The overlap between the constitution and its supplementary fundamental laws in Iraqi law (An analytical study)

Abstract

Abstract: This research addresses the problem of overlap between the constitution and its supplementary fundamental laws in Iraqi law. This is considered one of the most prominent problems arising from the practical application of the constitutional system after the 2005 Constitution of the Republic of Iraq came into effect. The supplementary fundamental laws are supposed to serve as a legislative tool for implementing constitutional provisions and elaborating on the general principles contained therein, thus ensuring their effectiveness and the achievement of their objectives. However, Iraqi legislative reality has revealed numerous overlaps, and even frequent contradictions, between constitutional texts and the provisions of these laws. This has led to confusion in the legal framework and weakened the Iraqi constitution's principle of general supremacy. This research discusses the constitutional and legal basis for the concept of supplementary laws, their legislative function, and the limits of their role, distinguishing them from ordinary laws. It clarifies their legal nature and position within the hierarchy of legal rules. The research also addresses the most prominent instances of overlap, whether stemming from the ordinary legislator exceeding their constitutional mandate, from ambiguity in the constitutional text itself, or from the absence of clear legislative standards governing the drafting of these laws. The research highlights the pivotal role of constitutional review, particularly that of the Federal Supreme Court, in regulating this overlap and restoring balance between the constitutional text and its supplementary laws. This is essential for preserving the unity of the legal system and upholding the principle of constitutional legitimacy. The research concludes with a set of findings and recommendations emphasizing the necessity of adopting a disciplined legislative approach and strengthening constitutional jurisprudence to ensure respect for the supremacy of the constitution and to limit instances of illegitimate overlap in Iraqi law. © 2023 TUJR, College of Law, Tikrit University