Themajority: the causes and repercussions of the resignation of the Sadrist bloc

Dr. Nabil Mahdi Al-Dhubhawi: Faculty of Law - National University of Malaysia (UKM)

The sudden decision of the 73-member Sadrist bloc  to resign from the House of Representatives sparked a wave of speculation and controversy about the background and causes of the decision on the  one hand, and about the legal enforcement of the resignation decision and the repercussions of this decision on the other.

In the midst of the  escalating controversy, we discuss in this article three legal points related to the subject of the reasons for resignation and its ruling, as we can say that the reasons that have a prejudice to the legal aspect of the crisis of government formation, in which the resignation is the most prominent event is the Federal Court's interpretation of the term daily conduct contained in  Article 64 / II of the Iraqi Constitution  and the majority that must be available when applying Article 70 / first of the Iraqi Constitution.  These two decisions have lost the ability of the Sadrist bloc leading the tripartite alliance to maneuver and have turned the time and fait accompli factor that the tripartite alliance tried to exploit to impose its political vision into determinants that should be dealt with quickly and without hesitation. After the completion of these two decisions, we will review the legal regulation of the resignation in the third paragraph before moving on to a paragraph in which we discuss the repercussions of the resignation. 

First:  Federal Court Decision No. 16 / Federal / 2022

On the first of February 2022, the office of Iraqi President Barham Salih, in his letter No. 245, requested the interpretation of Article 70 / first and the statement of the majority that must be available to proceed with voting on the election of the President of the Republic. After studying the constitutional texts, the Federal Court decided that the Chamber of Deputies elects (.... President of the Republic from among the candidates for the Presidency of the Republic by a two-thirds majority of the total number of members of the House of Representatives, and the quorum is achieved by the presence of two-thirds of the total number of members of the House of Representatives.

The Federal Court has proceeded from several legal arguments, the most important of which is that the text of Article 70 / first allocates the text of Article 59  of the Constitution, the first paragraph of which requires the presence of an absolute majority of the members of the House of Representatives in order to achieve the quorum of the session, while its second paragraph indicated that decisions are taken by simple majority after achieving the quorum, unless there is a text to the contrary. The Federal Court also supported its opinion with the text of Article 7  of the Law on the Provisions  of Nomination for the Office of the President of the Republic No. 8  of 2012, which states that "the elected president of the republic shall be considered a person who obtains a two-thirds majority of the members of the House of Representatives."

After this decision, which was considered a severe blow to the majority project, the President of the Judicial Council published an article entitled (Amending the Constitution ... A necessity imposed by the political reality) in which he urged the House of Representatives to amend the constitution, which was drafted in circumstances different at the time from the current circumstances, and most of those who participated in its production in the form currently in force are at the forefront of those calling for its amendment now......). The article considered some constitutional texts as a serious obstacle due to which efforts to form authorities faltered, including those that require the approval of a two-thirds majority of the total number of members of the House of Representatives, in an explicit reference to the text of Article 70 / First, which was one of the articles that the article called for amendment. The interpretation of the article coincided with that of the Federal Court in that the quorum required for the convening  is the presence of two-thirds of the members of the House of Representatives, and it noted that all decisions that require a majority "assume the presence of two-thirds of the total number of members of the House of Representatives as a first step as the quorum due to the opening of the session of the House of Representatives, and then a vote is made to obtain the approval of the same number of members of the House of Representatives."

If we look closely at the resolution and the article, we find a clear confusion between the number required for the quorum of the session and the number required for voting, Article 70 / first deals with the  number required for voting, as it is a special text for the second paragraph of Article 59 and has nothing to do with the first paragraph, which deals with a different topic  , which is the subject of the session. A closer look at the wording of the two paragraphs  of Article 59 will reveal the Court's reasoning that the text of Article 70 is first a special provision with regard to quorum. Article 59 differentiates between two matters for each of which is allocated a separate paragraph, namely the quorum of the meeting  in the first paragraph  and the voting on the decisions in the second paragraph. The distinguishing mark is  that the constitutional legislator opened the door for allocation in the second paragraph  by appending to the article with the phrase money that states otherwise, while this phrase was absent in the paragraph related to the quorum of the session, which means that the constitutional legislator generally distanced the text of Article 59 / first from allocating even if he wants this to its appendix as the appendix  of the second paragraph. As for the argument that every decision requires the approval of two-thirds requires the requirement of two-thirds to achieve the quorum of the session, this statement is also incorrect, as the session often includes in its schedule different items and the number required to vote on each item varies. The closest example that the court could have guided was the amendment of the Federal Court Law itself, which was included in the minutes of the 45th  session dated 18/3/2021, which included in its schedule  a set of decisions that do not need a two-thirds majority, and the session was held with a majority of less than two-thirds, which makes the existence of the current body of the court illegitimate based on the interpretation of the article.

