Author: Dr. Rawafid Altayyar
Head of Legal Studies Department
Translated by: Assistant lecturer Hussain B Abdulameer
September/ 2018
After the approval by the Federal Supreme Court of Iraq of the election results accordance with article (93 / VII) of the Iraqi Constitution of 2005 in force, the accredited members of the Parliament meet in their first session and are chaired by the oldest member, to start calculating the duration of the electoral cycle on the basis of:
“Article 56:
First- the term of the electoral cycle of the Parliamentary session must be four calendar years, starting with the first session, and ending by the end of the fourth year …”
At the invitation by the President of the Republic and by a presidential decree within 15 days from the date of ratification of the Supreme Court and may be extended for the same period.
The President of the Republic, Fouad Massoum, has issued at (Monday 27 August 2018), a Presidential Decree No. (62) for the year 2018 , to invite the Parliament members for their fourth session to convene On 09/03/2018 to be chaired by the oldest members:
“Article 54:
The President of the Republic shall call the Council of Representatives to convene by presidential decree within fifteen days from the date of ratification of the results of the general elections, the session will be held under the chairmanship of the oldest member to elect the president of the Parliament and his deputies. No extension may be allowed for more than the aforementioned period.”
During the first session, the new Parliament exercises a set of procedures stipulated in the Constitution:
perform the constitutional oath as stipulated in the Constitution so that everyone becomes deputies:
“Article 50:
The member of the Chamber of Deputies shall be sworn in before the Council before he begins his work as follows:
“I swear by Almighty God to perform my duties and my legal responsibilities with dedication and sincerity and to preserve the independence and sovereignty of Iraq, and safeguard the interests of his people and ensure the safety of its land, sky, water, wealth and federal democratic system. And to work on the maintenance of public and private freedoms and the independence of the judiciary and committed to apply legislation in an honest and impartial manner, and God is the witness on what I say”.”
In this regard we refer to the decision of Federal Supreme Court No. (56 / Federal / 2011), which stipulates that “The process of turning the elected candidate into a member of parliament (deputy)takes place after the announcement of the election results from the Independent High Electoral Commission, after the Federal Supreme Court ratified the declared result, and after the winner swears the oath stipulated in Article (50) of the Constitution.”
Then choose the President and his deputies with the approval of more than half the number of members of the parliament after political consensus among parties and blocs who winning parliamentary seats:
“Article 55:
The Council of Representatives shall elect in its first session a president, then a first deputy and a second deputy by an absolute majority of the members of the Council by direct secret ballot.”
Determine the largest parliamentary bloc in the council of Representatives and its role in the formation of the government, although the Constitution does not specify that the necessity of determining the largest bloc in the first session, but based on the ruling of the Federal Supreme Court No. (25 / Federal / 2010), which includes interpretation (the most numerous parliamentary bloc). The first session of the council of Representatives was set to determine the largest parliamentary bloc responsible for forming the government.
But what happened, the council of Representatives held the first session of the first legislative term of the first legislative year in its fourth election headed by MP Mohammad Ali Zinni (the oldest member) on the third of September 2018 with the presence of 297 deputies.
After performing the constitutional oath, Mr. Mohammad Ali Zinni announced the opening of nominations for the Presidency of the Council of Representatives, and stressed the commitment to constitutional times.
Six candidates submitted during the first session requests for candidature for the position of President of Parliament, namely: Osama Al-Nujaifi, Talal Al-Zobaie, Mohammed Tamim, Ahmed Al-Jubouri, Mohammed Halabousi, Rashid Al-Azzawi -later on Mohammed Halabousi has been chosen-.
Six candidates submitted during the first session requests for candidature for the position of President of Parliament, namely: But because of the withdrawal of the deputies of “The Fatah Alliance” and “The State of Law Coalition” from the parliament session after the vote on the formation of the largest bloc, as the withdrawal of deputies of the blocks of the Democratic Party of Kurdistan and the Patriotic Union of Kurdistan of the session, Mr. Mohamed Zinni called for a decision to continue holding the first session of the Council of Representatives until the following day.
