Iraqi government documents: reveal the constitutional violations in the 2017 budget

Iraqi government documents: reveal the constitutional violations in the 2017 budget

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Prime Minister Haider al – Abadi revealed in a weekly press conference, dated 14.03.2017, for raising a case at the Federal High Court to challenge the provisions and articles of the Act of the budget for the year 2017, because it is related to the lives of Iraqi citizens, especially now that the country is going through tough times of war, the displacment and financial crisis.
Abadi pointed out that any modification or addition of new materials on the budget by the House of Representatives without the consultation of the government, is a violation of the law according to the Constitution.

Among challenges , Abbadi referred to a parliamentarian mistake , as more than 50 billion Iraqi dinars has been transferred from sensitive allocations to account of members of the House of Representatives; to cover differences in salaries, and did not go to the needy or displaced or poor or infrastructure construction, investment or to the health sector or education, but to the salaries of those who have salaries , stressing the legal right of the cabinet to challenge the transfer before the Federal Court.

The Integrity Committee member Mishan al – Jubouri stressed of the mistake of transfer, in a televised interview, wondering about the reasons for its announcement by Abadi at this time.
As a member of the Finance Committee Magda Tamimi, she stated that ” the House of Representatives during the discussion of the draft of the law of financial budget for the current year, the Parliment went towards the increase in the number of constitutional paragraphs, at a rate of half the items sent by the government, and this is contrary to the Iraqi constitution, ” indicating that “the draft of budget law represents a vision of the Iraqi government, not the viewpoint of parliament.”

And the legal expert Tareq Harb pointed out to change some provisions of the budget law is a violation of the Constitution as stated in Article 62, which restricted the authority of the House of Representatives and limited its power and did not make it absolutely and devoted this power and did not make it public in a way that the law of budget is different from other laws. “As it is a constitutional violation, and gives the government the right to challenge it before the Supreme Federal Court and gives the constitutional basis for this court to abolish the provisions added by the Parliament on the budget law in accordance with the provisions of Article 13 of the Constitution being unconstitutional provisions.

The Abadi said that the voting of members of the House of Representatives on the contested paragraphs that most of Representatives are not aware of them, and were concealed in a professional manner, otherwise they do not agree on them, calling for the disclosure of financial liability for officials and firmness in the follow – up to everyone according to the law, and the fight against corruption in all its forms and go to build the country.
These are the details of the case presented by al – Abadi to the Federal Supreme Court to challenge some of the budget items for 2017, and from the General Secretariat of the Council of Ministers represented by the Prime Minister / in addition to his post / deputy of legal adviser assistant Haider al-Safi on 06.02.2017 number 02/02/68 / 006 827, against the defendant: House Speaker / in addition to his job.

The federal budget of the Republic of Iraq , No. 44 of 2017 has been approved, in the official Gazette of Iraq( al-Waqa’I al-Iraqiyah ) in the issue 4430 in 09/01/2017, as it ensures the inclusion of a number of items were not in the draft law which was submitted to the government, and the inclusion of any amendment to delete or addition, means there are constitutional violations of both formal and substantive of constitutional judiciary in Iraq, so the Council of Ministers decided No. 30 of 2017 to challenge certain provisions and articles contained in the Act for the following reasons:

Article 62 of the Constitution, allowed the House of Representatives to transfer between the sections and chapters of the general budget and reduce the total amounts, and allowed also, if necessary, to increase the amount of total expenditures, but that does not mean to exceed the executive power, having proposed to the Council of Ministers, as responsible for the planning and implementation of public policy of the state.

Article 80 of the Constitution which is concerned with what comes to substantive amendments to the draft submitted by the government, the text of the constitutional judiciary in many of its provisions, including the decision 25 / Federal Court / 2012, dated 22.10.2012, as ruled by the court ” it is not entitled to the House of Representatives for substantive amendments to the draft of the budget submitted by the government “, as well as resolution 21 / Federal / 2015 and 29 / Federal / 2015, as it provided” that the law to replace members of the House of Representatives No. 6/2006 is not among the laws that affect the principle of separation of powers that does no make financial implications added to the executive authority , and does not constitute in contrast with the general policy of the state, and does not affect the public policy of the state, nor the judiciary or their independence, and its own legislation came to work on its duty provided for in Article 61 of the Constitution, and according to the provisions of Article 49 / V , here is the violation : ” the Council of Representatives have no right for the legislation laws without consulting the government or modify the texts proposed by the Council of Ministers , which, if it resulted in additional financial implications, or conflicted with the public policy of the state.
Here irregularities of the Iraqi parliament for constitutional texts, we note in the articles below the following abuses:

