The Penalty of violating the Constitutional Rule

The Penalty of violating the Constitutional Rule

2022-04-01 19:14:00

The penalty is the effect of violating the law and is imposed by the judiciary and may be in the form of criminal punishment against those who violate the criminal law either by corporal punishment on the human body such as execution or freedom by detaining or imprisonment, and the penalty may be financial. The second form of punishment is the civil penalty, which results in the violation of other laws other than the Criminal Law, where it is imposed when an infringement or denial of a special right is imposed without affecting the public interest or disturbing the social order, the result of which is the repair or removal of the damage, which is the special right of those who have suffered the damage. The third form of the penalty is the disciplinary penalty imposed when violating the law governing the public service, such as the penalty of reprimand, warning or dismissal imposed by the administrative president of the offender.

As for violating the constitutional rule, the penalty is in two forms an unregulated punishment, namely, the popular pressure to protect constitutional rules, as the authority that violates the Constitution does not recognize that violation, but rather provides explanations for its conduct by attempting to appear before the public opinion in the appearance of not committing anything contrary to the Constitution. The second form is the systematic penalty for protecting the constitutional rule by providing the Constitution for mutual control between the legislative and executive powers in order to balance them. Whereas, the constitutions of the States which adopt the Parliamentary system stipulates on equal means for mutual pressure and monitory for each power to confront the other one, this will lead to not let any power controls the other or may create a case of unbalance. One of these means which owned by the executive power is the inquiry and withdrawal of confidence, this mean what was article (61/8th) stipulated on in the Iraqi Constitution for 2005. On the other hand, dissolving the Parliament considered as a mean of the major balance between the legislative and executive power, it’s also considered the most important mean for the executive power to face the legislative power, and regarded as a counter for the right of the Parliament to compel the government to resign withdraw or withdrawing the confidence from it. The Iraqi Constitution for 2005 stipulated on the procedures of dissolving the Council of Representatives according to the article (64/1st) of it by two methods, the first one is by auto-dissolve  which the Council of the Representative is specialized with, which based on a request presented one third of its members and voting with approval by the absolute majority of its members on this request, practically, this procedure could not take place, because it means that the legislative power had applied the penalty of (dissolving the parliament) on itself. As for the second method is represented by a request from the Prime Minister with approval of the President of the Republic then submitted to the Council of Representatives, this text conditioned the approval of the absolute majority of the Council of Representatives members, and the right of dissolving according to these conditions is hard to be conducted. Therefore, the executive power will lose the leverage on the legislative power, but on the other hand the Council of the Representatives maintain the ability of withdrawing the confidence from the government, and this matter will lead to a constitutional and political unbalance between the two powers (we had indicated this problem in details by our PhD thesis presented to the Islamic University in Beirut in 2020). 

Today, the Iraqi political reality is witnessing a clear violation of a constitutional rule stipulated in article (72/2nd) of the Constitution by limiting the duration of the president's continued exercise of his duties until the elections of the new Parliament and its meeting within 30 days after the date of the first session  of the Council and the need to elect a new president during which it did not happen due to the lack of political agreement among the parties and political forces that make up the Council of Representatives, although the Federal Supreme Court had improvised a way out of this Constitutional violation when it authorized the president's to continue practising his duties until the election of a new president by the verdict issued on (13/2/2022) by the number (17/federal/2022), but this jurisprudence, although necessary to avoid the absence of position and the consequent procedures other than Politically agreed, but it was not enough to address the continuation of the violation of the Constitution indefinitely because of the two-thirds majority requirement stipulated in article (70/1st) of the Constitution on the quorum of the session of the Council of Representatives dedicated to the election of the President of the Republic and the failure to provide for the existence of a (constitutional penalty) against this violation. Therefore, we believe that the amendment of the constitutional text listed in article (64/1st) should be the dissolution of the Council of Representatives by decision of the Prime Minister and with the approval of the President of the Republic not to be during the period of interrogation of the Prime Minister and thus achieve the balance between the legislative and executive powers to be a penalty for violating the constitutional rule by decision of the legislative authority in case it is violated by the executive power by withdrawing confidence, and vice versa the penalty shall be by decision of the executive power (the prime minister and the president of the republic combined) in case it is violated by the executive power. Violating the constitutional rule by the Council of Representatives by dissolving the Council without the condition that the Council of Representatives approves the procedures of the solution and to ensure that the executive branch does not abuse the rhythm of the penalty by dissolving the Council of Representatives and the importance of this measure exclusively the decision to dissolve the Council of Representatives issued by the executive power is subject to be challenged before the Federal Supreme Court.

 Faiq Zidan


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