Requirements for granting confidence to the Prime Minister – Iyas Al-Samouk
To accomplish the requirements for granting confidence to the Prime Minister-designate, the Constitution requires the approval of the House of Representatives on the names of individual members of the Ministry, as well as the approval of the ministerial curriculum, after submitting them within the period specified in Article (76/Second) of the Constitution of the Republic of Iraq for the year 2005 (in force), which is thirty days from the date of appointment, by an absolute majority (more than half of the total number of members of the House of Representatives). This means that the Prime Minister-designate has two obligations:
First: Introducing the members of the ministry
This is the first commitment represented by the Prime Minister-designate submitting the names of the members of his ministry, in order to vote on them individually.
In view of the constitutional text that governs the issue of the task of the Prime Minister-designate in submitting the names of the ministry, the following observations appear to us:
1- The constitutional text did not indicate whether the Prime Minister-designate is obligated to present all the names of the ministers at once, or is it permissible for him to postpone presenting some of them until after the end of the term of appointment. If this is permissible, what is the percentage of ministers whose names can be postponed? The Federal Supreme Court ruled in its decision No. (93/Federal/2010) that “the Prime Minister-designate is not obligated to name all members of his ministry during the period stipulated in Article (76/Second), and he may delay naming some of them, provided that the ministerial positions for which a minister has not been named are filled independently by the Prime Minister himself or one of the acting ministers until the original minister is appointed after his nomination by the Prime Minister and the approval of the House of Representatives, even if this is done after the period stipulated in Article has elapsed.” (76/Second) of the Constitution, and that the Constitution did not prevent the Prime Minister-designate from appointing members of his ministry – personally or by proxy – in batches, provided that it does not exceed the period stipulated in Article (76/Second), and this permissibility applies to the House of Representatives, as it has the right to vote to approve the ministers in batches and not all at once.
Practical applications show that the person charged with forming the Council of Ministers sometimes resorts to postponing the presentation of a number of names. In the fourth electoral session, the House of Representatives granted confidence to fourteen ministers, while voting on eight ministers was postponed until after the end of the constitutional period.
However, this postponement in presenting names, even if it is not explicitly permitted by the Constitution, should be practiced within the narrowest limits, for urgent reasons, and with a limited number of ministers.
In any case, the number of those whose appointment will be postponed must not exceed half of the total members of the ministry, as exceeding this percentage is considered evidence of the failure of the Prime Minister-designate to fulfill his constitutional mission, which necessitates appointing another candidate in his place.
2- The constitutional text did not specify the mechanism for granting confidence to ministers, whether by secret vote, by a show of hands, or by electronic voting. The House of Representatives has worked on granting confidence to ministers by voting by raising hands. However, there was one case that occurred in the third electoral cycle, where a number of nominated ministers were presented and voted on electronically.
3- The constitutional text also did not specify the quorum required for the ministry to obtain confidence, and is it required that all ministers obtain confidence, or is it sufficient for a percentage of them to obtain it?
However, practical applications have shown that the House of Representatives’ rejection of a number of cabinet members presented by the Prime Minister-designate does not affect granting confidence to the ministry in general. For example, in the fourth electoral session, the House of Representatives refused to grant confidence to the Ministry of Education candidate, but later voted to grant confidence to another candidate. This may be possible within the limits of the rejection of a limited number of ministers, but the House of Representatives’ rejection of more than half of the members of the ministerial formation is clear evidence that the ministry has not gained confidence, resulting in its complete downfall, and the failure of all candidates to gain confidence, including those who have previously received the approval of the Council.
4- Although the constitutional text specified a period for presenting the names of the ministry and the ministerial curriculum, it did not specify a period for approving them. On this basis, if the Prime Minister-designate presents the names of ministers or the ministerial platform on the last day of the term, is it permissible for the House of Representatives to vote on them to approve or reject them outside this period?
