How Iraq’s Supreme Court can end ongoing legal battle over MPs retirement benefits
As the main governmental bodies representative of public interests, parliaments are expected to be crucial agents against corruption. In Iraq, a country with one of the highest levels of graft worldwide, the parliament is not seen as the entity which combats it, but rather, as part of the problem. Unless Iraqi lawmakers are able and willing to confront corruption within their ranks, they will not be able to achieve much in the broader context.
It is not exaggerating to say that, in Iraq, parliamentarians use their entrusted power to pursue their own interests. Moreover, as lawmakers, they are in a position to divert public funds for their own benefit and set huge remunerations for themselves and other politicians.
In essence, lawmakers determine their own salaries by comparing them to the average salary of top civil servants. In some countries, independent bodies are in charge of determining the compensation of MPs.
The salaries are not only too high, but lawmakers continue to receive 80 percent of their salaries upon retirement. Every four years, many of the total number of over 300 MPs in Baghdad and 100 in the Kurdistan Region retire alongside hundreds of senior state officials, putting a huge burden on each government’s respective budget.
Over the past eight years, many have campaigned against the unbelievably high salaries of politicians as well as the unreasonable retirement benefits. In 2011, parliament passed two pieces of legislation that regulated remuneration paid to parliamentarians and ministers. Following the law change, several retired MPs and ministers challenged the decision, arguing it had reduced their pensions. However, they lost their case as the court dismissed their claims.
Following months of protests in 2013 against corruption in state institutions and, above all, the retirement benefits and high salaries of MPs and other senior state officials, the Iraqi Union of Lawyers launched a legal campaign against politicians’ retirement. They called on the court to consider whether the twin legislation passed in 2011 was indeed invalid.
In fact, the case presented an entirely different question: whether or not retirement for MPs itself violated the constitution. The court decided that the legislation was unconstitutional because parliament had not followed proper legal requirements in enacting it.
A year later, MPs reintroduced a retirement plan in the Law of the Iraqi Unified Retirement No. 9 of 2014, which was again invalidated by the court on the same procedural grounds.
Just before the end of the previous legislative term on June 30, 2018, former parliamentarians passed Law of the Council of Representatives No. 13 of 2018. This reintroduced retirement benefits for MPs. Soon after, former Iraqi Prime Minister Haider al-Abadi presented a case against the parliament to challenge its constitutionality. On July 23, the court ordered that payment of MPs retirement benefits was to be halted until it had decided on the merits of the case.
According to Law No. 13, retiring politicians would receive a pension even if they were not 50 years old (the age of retirement) and even if they had not served 15 years in office, factors outlined in the Pension Law. In a landmark decision on Dec. 23, 2018, Iraq’s Federal Supreme Court suspended some parliamentary retirement benefits issued under Law No. 13 of 2018. The court ruled that such benefits violated Articles 14 and 61 of the Iraqi Constitution. Article 14 of the constitution states that Iraqis are equal before the law and prohibits any discrimination including based on age and social status.
However, the court’s ruling did not affect Law No. 9 of 2014, meaning MPs continue to determine their own high salaries. With politicians eagerly determined to exempt themselves from the general rules of retirement, parliamentarians are continuing to work around the law and constitution to reintroduce their benefits.
The only possible end to this legal battle is for the court to abandon the narrow approach it has so far adopted and to decide instead on the substance of the law; whether or not exempting politicians and MPs from general retirement benefits violates the constitution.
Meanwhile, it is not possible to challenge the retirement of parliamentarians in the Kurdistan Region through Iraq’s judicial system because the federal court in Baghdad does not have jurisdiction over regional legislation. Lawmakers in Kurdistan, however, are not powerless. They need to pass the necessary legislation that ends the unfair retirement benefits of parliamentarians.
Majida S. Ismael holds a Ph.D. in Public Law/Constitutional Law from the University of Liverpool, England.
The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan 24.
Editing by Karzan Sulaivany and John J. Catherine