The Constitutional Processing of the Property Right Under Articles (140) And (136) of the Iraqi Constitution

Abstract

:   All countries of the world have consistently stipulated the right to private property in their constitutions and have been keen to protect it. This is what the Iraqi constitutional legislator also did by addressing the property in Article (23) of the applicable 2005 Constitution of the Republic of Iraq as a protected right whose owner is entitled to the right to use, exploit and deal with it under the limits of the law. It may

 solely be taken away for purposes of public benefit in exchange for fair compensation within the framework of the law. This paper attempts to answer several questions regarding the Iraqi constitutional texts associated with the right of property, inter alia, what are these texts in their general framework as a constitutional basis for ensuring the preservation of this right? More importantly, what are the relevant constitutional texts that raise controversy and challenges that are difficult to settle in practice, specifically in the disputed areas between both governments of the federal in Baghdad and the Kurdistan Region in Erbil, further known as the real property-related disputes? Was the Iraqi constitutional legislator successful in drafting such constitutional texts in a manner consistent with the approved principles of legislative drafting to be accessible and practically applicable? Then what are the reasons for not implementing these texts so far? What is the position of the Federal Supreme Court on this cause? Accordingly, this paper addresses all these questions and others, using the legal analytical approach to constitutional texts and judicial precedents. The most significant of the paper’s findings concluded that there is a problem related to property rights in the disputed areas within the framework of both Articles (140) and (136) of the Iraqi constitution and the challenges raised due to their lack of practical application so far. In that light, certain proposals related to attempts to address this issue were put forward.