Secondary Legislation

Posted on | February 28, 2009

Secondary legislation is also referred to as delegated or subordinate legislation. There are various forms of secondary legislation in Iraq.

Under the Constitution, Article 51 requires the Council of Representatives to make bylaws regulating its work. Article 73(7) gives the President (Presidential Council in the first Parliament) the power to issue Presidential Decrees. Article 80(3) provides that the Council of Ministers shall exercise the power “to issue rules, instructions and decisions for the purpose of implementing the law” (اصدار الانظمة والتعليمات والقرارات، بهدف تنفيذ القوانين).
There would not appear to be any procedure whereby such secondary legislation issued by a Ministry is required to be laid before Parliament or otherwise scrutinized prior to coming into effect.
Rules are made by each Ministry pursuant to the powers delegated by various relevant legislation.
Regulations are also made by bodies created by legislation such as the Central Bank, the Board of Supreme Audit, the Communication and Media Commission , the Endowment Commission, High Commission for De-Baathification, Property Claims Commission, IHEC (e.g. Regulation 15 of 2008 on Seat Allocation) and the HJC.
Under Article 129 of the Constitution, Laws are required to be published in the Official Gazette and would appear not to come into effect unless so published. There is no express requirement in the Constitution relating to publication of secondary legislation. However central government secondary legislation would appear to be published in the Official Gazette. It is presumed that such regulations (like primary legislation) do not have effect until so published.

Pursuant to Article 122 of the Constitution, Article 2 of the Law of Governorates not Organised into a Region of 2008 (repeated again at Article 7(3)) gives Governorate Councils “the right to adopt local legislation within the borders of the Governorate in a manner that enables it to run its affairs according to the administrative decentralization principle and in a way that does not contradict the Constitution and the federal laws.” Article 7(14) requires each Governorate Council to approve by absolute majority a bylaw for the work of the Council within one month of holding its first session and Article 7(12) requires each council to issue a local Official Gazette in which all decisions and orders of the Governorate Council shall be published. District and sub-district councils would not appear to have such rule making powers other than the requirement that they draft their own by-laws.