The constitution constitutes the supreme rule within the legal structure of the state. It defines the form of the political system, regulates the relationship between the authorities, and guarantees rights and freedoms. Therefore, judicial interpretation of constitutional provisions is not only a technical operation; rather, it is a foundational act that affects the entity of the state as a whole. Hence, the sin of misinterpreting the constitution emerges as one of the gravest forms of judicial deviation, given its profound consequences that extend far beyond the limits of the dispute at hand. The sin of misinterpretation does not mean a difference of opinion or diversity of interpretative schools. Rather, it lies in departing from the spirit and objectives of the constitution, attributing to the text meanings it cannot bear, disregarding the historical and political context in which the provision arose, and prioritizing temporary or political considerations over established constitutional principles. Constitutional interpretation must be governed by scientific and methodological standards; otherwise, it becomes a means of reshaping the constitution outside its legitimate mechanisms. In some cases, an erroneous interpretation of a constitutional provision—particularly if it aligns with the interests of a particular authority—may be perceived as political bias, thereby eroding confidence in the independence and integrity of constitutional adjudication. Article (76) of the Constitution of the Republic of Iraq of 2005 is among the most controversial constitutional provisions due to its direct connection with the formation of the executive authority. It stipulates that the President of the Republic shall designate the nominee of the “largest parliamentary bloc” to form the Council of Ministers within a specified period. However, a constitutional issue arose regarding the interpretation of this term, which the Federal Supreme Court of Iraq addressed in its decision No. (25/Federal/2010) dated 25/3/2010. This decision remains the subject of scholarly and political debate to this day (and was one of the rulings previously examined and analyzed in our doctoral dissertation and in our book entitled Judicial Supervision of Constitutional Boundaries Between Authorities 2019–2020). The controversy centered on defining the meaning of the “largest parliamentary bloc”: is it the bloc that won the most seats in the elections? Or is it the bloc formed after the announcement of the results through alliances within the Council of Representatives? The Court held that the term “largest parliamentary bloc” may refer either to the bloc that participated in the elections under a single name and won the highest number of seats, or to a bloc formed after the elections from two or more lists during the first session of the Council of Representatives, thereby becoming the largest in number. This interpretation was marked by several constitutional shortcomings. Foremost among them is its inconsistency with the apparent wording of the provision, which was formulated clearly without reference to subsequent alliances—indicating, according to a literal reading, that the intended meaning is the bloc that actually won the elections. Moreover, this interpretation affects the will of the electorate, as permitting the formation of the largest bloc after the elections may alter the political outcome expressed by voters at the ballot box, thereby weakening the principle of popular legitimacy. It also contributes to political instability by opening the door to post-electoral alliances and making the formation of the government subject to complex negotiations that may extend for months, as occurred after the elections of 2010, 2018, 2021, and 2025, leading to recurring political crises—the latest of which we are experiencing these days and which may be repeated in the upcoming elections. The term “largest bloc” has thus become a permanent axis of political conflict due to an interpretation whose impact is more political than legal in effect. Accordingly, the Court’s reasoning has been regarded as an unjustified expansion of the understanding of the constitutional text. In doing so, the Court moved beyond an interpretative role into a constructive one; it did not merely interpret the provision but effectively created a new constitutional rule not expressly stipulated in the constitution, which constitutes an expansion of interpretative authority. This interpretation represents a model of the problematic relationship between constitutional text and political reality. While it may be justified by the flexibility inherent in the parliamentary system, its practical consequences have revealed negative effects on constitutional stability and public confidence in the democratic process. Therefore, addressing this issue requires an explicit constitutional amendment that clearly defines the meaning of the “largest bloc” in a manner not open to interpretation, thereby achieving constitutional certainty and safeguarding the will of the electorate by definitively resolving the matter in favor of the criterion of the electorally winning list. Alternatively, the issue may be addressed by amending the Law of the Council of Representatives to require the official registration of the largest bloc exclusively during the first session and to prevent any change to the status of the “largest bloc” once established. Another option would be for the Federal Supreme Court of Iraq to reconsider its previous interpretation and adopt a restrictive reading that links the “largest bloc” to the election results rather than to subsequent open-ended alliances.