The reason for not completing the procedures for the election of the President of the Iraqi Council of Representatives is the lack of access to agreements between the blocks on the identification of the largest parliamentary bloc within the Council of Representatives, Which called on the President of the age to send a query to the Federal Supreme Court to decide the largest bloc, As the judicial body responsible for the interpretation of the Constitution, In order to respect the authority of the judiciary and the obligation to be the main body in the maintenance of law and its application, After the submission of an alliance comprising the blocks “The Victory Alliance, The Alliance towards Reforms “Saairun”, The National Iraqi Alliance “Watani List” and National Wisdom Movement”. A paper containing the largest parliamentary bloc, and the “Building” coalition, the “State of Law and Fatah”, presented the largest bloc paper.
Finally, Mr. Mohamed Ali Zinni set the fifteenth of September as the date for the election of the President of the Council of Representatives and his deputies, It was our hope that the matter would be resolved on time so as not to repeat the mistake that occurred in the previous parliamentary session and keep the first session open without a resolution, As this violates the ruling of the Federal Supreme Court – responsible for the control of the constitutionality of laws and legislation, Where the text of its ruling No. (55 / Federal / 2010) issued on 24/10/2010, “The making of the first session of the Council of Representatives (open) and to an unspecified time without the support of the Constitution has constituted a violation of its provisions and confiscated the concept of the first meeting and objectives intended by Article (55) thereof.” Accordingly, the first session of the Council of Representatives was canceled and its promise was unconstitutional because it conflicted the provisions of Articles 54 and 55 of the Constitution.
Although the lifting of the first meeting and set another date for the election of the President of the Council of Representatives and his deputies is a violation of the Constitution, Where the Federal Supreme Court confirmed that the first session may not be lifted without completing the proceeding, Which makes us wonder about the constitutionality of the choice of the President of the Council of Representatives, If the new parliament violated the Constitution in the first session and did not proceed to perform the oath -With an obligation to apply legislation in an honest and impartial manner- only a few hours, How will the Constitution and the law be abide and implemented in the next four years?
“Based on the above, we come to the conclusion that the first session of the Council of Representatives must begin with the President of the age, and ends with the elected president and his two deputies and may not be lifted or opened without completing these procedures, as provided for in the constitutional articles.”
Council of Representatives and Constitutional Timings
When the President and his deputies are elected through the mechanism referred to above, what measures should be taken by the new Council of Representatives according to the constitutional timings?
The Council of Representatives shall move to elect the President of the Republic in accordance with the context provided for in Article 70 of the Constitution, and according to the provisions of the nomination law for the post of President of the Republic No. (8) of 2012, Article 2 of which stipulates that “Candidacy for the post of President of the Republic shall be announced within three (3) days of the date of the election of the President of the Council of Representatives and his deputies in its new legislative session”, In other words, three days after the date of the first meeting of the Council of Representatives.
Where candidates for the Presidency of the Republic submit their applications within three days from the date of announcing the start of the nomination, then the Presidency of the Council of Representatives announces the names of candidates who have met the legal requirements, those whose names do not appear can object to the Federal Supreme Court within three days of the declaration, Which must decide the objection within three days of registration and its decision shall be final and binding and then the process of selecting the President of the Republic in accordance with the mechanism drawn by the Constitution and the law and at the completion of the choice lead the President-elect to be sworn in before the House of Representatives and in the presence of the President of the Federal Supreme Court, Pursuant on the provisions of Article (10) of the Law of the provisions of candidacy for the post of President of the Republic referred to above.
The President of the Republic nominates the candidate of the most numerous parliamentary bloc to form the Council of Ministers within (15) days of his election based on Article (76 / I) of the Constitution, Which confirmed the ruling of the Federal Supreme Court No. (25 / federal / 2010) it.
