Iraq’s Judiciary: Problems of Unrestricted Independence

Authors

  • Author

  • Firas Mekkiya

Keywords:

Iraqi Judiciary, Judicial Independence, Democratic Transition, Separation of Powers

Abstract

This paper provides a historical assessment of the Iraqi judiciary's independence since 1921, focusing on the deviations and challenges that have been encountered since Iraq’s 2003 democratic transition. These issues have emerged due to the unbalanced total separation of the judiciary from the executive and legislative branches, which has granted it “excessive” independence. The paper maintains that this pattern of independence has resulted in several clashes within the judiciary itself, ultimately leading to its politicization. It proposes several institutional reforms within the judiciary, including models for its restructure and regulation, as well as balanced relationship with other powers. These reforms would establish an independent and responsible judiciary, safeguarding it from politicization and the emergence of judicial oligarchies or dictatorships.

References

  1. This study discusses the status of the judiciary authority in Iraq prior to the amendment of Law No. 30 of 2005, “ordering” the formation of the Federal Supreme Court on 18 March 2021, which was merely a temporary political consensus to address the constitutional vacuum that had resulted from the Court’s disruption following the retirement of one of its members. The agreement on the new composition of the Federal Court was tantamount to the official announcement of a new phase in its evolution and roles. The Court was completely subject to the authority of the Supreme Judicial Council, which enjoyed absolute, unlimited powers. These powers qualified the Supreme Judicial Council to play a political role which became quite apparent after the parliamentary elections in the fall of 2021 and the decisions of the Court – which arrogated to itself the authority to review the decisions of the previous court. These decisions were decisive in determining the fate of the political system: from deciding election results, to confirming the political balances within the consociational system, and the disturbances and clashes that accompanied the formation of the new government and to which the Court itself was vulnerable. And lastly, there was a clash with the region of Kurdistan following the Court’s direct move to strengthen the central government.
  2. Texts of constitutions and their amendments: the Basic Law of 1925, the Interim Constitution of 1958, the Interim Constitution of 1964, the Interim Constitution of 1968, the Interim Constitution of 1970, State Administration Law for the Transitional Period and its Appendix 2004, and the 2005 Constitution of Iraq in: Republic of Iraq, Supreme Judicial Council, Iraqi Legislation Base, accessed on 3/7/2023, at: https://bit.ly/3EWZqgL. Texts of the laws and orders mentioned in this research include: Rulers and Judges Law 31/1929, Judicial Service Law 27/1945, Judicial Service Law 58/1956, Judicial Authority Law 26/1963, Ministry of Justice Law 101/1977, Judicial Organization Law 160/1979, Coalition Provisional Authority Order 35/2003, Federal Supreme Court Law 30/2005, Supreme Judicial Council Law 112/2012, Supreme Judicial Council Law 45/2017, Public Prosecution Law 49/2017, and Judicial Supervision Law 29 / 2016.
  3. Coalition Provisional Authority Order, “Restructuring the Judicial Council,” No. 35/2003, dated 9/18/2003.
  4. The Judicial Supervision Authority is usually known as the Judicial Inspection Department in other Arab countries.
  5. The CPA faced widespread popular opposition. This opposition was led by Ayatollah Ali al-Sistani in response to the CPA’s attempt, as an occupying power and in the absence of any legitimate national authority, to pass an Iraqi constitution and conclude an agreement defining the status of the occupying forces. In the end, it wrote the State Administration Law for the Transitional Phase and signed it through the CPA-appointed Governing Council as a de facto interim constitution without any legitimate legal consideration. The CPA also failed to obtain recognition by the United Nations. For details on the writing of the State Administration Law and surrounding circumstances, see: Firas Tariq Mekkiya, Qiṣṣat al-Intikhābāt: al-Thawra al-Dustūriyya fī-al-cIrāq 2003-2005 (Beirut: Dar al-Muarrikh al- c Arabi, 2015; Baghdad: Civil Dialogue Forum, 2014), pp. 76-98. On the objections and challenges to its legitimacy, see Jamal Beomar, “Constitution Making After Conflict: Lessons for Iraq,” Journal of Democracy , vol. 15, no. 2 (April 2004), p. 93.
  6. See: Firas Tariq Mekkiya, Lamaḥāt Istrātījiyya ḥawla Qānūn al-Maḥkama al-Ittiḥādiyya (Sweden: International Institute for Democracy and Elections; Tunisia: Arab Organization for Constitutional Law, 2017), pp. 7-11.
  7. Article 101, for example, states: “It is permissible by law to establish a Council of State concerned with the functions of the administrative judiciary, fatwas, drafting, and representation of the state and other public bodies before judicial authorities, except for those excluded therefrom by law”.
  8. On the other hand, the executive branch was not granted such a right. All judges, not only those on the Federal Court, enjoy immunity from removal unless it takes place via judicial procedures.
