الحقوق الدستورية االمتفرعة :دراسةٌ مقارنة
| dc.contributor.author | فاطمة فاضل حليحل | |
| dc.contributor.editor | أ.د علي هادي عطية | |
| dc.date.accessioned | 2024-11-14T09:53:01Z | |
| dc.date.available | 2024-11-14T09:53:01Z | |
| dc.date.issued | 2021-10-19 | |
| dc.description.abstract | The Constitutions are almost not devoid of mentioning a number of rights and freedoms according to their importance, whereas the constitutional judiciary is responsible for clarifying the contents of these rights so that the ordinary legislator does not cross the limits set by the constitutional legislator for them. As the constitutional judiciary strives to provide real guarantees for them, and transfer them from the concept of formal protection to real protection, which penetrates into the depths of the explicit text, clarifying what it contains of branching rights, within the branching technique, which is a judicial discretionary process through which constitutional rights can be accessed from explicit constitutional rights, Within specific controls represented by the inadmissibility of branching in violation of the explicit texts and the prevailing idea in the constitution and without departing from the final purpose of the explicit texts, and that the process of branching is justified by certain reasons represented by the constitutional formulation and the steady development of rights and the difficulties of amending constitutions. The branching technique, which is the means of the judiciary to reach the branching rights, seems at first sight to be mixed with the technique of interpretation, as the judiciary uses it to reach the will of the constitutional legislator after clarifying the ambiguity, deficiency and contradiction, However, the branching technique is distinguished from the interpretation technique, because the latter leads to the statement of the limits of the constitutional text and entails an increase in it, which is a legitimate increase because it is based on the text itself , the branching result, represented by the branching rights of the constitution, is unique in features and descriptions that distinguish the unwritten constitutional principles represented by gradual and binding. The constitutional judiciary relies, in the branching process, to the constitutional functions entrusted to it and within the limits of the judicial function, and in light of the purpose of its existence, which is the protection of constitutionality. Therefore, his function requires that the explicit right be subdivided to clarify its contents or the rights it guarantees, because the constitutional protection extends to these contents or contents. As a result of the fact that branching is related to the constitutional judiciary’s function of protecting constitutional supremacy as well as the nature of the rulings it issues that are absolutely authentic, so it is unique in practicing this technique of branching. The constitutional judiciary can accept the appeal related to the protection of a branched right because the interest of the appellant is related to the implicit meanings of the constitutional text, and then the legal reference to be protected for these contents is based on what justifies accepting the interest of the appellant to protect a branched right. As for the bases that the constitutional judiciary can adopt to nullify legal texts that contradict branched rights, they are: to protect the branched right on the basis that it represents the essence of the explicit right or a vital field of the explicit right, or it correlates with the explicit right because it is one of its conditions or necessary elements. And if the Federal Court adopts the branching technique, after observing its controls, it can delineate for the ordinary legislator the limits of his discretion in regulating rights and freedoms, and connects the court to many branching rights that go hand in hand with explicit rights, thus ensuring real protection of constitutional rights. The researcher seeks to frame the constitutional branching with an integrated theory in terms of conditions and controls so that the) constitution is not violated, disrupted, or doubted under the guise of branching. | |
| dc.identifier.uri | https://dspace.utq.edu.iq/handle/123456789/294 | |
| dc.title | الحقوق الدستورية االمتفرعة :دراسةٌ مقارنة | |
| dc.type | text::thesis::doctoral thesis | |
| oairecerif.author.affiliation | كلية القانون / دكتوراه قانون عام | |
| oairecerif.editor.affiliation | جامعة ذي قار / كلية القانون |