In the third section of the Constitution of the Republic of Iraq for 2005 the address (the Federal Powers) and article (47) of it (The federal powers shall consist of the legislative, executive, and judicial powers, and they shall exercise their competencies and tasks on the basis of the principle of separation of powers). The first chapter was dedicated to the legislative power and the second chapter for executive power and the third chapter for judicial power. Article (89) had counted the components of the Federal Judicial Power, the Higher Judicial Council, Federal Supreme Court, the Public Prosecution Department, the Judicial Oversight Commission, the Federal Court of Cassation, and the other federal courts that are regulated in accordance with the law. Moreover, article (90) of the Constitution stipulated the Higher Juridical Council shall oversee the affairs of the judicial committees, and article (91/3rd) of it stipulated (to propose the draft of the annual budget of the federal judicial authority and to present it to the Council of Representatives for approval. We notice from this text that the legislator meant when mentioned the phrase (to propose the draft of the annual budget of the federal judicial power) which means that all components of the judicial power stipulated in article (89) of the Constitution, therefore, the legislator was keen when enacted the Supreme Judicial Council Law No. (45) for 2017 to text in the article (3) of it on the same authorities of the Supreme Judicial Council stipulated in the article (91) of the Constitution including the text in paragraph (3rd) of proposing the draft of the annual budget of the federal judicial authority and to present it to the Council of Representatives for approval. This text, despite it completely corresponding to the text of the article (91/3rd) of the constitution, but the Federal Supreme Court had issued two decisions, the first No. (19/2017) on 11/4/2017 and the second No. (136/137/2017) on 5/2/2018. According to the aforementioned decisions, the court had annulled the text of the article (3/2nd) from the valid law of the Supreme Judicial Council No. (45) For 2017 on 23/1/2017. This matter means practically deactivating the constitutional text represented by the article (91/3rd), and by that, the court had amended the constitution by deactivating the effect of one of its texts and the Federal Supreme Court violated the text of the article (126/1st & 3rd) of the constitution which set the mechanism of amending the constitution, whereas this article stipulated (The President of the Republic and the Council of the Ministers collectively, or one-fifth of the Council of Representatives members, may propose to amend the Constitution). The approval of the people in a general referendum and the ratification of the President of the Republic are obliged, and if the constitution was stipulating in the article (13/2nd) on (No law that contradicts this Constitution shall be enacted. Any text in any regional constitutions or any other legal text that contradicts this Constitution shall be considered void). Therefore, the Federal Court shouldn’t issues any decision that violates the constitutional represented by article (91/3rd). Accordingly, the two decisions of the Federal Court by annulling the article (3/2nd) of the Supreme Judicial Council are void following this constitutional base.
By returning to the Federal Court two decisions aforementioned, we find it justifies annulling the article (3/2nd) of the Supreme Judicial Council Law No. (45) For 2017 by the following (this text is inspired from the State Administration Law for the transitional period which stipulated that the Head of the Federal Supreme Court is also the Head of the Higher Judicial Council. Assigning the task of drafting the annual budget of the Federal Judicial Power by the Supreme Judicial Council according to the above-mentioned law wasn’t a constitutional problem as long as the Head of the Federal Supreme Court is the Head of the Higher Judicial Council. But it became different when the Supreme Judicial Council No. (45) For 2017 had been issued, which stipulated that the Presidency of the Supreme Judicial Council for the Head of the Federal Court of Cassation. The Federal Supreme Court finds that article (92/1st) of the constitution had stipulated (the Federal Supreme Court is an independent judicial body, financially and administratively) in this point the contradiction had emerged clearly between the Court’s financial independence and the drafting of the Supreme Judicial Council for the annual budget which is not represented legally as it was before the issuance of the Supreme Judicial Council Law aforementioned. Moreover, the Federal Supreme Court finds that the constitutional ruling listed in the article (92/1st) binding that the Federal Supreme Court has a special budget as implementing the rule of the article (92/2nd) of the constitution, as well as implementing the rule of the legislative basis while the text of the article (92/2nd) was following the text of the article (91/3rd) of the constitution which considered a special text and related to the Court’s independence financially and administratively which should be implemented because the subsequent text restricts the previous, and the private restricts the public. Accordingly, it judged by unconstitutionality of the article (3/2nd) of the Supreme Judicial Council Law No. (45) for 2017 and a provision must be drawn up in the Federal Supreme Court bill in the Iraqi Council of Representatives that the Federal Supreme Court will draw up its annual budget and submit it to the Iraqi Council of Representatives for ratification based on the provisions of article 92/1 of the Constitution.
