A recent decision by Iraq's Supreme Federal Court to remove Mohammed al-Halbousi from the position of speaker in the Iraqi parliament has reignited discussion regarding the constitutional legitimacy of the court's rulings.
The development has prompted many to question whether the court's decisions are driven by constitutional principles or influenced by political motives.
Furthermore, there is a growing concern about whether the court, predominantly supported by Iran-backed Shia parties, has transformed into a political instrument rather than serving as an impartial adjudicator.
On 14 November, Iraq's Supreme Federal Court nullified the parliamentary membership of Mohammed Al-Halbousi, the speaker of Iraq's parliament, citing forgery charges and thereby concluding the influential Sunni politician's tenure since 2018.
The court's decisions, once made, hold binding authority over all branches of the government and are exempt from appeal. Comprising nine judges, the court is composed of five Shias, two Sunnis, and two Kurds. Notably, decisions are reached by a simple majority, allowing Shia judges to wield significant influence.
The federal court's verdict followed a legal action initiated by Laith al-Dulaimi, another Sunni parliamentarian, who accused Halbousi - also the leader of the Taqadum (Progress) party, the largest Sunni bloc in parliament - of forging his resignation letter. Halbousi has characterised the ruling as "peculiar" and affirmed his intention to take measures to uphold his constitutional rights in response to the court's decision.
The court has a political function
“Iraq's Supreme Federal Court is a new experience in the country. Although the court was formed before Iraq’s constitution of 2005, its crucial role and impact has been seen in the last few years via several constitutional and political judgments among the country’s components,” Ismael Najmadin, the dean of the College of Law at Cihan University of Sulaimaniya in the Iraqi Kurdistan region, told The New Arab.
“To answer the question of whether the court’s decisions are constitutional or political, we should differentiate between two issues, first the constitutional courts in all countries that are pursuing the federalism system play a political function. In other words, the federal or constitutional courts settle issues that have a political pillar among components of the federalist system.”
He also indicated different views regarding the degree to which the court’s judges are under the influence of political opponents.
“The view by the majority of Iraqis is that the court is doing its constitutional duty, but the views of those political sides that were negatively affected by the court’s decisions are contrary, they say the decisions by the court are politically motivated for the interests of a certain component,” Najmadin added. “As a legal expert, I find both notions, as per the decisions by Iraq’s top court, include some sort of reality.”
He indicated that those who say the court has been politicised are doing so because most of the court’s rulings regarding decisive issues have impacted the country’s different political and societal components.
Najmadin emphasised the fact that some articles of Iraq’s constitution contain formal and legal issues, hence the court has sometimes made contradictory judgments.
What is the solution?
There have been many accusations that the court is under pressure from Shia parties and Iran, and doubts as to whether it has been able to maintain its impartiality among Iraq’s diverse components.
“A key duty of the constitutional courts is preserving the federalism entity of the state, in other words, the federal courts should always consider its decisions on how it serves peaceful coexistence among the state’s components. Unfortunately, the court often disregards the conditions of Iraq’s components and the country’s federal experience,” legal academic Ismael Najmadin told TNA.
He stated that the solution to these criticisms of Iraq's Supreme Federal Court is that all Iraqis should return to the principles which the constitution stipulated in forming the top court.
“In my opinion, we cannot manage Iraq's Supreme Federal Court in the same way we run a civilian court.”
Ghalib al-Shabandar, one of the founders of the Islamic Dawa Party, told TNA during an interview in Baghdad that although the court’s ruling was “constitutional”, the timing was “politically motivated”, as it came before the upcoming provincial elections scheduled for 18 December.
“The decision in itself was constitutional, but all constitutional decisions have their timing as well, I think the timing was clearly related to the provincial elections,” he said.
What made the top court’s decision largely questionable is that it is not based on Article 52 of Iraq’s constitution which is related to how an Iraqi lawmaker loses its membership.
Article 52, stipulates: “First: The Council of Representatives shall decide, by a two-thirds majority, the authenticity of membership of its member within thirty days from the date of filing an objection. Second: The decision of the Council of Representatives may be appealed before the Federal Supreme Court within thirty days from the date of its issuance.”
Therefore, in violation of Article 52, the top court lacks the authority to revoke the parliament membership of lawmakers unless the parliament initiates the process with a two-thirds majority vote.
The court's reliance on general constitutional articles, rather than specifically addressing Article 52, constitutes a legal violation, bypassing the specified procedure for such matters.
In a potentially politically motivated move, the top court swiftly addressed al-Dulaimi's complaint against Halbousi just one day after it was filed.
Furthermore, in adherence to Iraq's binding laws, the top court ought to have deferred its decision until an Iraqi penal court resolved Halbousi's forgery charges. This is because the Iraqi top court operates as a civilian court, not a penal court.
The court's history of rejecting lawsuits aimed at impeaching Iraqi MPs in recent years adds to the perception that its rulings may be politically influenced, potentially under pressure from Iraqi Shia factions aligned with Iran.
Dana Taib Menmy is The New Arab's Iraq Correspondent, writing on issues of politics, society, human rights, security, and minorities.
Follow him on Twitter: @danataibmenmy