The Law on the Federal Supreme Court: The Balance of Islamic and Career Judges

The other big news out of Iraq over the weekend, in addition to the story involving the Kurdistan oilfields, was the first reading of the law on the federal supreme court in parliament yesterday.

The reason this piece of legislation has suddenly been fast-tracked in the Iraqi parliament is as follows. The constitution adopted in 2005 calls for special legislation to establish a federal supreme court, to be passed by a two-thirds-absolute majority in the Iraqi parliament. In 2006, this seemed to be a distant and unrealistic goal, and perhaps not a terribly pressing one since there was some kind of broad satisfaction with the pre-constitutional federal supreme court that had been put together in 2004. That court, which still exists, was staffed mainly with career judges, many of whom worked for the old regime, although care was taken to compose it on the basis of ethno-sectarian quota arrangements that came in vogue with Paul Bremer and his exile politicians back then. This background notwithstanding, after it showed some judicial independence in the years between 2006 and 2008, the Iraqi judiciary has increasingly been seen as a tool in Prime Minister Nuri al-Maliki’s pocket, especially after he seemed able to more or less dictate some of its decisions relating to the latest elections, including the recount in Baghdad. Most recently, a convoluted ruling by the court attached the “independent commissions” (such as the electoral commission) to the executive despite the existence of an explicit constitutional injunction that they be subject to the control of the Iraqi parliament. This in turn prompted strong reactions across the political spectrum, with Iraqiyya, Kurds and even Sadrists in Maliki’s own, all-Shiite National Alliance complaining that he had gone too far and that change was needed. The speaker of parliament, Usama al-Nujayfi of Iraqiyya, has apparently played a role in propelling the new draft law to its first reading.

In evaluating the draft law, one should consider its somewhat complex origins. A draft was prepared several years ago by the existing court, which probably moulded it in a way that would guarantee continuity as far as its own members were concerned. That draft was actually read in parliament in 2008 but the government presented a number of objections which are believed to have been incorporated in the current version. The above-the-fold excitement concerning the latest draft relates to the proposed composition of the court and the mechanisms for its recruitment, all of which were left unspecified by the drafters of the constitution in 2005 because they were unable to agree on an exact formula of Islamic and secular judges. Here is the new proposal: The court will consist of 13 members altogether, including an advisory board of 4, half of which will be ordinary legal specialists and half of which will be specialists in Islamic law. In other words, the only quota for Islamic judges relates to the 4-person advisory board, which does not take part in deciding cases as such. The recruitment procedures are also remarkable: The higher judicial council, a body largely made up of career judges (and for which another piece of legislation will be read next week), will propose three candidates for each of the 9 positions in the court proper, with the field limited to judges with a service of no less than 20 years; the president of the republic will then select one of the candidates for each position (in other words, the law creates a prerogative of the president which is not described in the constitution!) As for the four members of the advisory board, four professional judges will be nominated by the ministry of higher education and four Islamic ones by the two Islamic endowment (waqf) authorities (hence, one Sunni and one Shiite), with two from each group being selected by the government and approved by parliament. The judges will serve six years; the requirement that they should not be subject to the de-Baathification law of 2008 may well be a later addition to the draft by the government since some present members of the court are believed to fall in this category themselves.

In other aspects, such as the prerogatives of the court itself, the draft law seems to largely reiterate the constitutional provisions. The rather modest role suggested for Islamic judges to some extent reflects the origins of the first draft, and it would be surprising if it wins approval by the required 216 members of parliament, many of whom will be Shiite Islamists with rather bigger ambitions for the role of Islamic law in Iraqi society. Perhaps the most immediate effect of the first reading of this bill will be to put the existing court on notice and remind it about how many of its latest decisions have been perceived as highly politicised.