أثر عملية التحول الديمقراطي على الحق في التقاضي ودعوى الإلغاء/دراسة مقارنة

Abstract

The process of transformation from an authoritarian, individualistic or dictatorial system to a democratic system affects the legal system of the state, as the democratic state believes in the principles of justice, guaranteeing equal rights and duties, human rights, and working within the rule of law, and that the judiciary is independent. This is contrary to what exists in dictatorial or individual regimes, as these regimes believe in everything that would restrict people’s freedoms and prevent them from using legal means that work to guarantee rights and freedoms. Therefore, these rights and freedoms appear devoid of their legal and constitutional content, although it has been legislated.  One of the most important means of protecting legitimacy, ensuring the rule of law, and protecting the rights and freedoms of individuals is the (Cancellation claim) and protecting the citizens’ right to litigate as a constitutional right, as dictatorial and authoritarian regimes deliberately increase the texts that restrict the citizens’ right to litigate by enacting legal texts or legislation that restricts this right and enacting legal texts that protect executive and administrative actions from judicial oversight or review by any institution.

In Iraq, it is noticeable that there are many restrictions on the right to litigation and an expansion of what is called “sovereign acts” that were explicitly legislated in the Judicial Organization Law No. 160 of 1979 before 2003 and after the political changes and the 2005 Constitution, which explicitly went to the opinion that it is not permissible to immunize any administrative act or administrative decision.