The Federal Supreme Court has rejected a request to dismiss the winner in the elections of the Iraqi Council of Representatives, the deputy Haider Al-Abadi

The spokesman of the Court Ayas Al-Samouk stated that the Federal Supreme Court has been convened headed by the Judge Madhat Al-Mahmood and the attendance of all the members, and issued the following decision:

 "During scrutiny and deliberation by the F.S.C. the court found that the plaintiff' agents claimed that he was candidate for the elections of the council of representatives of 2018 as member in the Victory Bloc, after the announcement of the results by the Independent High Electoral Commission, a violations was found in it as result of manipulation and fraud in the process of manual counting and sorting, as it result didn’t match with the result of the electronic counting and sorting despite the claim of the commission otherwise. He requested to judge to recalculate his election votes and to consider him as a winner candidate.

He also claimed that (the deputy) Haider Jawad Kazem al-Abadi did not take the constitutional Oath during the first legislative session of the Council of Representatives the current term, as required by paragraph (2^nd) of article (4) of the Law of Council of Representatives and its formations No.(13) for 2018, as well as it is obliged  by paragraph (1^st) of article (10) of the same law, which is to take the constitutional oath at the first session of the Council. Accordingly, he requested to rule by obligating the Council of Representatives to dismiss and terminate the membership of the (deputy) Haider al-Abadi, based on what mentioned above according to paragraph (3^rd) of article (11) of the law of the Council of Representatives and its formations which granted the Council the jurisdiction to dismiss the deputy if his absences without legitimate excuse has exceeded more than third of the council sessions in single legislative term, that after paragraph (4^th) of which ruled that the deputy who failed to take the constitutional oath without a legitimate excuse shall consider an absence from attending the session.

The Federal Supreme Court finds that the consideration of the plaintiff' first request to recalculate his electoral votes due to the presence of manipulation and fraud in the election process, and the mismatch between the results of manual counting and sorting with the electronic counting and sorting, is out of the court jurisdictions in this regard which are stipulated in article (93) of the Constitution and article (4) of its law no.(30) for 2005. As this requested consideration is a jurisdiction of the Independent High Electoral commission according to article (8) of its law no.(11) for 2007. Also the decisions that it issue about the claims and challenges can be challenged before the Judicial Committee in the Federal Court of Cassation based on the provisions of paragraph (8^th) of the same article.

As for the plaintiff request to dismiss and terminate the membership of the (deputy) Haider al-Abadi as a result of his absence from attending the sessions and not taking the constitutional oath, the Federal Supreme Court found that this require the answer of the following question:   

When may the winner in the elections of the Council of Representatives obtain the capacity of a deputy?

According to the provisions of article (50) of the constitution which obliged the winner in the election to take the constitutional oath before practicing his duties, as required by paragraph (4^th) of article (11) of the law of the Council of Representatives -before deciding its unconstitutionality- that the failure of the (deputy) to take the constitutional oath without legitimate excuse consider as absence from attending the session, if his absences has exceeded more than third of the council sessions in single legislative term then the Council have the right to dismiss him.

The Federal Supreme Court found by reviewing the provisions of article (50) of the constitution, and by referring to the decisions and judgments it issued by the ref.(140/141/federal/ 2018) on 23/12/2018, (25/federal/2010)on 25/3/2010, (45/teh. qaf./2014) on 11/8/2014 and (70/federal/2019) on 28/7/2019, that it has decided that the winner in the elections of the Council of Representatives don’t obtain the capacity of (the deputy) until he take the constitutional oath, as for the provision that considered the (deputy) who didn’t take the constitutional oath as absence from the sessions in paragraph (4^th) of article (11) of the law of the Council of Representatives and its formations, this provision contradict with article (50) of the constitution, because in order that the absence cause its effects it required that the winner has obtained the capacity of (deputy) and this was not achieved because he did not attend the Council sessions and didn’t take the constitutional oath, therefore the Federal Supreme Court ruled in the issued decision by the number (140/141/ Federal/ 2018) on 23/12/2018 the unconstitutionality of that paragraph which considered the winner in the elections who did not attend and did not take the oath as absence from the sessions of the Council.

Accordingly, it is not permissible to implement the replacement provisions stipulated in the law of replacing the members of the Council of Representatives No. (6) for 2006 -as requested by the plaintiff in his case- for the winner who has not taken the constitutional oath, and to replace him with.

Since this case was not been treated with in the law of the Council of Representatives and its formations, nor in the law of replacing the members of the Council of Representatives, which is the case of winning one of the candidate in the elections of the Council of Representatives and not attending the sessions or taking the constitutional oath, so until the Council of Representative finds legislative solution for such cases, the plaintiff request to dismiss the winner Dr. Haider al-Abadi and his replacement has no substantiation of the Constitution and the law.

Accordingly the court decided to reject the case and to burden him the expenses and advocacy fees for the agents of the defendant' amount of one hundred thousand Iraqi dinars divided between them equally. The decision has been issued decisively and unanimously according to article (94) of the constitution, and article (5) of the F.S.C. law No.(30) for 2005, and issued publicly on 16/9/2019".