Decisions And Jugments Issued By The Federal Supreme Court

Constitutional-Appeal - 2019

155 / Federal / 2019 on 2021-06-02

1- Article (11) of the Constitution of the Republic of Iraq stipulates (The Republic of Iraq is a single, independent, federal state with full sovereignty, the system of government in which is republican, representative, parliamentary, and democratic, and this constitution is a guarantor of Iraq’s unity), the system mentioned in the aforementioned article is achieved through the peaceful transfer of power through the means democracy stipulated in the Constitution, therefore, it is not permissible to enact a law that contradicts the principles of democracy, because that contradicts the principle of the peaceful transfer of power.
2- The right to vote, to elect and to be elected is one of the political rights that citizens, both men and women, must enjoy, and it expresses the right to participate in public affairs in accordance with the provisions of Article (20) of the Constitution.
3- The peaceful transfer of power and the people's exercise of their basic rights to vote, elect, and to be elected requires the realization of two important things. The first is the separation of powers on the basis of complementarity and cooperation, and the second is the determination of the duration of the electoral cycle for all elected councils in accordance with what was stated in Article (56/1st) of the Constitution.
4- The voter's will is based on choosing who represents him in the elected councils for a specified period, and exceeding that period by the aforementioned councils represents a exceeding of the voter's will.
5- Oversight of the constitutionality of laws and regulations in force is a major competence of the Federal Supreme Court, and that means the possibility of addressing the court to rule on the constitutionality of any legal text related to what is presented in the case considered by it if that text contradicts the constitution.
6- Democracy does not only take a political aspect based on the people’s participation in government through their representatives and in managing national affairs, but it takes an administrative aspect based on the participation of the people of the provinces in managing their local affairs through the elected provincial and district councils.
7- The right of a citizen to vote and be elected is one of the constitutional rights that embody the principle of democracy on which the constitutional system in Iraq is based. Another constitutional principle is born from the right to vote, which is the principle of periodicity in the voters’ exercise of their right to vote.
8- The existence of the state is a social and political necessity that is united by the social peace of citizens, and that the state has goals and duties that must be accomplished, those goals and duties are not static, as it is necessary to keep pace with the movement of society and its development and the conditions that the country is going through locally, regionally or internationally.
9- The state is described as simple or complex on the basis of the type of constitutionally defined political authority, and that the Republic of Iraq has transformed from a simple state to a Federal central state since the issuance of the Law of Administration for the Iraqi State for the Transitional Period in 2004, according to what was stated in Article 4 of it, which stipulates (the system of government Iraq is a federal republic, federal, democratic, pluralistic, and powers are shared between the federal government, regional governments, governorates, municipalities, and local administrations. The federal system is based on geographical and historical facts and the separation of powers and not on the basis of origin, race, ethnicity, nationality or sects.
10- The form of the state in Iraq was described under Article (1) of the Constitution of 2005 as (a single, independent federation with full sovereignty).
11- The system of government in Iraq, according to Article (1) of the Constitution of 2005, is (Republican, Representative, Parliamentary, Democratic).
12- The Constitution of 2005 guarantees the unity of Iraq in accordance with what was stated in Article (1) of it, which stipulates (this constitution is a guarantor of the unity of Iraq) and that maintaining that unity is the responsibility of the federal authorities as stated in article (109) of the Constitution (the federal authorities maintain the unity, integrity, democratic independence, sovereignty and federal democratic system of Iraq) and that this responsibility is constitutional for all authorities to observe and not to violate the constitution in this regard.
13- The federal system in the Republic of Iraq shall be in accordance with Article (116) of the Constitution of (a decentralized capital, regions, governorates, and local administrations). Thus, the federal system is based on decentralization administrative and is not based on political decentralization.
14- The administration of the governorates in Iraq is based on administrative decentralization and not on the basis of political decentralization, as Article (122/Second) of the Constitution stipulates that (provinces that are not organized in a region are granted broad administrative and financial powers to enable them to manage their affairs in accordance with the principle of administrative decentralization, this is regulated by law).
15- Administrative decentralization means distributing the administrative function between the central government in the capital and between local bodies or independent interests so that these bodies, in the exercise of their administrative function, under the supervision and control of the central government and enjoy financial and administrative independence in a way that enables them to perform their work in accordance with the law.