Last but not least, Article 70  came in the second paragraph to put the possibility that none of the candidates will obtain a two-thirds majority, and as a result, the  two highest candidates will compete between them in a second round decided by a majority of votes regardless of the majority. This means that the constitution has presented a hypothesis in which the president of the republic is elected by a simple majority that does not need to require two-thirds to convene if we accept the controversy by linking the validity of the convening to the validity of the vote.

Second: Federal Court Decision 121  / Federal / 2022

On 12/5/2022, the Presidency of the Republic requested the letter No.t.c/1/3/1015, at the request of a group of deputies, Inquiring from the Federal Court Interpretation of what is meant by the daily matters contained  in the text of Article 64/II of the  Constitution, which stipulates (The President of the Republic, upon the dissolution of the House of Representatives, shall call for general elections in the country within a maximum period of sixty days from the date of dissolution, and the Council of Ministers in this case shall be deemed to have resigned and shall continue to conduct daily affairs) The book also asked for an explanation of the limits of the government's powers during the period between the dissolution of the House of Representatives and the formation of the new government and the nature of the decisions it takes.

The court interpreted the text of Article 64 / II that the caretaker government is (.... The government transformed from a normal government with full powers to a government with limited powers and this is achieved in two cases, the first by withdrawing confidence from the Prime Minister until a new cabinet is formed  in accordance with the provisions of Article (61 / VIII  / a, b, c and d), and the second when the House of Representatives is dissolved in accordance with what is stated in  Article (64 / first) In both cases, the Council of Ministers shall resign and shall continue to conduct daily matters that include taking decisions and measures that would continue the regular functioning of public utilities and the continuity of the provision of services to the people, and do not include decisions involving political reasons and motives that have a significant impact on the political, economic and social future of Iraq, nor does it include proposing draft laws, holding loans, appointing and exempting from senior positions of the State, or restructuring ministries and departments.

While we agree with what is stated in the resolution with regard to the two cases, the resolution omits two other cases, namely the case of the end of the Government's term and the period between the new Council commencing its duties and the new Government's  commencement of its duties, as well as the resignation of the Government itself.Both cases fit the description of the decision of the caretaker government on p. 2 as the one that mediates two stages, the first of which is the stage of the resignation of the government or considering it resigned. The fact that the two cases are not expressly mentioned in the Iraqi Constitution does not preclude the application of the principle of the caretaker government to them as long as they share the restrictive function of the Government's powers, namely the absence of governmental responsibility before Parliament, which the resolution considered the cornerstone of the parliamentary system in which the Government gains its legitimacy from the Council of Representatives according to the resolution.  It is the representatives of the community (the House of Representatives) who give the government societal authorization to run the country, provided that this government assumes responsibility.

On the other hand, the resolution also referred to an important point, namely that the caretaker Government is an exceptional case in the first place that requires the Government to exercise all its powers. We agree with the decision that the theory of the caretaker government has an exceptional field of application, but we do not agree with the decision within the scope of this exception, so saying that the caretaker is an exception to the general principle that the government is  fully empowered leads to narrowing the scope of the decisions that the government refrains from taking based on the principle that what is proven as an exception is not measured against it and it is not permissible to expand its interpretation. It follows that the scope of the government's actions will expand to include, but is not limited to, the proposal of bills that have a direct impact on people's lives, which is the opposite of the resolution's findings. Our reading of the concept of exceptionalism in theory is that the origin is that the government has lost the societal authorization to manage the state and is therefore completely deprived of powers, but the necessity of the permanence of the public facility and the continuation of life in the states requires granting them powers that prevent the disruption of the state. This interpretation of exceptionalism makes it consistent with the spirit of the Constitution and the laws that link the powers to make a particular decision from one side with the responsibility borne by this body, so there are no powers when there is no responsibility.

Third: The resignation of a member of the House of Representatives

The submission of the Sadrist bloc has sparked controversy related to several aspects, perhaps the most important of which is the legal aspect of the resignation, which is summarized in two important points, the first of which is the validity of this resignation, the second is the effectiveness of the resignation and the adequacy of the approval of the Speaker of the House of Representatives. In order to answer this question, the legal framework that addressed this resignation should be identified in Iraqi legislation.

The constitutional organization of the work of the Iraqi Council of Representatives came in the third chapter of the constitution, which concerned the federal authorities, specifically in the first section of the first chapter, but did not address the resignation of a member of the Council of Representatives, but did not address the end of the member's membership independently of the dissolution of the Council of Representatives or the end of his term. On the other hand, other legislative texts referred to the resignation  of a member of the House of Representatives, namely the text of Article 1  of the Law on the Replacement of Members of the House of Representatives No. 6  of 2006, amended by  Law 49  of 2007, as well as the text of Article 12  of the House of Representatives Law No. 13  of  2018.   

