6 observations on the decisions of the Federal Court from the Kurdistan Shura Council

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[size=52]6 observations on the decisions of the Federal Court from the Kurdistan Shura Council[/size]

[size=45]The Kurdistan Regional Shura Council presented 6 detailed legal observations regarding recent Federal Court decisions.[/size]
[size=45]Statement by the Shura Council of the Kurdistan Region:
Based on the sense of historical and legal responsibility towards the new directions adopted by the Iraqi Federal Supreme Court in its recent decisions regarding the lawsuits filed against the Kurdistan Region, and the violations it entails of explicit constitutional texts as well as established legal principles, and out of our belief in the federal system in Iraq, We, in the Shura Council of the Kurdistan Region - Iraq, present to public opinion our most important legal observations regarding these violations:[/size]
[size=45]1- Replacing the legislative authority with the Federal Supreme Court itself, as it, in the case numbered (83) and its consolidated numbers (131) and (185)/Federal/2023, legislated legal texts in clauses (Second), (Third), and (Fourth). (Fifth) From the ruling in the aforementioned case, after it decided that some articles and paragraphs in the amended Kurdistan-Iraq Parliament Election Law No. (1) of 1992 are unconstitutional. This constitutes a clear violation of Article (93) of the Iraqi Constitution of 2005, and in particular Clause (First) thereof, whereby the work of the Federal Supreme Court is limited to exercising its supervisory authority over the constitutionality of the laws and regulations in force. Therefore, the inclusion of legal texts in the Federal Court’s decision is an infringement on the powers of the legislative authority and a clear violation of Article (47) of the Constitution, which stipulates that every authority exercises its powers on the basis of the principle of separation of powers.[/size]
[size=45]2- The Federal Supreme Court did not adhere to the plaintiff’s petition, as the plaintiff in the lawsuit with the number (83) referred to did not request the cancellation of the eleven seats (quota seats), but rather requested the redistribution of Kurdistan Parliament seats to the provinces of the region according to the criterion of population size, While the Federal Supreme Court ruled in Clause (First) of the ruling that the phrase (eleven) in Article One of the amended Kurdistan Parliament election law was unconstitutional, and this is what the plaintiff did not request in his petition, and there is no doubt that this constitutes a clear violation of the established principle legally and judicially. The lawsuit is determined by its petition, and it is not permissible to rule for more than what the plaintiff requests.[/size]
[size=45]3- It is clear from the above-mentioned case number (83) that the defendants are: - The Speaker of the Parliament of Kurdistan.[/size]
[size=45]– President of the Kurdistan Region.[/size]
[size=45]- Prime Minister of the Kurdistan Regional Government.[/size]
[size=45]The Federal Supreme Court ruled, in Clause (Eighth) of the provisions contained in the ruling in the aforementioned lawsuit, to dismiss the lawsuit regarding the two defendants, both the President of the Kurdistan Region and the Prime Minister of the Kurdistan Regional Government, due to the lack of litigation. Thus, the rivalry was limited to the Speaker of the Kurdistan Parliament. However, the Federal Supreme Court did not notice that it had ruled in its decision No. (233) and its units (239), (248), and (253)/Federal/2022 on 5/30/2023 that the law on the continuation of the fifth session of the Parliament of Kurdistan - Iraq, No. (12) of 2022, and therefore the Speaker of the Kurdistan Parliament and all members no longer have a legal presence at all, while Article (4) of the amended Civil Procedure Law No. (83) of 1969 requires that the defendant be an adversary whose acknowledgment results in a judgment appreciating the issuance of an acknowledgment from him. . According to this article, the lawsuit was supposed to be dismissed because it was not valid to consider the Speaker of the Kurdistan Parliament as an adversary, since he did not have a legal presence when the lawsuit was filed.[/size]
[size=45]4- The Federal Supreme Court violated the procedural legal rules, as in the case number (233) and its units (239), (248) and (253)/Federal/2022, it decided to accept the dismissal of the clients (Dr. Uday Suleiman Al-Mazouri) and the employee. Human rights activist (Sharmin Khader Bahjat) based on the letter of the Kurdistan Parliament No. (1369) dated 5/23/2023 and canceling their authorization to appear before the Federal Court in the aforementioned case. While the Federal Supreme Court ruled, in Paragraph No. (1) of the paragraphs contained in the operative part of its aforementioned ruling, that the Law on the Continuation of the Fifth Session of the Parliament of Kurdistan - Iraq No. (12) of 2022 is unconstitutional, with the consequence that the Speaker of the Kurdistan Parliament does not have the authority to dismiss the aforementioned clients.[/size]
[size=45]5- The Federal Supreme Court fell into contradiction in some of its decisions. It ruled, in the aforementioned case number (83), to cancel the quota seats on the basis that the existence of these seats and their approval of the components in the amended Kurdistan-Iraq Parliament Law constitutes a violation of Article (16). The Constitution stipulates that equal opportunities are a right guaranteed to all Iraqis, and the state guarantees that the necessary measures are taken to achieve this. However, if we look at this article in depth and attention, it becomes clear that granting quota seats to the components is what achieves this parity, and that legislating these (quota) seats for the components and assigning them to them is one of the necessary measures that the state must take to embody equal opportunities, especially when adopting The system of multiple electoral districts divides the region into different electoral regions, where the votes of the components are distributed among those regions and therefore they may not obtain any seat. When the Federal Supreme Court decided to abolish the quota seats, in the same decision it ruled to divide the Kurdistan Region into no less than four electoral regions. In practice, this leads to not achieving the equality of opportunity stipulated in Article (16) of the Constitution, and this constitutes a contradiction in the position of the Federal Supreme Court.[/size]
[size=45]Note that the Iraqi Parliament, Provincial and District Council Elections Law No. (12) of 2018 in force, according to the latest amendment, stipulates the quota principle and grants seats to a number of components (Article 15 amended pursuant to Article 9 of the Third Amendment Law No. 4 of 2023).[/size]
[size=45]6- In addition to the above, the composition of the Federal Supreme Court does not comply with the text of Clause (Second) of Article (92) of the Iraqi Constitution of 2005, as according to this clause the Federal Supreme Court consists of a number of judges, experts in Islamic jurisprudence, and legal scholars, and that The law regulating their number, method of selection, and the work of the court must be enacted by a two-thirds majority of the members of the House of Representatives. The court that is responsible for monitoring the constitutionality of laws in the country must, before any other party, be committed to the articles and provisions of the constitution, especially if the matter is related to the composition of that court and how it works. It is not logical in any way for the Federal Supreme Court to rule on the constitutionality of laws, but in Itself, in terms of its composition, operation, and current law, is inconsistent with the Constitution.[/size]
[size=45]This approach adopted by the Federal Supreme Court, which is to bypass the constitution and laws, makes it an authority above the authorities, and results in matters that have undesirable consequences, whether from a legal, political, or social standpoint. Signs of these matters have recently appeared, as the parties and entities representing the most important components of the Kurdistan Region (Turkmen, Assyrians, Syriacs, and Chaldeans) announced that they will not participate in the elections scheduled to be held in the region on 6/10/2024. This will result in political problems in the reality of the Kurdistan Region, as the Parliament What will be formed after the aforementioned elections will be devoid of representation of the components. Therefore, the Federal Supreme Court must adhere to the Constitution and exercise its powers as stipulated in the Constitution and not infringe on the powers of other authorities.[/size]
[size=45]Judge Dr[/size]
[size=45]Sardar Yassin Hamad Amin[/size]
[size=45]Chairman of the Shura Council of the Kurdistan Region - Iraq[/size]
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