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Amending the Constitution… a necessity imposed by the political reality

Amending the Constitution… a necessity imposed by the political reality

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2022-02-14 12:05:00

     The Constitution is defined as the supreme law in the state, through which the form of the state and its government, the system of government, the nature of the powers, their jurisdictions, relations with each other and their borders are defined, as well as the rights of citizens and ensuring the performance of these rights for them, and the constitutions of states are drafted in accordance with the political, social and economic conditions of each country and of course, these circumstances change, so the constitution must be amended in accordance with the changing circumstances, especially since the constitutional system of any country is very difficult to reach to perfection no matter how well-drafted.

In Iraq, the 2005 Constitution was drafted in circumstances that differed in time from the current circumstances, and most of those who participated in its output in the currently effective form are at the forefront of calling for its amendment now to the circumstances and developments of the political reality, which has reached the stage of violating the Constitution on more than one occasion because of the constitutional texts that are no longer suitable for the current phase and perhaps the most important constitutional texts that need to be amended are the articles whose provisions have caused the formation of powers to falter. Including those that require approval (a two-thirds majority of the total number of members of the Council of Representatives) and this majority assumes that two-thirds of the total number of members of the Council of Representatives will attend as a first step as the quorum due to the opening of the Session of the Council of Representatives. The Council of representatives will then vote for the approval of the same number of members of the Council of Representatives, as is the case, for example, in article 52, which stipulates that the Council of Representatives shall decide on the validity of its membership by a two-thirds majority of its members, article 65, which required the enactment of the Law of the Council of Representatives by a two-thirds majority, as well as article 70, that the Council of Representatives elect a two-thirds majority of the President of the Republic, and article (92) requiring the enactment of the Federal Supreme Law by a two-thirds majority of the Members of the Council of Representatives. From these texts, we note in practice how the requirement to achieve the quorum of the Council of Representatives and then the approval of two-thirds of the members of the Council of Representatives for a certain position or legislation which means that the country enters into a political and constitutional crisis, as evidenced by the inability of the Council of Representatives to legislate the Law of the Federation Council and the Law of the Federal Supreme Court since the entry into force of the Constitution in 2005 and until now, while the requirement to elect the President of the Republic by a two-thirds majority of the total number of members of the Council of Representatives has caused the political crisis that Iraq is currently witnessing. The Council of Representatives is unable to hold the presidential election session unless two-thirds of the total number of members of the Council is achieved and then move to vote on candidates competing for this position as a first step and the winner must obtain a two-thirds majority of the total number of members of the Council of Representatives,  and if none of the candidates receives this majority, the candidates with the highest votes will be contested, and this is the second step in accordance with article (70) of the Constitution.

Because of this restriction set by the constitutional legislator, the constitutional period of 30 days expired from the date of the first session of the Council of Representatives on (9 January 2022), which is the period set by article (72/2nd/Beh) of the Constitution for the President of the Republic to continue to exercise his duties until after the elections to the new Council of Representatives. We have entered the stage of constitutional jurisprudence regarding whether or not the President continues to exercise his duties until the election of a new president, as the Federal Court in 2010, by its decision No. 51/Federal/2010, issued on 13 July 2010, has already created a jurisprudence that the Presidency Council (which was acting as President of the Republic at the time) continues to exercise the tasks of the President of the Republic until the election of a President of the Republic despite the constitutional violation (on the description of the court in the said decision) to exceed the time limit for the election of the President of the Republic. This jurisprudence is still followed by the Federal Court (in its new formation) in accordance with its decision No. (24/Federal/2022) issued on 13 February 2022, which authorized the continuation of the President of the Republic in his duties until the election of a new president in accordance with the requirements of necessity and public interest despite the expiry of the constitutional period specified by article (72/2nd/Beh). The most important constitutional problem is the drafting of the article (76) of the Constitution, which stipulated that the President of the Republic shall assign a candidate (the most numerous parliamentary bloc) to form the Council of Ministers, as the Federal Supreme Court explained in 2010 by the decision No. (25/Federal/2010) On March 25, 2010, the concept of the most numerous parliamentary bloc was formed (the bloc formed after the elections through a single electoral list, entered the elections with a specific name and number and won the most seats, or the bloc that gathered from two or more electoral lists that entered the elections with different names and numbers and then gathered in one single-entity bloc in the Council of Representatives, whichever is more numerous, then, the President of the Republic shall assign the candidate of the parliamentary bloc, whose parliamentary seats in the first session of the Council of Representatives became more numerous than the bloc or other blocs to form the Council of Ministers). While the Federal Supreme Court (in its new formation) did not require the composing or formation of the most numerous parliamentary bloc in the first session but authorized it at any session of the Council of Representatives by decision of number (7 unified with 9 and 10/Federal/2022) issued on 3 February 2022.

According to some specialists in constitutional law (we agree with them), the most numerous parliamentary bloc is meant (the list or the winning bloc in the elections), as this interpretation is closest to the logic of electoral competition.

Accordingly, the Council of Representatives is in front of historical responsibility and national duty which is represented by the necessity of working on amending the above-mentioned constitutional articles, especially since these articles are not only controversial but also re-draftable in such a way as to ensure that the country does not enter into a future constitutional violation or vacuum by adopting the principle in the article (59) of the Constitution that the quorum of the Sessions of the Council of Representatives shall be achieved in the presence of the absolute majority of its members and decisions shall be taken by a simple majority after the quorum has been achieved and this principle will generally be valid without providing for (a two-thirds majority of the members of the Council) wherever it is listed in the Constitution, as well as the need to amend article (76) which provide for a clear and doesn’t subjected to any jurisprudence principle that the President of the Republic should assign the candidate of the bloc or the winning list of elections to form the Council of Ministers in the same session as the election of the President of the Republic after the completion of his constitutional election procedures, this resolves the controversy that has been going on since 2010 and so far if the text is drafted accurately and clearly in the Constitution.

 

Faiq Zidan

14/2/2022 

 

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