Federal Supreme Court and Constitutional Judiciary Bill

1. The unfulfilled constitutional obligation

The 2005 Constitution made the Federal Supreme Court part of the federal judicial authority and described it in Article (92/First) as a financially and administratively independent judicial body. The second paragraph of the same article then prescribed a specific composition of judges, experts in Islamic jurisprudence and legal scholars, leaving their number, method of selection and work to a law enacted by a two-thirds majority of the members of the Council of Representatives. This referral to legislation is not merely formal delegation; it is a requirement for constructing a new constitutional institution on a basis different from the Court established during the transitional period.

The framework in force is Order No. (30) of 2005, adopted before the permanent Constitution took effect and subsequently amended by Law No. (25) of 2021. The amendment reconstituted the Court with a President, a Deputy President and seven regular members drawn from judges, along with reserve members, and determined the selection mechanism, retirement and the Court's jurisdiction. It was necessary to restore the Court's operation after the old appointment mechanism became inapplicable. It did not, however, transform the transitional framework into the law envisaged by Article (92/Second) in respect of the three-category composition required by the Constitution.

2. The 2025 Rules of Procedure

The Ministry of Justice published the Federal Supreme Court's Rules of Procedure No. (1) of 2025 in Iraqi Gazette issue (4837), dated 1 September 2025. The rules regulated procedures for constitutional challenges, interpretation, disputes, certification of election results, conflicts of jurisdiction, challenges to the validity of parliamentary membership, and the issuance and publication of judgments. They repealed Rules of Procedure No. (1) of 2022. A modern procedural framework matters for continuity of work, but essential rules on composition, tenure, selection, quorum, guarantees of independence and the effects of a finding of unconstitutionality should rest on the law required by the Constitution, rather than on internal rules that the Court itself can amend.

3. Institutional developments in 2025

In June 2025, the Court experienced an internal crisis accompanied by requests from several members to retire. A new President of the Court was subsequently nominated and appointed by republican decree; the members withdrew their retirement requests, and the Court resumed its work. This event does not itself warrant a judgment about the Court's decisions or independence. It does, however, demonstrate in practice that permanent constitutional legislation must contain clear rules on succession, vacancies and continuity of judicial functions, rather than leave the Court's stability to situational measures.

4. The problem of procedural jurisdiction

Article (93) gives the Court broad and varied powers: constitutional review, interpretation, federal disputes, disputes between levels of government, constitutional charges, electoral certification and conflicts of judicial jurisdiction. These powers do not all follow the same procedural logic. An individual challenge to a law affecting the claimant's legal position differs from a federal dispute between two governments, a request for constitutional interpretation, or certification of final election results. The law therefore needs flexible procedural chapters with shared principles, rather than a verbatim copy of civil procedure rules.

5. The need to regulate the effects of judgments

Article (94) makes the Court's decisions final and binding on all authorities, but does not specify in detail the temporal effect of a finding of unconstitutionality, how to address the legislative vacuum resulting from invalidation, or how to protect settled legal positions. The bill addresses this through rules allowing, in specified and reasoned cases, the effect of invalidation to be deferred for a short period not exceeding twelve months if immediate invalidation would create a vacuum threatening a fundamental right, a public service or constitutional stability. Exceptions apply to criminal matters in favour of the accused and individual rights where continuing the provision would cause greater harm than the vacuum.

1. A new law, not a second amendment to the transitional order

The most appropriate course is to repeal Order No. (30) of 2005, as amended, and replace it with a new law enacted under Article (92/Second) by a two-thirds majority of the members of the Council of Representatives. The reason is not symbolic: the new law changes the source of the Court's institutional legitimacy from transitional arrangements to the permanent constitutional text, and brings composition, jurisdiction, procedures and safeguards together in one structure.

2. A composition of thirteen members

The bill provides for nine judges, two experts in Islamic jurisprudence and two legal scholars. The majority of judges preserves the Court's judicial character, while experts and scholars have a substantive role in deliberation and voting, as the Constitution requires. No member or category is given a unilateral blocking right. Sectarian or party quotas are not used; instead, publicly stated academic and professional requirements apply.

3. Professional selection requiring broad agreement

The bill establishes an independent nomination committee drawn from multiple sources to evaluate applicants against published criteria, after which the Council of Representatives selects from the shortlists by a two-thirds majority. This formula combines professional scrutiny with public legitimacy. It prevents nomination from becoming the exclusive preserve of one institution and prevents Parliament from making appointments without substantive constraints.

4. A long, non-renewable term

A twelve-year, non-renewable term reduces the incentive to please the appointing authority in pursuit of a second term and allows experience to accumulate. The system begins with staggered replacement so that the entire Court does not change at once when the political majority changes. This approach draws on established constitutional models that use long, non-renewable tenure as a safeguard for independence.

5. Judicial decisions, not component-based settlements

The bill excludes any communal, sectarian or ethnic veto within the Court. Where a case concerns the established provisions of Islam under Article (2), the two Islamic jurisprudence experts participate fully in the analysis, but the decision is issued by the Court as a whole under the Constitution and with judicial reasons. Where a case concerns rights, freedoms or democratic principles, all constitutional constraints are read together. No element of Article (2) becomes a separate authority that overrides the rest of the constitutional text.