  9. Several projects were proposed for discussion during the three parliamentary sessions held in 2008, and later in 2011. Amendments were made to the draft of the last project, which faced widespread criticism and was proposed for discussion in an amended form in the final parliamentary session in 2015.
  10. A similar debate is taking place in Algeria regarding judges’ dominance over the Supreme Judicial Council. See: Yasin Mazouzi, “ Dawr al-Majlis al-Aʿlā li-l-Qaḍāʾ fī Taʿzīz Istiqlāl al-Sulṭa al-Qaḍāʾiyya,” Al-Bāḥith Journal for Academic Studies , no. 11 (June 2017).
  11. Balancing the authority of the Constitutional Court with the legislative authority, in which the Shiite Islamists were expected to achieve an overwhelming majority, as actually happened later, would have turned the Constitutional Court into something similar to Iran’s Guardian Council, which would have spelled disaster for US policy in the Middle Eastern region. For a review of the circumstances surrounding the design of the Federal Court under the State Administration Law, see: Larry Diamond, al-Naṣr al-Mahdūr: al-Iḥtilāl al-Amrīkī li-l-Juhūd al-Mutalakhbiṭa li-Iḥlāl al-Dīmuqrāṭiyya fī al-ʿIrāq (Dubai: Gulf Research Centre, 2007), pp. 194-196.
  12. Federal Court decisions mentioned in this research include: 87/2013, 19/2017, 38/2019, 63 / 2019 at: The Federal Supreme Court website (images of the decisions), accessed at: https://bit.ly/3IJz3fo. The Iraqi Legislation Base website (texts of decisions), accessed at: https://bit.ly/3Zjmw9n
  13. For the number of judges, public prosecutors (with a total of 1,574), and judicial inspectors, and the number of courts and cases, see al-Majmūʿa al-Iḥṣāʾiyya al-Sanawiyya li ʿĀm 2017 (Baghdad: Ministry of Planning - Central Bureau of Statistics, 2018), pp. 839-840. The Judicial Supervisory Authority is reported to have 11 members, including its head and his deputy, which means that there are only nine supervisors. According to the latest update, the number of judges and public prosecutors came to a total of 1,598. See the website of the Supreme Judicial Council: The Judicial System, Supreme Judicial Council , accessed on 7/3/2023, at: https://bit.ly/3kOenuE. The website provides a summary of basic information related to the judicial system in Iraq. It is also important to include the administrative and military judiciaries, which fall outside the authority of the Judicial Council. However, the website omits any reference to the Judicial Supervision Authority, despite being one of the basic components of the Council, the number of its staff, and its working mechanism. This lack of transparency serves to conceal the fact that the Authority plays essentially no role.
  14. Muhammad Youssef, Muhammad al-Ghannam & Firas Mekkiya, a l-Sulṭa al-Tashrīʿiyya li-Majlis al-Nuwwāb al-ʿIrāqī: Dirāsa Muqārana (Tunisia: Arab Organization for Constitutional Law, 2017), pp. 11-13; Mekkiya, Lamaḥāt Istrātījiyya , pp. 11-13.
  15. This usually happens in precise synchronization with a given political agreement, in response to a given political climate or process, or via formal procedures. It tends to involve convictions in terrorism cases, some publicly documented through confessions by the accused while they were not in custody, and where there were no suspicions that they had been subjected to torture or coercion.
  16. A thorough examination of examples of this phenomenon would go beyond the scope of this study. However, certain salient cases may be mentioned: instructions issued to the judiciary to rescind the de-Baathification ruling against Saleh al-Mutlaq and Dhafer al-Ani based on a political agreement between the Prime Minister and the Speaker of Parliament; the convictions and subsequent acquittals of Mishaan al-Jubouri, Laith al- Dulaimi, Khamis al-Khanjar, and Rafiʿ al-Issawi; the convictions of Tariq al-Hashemi and Atheel Al-Nujaifi and the rumored deals to acquit them; and the arrest and subsequent release of those who participated in the demonstrations of Fall 2019, as well as their mass release based on a political order issued by the new Prime Minister.
  17. I am indebted for the diagnosis of the judicial system and its problems to a series of workshops organized by the Council of Advisors, the Prime Minister’s Office, 2019-2020, in one of which I met the President of the Supreme Judicial Council, Judge Faiq Zaidan, and the Head of the Public Prosecution Service, Judge Muwaffaq Mahmoud al-Ubaidi.
  18. See: The Republic of Iraq, Supreme Judicial Council, Judicial Institute, accessed on 7/3/2023, at: https://bit.ly/3IQFFsh
  19. See: Introduction to the Council of State, in: The Republic of Iraq, Council of State, accessed on 7/3/2023, at: https://bit.ly/3L1mT4t
  20. Yusuf, al-Ghannam & Mekkiya, pp. 11-13.
  21. The Federal Court is authorized to try the President of the Republic in specific cases, but if he is convicted, he can only be pardoned by the House of Representatives (Article 61/VI/B).
  22. “Power corrupts, and absolute power corrupts absolutely,” is an aphorism attributed to Lord Acton. See: Imam Abdel Fattah Imam, al-Ṭāghiya: Dirāsa Falsafiyya li-Ṣuwar min al-Istibdād al-Siyāsī , World of Knowledge Series 184 (Kuwait: National Council for Culture, Arts and Letters, 1994), p. 13.
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2024-01-01

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Vol. 7 No. 016 (2024): Issue 016

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