Iraq and Gulf Analysis

An Iraq Blog by a Victim of the Human Rights Crimes of the Norwegian Government

The Political Dynamics behind the Downfall of Midhat al-Mahmud, Iraq’s Supreme Court Chief

Posted by Reidar Visser on Friday, 15 February 2013 9:17

News out of Iraq indicates that the country’s de-Baathification committee has decided to remove the supreme court chief, Midhat al-Mahmud, because of his ties to the previous Baath regime.

In some ways, the ruling is not really controversial: It is widely agreed that Mahmud’s leading positions under the former regime are in conflict with the requirements of the de-Baathification law from 2008 which are particularly strict when it comes to leadership of judicial institutions. Everyone knew that Mahmud had those ties to the former regime; his tenure at the supreme court was simply seen as one of many exceptions to the rule in the new Iraq whereby some Baathists were granted permission to stay on if they proved useful to people in positions of power – and in particular to Prime Minister Nuri al-Maliki. Additionally, Mahmud’s continued tenure as an octogenarian seems to be a conflict with a law still in force stipulating age limits for retirement of Iraqi judges at 68.

Thus, rather than reflecting new legal realities or path-breaking judicial interpretations, the new situation regarding Mahmud has to do with a changing political dynamic in Iraq. Ever since the Shiite Islamist Sadrists and ISCI with Iranian support pushed the de-Baathification issue to the forefront in Iraqi politics ahead of the March 2010 parliamentary elections, there has been a shift of power towards Sadrist dominance of appointments to the de-Baathification committee and other legal institutions involved in the de-Baathification process. This was seen not only in the appointment of a new de-Baathification committee in May 2012. Also the composition of the appeals court for de-Baathification cases (to which Judge Midhat may now appeal) was influenced by Sadrist pressure in parliament. Finally, the recent passage by the Iraqi parliament of the law for the higher judicial council, which to some extent prepared the ground for the elimination of Judge Midhat, was seen as a bid by the Sadrists along with the Kurds and the secular and Sunni-dominated Iraqiyya to put pressure on Maliki.

It is hard to overestimate the significance of this move against Prime Minister Maliki. Since 2008, the Iraqi federal supreme court has increasingly been seen as an ally of Maliki, often issuing rulings that strengthened the executive in ways that seemed in conflict with the constitution or even the court’s own past decisions.  Tareq Harb, a lawyer close to Maliki, often prevailed with his arguments before the supreme court. Maliki, emboldened by judicial support, appeared to pay ever less attention to the fact that his parliamentary support base is in fact very limited. During the no confidence crisis of spring 2012 he failed to build bridges to disaffected factions of Iraqiyya and had to rely on support from Iran and the Sadrists to avoid getting unseated. To some extent then, this latest move is parliament paying back for Maliki’s arrogant approach to them.

For these reasons, some will no doubt construe the de-Baathification of Mahmud as a welcome check on Maliki’s authoritarian tendencies. Still, those who celebrate this move should take into account the fact that the campaign against Midhat has been spearheaded by Shiite Islamist hardliners in the Sadrist camp. We can now ask the question of who the Sadrists will attack next using de-Baathification as a tool. For example, many of Maliki’s generals are also due for retirement if the de-Baathification law were to be followed to the letter. Some of these generals are part of the backbone of the system of relative security that has emerged in Iraq since 2008.

The secular and increasingly Sunni-dominated Iraqiyya’s support for the move is particularly ironic since Mahmud in many ways was one of them in the past. Their embrace of the decision (“finally the de-Baathification committee is taking on a Shiite” according to parliament speaker Nujayfi) in some ways goes to underline their own increasingly Sunni sectarian position. It could be argued that what we are seeing in practice here is that Iraqiyya effectively supports Kurdish separatist policies and Sadrist Islamist policies at the same time in order to weaken Maliki. It’s actually not the first instance of this either: Recently Iraqiyya asked the all-Shiite National Alliance and the clergy of Najaf to come up with a candidate to replace Maliki, thus similarly reiterating the idea of sectarian alliances and even a role for the clergy in politics. It is true that Maliki has failed to make political gain from the only remaining issues where he can expect to win some Sunni and secular support – anti-federalism and disputed-boundary conflicts with the Kurds – but Iraqiyya’s actions show that we should not one-sidedly accuse Maliki of being the single factor behind the recent increase in sectarianism in Iraq.

In some ways, Judge Midhat’s continued tenure at the supreme court symbolized the contradictions of the “State of Law” Iraq where the law makes surprising twists and turn and is certainly not applied equally across the board. But the political direction of all of this –  with the Sadrists in an attack position and general sectarian polarization in the region thanks to the Syria conflict – suggests that in the long run, the situation in Iraq may be exacerbated rather than alleviated by these latest developments.