16- Granting legal personality to administrative units and recognizing them as an independent financial asset is one of the important conditions for implementing administrative decentralization and represents a response to democratic ideas.
17- The origin of the existence of the provincial councils is the constitution according to what was stated in Article (122/4th) of it, which stipulates (regulating by a law the election of the provincial council and the governor and their powers), so the existence of these councils is a Constitution fact that cannot be bypassed, and the legislative authority may not legislate a law that includes cancellation of these councils because it contradicts the constitution, democratic principles and the peaceful transfer of power.
18- The provincial council, within the general framework of Article (122) of the constitution, is considered a local administrative body entrusted with the implementation of administrative and financial powers only within the principle of administrative decentralization, and the constitution has not entrusted it with the exercise of legislative powers.
19- Administrative decentralization represents an application of democracy to the administration, given that administrative decentralization is based on the existence of elected councils, so its source is the people, as they are the source of powers and their legitimacy is exercised by direct public secret election and through its constitutional institutions in accordance with Article (5) of the Constitution.
20- The continuation of the elected councils, whether they are national or local bodies, after the end of their electoral cycle, represents a violation of the people’s right to vote, elect and be nominated, and transgresses the will of the voter, especially since the existence of elections does not mean the participation of everyone in them, nor does it mean that the opinion of those who participated in them does not change.
21- Provincial councils are elected local administrative constitutional bodies with a legal personality and enjoy financial and administrative independence entrusted with the implementation of administrative and financial powers within the principle of administrative decentralization.
22- Not specifying the duration of the electoral cycle for the elected local councils in the constitution does not mean that it is not possible to specify that session by law, and that the constitutional legislator required in Article (122/4th) to regulate this by law.
23- Oversight is an essential pillar for the establishment of the administrative decentralization system, and its importance lies in preserving the political and legal unity of the state, as the absolute independence of the local bodies threatens the entity of the state and leads to the lack of homogeneity and harmony between the federal authorities and the local authorities.
24 - Parliamentary oversight means that all acts issued by the executive authority are subject to the oversight of Parliament and ensure their compliance with the legal rules in force and their suitability to reality and contemporary conditions.
25- Administrative oversight means following up the administrative performance in terms of the accuracy of its implementation according to what is planned and the extent to which it achieves the objectives of the administrative system. Through the supervisory work, it is possible to determine the responsibility for implementation in the achievement and to detect deviations resulting from deviation from the rules established for the performance of work and that it is done in the correct framework and appropriate measures are taken to correct errors.
26- The governor elected by the governorate council is considered the highest executive chief in the governorate according to the provisions of Article (122/3rd) of the constitution and he is subject to two types of oversight. Parliamentary by the Council of Representatives and administrative by the Council of Ministers.
27- The governorate is obligated to follow the general policy drawn up by the Council of Ministers and the relevant ministries in accordance with the provisions of Article (45/3rd) of the Law of Governorates Not Organized in a Region No. (21)  of 2008, and since the Prime Minister is the direct executive responsible for the state’s general policy in accordance with the Article (78) of the Constitution and that the Council of Ministers is the one who plans and implements the general policy of the state and supervises the work of ministries and entities not associated with a ministry based on what was stated in Article (80/1st) of the Constitution, so the executive authority exercised by the governor is an extension of the federal executive authority.
28- The term “supervision” contained in Article (3) of Law No. (27) of 2019 the Second Amendment Law to the Governorates and District Council Elections Law No. 12 of 2018 means the verification process practiced by the Council of Representatives by means of parliamentary oversight drawn up for it under the constitution and in a manner that does not lead to override the powers of the executive authority in exercising administrative oversight and adhering to the principle of separation of powers.
29- The concept of conducting business contained in Article (30) of the Law of Governorates Not Organized in a Region No. (21) of 2008 for the Governor must be understood within the framework of ensuring the functioning of public utilities and not disrupting them in a manner that guarantees the provision of services to the Republic and improving the performance of those facilities in light of the general policy of the state and the existence of parliamentary and administrative oversight and within the limits of decentralization and administration.

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