Civilized states with democratic systems are keen to incorporate into their constitutions and laws the principle of the rule of law, given that law is, in reality, the supreme authority in all states that require their citizens to submit to the law without discrimination, as it constitutes the cornerstone for building the state and achieving justice. An example of this is the Constitution of the Republic of Iraq of 2005, which provides in Article (5) that “sovereignty belongs to the law.” Article (20) of the German Basic Law of 1949 also states: “The Federal Republic of Germany is founded on the principles of democracy, popular sovereignty, and the rule of law.” Article (1) of the Constitution of South Africa of 1996 provides: “The Republic is founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Democracy and the rule of law.” The Egyptian Constitution of 2014 provides in Article (94) that “the rule of law is the basis of governance in the State, and the State is subject to the law.” The Constitution of the United Arab Emirates of 1971 provides in Article (25) that “the law is the foundation of governance in the Union. Justice and equality are the pillars of governance, and all are subject to the law, rulers and the ruled alike.” The Moroccan Constitution of 2011 provides in Article (6) that “the law is the highest expression of the will of the Nation, and all, whether natural or legal persons, including public authorities, are equal before it and bound to comply with it.” The Algerian Constitution of 2020 provides in Article (8) that “the State is founded on the principles of democratic organization, social justice, and the rule of law.” Likewise, the Universal Declaration of Human Rights (1948) states in Article (7) that “all are equal before the law.” As for the judiciary, being the competent authority for applying the law, its independence is the only guarantee for achieving the principle of the rule of law. This independence is derived from the provisions of the Constitution itself, as Article (19) of the Iraqi Constitution provides that “the judiciary is independent, and no authority is exercised over it except that of the law.” Article (184) of the Egyptian Constitution of 2014 provides that “the judicial authority is independent.” The Basic Law of Governance of the Kingdom of Saudi Arabia affirms in Article (46) that “the judiciary is an independent authority.” Likewise, the Tunisian Constitution of 2014 provides in Article (102) that “the judiciary is an independent authority.” From the foregoing, it is clear that the “authority of law,” and the competent body for applying the law, namely the “independent judiciary,” is an authority grounded in the Constitution and the law, and is not merely a desire to expand and encroach upon the legislative or executive authorities in the exercise of their competences guaranteed under the Constitution, and in accordance with the principle of separation of powers set out in Article (47) of the Iraqi Constitution of 2005. This is because exercising legislative or executive competence under the Constitution is one thing, while the subjection of the legislative and executive authorities to the law in the event of a violation is another. Given the importance of everyone’s subjection to the provisions of the law as a guarantee for achieving justice and equality in society, the judicial authority is also governed by the supremacy and sovereignty of the law and cannot override it, as evidenced by the fact that judges are held accountable if they commit acts that violate the law, like all other citizens. As for the judiciary’s consideration of certain matters of a political nature, this too is imposed by the Constitution and the law. For example, Article (19) of the Independent High Electoral Commission Law No. (31) of 2019 provides that the Supreme Judicial Council shall form a judicial electoral body competent to consider appeals against the decisions of the Board of Commissioners. The exercise of this competence is, of course, a judicial exercise of a political character, because elections are a purely political process, yet adjudicating disputes related to that process fall within the jurisdiction of the judiciary. Likewise, adjudicating constitutional disputes that fall within the jurisdiction of the constitutional judiciary are also disputes that are political in nature. Therefore, we believe that there is a practical reality imposed by the Constitution and the law, namely that the authority of law and the judiciary is a constitutional and legal authority.

