03/18/2024
⛔️⛔️⛔️MUST READ⛔️⛔️⛔️
⛔️⛔️⛔️MUST READ⛔️⛔️⛔️
⛔️HISTORICAL LETTER⛔️
⛔️HISTORICAL LETTER⛔️
⛔️⛔️FEDERAL JUDGE⛔️⛔️
⛔️⛔️RESIGNATION⛔️⛔️
⛔️FULL TRANSLATION⛔️
⛔️FULL TRANSLATION⛔️
To the Honorable heads of Federal Authorities,
To the Honorable heads of Kurdistan Region Authorities,
And, to the Public Opinion in Iraq, particularly in the Kurdistan Region,
May the peace, blessings, and mercy of Allah be upon you
For almost three years now, I have directed my job as a judge and a full member of the Federal Supreme Court, being a holder of a doctoral degree in Constitutional Law, in addition to my academic focus which is represented in my dissertation entitled "The Judiciary in Federal Systems - A Comparative Study." having over 30 years of judicial service, I assumed the position representing the Kurdistan Region according to Article (3/second) of the Amended Federal Supreme Court Law No. 30 of 2005, as further amended by Article 1 of Law No. 25 of 2021 (First Amendment to the Federal Supreme Court Law), which includes a provision states: "with representation of the regions." I utilized my professional and academic capabilities to solidify the pillars of democracy in Iraq through my work in the court. Among my endeavors was striving to uphold and protect the principles and foundations of the federal regime, particularly representing and safeguarding the constitutional entitlements of the Kurdistan Region. Among the things I have been keen on was an attempt to contribute to the consolidation and protection of the foundations and components of the existing federal regime, primarily based on the distribution of power among federal institutions and authorities at all levels on one hand, and the institutions and authorities of the Kurdistan Region on the other hand, considering the former as the only region formed and constitutionally recognized since the constitution came into effect until now. This region, which existed even before the constitution came into effect, is the fruit of the long struggle and sacrifices of the Kurdish people, and their uprising in 1991.
It's no secret to anyone that the Constitution of the Republic of Iraq for the year 2005 (the Federal Constitution) is considered the social contract and the sacred political document upon which the new Iraq was built after the overthrow of the former authoritarian regime. All components of the Iraqi people participated in its formulation and subsequent approval, considering it to represent the minimum rights and entitlements of all those components. Adherence to the provisions and principles of this constitution is the guarantee of Iraq's unity as a federal state, as stated in the preamble of the constitution. Personally, I hoped - and worked to the best of my ability - to be the best representative and defender of the rights and entitlements of all components of Iraq and the institutions of the federal state in general, and the constitutional entitlements of the Kurdistan Region in particular, as I represented them based on the article I referred to earlier.
However, after nearly three years in office and observing successive rulings of the latest constituted Federal Supreme Court, I have come to the personal conviction that my presence and tenure as a judge no longer serve the intended purpose of preserving constitutional principles. Specifically, I found myself unable to effectively defend the interests of the Kurdistan Region as a constitutionally recognized entity within the Federal Constitution.
Several factors contributed to this realization:
1. Through my practice and observation, I noticed a trend in the court's rulings gradually veering towards centralization, departing from the principles of the federal regime. This was manifested in expanding the exclusive powers of federal authorities specified in Article 110 of the 2005 Constitution at the expense of the powers granted to regions or unorganized governorates within a region, or the joint authorities specified in subsequent articles.
2. Constitutional courts in all political regimes that adopt the federal systems serve as a guarantee to protect and consolidate this system and maintain the balance between federal authorities and state or regional authorities, preventing each level of governance from exceeding the powers of the other level. The designation of the court as a "federal" originally stems from the federal system clearly endorsed by the constitution in several articles, notably Articles 1 and 116. Furthermore, it is logical that the concern of the constitutional court in any country to protect the powers of regions or states should outweigh its concern for federal authorities, as the latter, by their nature and scope of powers, are in a stronger position than regional ones. However, what I observed was the opposite as I mentioned earlier.
3. The Iraqi Constitution of 2005 is considered among the rigid constitutions where the constitutional legislator or the founding fathers insisted on subjecting its amendment to complex procedures to protect the agreed-upon constitutional principles and the rights of all parties, components, and levels of governance. However, what has been observed in the orientations and decisions of the Federal Supreme Court and its interpretations of the Constitution in many cases represents a tendency towards broad and expansive interpretation beyond the context, potentially reaching the level of a constitutional amendment, thus undermining many constitutional principles including the federal principle and the principle of separation of authorities. This has diminished the value and the essence of the Constitution's rigidity.
4. Due to the absence of restrictions and the enactment of a new law for the Federal Supreme Court following Article 92 of the Constitution, the provisions and texts of Law No. 30 of 2005 concerning the formation of the court and the voting mechanism during the issuance of judgments and decisions, which were enacted before the 2005 Constitution, made the representatives of the Kurdistan Region (which are two judges) numerically incapacitated to prevent decisions and judgments considered detrimental to the rights and constitutional entity of the region. Therefore, the most they could do was to dissent from the majority opinion. Personally, we expressed our constitutional and legal opposition in many judgments and decisions. But as I previously stated, it proved futile since decisions could be made by majority vote rather than consensus.
For all the above reasons, and out of a sense of responsibility to the people of the Kurdistan Region, all its components, and its constitutional institutions, I hereby announce my withdrawal from the membership of the Federal Supreme Court due to the realities mentioned above, which have made it impossible to achieve the objectives for which I assumed the position, and the inability to change the court's directions, as previously mentioned…
May Allah guide us and be our helper in all matters.
Judge Dr. Abdulrahman Suleiman Zibari
Member of the Federal Supreme Court
March, 2024