اسم المؤلف:
رائد حمدان عاجب المالكي
اسم المشرف:
رافع خضر صالح شبر
المستخلص:
The Subject of the research : There is no doubt that the tendency of "assembly and community" is a necessity of humanity. The existence of this community goes hand in hand with the existence of the political power which governs and regulates its affairs. As a result, the political power and the community are born together, without this power there is neither regulation nor liberty. Therefore, The political power is ,in the first rank, a social phenomenon, and there is no possibility of its existence without being within this community. Being a need, the existence of power may be accompanied with many defects. The most important defect is that it is considered as a limitation of human liberty when it is fair and, it is a violation of that liberty when it is an authoritarian. As such and to balance this necessity of power on one hand, with its risks on the other, there should be a necessity of disciplines and principles that limit the acts of power, and determine a structure of its exercise in the way that the aim of its existence can be achieved and its risks can be deterred. The "peaceful circulation" among these various principles, is the most important. especially at the level of "presidency". It is this principle which is regarded as a basic guarantee for achieving the political settlement and protecting the individuals rights. Accordingly, most of the constitutional documents adopt the principle of "peaceful circulation" by providing it expressly and directly, the constitution of Iraq 2005 is an example, or implicitly by stating the means of peaceful circulation of power, its constitutional regulation, and legal guarantees. Currently, the peaceful circulation of power becomes a demand of most of peoples in the world which suffer injustice and tyranny. Being of a great importance, the peaceful circulation of power has been studied at the level of presidency on which the power is exercised in most of the states in the world. The importance of the subject of research : the research gains its importance due to two sides; Theoretical and Practical. The theoretical one is represented by the fact that the constitutional systems provide the president with wide authorizations and powers; and giving this position a lot of care and importance. This importance is reflected on their care in the necessity of adopting the principle of "peaceful circulation" in the process of transmission of this position, so as not to be a cause for invalid dispute and competition, which violates the settlement and assurance of surviving the constitutional institutions in the state. The practical side is represented by the existence of the power, especially the position of presidency, which is in the hands of humans, opens the door to the likelihood of abusing it, takes it out of the scope of its function and makes it a means of tyranny. And that is what the human experiences have proved in their long history. Here comes the role of the peaceful circulation of power in general, and of the position of presidency in particular, for it represents a basic guarantee for protecting the individuals rights and liberties, and keeping the settlement of state and order. In addition, the subject of peaceful circulation of power addresses two problems; theoretical and practical. The former concerns itself with the constitutional and legal provisions dealing with peaceful circulation of power in general, and with the position of presidency in particular, whereas the latter is concerned with the way of dealing with these constitutional and legal provisions. In Addition to the complexity of the problem of peaceful circulation of presidency in Islamic system, because of little political and legal studies in this matter, and because it is the first time we deal with such problem. 302 Research methodology : The method adopted in this research is analytical, practical, and comparative, based on the constitutional systems in United States of America and France from the western systems, for the rich constitutional experience in these two systems with respect to the circulation of power in general, and the position of presidency in particular. In addition to these two western systems, the research has investigated two Arabic systems, Iraqi and Lebanese, for the practical reality of circulation of power and its problems in Lebanon, and for the recent experience of that principle in Iraq, and the attempts of developing and strengthening it. The research is limited to one of the manifestations of peaceful circulation of power, that is, "The peaceful circulation of presidency". The research compares this principle in the constitutional systems previously mentioned. Alongside these systems, the research deals with the peaceful circulation of presidency in Islamic system according to the theory of governance of the Sunnis and the Shia Imami, with most contemporary views of Muslim jurists. The research is divided into two parts as the following : Part one : The peaceful circulation of presidency in the positive constitutional systems. This part is subdivided into two chapters : Chapter one presents the essence of peaceful circulation in positive constitutional systems. It is subdivided into two sections, the first is about the concept of peaceful circulation of power, whereas the second shows the mean of this circulation and its guaranties. Chapter two deals with the legal regulation of peaceful circulation of presidency in positive constitutional systems. This chapter is subdivided into two sections, the first shows the legal regulation of the inauguration of president, whereas the second deals with the legal regulation of the duration of the mandate of the president and the legal regulation of the case of the vacancy of the president position. Part two : The peaceful circulation of presidency in Islamic system. It is subdivided into two chapters. Chapter one shows the essence of peaceful circulation of power in Islamic system. This chapter is subdivided into two sections, the first is about the concept of peaceful circulation of power in Islamic system, whereas the second deals with the approval of Islamic system of peaceful circulation of power. Chapter two deals with the legal regulation of the peaceful circulation of presidency in Islamic system. This chapter is subdivided into two sections, the first deals with the legal regulation of the inauguration of president in Islamic system, whereas The second shows the expiry of the mandate of president and their impact on achievement of the peaceful circulation of presidency in Islamic system.
