The constitution constitutes the bedrock of a state’s legal structure. It defines the political system, regulates the relationship between the authorities, and guarantees rights and freedoms. For this reason, judicial interpretation of constitutional texts is not merely a technical exercise; it is fundamental to the state as a whole. Hence, the sin of misinterpreting the constitution emerges is one of the most serious forms of judicial malpractice, as it has profound ramifications that go beyond any dispute on a single issue in particular.
The sin of misinterpretation does not refer to a difference of opinion or diverse interpretations. Rather, it is to violate the spirit and goals of the constitution, add to its content, disregard the historical and political context in which it arose, or place political considerations over established constitutional principles. Constitutional interpretation must abide by methodological standards; otherwise, it becomes a means for reshaping the constitution. In some cases, an erroneous interpretation of a constitutional provision, especially if it aligns with the interests of a particular authority, could reflect political manipulation, thereby undermining confidence in the independence and integrity of constitutional justice.
Article 76 of the Constitution of the Republic of Iraq of 2005 is among its most controversial provisions due to its direct connection with the formation of the executive authority. It stipulates that the President of the Republic shall assign the nominee named by the “largest bloc in parliament” to form the Council of Ministers within a specified timeframe. Problems arise over interpreting this term. The Federal Supreme Court settled this question in decision No. 25/Federal/2010 dated March 25, 2010- a ruling that remains subject to political and legal debates to this day (and one of the decisions examined in our doctoral dissertation and our book “Judicial Review of Constitutional Boundaries Between Authorities, 2019–2020”).
The controversy is centered on how to define the “largest parliamentary bloc”: is it the bloc that has won the highest number of seats in the elections? Or is it the bloc formed through coalitions within the Council of Representatives?
The Court held that the “largest parliamentary bloc” could mean either the bloc that went into the elections under a ticket and won the greatest number of seats or the largest bloc formed after the elections, through a coalition that includes two or more lists formed during the first session of Parliament. This interpretation has several constitutional flaws, foremost among them that it goes against the plain meaning of the text, which is drafted in clear terms without reference to subsequent alliances. A literal reading concludes that the bloc is the bloc that had won the elections.
Moreover, this interpretation affects the choices made by the voters; it allows the largest bloc to be formed after the elections, thereby altering the political calculus at the ballot box. This weakens the principle of popular legitimacy and aggravates political instability by opening the door to post-election alliances, which leaves the formation of governments subject to complex negotiations that could last months. That happened after the 2010, 2018, 2021, and 2025 elections. These delays have led to recurring political crises, the latest of which we are currently witnessing, and which could well recur in future elections.
The term “largest bloc” has thus become a central theme of political disputes, more because of its politically consequential interpretation than legal precision. The Court’s reasoning has therefore been regarded as unjustified overreach that adds to the constitutional text. In doing so, the Court arguably moved beyond its interpretative role and changed its content: it did not merely interpret the provision but effectively created a new constitutional rule not that had not been explicitly stipulated by the constitution. This step that goes beyond its interpretative authority is illustrative of a broader problem in the relationship between constitutional text and political reality. While such interpretation may be justified by the flexibility inherent to parliamentary systems, it has had a negative impact on constitutional stability and public trust in the democratic process.
Accordingly, addressing this issue requires an explicit constitutional amendment clearly defining what is meant by the “largest bloc” in a manner that leaves no room for ambiguity, thereby removing ambiguity and safeguarding the will of the electorate by adopting the criterion of the “electorally winning list.” Alternatively, the issue could be addressed by amending the Law of the Council of Representatives such that the largest bloc is registered only during the first session. Another option would be for the Federal Supreme Court to revisit its previous interpretation and adopt a more restrictive reading that limits the definition of the “largest bloc” to the one that performed best in election rather than coalitional blocs subsequently.
