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One Court To Rule Them All:
Why Not All Iraqi Politicians Want Their Supreme Court To Work Properly

Mustafa Habib
A new law governing Iraq's highest court is yet to be passed. Why? Opposition to Sharia law experts on the court. And because the Court could unravel hundreds of unconstitutional agreements and ban militias.
10.12.2015  |  Baghdad
Members of Iraq's Federal Supreme Court. (photo: Federal Supreme Court)
Members of Iraq's Federal Supreme Court. (photo: Federal Supreme Court)

Earlier this year the Iraqi government approved a draft of the Federal Supreme Court Act. Even before Prime Minister Haider al-Abadi pledged more sweeping reforms in August, this draft law was supposed to reform the highest court in the land. And the government has tried and failed to pass the law three times. Over the past few weeks the law has been being discussed again, with a view to finally passing it.

But in order to make the draft into law, further complex approvals are needed – and, in particular, via a majority vote from MPs in the Iraqi parliament, many of whom have diametrically opposed points of view on the subject.

Popular protests about Iraq's judiciary – and other injustices and problems – are still going on in Baghdad and several of Iraq's southern cities. The country's highest religious authority, Ali al-Sistani, has also called for reform of the justice system.

The Federal Supreme Court has the authority to rule on breaches of the Iraqi Constitution and to settle disputes between the central government and provincial authorities, among other things. Another court, the Court of Cassation, rules on legal matters not related to government and a further body, the Supreme Judicial Council takes care of things like appointing justices to those two courts.

A 2005 law currently guides the Federal Supreme Court's work but is considered unconstitutional in several ways. It states that the Supreme Court should be independent but at the moment it is not, due to other laws that see justices sitting on multiple benches. Additionally the 2005 law was never approved by a two-thirds majority in the Iraqi Parliament.

But one of the biggest motivations to reform the 2005 law on the Court is a familiar one: Too many local politicians believe that the Federal Supreme Court has made decisions favouring the parties in power. This was particularly true of the administration headed by former Iraqi Prime Minister, Nouri al-Maliki.

So why is a new law for the Federal Supreme Court not being passed? There are several arguments going on that are delaying this.

One of the biggest disagreements centres around the participation of clergy on the Court's bench. According to the draft bill, the Federal Supreme Court should have 13 members – seven judges, four scholars of Islamic law and two legal experts. There are questions around whether clerics would be fit to make these kinds of legal decisions and there are also questions around which sect's religious rules will be followed: Sunni or Shiite?

“Having Sharia experts on the Federal Supreme Court poses a threat to our legal system,” local legal expert, Hamid al-Najar, told NIQASH. “It threatens the neutrality of the court. The Court is supposed to work with civil laws that have been enacted for decades in Iraq. What would the clergy be doing here, if they don't know anything about these kinds of laws?”

Najar also has a problem with the so-called “legal experts”. “Why would we need these if there are senior judges on this court who understand the law very well,” he argues. “The experts would be chosen from various universities anyway, which are under the influence of specific political parties.”

Even if the clerical staff are allowed onto the Federal Supreme Court, there would be more problems to resolve. Shiite Muslims are supposed to nominate two Sharia experts and Sunni Muslims should nominate the other two. But then there are the various sub-doctrines inside each sect. There is also the question of which religious authority should be allowed to nominate the court members. Both schools have various high ranking clerics who might compete to do the choosing. It has been suggested that the two organisations that look after Sunni and Shiite seminaries, mosques and shrines, could be the right ones to choose the court's scholars. But even these institutes would find the task difficult, given that groups within both Shiite and Sunni Islam are not united in Iraq.

And finally, even if these religious experts make it onto the court, there is also a discussion about what kinds of powers they should have. Some Shiite Muslim parties want to give them the right to veto any decision relating to Islamic law. Nobody yet knows how the Federal Supreme Court should be able to vote – should decisions be made unanimously or with a majority, or over two-thirds? This causes concerns about how the religious experts might hold sway over the whole court.

A further reason as to why the laws around the Federal supreme Court are so controversial relates to political conflicts in Iraq. While passing the law would allow the Court to make decisions, many of the parties involved in conflicts – be they provincial authorities, regional governments like the Iraqi Kurdish or the different political parties in Iraq – fear the outcome of any binding legal decisions.

It would be fair to say that the government of the semi-autonomous northern region of Iraqi Kurdistan is the most nervous about any binding decisions that the Federal Supreme Court could make. They worry that the Court would give in to pressure from the political majority in Iraq – that is, not Kurdish – and make decisions detrimental to the region on issues like the disputed areas in Iraq and the contentious oil-for-budget agreement between Iraqi Kurdistan and Baghdad.

“We want Federal Supreme Court decisions to be unanimous as we feel this would prevent injustice,” MP Zana Saeed Roustani, a member of the alliance of Kurdish politicians in Baghdad, told NIQASH.

Other political parties, whether Sunni Muslim or Shiite Muslim in orientation, also have concerns about the Supreme Federal Court.

The Federal Supreme Court could rule on any number of constitutional violations. During 2015, one of the most important cases it considered was brought against reforms proposed by Iraq's current Prime Minister Haider al-Abadi because he dismissed the country’s vice presidents.

The Federal Supreme Court may also impact the various unconstitutional and illegal agreements that Iraqi political parties often agree upon between themselves. There are hundreds of examples of these, starting from July 2014 when the selection of senior members of the Iraqi government – including the President and Prime Minister – were not made according to Constitutional rules. The whole system could be held to ransom by the Court.

The Federal Supreme Court could also make a ruling on the often controversial Shiite Muslim volunteer militias currently engaged in fighting against the extremist group known as the Islamic State.

In an attempt to maintain control, the Iraqi government made the militias an independent body but one which the government supervised and paid. This decision was justified under Article 108 of the Iraqi Constitution, which says that “independent commissions may be established by law, according to need and necessity”. However it could also be argued that this move violated the Constitution in that this particular independent body doesn't have its own bylaws and the Iraqi parliament has yet to vote on the body's legitimacy.

In the unlikely event that the Federal Court Law is eventually passed, there is one other very important question to consider. Even if the Federal Supreme Court is given a new lease of life via a new law, will it actually be able to do the work it is meant to? It is obvious to both the politicians and the voting public that if Iraq's legal system began to work properly, the current status quo would be affected; a lot of powerful people would have a lot to lose, if things didn't go their way.

 

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