Baghdad: Head of the Supreme Judicial Council, Judge Faiq Zaidan, stated that the constitution constitutes the supreme foundation of the state’s legal structure. It determines the form of the political system, regulates the relationship between the branches of government, and guarantees rights and freedoms.
According to National Iraqi News Agency, Zaidan added in an article: “The judicial interpretation of the constitutional text is not merely a technical process, but a foundational act that affects the entire entity of the state. Hence, the error of misinterpreting the constitution emerges as one of the most dangerous forms of judicial deviation, due to its profound effects that extend beyond the scope of the dispute at hand.”
He emphasized that “the sin of misinterpretation does not stem from a difference of opinion or a diversity of interpretive schools, but rather from a departure from the spirit and objectives of the constitution. Constitutional interpretation must adhere to scientific and methodological standards; otherwise, it becomes a means of rewriting the constitution outside its legitimate mechanisms.”
Zaidan pointed out that “in some cases, a misinterpretation of a constitutional text, especially if it aligns with the interests of a particular authority, may be perceived as political bias, leading to a loss of confidence in the independence and integrity of the constitutional judiciary.”
He emphasized that Article 76 of the Constitution is one of the most controversial constitutional provisions due to its direct connection to the formation of the executive branch. He added that it stipulates that the President of the Republic shall task the nominee of the “largest parliamentary bloc” with forming the Council of Ministers within a specified period. However, the constitutional issue arose in the interpretation of this term.
He further stated that the Federal Supreme Court’s decision of March 25, 2010, remains a subject of jurisprudential and political debate to this day (and was one of the decisions we previously researched and analyzed in our doctoral dissertation and our book entitled “Constitutional Judicial Oversight of the Constitutional Boundaries Between the Authorities 2019-2020”).
He continued, “The issue revolves around defining what is meant by the ‘largest parliamentary bloc’: Is it the bloc that won the highest number of seats in the elections? Or is it the bloc that is formed after the results are announced through alliances within the House of Representatives?”
He clarified that the Federal Supreme Court ruled that the “largest parliamentary bloc” could refer to the bloc that participated in the elections. Under a single name, it won the largest number of seats, or the bloc formed after the elections, within the first session of the House of Representatives, thus becoming the largest bloc.
He added, “This interpretation suffers from several constitutional flaws, most notably its contradiction of the apparent meaning of the text. The text is clear and unambiguous, without any reference to subsequent alliances. This implies-according to a literal reading-that the intended meaning is the bloc that actually wins the elections. This interpretation undermines the will of the voters because it allows for the formation of the largest bloc after the elections, which could alter the political outcome expressed by the voters at the ballot box, thus weakening the principle of popular legitimacy. This leads to political instability by opening the door to subsequent alliances and makes the formation of the government subject to complex negotiations that could last for months, as happened after the 2010, 2018, 2021, and 2025 elections, resulting in recurring political crises, the latest of which we are experiencing today.”
Zaidan added that the term “largest bloc” has become a constant point of political contention due to an interpretation that is more politically motivated than legally sound. Consequently, the court’s interpretation was deemed an unjustified expansion of the understanding of the constitutional text. He pointed out that the Federal Court overstepped its interpretive role and entered a constructive one, not merely interpreting the text but creating a new one. A new constitutional principle, not explicitly stated in the constitution, constitutes an expansion of interpretative power. This interpretation exemplifies the problematic relationship between constitutional text and political reality.
Zaidan emphasized that while the flexibility of the parliamentary system might justify such interpretations, their practical consequences have negatively impacted constitutional stability and public trust in the democratic process.
He explained that addressing this issue necessitates an explicit constitutional amendment that clearly defines the “largest bloc” in a way that leaves no room for interpretation. This would ensure constitutional security and safeguard the will of the voters by definitively determining the “largest bloc” based on the electorally winning list. Alternatively, the issue could be addressed by amending the House of Representatives law to mandate the official registration of the largest bloc during the first session only, prohibiting any subsequent changes to its designation. Another option is for the Federal Supreme Court to reconsider its previous interpretation and adopt a more restrictive one that links the “largest bloc” to the election results, rather than to subsequent open-ended alliances.