الأثر القانوني المترتب على الحنث في اليمين الدستورية في العراق: دراسة تحليلية تقويمية

Abstract

This study aims to identify the legal effect on the violation of the constitutional oath in Iraq. The study explains the concept of constitutional oath, its classifications and the difference between constitution of oath and other types of oath. The study also describes its legal provisions according to time and place of implementation, and its wordings. The problem statement of this study is that most constitutions in Islamic and non-Islamic countries make it obligatory for senior positions in the state, such as the president of the state to swear by the constitutional oath before starting their duties. However, most constitutions do not indicate any legal effect or penalty for refraining from fulfilling the constitutional oath. The researcher examines Iraqi constitutions as well as the constitutions of Islamic and non-Islamic countries within the subject of constitutional oath. To achieve the objectives of this study, the researcher adopts the analytical descriptive method and critical approach through the review of well-known constitutions such as American constitution. In addition to that, the researcher also uses the comparative approach to compare between the constitutions and the Shariah. The result of the study reveals that all successive Iraqi constitutions and the constitutions of Arab, Islamic and Western countries do not regulate legal responsibility for refraining from fulfilling the constitutional oaths except the constitution of Iraq 2005 which stipulates the responsibility of the president of Iraq for refraining from executing the constitutional oath without indicating any penalty against the president, legislative and executive body. That responsibility is not completed if the law that regulates the mechanism of accountability to the president of the republic is not legislated. The researcher suggests that a reform has to take place on the wording of the provisions related to constitutional oath in the present constitution of Iraq. The study recommends to inclusion of a legal effect in the provisions of the constitution to establish a legal penalty and accountability on the president of republic, the members of legislative body and the officials in the government if they refrain from executing the constitutional oath. This legal effect should include all parties and members assigned to take the constitutional oath within the principles of Shariah.