Regarding the constitutionality of the Federal Supreme Court

Dr. Yousef Mohammed
(At present, any talk about the unconstitutionality of the Federal Supreme Court is political talk and has no legal value.)
The Federal Supreme Court in its current form is the result of Article 44 of the State Administration Law, which was similar to a provisional constitution from the interim and transitional period until the writing and implementation of the permanent Iraqi constitution. On the basis of this article, by Decree No. 30 of 2005, the Federal Court Law was issued by the Interim Government with the approval of the Interim Presidency Council (which included the Kurdish representative, I think Dr. Roj Nuri Shaweis). Therefore, it is not true to say that the law was ordered by Paul Bremer and that the court’s law is based on the same provisional constitution that gave birth to the current Iraqi constitution.
After the current Iraqi constitution came into force, according to Article 92-2 of the constitution, a new law for the court had to be passed by a two-thirds majority of the members of the House of Representatives. However, due to the disagreements over the law, especially on the composition of the court and the majority required to issue court decisions on issues related to the region, in all successive sessions of the House of Representatives, including the previous session. Therefore, the Federal Supreme Court continued with the previous law (which was issued before the constitution came into force). This has constitutional support, because according to Article 130 of the Constitution, all applicable legislation is valid until it is repealed or amended in accordance with the Constitution. Therefore, all previous laws, decrees and decisions, even the decisions of the repealed Revolutionary Leadership Council and the decrees of Paul Bremer, the director of the United Coalition, are valid until they are repealed or amended by law in the House of Representatives.
In 2020, as a result of the death and retirement of several members of the Federal Supreme Court, the court was dissolved due to lack of legal status.
Therefore, in the same year, the presidency submitted a bill to the House of Representatives to amend the Federal Supreme Court Law No. 30 of 2005 to resolve the failure of the Federal Supreme Court.

We believed that this amendment, like the law referred to in Article 92 of the Constitution, must be passed by a majority of one-third of all members of the House of Representatives. However, the Presidency of the Parliament insisted that the amendment to the old law does not require such a majority and, like any ordinary law, will be voted on by a simple majority in accordance with Article 59-2 of the Constitution. Therefore, we did not vote for the law and boycotted the parliamentary session because of the lack of guarantees in the court’s vote, especially on issues related to the constitutional rights of the region. The law was last voted on (18- 3- 2021) (5).
The constitutionality of this law could be appealed after it was passed. But not only that, but the regional authorities nominated two judges for the new court staff and treated them very normally. Here they are in two lawsuits
They appeared before the court and the court decision rejected the appeals against you (6)! Even in the cases involving the oil and gas of the region, they again dealt with the court normally (7)! How can you appeal to the court in the media now that you have already recognized the legitimacy of the court and have not appealed against the constitution?
Based on the above, any talk about the unconstitutionality of the Federal Supreme Court is politically inconclusive and provocative and has no legal value.
Margins:
1. See the text of the law on the site
https://iraqld.hjc.iq/LoadLawBook.aspx?page=1&SC=280220068162081&BookID=22530
2. What further contributed to the failure to resolve the legal quorum of the Federal Supreme Court was the rejection of Article 3 of the law by the court itself, which regulates the method of filling vacancies in the court. See the text of two Federal Court decisions on this subject
https://www.iraqfsc.iq/kraridtest/38_fed_2019.pdf
https://www.iraqfsc.iq/kraridtest/19_fed_2017.pdf

3. See the text of the project:
https://archive4.parliament.iq/ar/2021/03/18/قانون-تعديل-قانون-المحكمة-الاتحادية-ا/

4. Both views have evidence to defend their views. Even the former staff of the Federal Supreme Court in 2012, in response to the Legal Committee of the House of Representatives, indicated that the amendment of the law of the court must be in accordance with Article (92-2) of the constitution. However, to confirm the validity of either opinion, the law had to be appealed to the Federal Supreme Court after its enactment, because the Federal Supreme Court was closed during the debate on the bill (late 2020 and early 2021).

5. See the text of the Act :
https://archive4.parliament.iq/wp-content/uploads/2021/06/4635.pdf