– Article 2 / first / F: the recalling the specialties of producing provinces 0.5% of the crude oil revenue, or 5% of refined oil revenues, or 5% of natural gas revenues , to have to choose one of those revenues, provided that the allocation of 500 billion Iraqi dinars for important projects of the province, and the Ministry of Finance to issue treasury bonds to pay off the rest of the amounts mentioned in the case that the amounts allocated for the province did not cover , according to the quantities exported by the Ministry of oil (SOMO) company or any other mechanism, noting that the amounts that the Ministry of Finance should issue treasury bonds to pay off its entitlements are big so that will not be subject to the purchase, and the return mentioned to the ratio included in the law is not possible in the light of the deteriorating oil prices, on the other hand; the BSA has not conducted any investigation required to determine eligibility of the provinces so as the Ministry of Finance to do its duty to be paid by the issuance of treasury bonds.

– Article 8 / V. it made no mention whatsoever to the Ministry of Peshmerga, as it has added the words (including guarantees the salaries of the Peshmerga) , instead of the text adopted in the government project in Article 9 / V / , which provides for the allocation of a percentage of the federal ground forces allocations for the army to Peshmerga according to population ratios as part of the Iraqi security system, as it was the deletion of the phrase (percentage of population) and as Peshmerga part of the security system, the text became inconsistent with the first item of Article 9 / , which stipulates that the Iraqi armed forces and security services of the components of the Iraqi people.
– Article 11 / III / included to add the two ministries to the ministries excluded from appointments which are Displacement and Migration, which leads to the expansion of public expenditure and this is incompatible with the provisions of Article 62 / II of the Constitution.

– Article 11 / V / under which recycles vacancies within the staff movement, as the appointment of post grades shall be allocated to the Ministry of the Interior of the areas liberated from terrorism , and this is contrary to the principle of equal opportunities, passed by the Constitution in Article 16 and Article 23, which guaranteed the right to work for all Iraqis from the sons the province exclusively , which creates financial implications that the government is unable to bear it as a part of the financial crisis.

– Article 11 / Sixth: This article allows the calculation of the contractual service for the purposes of the bonus, promotion, retirement and all the consequent financial implications are incompatible with Article 62 of the Constitution, which allowed transfers between the sections and chapters of the budget and reduce the amount.
– Article 12 / First: that gave an authorization to the governor for the implementation of projects of not more than 10 billion Iraqi dinars, which belongs to the Ministry of Health and the Construction and Housing, municipalities, agriculture, social affairs, culture, youth and sports, but some provinces are still unable the implementation of strategic projects due to the lack of basic factors and cadres.

– Article 14 / V. include compel ministries and departments not associated with a ministry to the resolution of Council of Ministers No. 347 a year in 2015 and this would restrict the council not to amend the law, while the Council should have the flexibility that enables it to manage the affairs of state.

– Article 18 /: This includes the possibility of making contracts with a staff of registration centers and the Department of political parties and organizations, which is a financial burden on the government, because they can appoint all the contractors in previous years, making clear that there is not need for the Commission to contract again, and that requiring the Ministry of Finance to transfer post grades and financial allocations for those who are willing to move from the interior ministry to the other ministries who are carrying university degrees , and this affects the security establishment to the emptying of it from degree holders, under a security difficult circumstances, a matter of appreciation is due to the two ministers specialists on the issue, either to stop the transfer and placement to the three presidencies and re-associate to their constituencies and that if it is acceptable, that will lead to the emptying the presidential institutions of efficient cadres , and there is a paragraph referring to assume the Ministry of Finance to pay the salaries of the retiree from the staff of self-financing corporate and bear the burdens of differences of their contractual amounts from the retirement fund of state employees , here , the Ministry of Finance confirmed that it does not possess financial allocations for it.

– Article 24, which is allocated 50% of the administrative units that have been levying fees, and retaining it will lead to the deprive of public treasury from the important sums of money to finance ministries and projects.

– Article 26 / includes that to expose each issue to the House of Representatives for approval, leading to pushing the legislative power in the executive matters, and this is contrary to the principle of separation of powers confirmed by Article 47 of the Constitution.