A legal consequence is the effect resulting from a violation of the law, and it is imposed by the judiciary. It may take the form of a criminal consequence against whoever violates criminal law, either through a physical punishment inflicted on the human body, such as the death penalty, or through a punishment affecting a person’s liberty by imprisonment or detention. The punishment may also be financial. The second form of legal consequence is the civil consequence, which results from the violation of laws other than criminal law. It is imposed when a private right is infringed or denied, without such infringement affecting the public interest or undermining the social order. Its outcome is the repair or removal of the harm, and it is therefore a private right belonging to the injured party. The third form of legal consequence is the disciplinary consequence, which is imposed upon violating the law regulating public service, such as the penalty of reprimand, warning, or dismissal, which is imposed by the administrative superior on the violator. As for the violation of a constitutional rule, the legal consequence takes two forms. The first is an unregulated consequence represented by popular pressure to protect constitutional rules, because the authority that violates the Constitution does not acknowledge such violation; rather, it presents interpretations of its conduct in an attempt to appear before public opinion as not having committed anything contrary to the Constitution. In addition to this consequence, the second form consists of the regulated consequence for protecting the constitutional rule, through the Constitution’s provision for reciprocal oversight between the legislative and executive authorities in a manner that achieves balance between them. The constitutions of states that adopt the parliamentary system provide equal means of pressure and reciprocal oversight for each authority in confronting the other, so that neither dominates the other and disrupts this balance. Among the most important tools available to the legislative authority vis-à-vis the executive authority are interrogation and the withdrawal of confidence, and this tool is provided for in the Constitution of the Republic of Iraq of 2005 in Article (61/Eighth). Conversely, the dissolution of Parliament is the principal balancing instrument between the legislative and executive authorities, and it is the most important tool available to the executive authority in confronting the legislative authority. It is a weapon parallel and corresponding to Parliament’s right over the government to compel it to resign or to withdraw confidence from it. The Constitution of the Republic of Iraq of 2005 provides for the procedures for dissolving the Council of Representatives pursuant to Article (64/First), through two methods. The first is self-dissolution, which falls within the competence of the Council of Representatives itself, upon the request of one-third of its members and a vote of approval by the absolute majority of its members. This procedure is not expected to occur in practice, as it would mean that the legislative authority has imposed the consequence (dissolution of Parliament) upon itself. The second method consists of a request by the Prime Minister, with the approval of the President of the Republic, submitted to the Council of Representatives. The text stipulates that this request shall take effect only upon the approval of the absolute majority of the members of the Council of Representatives. The right of dissolution under these conditions will be difficult to exercise, and thus the executive authority loses its means of influencing the legislative authority, while the Council of Representatives retains a means against the government, which undermines the political and constitutional balance between the two authorities (and we addressed this problem in detail in the PhD dissertation submitted to the Islamic University in Beirut in 2020). Today, the Iraqi political reality witnesses an explicit violation of a constitutional rule stipulated in Article (72/Second/B) of the Constitution, which defines the duration for the President of the Republic to continue exercising his duties beyond the end of the elections of the new Council of Representatives and its convening, within a period not exceeding thirty days from the date of the first session of the Council, and requires the election of a new President of the Republic during that period. However, this did not occur due to the lack of political agreement among the parties and political forces constituting the Council of Representatives. Although the Federal Supreme Court made an effort to find a way out of this constitutional violation when it permitted the President of the Republic to continue exercising his duties until a new President is elected, pursuant to the decision issued on (13/2/2022) No. (17/Federal/2022), this effort, although necessary to avoid a vacancy of the office and the resulting procedures that are politically disputed, was not sufficient to address the continued violation of the Constitution for an indefinite period due to the two-thirds majority requirement stipulated in Article (70/First) of the Constitution regarding the quorum for convening the session of the Council of Representatives designated to elect the President of the Republic, and the absence of any constitutional consequence for this violation. Therefore, we believe that the constitutional text set out in Article (64/First) should be amended so that the dissolution of the Council of Representatives is affected by a decision of the Prime Minister with the approval of the President of the Republic, provided that it shall not be during the period of questioning of the Prime Minister. In this way, balance between the legislative and executive authorities is achieved, so that the legal consequence of violating the constitutional rule is imposed by a decision of the legislative authority, in the event of its violation by the executive authority, through withdrawing confidence from it. Conversely, the legal consequence would be imposed by a decision of the executive authority (the Prime Minister and the President of the Republic jointly) in the event of the constitutional rule being violated by the Council of Representatives, through dissolving the Council without the requirement of the Council of Representatives’ approval of the dissolution procedures. To ensure that the executive authority does not abuse its power in imposing the consequence of dissolving the Council of Representatives, and due to the particular importance of this procedure, the dissolution decision issued by the executive authority should be subject to appeal before the Federal Supreme Court.