In our view, this justification is inconsistent with common sense in the interpretation of constitutional texts, as the enforcement of constitutional and legal texts is not associated with characters, but with institutions, so it is not true that the court has not been tasked with drafting the annual budget of the judiciary to the Supreme Judicial Council, which does not cause constitutional problems as long as the President of the Federal Supreme Court as long as the president of the Supreme Federal Court is the president of the Supreme Judicial Council and this problem happened after the President of the Court of Cassation became president of the Supreme Judicial Council!! As for the court's justification that article (92/1st) of the Constitution stipulates that it is a financially and administratively independent judicial body is also an unfortunate justification and we believe that financial and administrative independence means that the court manages the funds allocated to it within the budget of the single judiciary power and the court is independent as far as the management of the affairs of its judges and employees and the decisions it makes in constitutional disputes. But it remains a judicial body as defined by article (92/1st) of the Constitution and under article (90) of the Constitution, the Supreme Judicial Council shall oversee the affairs of the judicial committees, so the closest right to interpret is that the budget of the Federal Court is part of the budget of the judiciary and is not independent of it as one of the components of the judiciary power provided for in article (89) of the Constitution. As for the third justification on which the Federal Court relied, which is that the text of the article (92) of the Constitution on the independence of the court followed the text of the article (91/3rd) of it and the subsequent text restricts the previous and private restricts the public, this justification also does not stand in the way of the general legal principles accepted as the rule of the special text restricts the general text intended to provide legal provisions in general and private legislation, the priority in the application of what is stated in the special text and unless there is a provision in the special law in which the statement is invoked to what is stated in common law and this means that the special law that regulates an issue in particular such as the labor law which is considered legislation for the regulation of special working relations here the provisions of this law have priority in applying the provisions related to working relations in civil law which is common law. As for the principle of the text that follows the copy of the previous text, it appears about conflicting or overlapping provisions, while the provisions of the Constitution are not conflicting, but have been received successively complete each other as it is contained in one legislation except the Constitution, so there is no presence of the justification on which the Federal Court relied on the disruption of a constitutional provision in force based on the above-mentioned justifications. Some may argue that the Federal Court annulled (Article 3/2nd) of the Supreme Judicial Council Law based on a lawsuit filed by the Supreme Judicial Council and the number of the Iraqi Council of Representatives members at the time, we believe that this case was filed immediately after the adoption of the Supreme Judicial Council Law No. (45) of 2017 in circumstances of confusion in legislation and the repetition of the same texts in more than one resource, however, it is judicially known that all courts, including the Federal Court, are not prisoners of the plaintiff's claims and requests, whatever, but to the Federal Court to rule on rejecting the case if the plaintiff's requests were violating the constitution and the law, and this what happened in other lawsuits presented by the Higher Judicial Council. Whereas a decision by rejecting it had been issued from the Federal Court, alleging that the challenged texts in these lawsuits are a legislative choice of the Iraqi Council of Representatives, including the lawsuits numbered (108/2013) and (27 & 38/2018) and (43/2017) and (201/2018). Therefore, we see that the Federal Court had to reject the case about the request of annulling the article (3/2nd) (lawsuit subject) regarding that the text of the article (3/2nd) of the Supreme Judicial Council Law No. (45) For 2017 is a legislative choice meets the provisions of article (91/3rd) of the constitution. We believe that although the decisions of the Federal Court are decisive under article (94) of the Constitution, annulling of article 3/2nd of the Supreme Judicial Council Law does not mean annulling of the provision stipulated in Article (91/3rd) considering that the constitutional text shall not be annulled or amended but with the mechanism stipulated in the article (126) of the constitution. Accordingly, the proposal of the Judiciary Power budget including the Federal Court is exclusively assigned to the Supreme Judicial Council because there is not a valid constitutional or legal text that allows the Federal Court to draft its budget with adopted evidence from the court’s decision itself issued by the number (19/2017) on 11/4/2017 which included (the necessity of stating a text in the Federal Supreme Court law bill which is seen by the Iraqi Council of Representatives that adjudge by drafting the Federal Supreme Court for its annual budget and presented to the Iraqi Council of Representatives). Whereas this law so far is not approved by the Iraqi Council of Representatives, therefore, the jurisdiction should be limited by drafting the Judiciary Power budget bill for all its components by the Supreme Judicial Council. We call the legislative power represented by the honorable Iraqi Council of Representatives to notice this matter when approving the public budget bill and implementing the in effect constitutional texts.
3 December 2020