By Dr. Saman Shali
What are the legal consequences of breaking a constitutional oath?
(Breaking the oath has consequences, and no one is above the law)
(There is no crime or punishment except by law)
The legal consequences of violating the Constitution can vary in many countries. Public officials, including government officials and elected representatives, must take an oath before assuming the responsibility to uphold and abide by the Constitution.
Constitutional oaths are taken seriously in many legal systems, and violations can lead to legal consequences. There are some potential legal consequences for breaking a constitutional oath in Iraq. On November 2023, the Iraqi Federal Court removed the Speaker of the Iraqi Parliament, Mr. Muhammad Rekan Al-Halbousi, because he broke his constitutional oath. This decision by the Federal Court sparked a political storm and controversy over this decision between its supporters and its opponents, who consider it a political decision par excellence.
However, in the merits of its decision, the court considered that breaking the oath and the legal penalty is more important than any written or unwritten law, noting that this interpretation does not exist in the Iraqi Constitution and violates Article 19 Second (There is no crime or punishment except by law, …). However, instead, it is an interpretation of the spirit of the Constitution, as are the tasks of the Constitutional Court, Article 93 Second. It would have been better for the Federal Court to ask the Iraqi Parliament to lift parliamentary immunity from the Speaker of Parliament before issuing the ruling because the Member of Parliament enjoys constitutional immunity, as stated in Article 63 Second. If we consider the legal case against the former Speaker of Parliament, Mr. Salim Al-Jubouri, who asked Parliament to lift his immunity so that he could stand before the law, and when he proved his innocence, the Parliament restored his immunity. Then, he exercised his duties as Speaker of Parliament. However, the Federal Court did not consider this constitutional article.
In general, if someone violates their constitutional oath, they may face legal consequences such as:
1. Removal from Office: One common consequence is the individual's removal from the position or office. The removal may occur through impeachment, recall elections, or other legal mechanisms specified in the relevant legal framework.
2. Criminal Charges: Depending on the seriousness of the violation, the person may face criminal charges. Treason, perjury, or other offenses involving breaking the constitutional oath may be brought against anyone for this violation without exception.
3. Civil Penalties: Individuals may be subject to civil penalties, fines, or other financial consequences.
4. Disqualification from Public Office: A breach of a constitutional oath may result in disqualification from holding public office in the future. This disqualification could be a temporary or permanent restriction.
5. Loss of Benefits: Public officials may lose certain benefits or privileges associated with their position if they violate their constitutional oath.
6. Public Censure: There may be public and political repercussions besides legal consequences. The individual may face public censure and damage to their reputation.
It is important to note that the specific legal consequences will depend on the laws and constitutional provisions of the particular jurisdiction involved. Constitutional oaths are taken very seriously, representing a commitment to a legal system's fundamental principles and values. The enforcement of consequences for violating such oaths is crucial to maintaining the integrity of the legal and political system.
Every Iraqi official who takes the constitutional oath is subject to removal from office. Based on this legal framework, the Iraqi President considered a protector of the Constitution (Article 67), must also be removed from office according to (Article 61VI B) because he did not protect the Constitution on many occasions, such as approving the Iraqi budget and remaining silent about the Prime Minister's violations of the government's program. Which he constitutionally swore to implement.
The Iraqi Prime Minister, Mr. Muhammad Shiaa al-Sudani, took the constitutional oath before the Iraqi Council of Representatives after presenting the ministerial platform for his government (Article 76 IV) along with the political agreement document between the Shiite parties (except the Sadrist movement) and the Sunni and Kurdish parties. The PM sincerely promised to achieve it on the scheduled dates to implement it.
"The epidemic of corruption that has affected all aspects of life is more deadly than the coronavirus pandemic and has been the cause of many economic problems, weakening the state's authority, increasing poverty, unemployment, and poor public services," Mr Al Sudani said in his speech to Parliament on October 27, 2022.
Still, none of his honest promises have been accomplished after over a year in the office. Here is a list of some of his agenda promises:
1. Reforming the failed economy, especially after the Iraqi dinar crisis and its loss of more than 25% of its value, did not succeed.
2. The government is committed to building effective tools to fight corruption within a maximum of 90 days from its formation. The government failed; today, Iraq is considered the tenth in the world regarding corruption.
3. Improve deteriorating public services such as (Electricity, health, and water desalination)
in six months. Unfortunately, he failed.
4. Combat poverty, unemployment, and poor public services; he fails on all accounts.
5. Legislation of the Oil and Gas Law and its submission to the Council of Ministers has not yet been completed.
6. Avoid any escalatory measures and wait for the procedures related to the Kurdistan Regional Government and the oil companies operating in it to avoid harm to the national economy. The two parties will work transparently until the oil and gas law is enacted within six months from the date of the formation of the government. Unfortunately, the Oil and Gas Law has not yet been enacted, and the damage to the national economy has exceeded nine billion dollars.
7. Promised to amend the election law within three months and hold early parliamentary elections within a year, he failed on both accounts
8. Failure to control rampant weapons in the hands of factions outside the government's control.
9. Accelerate the reconstruction of the liberated areas and complete the issue of the displaced. Still, nearly a million people are internally displaced, and reconstruction is slow.
10. The legislation of the Federal Council law was not implemented within six months.
11. The Federal Court Act has not been implemented within six months.
12. Conduct a legal review of the General Amnesty Law to define the crime of belonging to terrorist organizations. The General Amnesty Law has not been announced to date.
13. Allocating and disbursing the dues of those included in the decisions of the Supreme Committee to implement Article 140 and reconstitute the Supreme Committee within a month of the formation of the government. The dues have not been paid to date.
The list goes on ……?
On the same principles, the Finance Committee in the Iraqi Parliament must be dismissed because it breaks the constitutional oath, according to the Iraqi Constitution Article 62 Second: The House of Representatives may make transfers between sections and chapters of the general budget and reduce its total amounts. When necessary, it may propose to the Council of Ministers an increase in the total expenditures. The Committee added new budget conditions outside their authority, as shown in Article 62; unfortunately, the House of Representatives voted on it, the President of the Republic signed it, and the Federal Court ratified it. This is considered a clear violation of Article 62 of the Constitution.
Regarding the Kurdistan Region, the PM stated that finding sustainable solutions to the issues with the Kurdistan Regional Government of Iraq through a true partnership based on rights and duties and ensuring the preservation of the independence of the judiciary, as guaranteed by the Constitution. Unfortunately, the relationship has not improved till today, and the KRG's budget is yet to be paid. This procedure violates Article 13, Second, and Article 14 of the Constitution.
In conclusion, based on the facts mentioned above and based on the Federal Court's decision that violating the constitutional oath and its punishment is more important than any written or unwritten law, any member of Parliament or any member of the people has the right to request the dismissal of the President of the Republic, the Prime Minister and the dissolution of Parliament will bring more legal crises and political earthquakes in the country. The best way out of these crises is to call for early elections in 2024.
Saman Shali has a Ph.D. in Science (1981) from the University of Sussex. Dr. Shali worked as an Assistant Researcher and Assistant Professor at the University of Sussex, King Saud University, and Pennsylvania State University. He is also a senior fellow at the Mediterranean Institute for Regional Studies.