Judges are entrusted with the proper application of the law to ensure the protection of rights upon which society is built and justice prevails. Therefore, the conduct of judges, whether in the performance of their official duties or outside of them, should be commensurate with the trust placed in them. The law imposes on judges’ obligations similar to the duties of employees and public service assignees across the various sectors of the State, given that a judge is also charged with providing a public service. The judicial office imposes its moral standing, and full responsibility rests upon the judge’s character through obligations that ensure the honor and integrity of judicial work. These include the obligation to exercise due care to avoid error; otherwise, the judge becomes subject to accountability, which constitutes the true foundation of the legal system. Indeed, what value would the law have if it did not ensure the accountability of the wrongdoer? In countries that respect the law, everyone is subject to the rule of law, whether members of the legislative and executive authorities or the judiciary, which is more deserving than others of being subject to the rule of law, given that it is responsible for applying it. However, the accountability of judges naturally differs from the accountability of members of the legislative and executive branches due to the nature of judicial work and the independence and impartiality that judges must enjoy. Therefore, the mechanism for holding judges accountable for the errors they commit must not undermine such independence and impartiality. Accordingly, the law provides judges with immunity, as Article (64) of the Judicial Organization Law No. (160) of 1979 stipulates that a judge may not be arrested or criminal proceedings taken against him, except in the case of being caught in the act of committing a felony, unless prior authorization is obtained from the President of the Supreme Judicial Council. Nevertheless, this immunity is not absolute, as judges may be held accountable for any act constituting a violation of the Constitution and the law, as well as acts of negligence and dereliction that may occur during the exercise of judicial work. The penalty imposed on a judge may even reach termination of service pursuant to the provisions of Article (58/Third) of the Judicial Organization Law if a final judgment is issued against him by a competent court imposing a penalty for an act inconsistent with the honor of the judicial office. Article (61/First) of the aforementioned law also provides that the Judges’ Affairs Committee shall decide to refer a judge to the competent court if it finds that the act attributed to him constitutes a felony or a misdemeanor. Accordingly, a judge, like other citizens, is subject to criminal accountability if he commits any act criminalized under the Penal Code and other laws. By way of example, Article (234) of the Penal Code No. (111) of 1969 punishes a judge with imprisonment and a fine if he issues a judgment that is proven to be unjust. Likewise, a judge, like employees and public service assignees, is subject to the provisions of Article (1/29) of the Penal Code if, through his judgment, he causes the obstruction of the implementation of a constitutional provision or an enforceable law. He is also subject to the provisions of Article (330) of the aforementioned law if he deliberately breaches one of the duties of his office. We believe that these legal texts, among others, which apply to judges in respect of acts they commit in violation of the Constitution and the law, and their serious application, contribute to strengthening public confidence in the judiciary. When a citizen sees a judge being punished for committing acts that violate the Constitution and the law, confidence in the fairness of the judiciary will be reinforced. However, if a judge is safe from the consequences of violating the Constitution and the law merely because he is a judge, this leads to a decline in confidence in the judiciary, because those in charge of it are not committed to the Constitution and the law. How, then, can one trust their application of the provisions of the Constitution and the law to others? The duty to uphold the Constitution and the enforceable laws and to apply them with honesty, integrity, and impartiality is the foundation upon which judicial work rests. Therefore, the legislator was keen to stipulate this obligation within the wording of the oath taken by a judge before assuming judicial duties, pursuant to Article (37/Second) of the Judicial Organization Law No. (160) of 1979 and Article (7) of Order No. (30) of 2005 (Law of the Federal Supreme Court). Here, I address my call with affection and sincere concern to my female and male colleagues, the honorable judges, to keep in mind that justice is one of the Names of Allah, and the judiciary is a ray of His light; the achievement of justice is fundamental to the mission of the prophets and messengers whom Allah sent with the Book and the Balance. Through the judiciary, blood, honor, and property are safeguarded, and the mandate of the judiciary is among the highest of mandates in rank, the greatest in stature, the most esteemed in standing, and the most honorable in mention. Therefore, all judges must distance themselves from any conduct that violates the Constitution or the law.

