The Federal Supreme Court issued a decision that the posts mustn't be distributed based on the decision of sharing.
Ayass AL-Samok the spokesman of The Federal Supreme Court issued the following statement:
The Federal Supreme Court held its session headed by the judge Madhat AL-Mahmod and the attendance of all the judges, and it issued the following judgment:
'' during the scrutiny and deliberation by the Federal Supreme court, the court found that the plaintiff- through his agent and after limiting his case in the argument held on 14/10/2019- requested from the court to decide the unconstitutional of the clause (6) from the legislative decision No.(44) for 2008 that legislated by the Council of Representatives, ratified by the presidential council, published by the gazette No.(4102) on 24/12/2008.
The text of the clause is '' ((the agreed demands of the electoral lists and political blocs shall be applied in accordance with their entitlements in the state organs for the positions of undersecretaries of ministries, heads of bodies, institutions, special grades and the Council of Representatives shall expedite the ratification of special grades.)).
The plaintiff claimed in his case that the text, under challenge, enacted by the electoral lists and the political blocs themselves in order to be the only ones who take positions, including special grades in the state, and prohibited others to obtain these positions contrary to the Constitution.
The power to submit the names of candidates to the Council of Representatives for appointment to positions and occupy the special grades is determined by Article (61/5th) of the Constitution, and it didn’t include (lists and political blocs).
The plaintiff added '' the Council of Representatives isn't competent to issue legislative decisions, such as the legislative decision -under challenge-.''
The Federal Supreme Court finds that the House of Representatives legislation No.(44) of 2008 was in the presence of the (Presidency Council), which its role was ended after the end of the first session of the Council of Representatives subsequent to the entry into force of the Constitution of the Republic of Iraq of 2005, although that jurisdiction has no substantiation from the Constitution Except in the areas stipulated by the Constitution exclusively and not including the issuance of legislative decisions an alternative to the laws and in accordance with the contexts established by the Constitution to issue laws.
This is what the Federal supreme court decided in the judgment issued in case No.(140/federal/2018) and unified case No.(141/federal/2018) on 23/12/2018.
On the other hand, The Federal Supreme Court finds that the electoral lists and the political blocs requesting of positions of undersecretaries of ministries, the presidency of bodies, special grades in the state organs based on their entitlements have no substantiation from the constitution because these titles are just a functional titles and the constitution determined in article (61/5th) the bodies that shall nominate who occupied the positions according to the competent and efficiency. These bodies were mentioned exclusively in the article (61/5th) from the Constitution and including (the electoral list and the political blocs) and going to what contrary to what stipulated by the constitution made what so-called (the political sharing) in the distribution of the posts that were listed and what happened of negativisms that affected the state path aren't in the public interest.
In addition to violating the principle of equality among Iraqis as stipulated in Article (14) of the Constitution, which obliged equality between Iraqis before the law without discrimination because of sex, race, nationality, origin, color, religion, creed, belief, opinion, economic or social situation. Also, it violated -the subject of the appeal- the principle of equal opportunities provided for in Article (16) of the Constitution, which guaranteed all Iraqis to obtain their chances to hold office and other positions in the State on the basis of competence, specialization and other requirements for the occupation of public office. The constitutional article obliges the State to ensure the application of this principle.
Accordingly, the Federal Supreme Court verified that the clause in- the subject of appeal- violated the constitutional principles contained in the aforementioned articles, which are ruling articles and Article (2/1st/ Jim) of the Constitution prohibited to enact legislation contrary to them.so the court decided the unconstitutionality of the clause (6) from the decision of the Council of Representatives issued by the gazette No.(4102) on 24/12/2008 and to annul the work under it and to burden the defendant all the expenses and fees of the advocacy for the two agents of the plaintiff amount of hundred thousand Iraqi dinars.
the court issued the decision unanimously, decisive and obliged all the powers according to provisions of article (94) from the constitution and the article (5) from the law of the Federal supreme court No.(30) of 2005. The court recited the decision publicly in the session held on 28/10/2019