– Article 27 stated the preference is for the local product with a percentage of 10% compared to the importer, this ratio is high in light of a difficult financial situation.
– Article 32 concerning the payment of Ministries of State for Foreign commitments in the Arab and international organizations, as we find that there is no link between the payment of what the Iraq international obligations and between receiving a maturity of jobs and administrative positions, as these ruling expenditures are not allowed to be compromised, so what is required for the Ministry of Finance for the feasibility study of investments, contrary to the government’s policy of strengthening Arab cooperation.

– Article 33, which include the distribution of cuts amounting to 3.8% of the salaries and allowances of civil servants and pensioners, as spotted for multiple programs, not including emergency, which means being unconstitutional.

– Article 35 / which included the exemption of raw materials and imported components and products for the generation of electrical and mechanical energy from solar, wind, of the sector companies in productivity, which is used exclusively in the process of production , and this is contrary to the government text subjecting all goods for fees , with the exception of contracts concluded before 1/1 / 2017, which aim to maximize the resources of the state and part of the profits goes to supplement the state treasury.

– Article 47, which dealt with the redeployment of operational allocations for unions, federations and associations, except for international contributions to conferences, to the Ministry of Labour and Social Affairs, by the rehabilitation of women and children and widows of liberated areas, leading to increased public expenditure as the State is obliged under the Constitution to provide support to unions, and this is contrary to the Constitution according to the provisions of Article 22 of the Constitution.

– Article 48, which the federal government and the Oil Ministry has committed to review the contracts of the oil licensing rounds to modify items for the economic benefit of Iraq, and these contracts binding the two parties (Iraq side, companies), and the second party has to accept .

– Under article II committed the Ministry of Finance to make set-off between the debt owed by the company and its dues towards the companies, and this is not possible, as it is resulted to the Oil Products Distribution Company a financial debt of profits that it have not been settled with the debt owed by ministries.
– Article 49 under which the redeployment of 10 billion Iraqi dinars from the allocations of Ministry of Displacement and migration to the Finance Ministry, to cover the fees and interest of mortgage grants from the real estate Bank granted for (Anbar, Nineveh, Salahuddin) and the breadth of the size of the liberated areas, and the magnitude of the financial crisis, making the state treasury is unable to meet those obligations, requires strengthening the Ministry of Displacement and migration capabilities for the advancement of legal obligations and to alleviate the suffering, not withholding it.

– Article 52 / to modify the agenda of ruling expenditure to be medical equipment and medical supplies, rather than government text, which is limited to medicine, which affects the health situation due to the limited medicines allocations.

– Article 56 / includes the revenues of border crossings limited by the law provinces , for the development of infrastructure for ports, borders and its neighboring areas, and the work to be started in 2017; because it is included in the overall budget allocations specified by the law of budget.

– Article 57 under which the withheld interest of the peasants in favor of the Agricultural Bank for the first year and subsequent years will be similar to the interest rates of bank Rafidain and Rasheed, as the contract is the legislation of contractors , which means that the interest from farmers is obligatory .
– Article 59 / which included transfers amounts from points to other destinations that will affect the Basrah Gas dues.

After viewing the constitutional violations and the amendments made by
The House of Representatives and the paragraphs added to the government project as it came in a suit of Abadi on the head of the House of Representatives in addition to his job, Abadi confirmed it involves an exceeding to the executive role of the government and contrary to the legislative mechanism set by the Constitution.

He also stressed that it is a clear violation of the principle of separation of powers included by Article 47 of the Constitution and the confiscation of the means and the tools to the advancement of the tasks assigned to them under Article 80 of the Constitution and contrary to what is passed by the Iraqi constitutional court, the claim has come for the unconstitutionality of the articles listed above mentioned and must be canceled for violating the provisions of the Constitution.

Al – Abbadi called for lifting phrases of Displacement and Migration, and the Ministry of Electricity contained in article 11 , item III, and calculating the contractual service for the purposes of the bonus and the signing and the contract, contained in Article 11 / VI and re – associates to the three presidencies from their original constituencies, contained in Article 18 / e.
Abadi stressed in the suit on showing of every issue on the House of Representatives for approval, contained in Article 26, the domestic product contained in Article 27, and the inability of first item of Article 33 of the law mentioned above and the phrase of a medical equipment and supplies, as contained in the second clause of Article 53 for the previous reasons.

Shatha Khalil

Translated by: Mudhaffar al-Kusair
Unit Economic Studies

Rawabet Center for  Research and Strategic Studies