Majida Ismael, Liverpool John Moores’ Law School
Recently, following the contentious sessions and constant delays , on 30th May 2023, the Federal Supreme Court (FSC) broadcast its controversial ruling in case 233/2022 and, ruled unconstitutional the one-year extension to the term of the Parliament in Kurdistan. The decision has intensified the already growing tension and political mistrust between the federal government and the Kurdistan Regional government (KRG). It is the latest of the series of controversial constitutional interpretations with significant implications for the region. In fact, since 2017 Kurdistan Region’s independence referendum, (that was ruled unconstitutional by the FSC), there has been a substantial increase in constitutional cases involving KRG’s legislation and policy, in 2022 alone, five key legislation were invalidated. Although, majority of them targets the economic and political matters significant to the region, any everyday policy could end up in the court. Thus, they range from the 2007 Oil and Gas Legislation; to part of the 2008 Family Law (an amendment to Iraqi personal status code No 188 of 1959) (arguing that it violated the provisions of Islamic jurisprudence in Article 2 of Iraq’s permanent constitution); the KRI Election and Referendum Commission clause, (that defines it as the exclusive authority responsible for conducting elections; and nullified a series of decisions by the government in Baghdad to transfer funds to the KRG to pay salaries in 2021 and 2022.
A Brief Background to the Case
In 1991, uprising in Kurdistan against the Ba’ath Regime of Iraq led to the Iraqi government withdraw of its military and administration offices from Kurdistan. In 1992, the people in Kurdistan elected their first parliament and established the Kurdistan Regional government (KRG) that governed the region with little or any connection to the government in Baghdad. The semi-autonomous region of Kurdistan and its authorities were recognised in the 2005 Iraq constitution. Kurdistan Parliament consists of 111 seats, (including eleven reversed seats for specific minorities), and a female quota of 30 percent of the legislature. In principle, elections are held every four years, however, the region has a history of longevity of parliament. Since 2003, the term of parliament were extended, in 2009 and 2022 respectively, due mainly to Political disagreements over the Elections Law. As Kurdistan does not have a constitutional court, opposition parties challenged constitutionality of the extension before the FSC. Although Court’s conclusions in both cases were entirely different, they were not entirely surprising.
Comparing the 2009 and 2022 FSC’s Judgements
In 39/2009 judgement, the FSC ruled the extension to the term of parliament constitutional. It argued that the Law of Elections for the Kurdistan Parliament (No 1 of 1992), neither explicitly prevent the legislature from extending its term, nor prevent it from regulating it. The Court, briefly scrutinising the formal and procedural legislative requirements in Kurdistan, held that the extension is a legitimate amendment to the Election Law, and thus, did not contradict the constitution.
The latest decision came at the time of intense debates and an on-going row regarding the amendment to the federal budget bill between Iraqi and Kurdish parties in the Iraqi parliament, which the KRG called them as unconstitutional, and a violation of previously agreed upon agreements between Erbil and Baghdad. In 233/2022 Judgement, (in a lengthy, detailed, and extensive legal deliberations), the FSC held unconstitutional the 2022 Law extending the term of parliament and void all decisions issued during its extended period. It implicitly overturned the 2009 ruling, with no consideration to its arguments and conclusions, which were central to the Parliament claim in support of the latest extension.
The Court underlines the internal regulations of the Kurdistan Regional Parliament, specific restrictions, and political agreements to support and reasserts fundamental constitutional principles in supporting its conclusion. First, it emphasises the importance of constitutionally entrenched human rights and freedoms, that the constitution is legally binding on all authorities whose contradicted acts are void. Then, it differentiates between ‘’old democracy’’ or ‘’democracy through the law’’, and ‘’modern democracy’’ or ‘’democracy through the constitution’’. The court, then describes the Iraqi federal system, legal mechanisms in forming federal regions, their powers and political system, and the power of regional legislature. Furthermore, it recalls more constitutional principles including that the people are the ultimate source of power and its legitimacy; peaceful transfer of power; constitutionally entrenched and practically exercised political rights; and periodic fair and free elections without which, argues the court, democracy is meaningless. Thereafter, it maintains that holding regular elections for parliament with fixed term as provided for in constitution, federal legislation, and regional law, ensures the right of the people in holding government accountable. Lastly, it dismissed Kurdish legislature’s argument that extension was necessary for holding free and fair elections and amending the Law of the Elections Commission in Kurdistan. This justification, court argues, is invalid as the legislature is unable to pass or amend any legislation after its legal term ends. It then, returns to the role of the federal Commission of Elections in supervising and regulating elections across the country including regional and local elections.
