State intervention to limit behaviors disrupting public order

writing
• Jumana Jassim Al-Asadi
• Ali Qassem Al-Hamdani.

 The state has found, since its inception to the present day, that it undertakes not only to protect its people, but also to make its members live among themselves in a better way, in a form that achieves happiness within their environment. Therefore, the state seeks for individuals to live a life filled with happiness and intimacy, that is, they are reconciled together, not separated by the most dangerous strife, and to achieve this, the members of that state must possess morals and public morals. The absolute freedom of individuals is restricted to achieve the interest of the group as a whole or the interest of each of them individually. So when the group sacrifices its absolute freedom, it acquires the virtue of morals and public morals, so they live their lives happily and safely.
 In order to reach the best image of the virtue of morals and public morals within society, the state takes it upon itself, according to its legislative will (legislative authority), to put in place a number of legislations and regulations that include legal rules binding on individuals that evaluate their behaviors and make them act according to it to the extent permitted by law, to reach an important goal. It is the maintenance of public order within the community. However, these legislations, no matter how strong they may be, are not able to prohibit individuals from transgressing them. Yes, they are a restriction of individual freedom, but the individual can bypass them and perform acts that are forbidden by those texts at his own will, even if they bear the nature of punishment, so he is subject to punishment as a penalty for violating them. Especially in the event that we are facing a situation in which some individuals continue to transgress it without the presence of an authority to move a finger according to which the violator is rebuked and others are deterred from following his example. So we are in the opposite sense and in this situation, facing a number of countless violations and abuses of the legislated legal rules. which causes many individuals to lose confidence in the power of their state; This is due to its weakness in protecting its public order due to its negligence in holding accountable those who transgress those legal rules aimed at correcting the behavior of the group, so we are here facing a bad phenomenon that is spreading within the veins and arteries of society, causing chaos throughout the globe.
 The idea of violating public morals and morals was not within the three elements of public order (public security, public tranquility, and public health), so individuals were free to use their freedoms that were guaranteed to them by constitutions, regulations, international covenants, and laws. However, jurisprudence and jurisprudence later agreed and unified their word to consider morals and public morals as a fourth element next to the three above.
 That recognition was a necessary matter, as it expanded the idea of public order with its administrative aspect, making it include everything that offends society, so that the state, represented by its administrative apparatus, can use its public powers to preserve values, customs, and morals within their regional borders to restore public order to its normal and usual course, under what It is known as the method of administrative control, which we can define as one of the means that helps the administration to follow a set of necessary procedures that the administration estimates according to certain circumstances, as a result of which it aims to regulate the freedoms of individuals and may even restrict them at times, and does not reach the point of deprivation in all cases.
 And with the spread of a number of video clips of certain personalities that represented a kind of moral and ethical degeneration without any doubt, which aroused the discontent of society a lot, so many of them went to support what the state had done, represented by the security services it owns and thus using its public authority, by launching a wide campaign to limit these artificial behaviors at will. A free choice taken by these people, as a means to appear to the community, and to receive comments and high views of their content and thus obtain material profits from the company sponsoring the application on which the video was published, and the more views and interaction on the video, the greater the profits, so they were called the owners of the low content in line with the nature and type of content in the video Who begs its companions for interaction, not communication.
 The public administration, then, can combat this phenomenon since the first signs of its spread became apparent, by directing public opinion to the need to stay away from that content, as well as preventing all satellite institutions from promoting it, and setting a regulation to control it, and in the event of a violation of that, the administration can then monitor these violations. It is worth noting that a court specialized in publishing and media issues was established, according to the decision of the Supreme Judicial Council on 12/7/2010.
However, the public administration did not move a finger, and in the face of the failure to carry out the task entrusted to the public administration to preserve morals and public morals, the throats of the Iraqi judiciary were slashed until uncles were issued by the Supreme Judicial Council recently and directed to the presidency of the Public Prosecution and the presidency of the Judicial Oversight Authority and the presidency of all appeals courts, which reads as follows : "Through media monitoring, it was noted that social media sites were used to publish contents that offend public taste and constitute immoral practices, in addition to deliberate abuse and in violation of the law of citizens and state institutions with various addresses and names. Therefore, strict legal measures were required to be taken against the perpetrators of these crimes, in a manner that ensures public deterrence." .
 Although we have accepted what the Iraqi judiciary has gone through to reform what the public administration has been negligent about, but we are formally confusing it, directing the generalization of this imperative formula to the presidency of the Public Prosecution, we do not agree with it, because the members of this apparatus must be independent when they undertake their work as representatives of the public right in front of any On the other hand, even before the head of the judicial authority represented by the President of the Supreme Judicial Council, no one can order them to initiate the procedures of public right action except according to their discretion.