Article 76, paragraph (First), of the Constitution lays down a governing provision stating: “The President of the Republic shall charge the nominee of the largest parliamentary bloc with forming the Council of Ministers,” which we consider to be the bloc that won the elections, not the one that is formed afterward, contrary to the opinion of the Federal Supreme Court with which we do not agree regarding the interpretation of the concept of the “largest parliamentary bloc.” The word “nominee” means that some entity has nominated him, and paragraph (First) above identifies the competent nominating entity as “the largest parliamentary bloc.” As for what is stated in paragraph (Third), which provides for “a new nominee,” and paragraph (Fifth), which provides for “another nominee,” these mean the charging of a new nominee from the bloc referred to in paragraph (First), i.e., the largest parliamentary bloc. In other words, the person charged by the President of the Republic must be nominated to him by a parliamentary bloc, and it is illogical to accept the assumption that the President of the Republic may charge a nominee of his own to form the Council of Ministers, because that would mean the President of the Republic nominates a specific person for himself and, at the same time, charges that nominee, which is inconsistent with rational logic. Had the constitutional legislator intended for the President of the Republic, acting alone, to nominate and charge someone to form the Council of Ministers without referring to the largest parliamentary bloc, it would have been possible to state that through a different term or expression other than the term “nominee.” Moreover, the President of the Republic acting alone in nomination and charging contradicts Iraq’s system of government, whose form is set out by the Constitution’s provision stating that the system of government is a republican, representative, parliamentary one. One of the basics of this system is that the nominee for the post of Prime Minister is named through the blocs or political parties that make up Parliament, unlike the presidential system in which the President of the Republic alone names the Prime Minister. From this, we conclude that the repeated use of the phrase “the President of the Republic shall charge,” and the repeated use of the word “nominee” in paragraph (First), “a new nominee” in paragraph (Third), and “another nominee” in paragraph (Fifth) of Article 76 of the Constitution reflects the constitutional legislator’s intent to confine the President of the Republic’s role to designation only, while the right of nomination belongs to the bloc referred to in paragraph (First) of Article 76, the meaning of which extends to paragraphs (Third) and (Fifth) of Article 76 of the Constitution. The right of nomination does not transfer to the President of the Republic at all, even if the Prime Minister-designate fails to form the ministry and the thirty-day period stipulated in paragraph (Second) of Article 76 of the Constitution expires. We do not agree with the interpretation set out in Federal Supreme Court Decision No. 29/Federal/2020 dated 16 March 2020 regarding the transfer of “exclusive authority” to the President of the Republic to charge a new nominee, because this interpretation is incorrect, as the President of the Republic’s authority is confined to charging only, not nomination, for the reasons stated above, Especially since this decision is null and void ab initio, as it is legally non-existent because it was issued by a court that did not meet the required quorum and the convening requirement stipulated in Articles (3) and (5) of the aforementioned Court Law No. (30) of 2005, due to the participation of one of the retired judges from the Federal Court of Cassation in issuing this decision without any legal basis permitting that.