The requirements of integration and the necessity of referral in the drafting of the judgments of the constitutional courts

  If the judgment empties the judicial conviction obtained after scrutiny and research conducted by the court, which is the title of the judicial truth and a reflection of the rule of law on reality and a mirror of the judge's doctrine, the constitutional judicial ruling increases this because it approaches the characteristics of the legal base according to its decisiveness, obligatory, and distance from the scope of defamation and challenges before a higher court, so if the judge may refer to the texts, legal rulings, judicial evidence, and others as far as necessary and by restrictions of need and integration, but with restrictions, In particular, the referral should not be conducive to confusion and ambiguity (1) the constitutional judge shall abide by the integration criteria when formulating his judgment according to the final provisions of his judgments, its decisiveness, and obligations (2), but does he refrain from referring?

The judge should not imagine that he can isolate his judgment from his constitutional, legislative, judicial, and factual adoptions, but that the merits of his judgment are based on those adoptions, and the constitutional provision is consistent with them, and its merits are integrated, but does the referral have restrictions? Does the description of these adoptions are reaching the degree of the constitutional judgment is characterized because it listed as a constitutional judgment? In other words, if the constitutional judge were referred to a constitutional text other than the one on which the constitutional case was being referred, would that referral be considered as an accidental interpretation of that provision? What if it were referred to a legislative text, would such a referral be considered a constitutional violation, and the constitutional challenge would not be accepted again, especially if it did not address its constitutional consideration? What if he is referred to legal acts practiced by one of the authorities, does that referral dress up those acts to be legitimate? What if it were referred to the practice or action of one of the authorities, was that referral forced into a binding constitutional customary rule?

The types of referral sought, and others, do not surround all forms of referral necessary to bring constitutional judicial decisions into existence, so we must define the controls of the referral, its limits, and its impact so that listing of the referrals in the judicial decisions are within the limits of the necessity required by issuing judgments and the fullness of their reasons and statements and not an entry point to their ambiguity or conflict.

Referring the constitutional judge to a constitutional or legal text, legal action or facts and its purpose in drafting his judgment, whether it is a referral to the full text or its parts, or whether it is a textual quotation or the limits of referring to the number of the article, is linked to the recitals of the judgment and not to its judgment paragraph, and relates to its support and not to its conclusions, i.e.,  Referral is related to the reasons, not the results.

It is clear that it is inevitable that the referral in the aforementioned sense is that the legal text to be judged by its constitutionality, or the constitutional text to be interpreted, and other possibilities absorbed by the terms of reference of the constitutional courts, is not the result of other legislative and constitutional texts that are in its orbit, but the referral is restricted by the need to reach the governance result, not to be an abstract research review conducted by the Constitutional Court, nor to be a referral leading to the linking of the referred texts. It should not be satisfied with the court's findings related to the constitutionality of the text or its interpretation, i.e., not to enter into the scope of the court's ruling and its final word in it, as it is not correct to enter into that scope or to divide the text referred to it by the court's ruling result, even though the text was not included in the court's in-depth research and did not elaborate on it, as well as the text referred to it. Because it was not part of the constitutional proceedings or the explanatory request.

However, the Federal Supreme Court proceeded with another path when it reached constitutional interpretations through constitutional examination proceedings, as well as the interpretation of explicit constitutional texts or general constitutional principles, which examined the constitutionality of legal texts (3), while it is prior that referrals to the referred texts were dependent on the limits of accordance with reasons without reaching the degree of referral that determines the meaning or constitutionality of the text so that it is not a hasty resolution without foresight, and in the same course the referral to Material facts or legal acts that do not entail being judged or framed legally, the referral to elections or their procedures on the occasion of researching the constitutionality of electoral law, for example, is not governed by authenticity, also, referring to the facts of the vote to pass the law on the occasion of the examination of an objective aspect of that law is not governed by such facts by authenticity or constitutional as long as the appeal is not focused on them and the court has not elaborated on it, and the referral to foreign law or international treaties, conventions or declarations on the occasion of the research of the constitutionality of a text on the right of human rights framed internationally in those texts referred to it does not necessarily mean that those texts they represent a source or reference in interpreting the legal text in question, shoing its range or deciding its constitutionality.

In sum, the necessity for referral must be clear in the judicial judgment and should lead to ambiguity and confusion of the court's judgment, and be within the limits of relying not on the report and the judgment of those referred to it.              

(1)   Ph.D. Ashraf Tawfiq Shamseddine./ the origins of the judicial language – Al-Nahdha Al-Arabiya for publishing 1998 – page 59.

(2)    Article 94 of the Constitution of the Republic of Iraq for 2005 and Article 195 of the Constitution of the Arab Republic of Egypt for the year 2014 amended in force.

(3)   Professor Ph.D. Ali Hadi Al-Hilali/ the general theory of interpreting the Constitution/ Zain legal publications/ Beruit- Lebanon, 2011 page 218-226.