The Public Prosecution Law in force has the jurisdiction of the Public Prosecution to submit requests and express an opinion in cases of undertaking and good behavior, as stipulated in Article (5 / Clause Ten). Why not, he is the representative of society, and this is his role. So the legislator limited the parties that can submit the report to two parties, namely (the public prosecution and the investigating judge), so the investigator, the judicial officer, or others, cannot submit this report to the misdemeanor judge.
     The purpose of this is that a person who does not have a clear means of living, his condition indicates that he is a socially unstable person and his situation is anxious, so that insecure behavior can be issued from him in order to provide an adequate life, this pretext that was taken by many famous people known for their misbehavior and actions. In the eyes of society, it certainly does not allow them to take actions or utter words that offend public morals and morals as a means to earn money, and therefore their actions may affect the functioning of public order in society, and this was confirmed by the “Ministry of Interior” in the report that it broadcast on its official page in The “Facebook” platform on January 16, 2023, with the following text: “The dominant feature of what is published on social media, this new world for some has become the world of degrading content. Perhaps many are wondering whether digital degrading content is media freedom or a violation of the moral standards of society.” .. Contents published on social media violate the law and contain abuse, incitement, threats and blackmail, to the extent that they have become a threat to security and harm the prestige of the military...".
    As for the second category, they are people with criminal precedents, and as long as they have those precedents, their situation will be a danger to society and it may be feared that they will return to committing acts that disturb security, so the legislator singled them out for reporting as well.
     When the report is received by the misdemeanor judge, he takes the necessary measures to order the person reported to appear before him on a specific day, with a statement of the content of the communication within the summons paper, so that the person reported can defend himself and be aware of the matter that he will appear about, and this is indicated by Article ( 323) of the Code of Criminal Procedure in force, stating that: “The judge directs the summons to the person notified, mentioning the content of the communication and requesting him to appear before him on a specific day and present what he has of defenses or what denies the validity of the communication, provided that it is mentioned in the Notice of commitment amount and duration.
     And when he is present, he can refute what was stated in the communication, as the judge cannot prevent him from exercising the right of defense, and because this helps the misdemeanor judge to find out the truth of the communication, and when he stands about the truth of the communication or not, he issues his decision according to what he deems sufficient conviction according to it He can either reject the communication submitted by the Public Prosecution or the investigating judge, or decide to accept it and assign the whistle-blower to the undertaking.
    In the event that he did not make the pledge and did not submit the bail or the amount of the guarantee, then the misdemeanor judge can seize him and imprison him until the specified period expires, which is not less than one year and not more than three years.
    And in the event that he undertakes to improve his behavior during a period of not less than one year and not more than three years, provided that this is accompanied by or without the guarantee of one or more sponsors, he shall pay the amount of the guarantee within the period specified by the misdemeanor judge in the event that he commits such crimes against public morals, which is one of the acts provided for. In the second paragraph of Article (321). In addition, this would constitute a crime punishable according to the penal code in force, and therefore the appropriate adaptation could be applied to it at that time, as it could be subject to the criminalization of Article (403) of the Penal Code. This is confirmed by Article (327/b) of fundamentalism, stating that: “If a person is proven to be in breach of his commitment based on a conclusive judgment issued against him, then the amount of the pledge and the guarantee shall be collected from him and his sponsor according to the law of execution based on a memorandum submitted by the judge to the justice executor, and this amount or the amount of the paid guarantee shall be recorded. cash revenue for the treasury.
     In the event that the guarantor did not commit a crime stipulated in the law, the amount he paid shall be returned to him and the guarantee shall be deemed void.
     The followers of this method see it as better to deal with this phenomenon rather than resorting to adapting it to punitive texts, which may not be sufficient to treat it, even if it was sufficient for a period of time, but it will fade after a while and become forgotten. Also, the state cannot resort to silencing mouths because that contradicts freedoms, so it was better for us to look for ways to deal with this phenomenon, not to think about how to adapt it and bring down legal texts on it to combat it punitively before we fight it procedurally, and what confirms our words is that the judge of the Third Karkh Investigation Court Amer Hassan, a specialist in publishing and media issues, and in a report published on the website of the Iraqi News Agency, in which he states: “We encourage the step of apology and deletion of offensive content, and we call on all bloggers, and what is termed them (celebrities), to carry out a campaign to review their content, and try to delete the content It offends morals and violates public decency.” Then he adds that: “The lawsuits do not fall because the crime occurred, and we, as a court, in the event that lawsuits are presented to us against these people, whether it is by a complainant affected by this matter or by an informant, so we will deal with these lawsuits, and if the court finds a step that indicates the presence of good faith They may be taken into account by the court during investigative procedures or when issuing judgments.
     It is clear that the measures taken by the judiciary are really aimed at combating this negative phenomenon, but combating it does not result in imposing punishment directly, so we see that the mechanism by which this phenomenon is dealt with should be reconsidered.
     Judge Amer Hassan Shinteh also mentions in a report published on the website of "Baghdad Today" that: "There is an expected approval as a regulation for broadcasting rules and what is related to the Internet and social media." We certainly see