Setting the rules of the game: The Federal Supreme Court has empowered itself to take on legislative powers

Constitutional courts are often empowered to strike down legislation, to call on legislatures to amend the challenged laws, or to set limitations on the legislative power, but they are not empowered to take on legislative powers.

The recent controversial case law of the Federal Supreme Court of Iraq has shown that the court has and will transgress the ordinary limits of judicial review and that they can arrogate to themselves the power vested in legislatures in various areas of law including to regulate elections.

On February 21, 2024, Federal Supreme Court, after nearly a year of delay and continued postponements, invalidated several key articles of the Kurdistan Region’s election law, which was passed in 1992 and last amended in 2013. This is yet another highly controversial and decisive decision, as it was with its previous ruling that ended the one-year extension to the Kurdistan Parliament, that is anticipated to redefine the political process in the region.

The controversial judgment ruled unconstitutional:

- the minority quota system for ethnic and minorities, rejecting the legitimacy of the 11 seats reserved to minorities until today ( five seats for Turkmens, five for Assyrians, Chaldeans, and Syriacs have five, and one for Armenians). In effect, it reduced the number of parliamentary seats from 111 to 100.  reducing the number of Parliamentary seats from 111 to 100 seats

- the one electoral constituency and replaced it with a multiple constituencies system, stating that the region must be divided into ‘’at least four electoral constituencies’’. 

- The Kurdistan Region’s High Electoral Commission, stating that Iraq’s Independent High Electoral Commission (IHEC) has full power over regions’ elections.

The decision will have various implications for the political and legal system in the region. From a legal point of view, the arguments and the reasoning of the judgment lack clarity and the court was unsuccessful or failed to specifically refer to the constitutional principles or articles that the Kurdish Elections Law contradict. Even if one considers that the court has established a correlation between the election rules that govern the Iraqi parliament, which since 2021 divided the country into multiple electoral constituencies. The court is not consistent in upholding this approach and unifying the rules of elections in the whole country including in Kurdistan. Article 49 of the constitution guarantees ‘the participation of the other components of the Iraqi people’ in the Iraqi parliament, which is the basis for the reservation of the number of seats in Iraqi parliament for minorities or the quota system which was supported by the court in a number of cases. However, the same issue is ruled unconstitutional with regard to Kurdistan. Legally, and because of the presence of such minorities in the Kurdistan region, the same constitutional principle is adorable in Kurdistan election law. Here, the court has contradicted its previous rulings that upheld such a quota system in Iraq.

It is within the constitutional power of the region to regulate and pass legislation that regulates matters of local interest that directly affects the people of Kurdistan. As a federal region that its authorities and legal institutions are recognised in the constitution, it is within the power of the region to regulate, supervise and run elections for its parliament. The abolishment of the electoral commission contradicts such powers.

In its decision, the court stepped beyond its constitutional mandate and bypassed the constitution itself. The FSC has shown that it has and will transgress the ordinary limits of judicial review and that it can arrogate to itself the power vested in legislatures to regulate elections. The decision was read out by the Chief Justice on a live broadcast on TV, carefully reading one by one the new wording and phrasing that replaces the challenged articles with the election law. For anyone who has the basic knowledge of how laws are made, this was the lawmaking and not law interpreting or judicial reviewing of legislation. The court in fact involved itself in defining and rewriting the rules of the game and acted as a lawmaker.

Having said that, the disagreements over the election law was, and remain, a controversy for politicians and lawmakers to settle, not the court. The recent case law of the FSC has been particularly controversial and extensively criticized.  since the 2022 amendment to the law of the court came into force which resulted in the retirement and replacement of the entire judges. There are numerous cases, since then, that should have not been in the court in the first place, or the court should have dismissed them as to be resolved through other non-judicial means. However, over the time, the court has exercised this power with little if any consideration to the principle of separation of power and in this case, and similar cases, it didn’t refrain from interfering into or becoming lawmakers.

The views expressed in this article are those of the author and do not necessarily reflect the views of Kurdistan 24.