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The role of the judiciary in addressing procedural legislative shortcomings A study in light of the Iraqi Criminal Procedure Code No. (23) of 1971 as amended | ||
| Journal of Anbar University for Law and Political Sciences | ||
| Article 17, Volume 14, Issue: 2 part 2, December 2024, Pages 426-459 PDF (754.77 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.37651/aujlps.2024.153765.1355 | ||
| Authors | ||
| Muhammad Kak Allah Smail* ; Kawthar Ahmed Khaland* | ||
| University of Salahuddin - College of Law - Department of Law | ||
| Abstract | ||
| The existence of law, in general, is to regulate the behavior and actions of individuals in society. Criminal law is characterized by the dual nature of its substantive rules that determine criminal behavior, including penal and procedural laws, which are regulated by the Iraqi Law of Criminal Procedure. It organizes the procedures of prosecution of criminals, Investigation of committing crime causes, examination of the surrounding circumstances, the trial of perpetrators, and appealing judgments issued by competent courts. However, the rules of this law may sometimes shrouded in ambiguity and thus require interpretation and solution. This is particularly true when the law does not address all facts, conditions, and assumptions, which arise in practice, or those that emerge normally due to the advancement of science and technology. Since legislation, in general, is not perfectly complete because it is made by someone who is imperfect. The court must resolve cases presented in practical reality, and the judge cannot refuse to adjudicate a case or abstain under the absence of legal text. In many cases, judges must address gaps in criminal legislation by making judgment based on the incident at hand. Additionally, the positive role granted to criminal judges, particularly their discretionary authority to form their convictions in accordance with the law, which enhances the effectiveness of legal texts by applying existing laws properly or seeking better alternatives, in case of missing legal rules, often resorts to analogical reasoning and deduction based on interpretative methods to address legislative deficiencies. | ||
| Keywords | ||
| procedural legislative deficiency; judiciary role; ambiguity; Deficiency; Contradiction | ||
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