It emerges from the comparison between the 2009 and 2022 judgments, there has been a shift from a self-restraint and deferential court to a strongly activism one. The latter is another example of expression of judicial activism and assigning a crucial role to federal bodies – the Federal Commission. It is also seen as a gesture of judicial activism aimed at restoring the role of the FSC legitimising a centralised vision to federalism in Iraq. On a political level, since the 2017 referendum, balance of power between federal government and KRG, and within KRG itself has significantly changed, which the Court has played a crucial role as such.
I am intended to highlight the most relevant legal argument here. Firstly, the 2021 amendment to the Law of the FSC is a main factor. The FSC is a pre-constitutional court, originally established during the occupation rule led by the US-international coalition forces in the aftermath of 2003 regime change in Iraq. It was formed and regulated by the CPA order No 30 of 2005 (known as the Law of the FSC). For well over a decade, despite being seen as a pre or[un]-constitutional court (the claim the court constantly dismissed), it developed an extensive case law covering any aspect of policy in the country.
Indeed, political parties has since 2005 have failed or unwilling to pass the implementing legislation regulating the FSC under the 2005 constitution. In early 2021, in a controversial session, the legislature passed the first amended to the Act of the FSC. At the time, it was clear that the Court had been unable to function, as number of judges had been retired and there was no law regulating this matter. This became a matter of necessity, as there were elections to be held which would not been possible without a functioning FSC. Therefore, new judges have since been appointed to the Court. Arguably, new court is believed to have more legitimacy under the 2005 constitution than the pre-2021 court did. The amendment empowers the court beyond the constitution, assigning new jurisdictions (the court had upper hand in drafting the law), contributing to a substantially activism judiciary that we have seen since. It is evidenced that judges have, systematically (ab)using their power as the final interpreter and arbitrator of the constitution, by actively addressing and deciding controversial, often politically high-profile cases. This is contrary to the pre-2021 court which was a deferential court, using admissibility and jurisdictions to dismiss such cases or delayed them. There is an extensive case law since then, which is by large different from the case law developed during the pre-2021 court that decided the 39/2009 case. The latter court was a deferential and self-restrained one, and it would rather decide on the formal rule of law than the substantive rule of law.
Although, the 2022 judgement could have far reaching consequences, the more immediate implications are worrisome for Kurdish authorities. The region ought to relay on the Federal Elections Commission in the absence of an elections commission in the region; and the KRG has become a caretaker government. There are even calls within certain Iraqi functions that the current KRG has no legitimate power to negotiate with the federal government.
Having said that, the 2022 judgement could set a fundamental and much needed precedent in reinforcing the constitution and curtailing, if not blocking, longevity of elected parliaments, given that the region has several such experiences. It could prevent future abuses of power by politicians who tend to agree on disagreeing on elections law that matters to the democratic process in the region and the country. In addition to that, it becomes clear that Kurdistan is no longer the final arbitrator of its affairs, giving another wake up call to the regional political parties as to resolve their disputes or otherwise expect further involvement by the FSC, assigning federal authorities with legal power to intervene in Kurdistan policy.
Suggested citation: Majida Ismael, Extending the Parliament Beyond its Fixed Term: Between Judicial Activism and Judicial Self-restraint, Int’l J. Const. L. Blog, June 30, 2023, at: http://www.iconnectblog.com/strongextending-the-parliament-beyond-its-fixed-term-between-judicial-activism-and-judicial-self-restraint-strong/
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