Article 12  of the House of Representatives Law deals with cases of termination of the membership of the House of Representatives, as it specified eight reasons for this termination, including resignation in the second paragraph of the  article.As for the amended Article 1  of the Law on the Replacement of Members of the House of Representatives No. 6  of 2006, it came in four paragraphs, the first of which talked about the reasons for the termination of membership and specified seven reasons for the termination of membership, including the reason for resignation in item 3, where it stipulated (the resignation of a  member from the Council in a case other than that stipulated in  paragraph III of this article).  When returning  to the third paragraph of the  aforementioned article, we find its text regulating  a second type of resignation,  as it is stated in the paragraph (The first paragraph of Order  No. (9)  of 2005 applies  to a member of the House of Representatives and members  of the Presidency in the event that his  resignation is submitted and accepted by the Council by an absolute majority, provided that his membership period in the House of Representatives is not less than one year.)  This text caused great controversy regarding the effectiveness of the resignation of the Sadrist bloc, as some talked about the failure of the resignation of the member of the House of Representatives to arrange its effect until one year after the date of the deputy's swearing-in as a member of parliament.

While I respect this opinion, it has no chance of steadfastness. The text  of Article 1 ter of the  Replacement Law relates  to the desire of the member to enjoy the benefits of paragraph I of  Order 9  of 2005, which relates to the enjoyment of a group of holders of senior positions in the state the right to retirement if they wish to do so, and therefore Article 1 has drawn two ways to resign, the first of which is mentioned in paragraph   I-3 Which showed that membership ends with resignation unconditionally and in this case the resigned will not have the right to enjoy retirement, the second of the two ways is to resign in accordance with Article 1 third, which requires the approval of the Council  by an absolute majority after a period of one year of membership in the Council. These two methods were in force until the issuance of the Unified Retirement  Law 9 of 2014, which abolished  in Article 38 first - a of it the provisions regulating retirement in Order  9  of 2005,  which requires the inability to apply  the third paragraph  of  Article 1  of the Replacement of Members Law.   Even if we accept for the sake of argument that the retirement law did not repeal  the first paragraph of the 2005  order,  Article 73/II of the House of Representatives Law No. 13  of 2018 stipulated that it is not permissible to apply any text that contradicts its provisions, which means that no text that sets a condition for the termination of membership by resignation shall not be applied, such as the text of Article 1 ter of the  Law on the Replacement of Members of the House of  Representatives.  As for the observation that the Speaker of the House of Representatives does not have the right to enforce the approval of the resignation request, which must be submitted to the House for decision, this is also an objection that cannot withstand  the text of Article 1-I-3 of the Replacement Law and the text of Article 12 II of the House of  Representatives Law, which stipulates the termination of membership upon resignation, as the approval of the non-approval of the end of membership by any party has no effect.   This is evident if we compare the text of Article 1  I-3  of the Law on the Replacement of Members of the House of Representatives before its amendment by Law 49  of 2007 with the amended article, where it stipulated the termination of membership by accepting the resignation of the House of Representatives.   The legislator's amendment of the phrase acceptance of resignation to the phrase resignation can only be a reluctance to suspend the expiration of membership on a decision of the House of Representatives and to arrange the effect of the resignation upon request without the need for acceptance or approval from the House of Representatives or its President.

Fourth: The repercussions of the resignation

After the resignation of the deputies of the Sadrist bloc, the vacant seats will be filled by the candidates with the highest votes, except for the winner, based on the text of Article 15-V  of the Iraqi Council of Representatives Elections Law No. 9 of 2020. Through the restructuring of the winning blocs, the coordination framework will be the largest representative of the Shiites in the Iraqi parliament, and independents and new parties will be the second beneficiary of the withdrawal of the Sadrist movement from participating in parliament.

Beyond political calculations, an important point should be made that the Iraqi political system is based on consensus in making fateful decisions. The constitution's requirement for a two-thirds majority in  many important parliamentary decisions makes it constitutionally difficult to adopt many important decisions. Therefore, the obstacle of forming a government will not be the only obstacle in the life of a government that is formed far from consensus.

The attempt of the Sadrist movement to form a majority government was not the first attempt, as it was preceded by the State of Law Coalition, although the latter's attempt was not as mature as the Sadrist movement's attempt. Both attempts collided with constitutional rules that sided with those opposed to the majority principle. Perhaps we do not bring anything new when we say that consensus and quotas were the demand of the Kurdish and Sunni components, although the former tried to put makeup on  them, calling them balance.

The criticism of the texts that enshrine consensus in political decision-making by the President of the Judicial Council, on the grounds that these texts were drawn up in circumstances different from those of today, is a view with which we do not respectfully agree. Consensus was a condition set by minority leaders to guarantee the rights of their constituents, a condition that is still  required of them, and no amendment to  these texts will pass as long as the veto of three governorates is sufficient to abort the amendment. The disregard for minority rights in the Iraqi constitution may undermine the legitimacy of a political system that faces enough problems and does not need a new problem, which is the sole management of the state's affairs by one component.