6. Regulating interim orders

Interim orders serve a practical need in constitutional adjudication, but may affect laws, elections or budgets before the parties have been heard. The bill therefore requires a serious and imminent risk of irreparable harm, a clear connection to the Court's jurisdiction, specific reasons, a short duration and prompt collective review. An interim order may not be used as a disguised final judgment or to suspend a constitutional institution without extreme necessity.

7. Openness and traceable jurisprudence

The bill establishes a free official database of judgments, decisions, orders and principles, with publication of key written submissions after redaction of data protected by law. It also permits publication of a dissenting or concurring opinion at its author's option. This helps researchers, judges and authorities understand developments in constitutional jurisprudence without affecting the finality of the binding judgment.

1. Why does the bill go beyond amendment?

The first amendment in 2021 served an urgent purpose: it restored the possibility of constituting the Court after the old provision linking nominations to bodies whose legal status had changed became inapplicable. It did not complete the requirement of Article (92/Second), since the constitutional text provides for three categories within the Court. The bill therefore treats Order 30 of 2005 as a transitional framework maintained by necessity, replacing it with a foundational law enacted by the special constitutional majority.

2. Judicial character within a mixed composition

The hardest challenge is reconciling the Court's description as a “judicial body” with its constitutional inclusion of Islamic jurisprudence experts and legal scholars. The bill rejects two extremes: making experts and scholars non-voting advisers, which would deprive their inclusion in Article (92) of effect; and giving them a separate veto, since the Constitution did not create sectarian or professional chambers within the Court. The proposed formula gives them full membership while requiring the deciding majority to include a majority of the participating judges. The Court thus remains judicial and its three-category composition remains substantive.

3. No denominational quotas

The Constitution does not mention denominations or components in regulating Court membership under Article (92). The bill therefore creates no Shia, Sunni, ethnic or party quota for the seats of jurisprudence experts or legal scholars. Selection rests on comparative knowledge and the ability to engage with the constitutional text and Iraq's diversity. Diversity can be achieved in practice through open nomination and broad candidate lists without making denominational affiliation a legal qualification for office.

4. A two-thirds majority for selecting members

Article (92) requires a two-thirds majority to enact the law but does not expressly require the same majority to appoint members. Nevertheless, the law may set a higher selection threshold if proportionate to the objective of independence and consistent with the constitutional provision. The two-thirds requirement aims to prevent a temporary majority from capturing a Court whose judgments are final and binding on everyone. To reduce the risk of deadlock, the nomination committee must promptly submit new lists if voting fails; the threshold may not be lowered automatically.

5. Non-renewable tenure

A member awaiting reappointment may face an incentive, even psychologically, to accommodate the body deciding their future. The draft therefore provides for a long, non-renewable term. Germany's Federal Constitutional Court uses twelve years without re-election, a useful comparative example of using institutional time to protect independence. The bill does not copy the rest of the German model; it draws on this particular mechanism in a manner suited to Iraq.

6. Interim orders

Constitutional adjudication should be able to prevent irreparable harm before judgment. Yet interim measures are more consequential than in civil disputes because they may suspend a law, budget or electoral procedure. The bill therefore increases the required majority in sensitive cases, limits the duration of the order and prevents it from becoming a final resolution before a hearing.

7. Effect of a finding of unconstitutionality

Immediate invalidation is the default because an unconstitutional provision should not continue in force. However, some provisions regulate complex financial, electoral or institutional systems, and their instantaneous removal may cause greater constitutional harm. The bill therefore permits an exceptional, defined deferral of effect, rather than suspension of the Constitution. Conversely, it gives criminal cases the effect most favourable to the accused and prevents protection of earlier legal positions where their continuation is an ongoing violation of a fundamental right that cannot otherwise be remedied.

8. Limits of constitutional interpretation

Constitutional interpretation is not political advice. Requiring a practical disagreement or a genuine institutional effect reduces abstract interpretation requests that could make the Court a participant in decision-making before a dispute arises. This does not prevent authorities from seeking interpretation where ambiguity itself obstructs the exercise of a constitutional power.

9. Constitutional charges

The bill distinguishes constitutional liability from criminal liability. The Constitution gives the Court jurisdiction to determine charges against the President of the Republic, the Prime Minister and ministers, but leaves their regulation to law. For the President, more detailed constitutional provisions govern accountability and removal. For the Prime Minister and ministers, constitutional liability requires a clear federal definition of the relevant acts and referring authority. The draft therefore invents no offences or penalties; it requires legislation defining the elements of the charge before this part of the jurisdiction is fully exercised.

10. Dissenting opinions

Publishing a dissent does not weaken the judgment or open an avenue of appeal. It clarifies points of legal disagreement and records the development of jurisprudence. Only the majority judgment remains binding. This mechanism is particularly suited to a court dealing with open-textured provisions and high-impact federal and rights questions.