The Federal Supreme Court responded to this assumption in its aforementioned decision, in which it stated: “The House of Representatives has the right to approve the ministers and the ministerial curriculum outside the period stipulated in Article (76/II) of the Constitution, as there is no text in the Constitution of the Republic of Iraq obligating the House of Representatives to approve individual ministers and the ministerial curriculum during the aforementioned period. In addition, logic supports this trend, as the Constitution has permitted the Prime Minister-designate to submit the names of the members of his ministry.” The ministerial platform is sent to the House of Representatives until the last day of the period stipulated in Article (76/Second) of the Constitution, and in this case the House of Representatives will consider the request for approval outside the period stipulated in Article (76/Second) because this period restricts the Prime Minister-designate and does not restrict the House of Representatives.”
It is understood from the decision of the Federal Supreme Court that the period stipulated in Article (76/Second) of the Constitution requires the Prime Minister to submit the names of the ministry and the ministerial platform, and he may fulfill these two obligations on any day, whether it is the first or last of the period. As for the House of Representatives, it is not bound by a specific period to approve the ministers and the ministerial platform, and thus grant confidence to the Prime Minister-designate.
It is noted that this decision is consistent with common sense. It is not reasonable for the task of the person charged with forming the Council of Ministers to be subject to the actions of another party, represented by the delay or abstention of the House of Representatives in voting, by approving or not, on the ministers individually and on the ministerial platform, despite the obligation of the person in charge to present them within a specific time period of thirty days.
However, we believe that the House of Representatives, even if it is not bound by a period stipulated in the Constitution of the Republic of Iraq of 2005 (in force) to express its position on the ministers and the ministerial platform, must expedite and not procrastinate, in order to take its decision of approval or rejection, as the disruption of the House without a reason leaves negative effects on the formation of the Council of Ministers.
Second: Approval of the ministerial curriculum
The Constitution is the ministerial platform is the second obligation that falls on the Prime Minister-designate to present it, along with the names of the members of his ministry.
It is noted that the Constitution did not give a complete definition or description of the ministerial curriculum, but rather stated it briefly. However, constitutional jurisprudence has dealt with this concept with multiple definitions, which generally revolve around it being the comprehensive government plan for the next four years, which includes the general objectives and policies of the state at various levels, especially economic, social, cultural, and service, as well as security aspects and other related fields.
Given the constitution, it did not include a mechanism showing how to present the ministerial curriculum, nor a specific date for it, except for the stipulation of the obligation of the person charged with forming the Council of Ministers to submit it within thirty days from the date of his assignment.
The constitutional text stated the ministerial curriculum along with the names of the members of the ministry, without explicitly requiring that they be presented in one session, but its inclusion came after the names.
From this it is understood that the Prime Minister-designate first presents the names of his ministers individually, and then presents the ministerial platform, as the second constitutional condition for the ministry to gain confidence when the House of Representatives approves it by an absolute majority. But the practical reality shows that the House of Representatives first approves the ministerial curriculum, and then approves the individual members of the ministry.
The House of Representatives and its formations Law No. (13) of 2018 (in force) required that the ministerial curriculum be referred to a special committee headed by one of the two vice presidents to prepare a report to be presented to the Council before voting on it, which was also stipulated in the Council’s internal regulations No. (1) of 2022 (in force).
It can be considered that granting a committee in the House of Representatives the right to prepare a report on the ministerial program includes at the same time the right to discuss it, and not just vote on it or not, on the basis that preparing a report represents an introduction to discussing this program, and otherwise this procedure will be emptied of its content and has no justification. However, we see that the House of Representatives does not have the right to amend the paragraphs of the ministerial curriculum except after obtaining the approval of the Prime Minister-designate.
This matter was actually embodied in the session of granting confidence to the Prime Minister-designate for the fifth electoral cycle, when it was agreed with the House of Representatives to make amendments to the ministerial curriculum based on the observations of the committee that was formed to consider the curriculum before submitting it to a vote.
The ministerial curriculum is supposed to be the biggest obstacle to granting confidence to the ministry, but experiences in Iraq have proven that discussing it is a purely formal issue for the majority of representatives.
After granting confidence, the Prime Minister and members of the Council of Ministers take the constitutional oath before the House of Representatives in the form stipulated in Article (50) of the Constitution.
