some difficulties that the drafters of the constitution face due to lack of knowledge of all the details, In this case, it is possible to seek help from old constitutions, or to rely on an old, pre-existing text, in order to comprehend all the matters contained in the constitution, and in order for the constitutional document to be awe-inspiring, for the constitution to enjoy formal and substantive sublimity, and to include the principle of legitimacy


First: Legal books:

D. Ibrahim Abdel Aziz Shiha, General Constitutional Principles, University Press and Publications House, Beirut, 1982.

D. Ibrahim Abdel Aziz Shiha, Principles of Political Systems for States and Governments, University Press, Egypt, 1989.

D. Hassan Al-Bahri, Constitutional Law and Political Systems, Syrian Virtual University, Syria, 2018.

D. Hussein Azab Al-Sakini, Controversial Issues in the Iraqi Constitution, Legal Study and Political Vision, 1st edition, Al-Ghadeer Printing, Basra, 2012.

Khalil Heikal, Building and Organizing the State in Contemporary Regimes and the Islamic System, 2nd edition, Dar Al-Nahda Al-Arabiya, Cairo, 1999.

D. Adnan Ajel Obaid, Constitutional Law, 2nd edition, Dar Al-Kutub for Printing and Publishing, Baghdad, 2013.

D. Fathi Fikry, Constitutional Law, Party System - Government Powers in the 1971 Constitution, Part 2, Dar Al-Nahda Al-Arabi, Cairo, 1971.

D. Muhammad Refaat Abdel Wahab, Political Systems, Arab Renaissance House, Cairo, 1996.

Muhammad Kamel Laila, Censorship of Editorial Works, Dar Al-Nahda Al-Arabiyyah, Cairo, 1970.

Mosaddeq Adel Talib, Constitutional Drafting, Comparative Analytical Legal Study, 1st edition, Dar Al-Sanhouri, Baghdad 2017.

D. Mustafa Al-Khashab, Political Theories and Doctrines, without the year of publication, Cairo, 1957.

D. Munther Al-Shawi, Constitutional Law, State Theory, Publications of the Legal Research Center, Ministry of Justice, Baghdad, 1981.

D. Abdel Hamid Metwally, The Mediator in Constitutional Law, 1st edition, Dar Al-Talib for Publishing University Culture, 1956.

D. Abdel Fattah Hassan, Principles of the Constitutional System in Kuwait, Beirut, 1968.

D. Saad Asfour, The Constitutional Law, Dar Al Nahda Al Arabiya, Cairo, 1954.

D. Noman Ahmed Al-Khatib, The Mediator in Political Systems and Constitutional Law, 7th edition, House of Culture, Amman, 2011.

D. Moaifi Al-Aziz, Lectures on Constitutional Law, Abderrahmane Mira University, Bejaia, Faculty of Law and Political Sciences / Department of Basic Education, 2017.

D. Ali Youssef Shukri, Principles of Constitutional Law, 1st edition, Dar Safaa for Printing and Publishing, 2011.

D. Hamid Hanoun Khaled, Constitutional Law and the Development of the Political System in Iraq, Beirut, Lebanon, 2019.

D. Ahmed Kamal Abu Al-Majd, Studies in Constitutional Law, Dar Al-Nahda Al-Arabiya, Cairo, 1991.

D. Abdel Hamid Metwally, Al-Mufassal fi Al-Qanun Al-Dustury, Part 1, Dar Al-Nahda Al-Arabiya, Cairo, 1952.

D. Mustafa Abu Zaid Fahmy, The Constitutional System in the United Arab Republic, Mansha’at Al-Ma’arif, Alexandria, 1966.

Second: Scientific journals and research:

Taghreed Abdul Qadir Ali, The Problem of Legislative Drafting in the Constitutional Text (a study on the Constitution of the Republic of Iraq for the year 2005), College of Law, Al-Mustansiriya University, without year of publication.

Tunisian Assembly, National Constituent Assembly: Annual report on the draft constitution, June 2013, Tunisia.

Jonathan Morrow, The Iraqi Constitutional Process (A Missed Opportunity), Report, US Institute of Peace, Washington, 2003.

Hassan Ali Al-Badiri, The Constitution of the Republic of Iraq of 2005 between the failures of establishment and the requirements of reform, a practical report, Konrad Adenauer Foundation, Germany, 2021.

Hussein Jabbar Abd, Manifestations of the Principle of the Supremacy of the Constitution (A Study of the Constitution of Iraq for the Year 2005), Al-Muhaqqiq Al-Hilli Journal of Legal and Political Sciences, Volume 6, No. 1, 2014.

Hanan Muhammad Al-Qaisi, Legislative drafting errors in the 2005 Iraqi Constitution - Article (65) as a model - Journal of Law, College of Law / Al-Mustansiriya University, Volume (4), Section (6), Section (18), 2012.

Sunbul Abdel-Jabbar Ahmed, The Principle of the Supremacy of the Constitution and Ensuring Respect for a Comparative Analytical Study, Journal of the College of Law for Legal and Political Sciences, Volume 6, No. 21/Part 1, 2017.

Imad Al-Feki, The Constitution - The Egyptian Case (Questions and Answers in Light of Comparative Constitutions), Report, Arab Organization for Human Rights, Egypt, 2012.

Michel Brandet et al., Constitution-making and Constitutional Reform, Part 2, Introduction to Constitution-making Processes, Scientific Report, Interpeace Foundation, Lebanon, 2012.

Narges Taher and Dounia Ben Ramadan, Constitution-making and constitutional reform, Part 2, Tasks associated with the constitution-making process, practical report, International Institute for Democracy and Elections, Canada, 2013.

Third: Laws and agreements:

Tunisian Presidential Decree No. (1086) of 2011.

The Constitution of the Republic of Iraq of 2005 in force.

The State Administration Law for the Transitional Period of 2004.



How to Cite

., D. I. H. H. F. (2024). Methods of the establishment of constitutions and the mechanisms that govern Status of the constitutional document. TIKRIT UNIVERSITY JOURNAL FOR RIGHTS, 8(1), 542–568. Retrieved from