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17 Responses to “The Political Dynamics behind the Downfall of Midhat al-Mahmud, Iraq’s Supreme Court Chief”

  1. NM said

    Maliki’s allies in parliament were very confident that the law limiting term limits for the three presidents (essentially targeted at Maliki) would be quashed by the Supreme Court. How do you think this development affects that issue? Should Maliki feel a little less comfortable on his kursi?

    Couldn’t agree with you more on the issue of sectarianism not being the preserve of one side. What’s the logic of saying that Sunnis may well be the majority on Jazeera at this time, other than to shore up a base and antagonise an adversary.

    I’m hearing that Nujaifi’s all-Sunni lists have raised concerns amongst his comrades in Iraqiyya who wanted a more cross-sectarian approach. I was quite surprised also by Haider Al-Mullah’s recent criticism of the ‘Islamic Trend’ within Iraqiyya caring more about going on the Hajj for the umpteenth time than passing laws.

  2. A very good piece, Reidar.
    Welcome back!

  3. Salah said

    First, is it Paul Bremer chose Midhat Al-Mahmoud as the chief justice of Iraq?
    If so then it’s not accurately simply saying some Baathists were granted permission to stay on if they proved useful to people in positions of power – and in particular to Prime Minister Nuri al-Maliki.

    US/Bremer also did play same game.
    The all story of de-Baathification is shambles, it’s really a miss and misused and is a hook that all who in politics inside Iraq use every day.

    The realty is why do set sort of a court system deal with those who have blood in their hand associated with old regime rather labelling 70% Iraqis as Ba’athiests, then work on de-Baathification .
    It’s just a playing game inside in today.

  4. Thanks everyone for your comments.

    NM, regarding the supreme court’s handling of the law on the three presidencies, not enough is known about the loyalties of the remaining judges on the court to predict the outcome of that process. But Maliki certainly lost his man on the court with the dismissal of Judge Midhat.

    I share the concerns of some of the sectarian language of the wave of protests. Faisal, you may disagree with this, but I see the call from Anbar for a sectarian census (by the UN even) as unhelpful.

    Salah, what I find strange is that Iraqiyya is now supporting a more universal application of the de-Baathification law instead of trying to change it. In other words, it seems to be the case that they think it is ok if applied more evenly, including in cases involving Shiites. Wouldn’t it have been better to address the very basis of the law in parliament instead?

  5. Salah said

    Reidar,
    Agreed, Both sides having same problems, a non-genuine roll of low working forward as you suggests that in the long run, the situation in Iraq may be exacerbated rather than alleviated by these latest developments in fact the situation in Iraq never been alleviated at any point if the last ten years.
    But you are right I think the best solution by taken this case either public referendum, or for parliament, which I am doubted in this case will goes through a lot of objections and troubles as those reps as you said they proved useful to people in positions of power sided for each group or party, so there will exactly and we see today with politic process from Maliki became PM

    This very clear of recent view of Maliki side spelt by a judge from parliamentary law committee, by saying the remove the supreme court chief, Midhat al-Mahmud unlawful, and politically motivated?

    To find some history of this man please read the following also listen to Sabah Al-saedi:

    ومن أهم خدماته للرئيس الراحل صدام حسين انه عمل المستشار القانوني له
    لمدة ثلاثة سنوات ومستشار في مجلس الوزراء للنظام السابق لعدة سنوات
    ومحاضر في كلية صدام للحقوق وأثناء عمله في ديوان الرئاسة حصل على مرسوم
    من الرئيس الراحل صدام حسين لتعيينه قاضياً في محكمة التمييز خلافاً
    للقوانين النافذة والشروط

    المطلوبة اي استثناء من الشروط لخدماته الجليلة لديوان الرئاسة وبعد
    إكمال السن القانونية الموجبة لإحالته إلى التقاعد حصل على تمديد خدمته
    لسنوات أخرى وهذا مخالف للقانون ويعد أكثر الأشخاص وأقربهم إلى الرئيس
    الراحل صدام حسين والى ديوانه وقد حصل على مكافئات دورية بملايين
    الدنانير واستلم عدة سيارات كهدايا منها سيارة كالوبر وسيارة سيدرك
    وسيارة سوبر وسيارة كرونا ومنح عدة مرات مبالغ نقدية على شكل دفعات من

    صدام حسين وكان يستلمها من مصرف الصالحية التابع حسابياً الى
    وزارة العدل ولعل أهم ما اشتهر به مدحت المحمود لقاءاته الشخصية مع
    الرئيس الراحل صدام حسين وظهوره معه على شاشات التلفزيون وقد أطلق مدحت
    المحمود عبارة ( البيعة الابدية ) المشهورة للرئيس الراحل اثناء
    الاستفتاء الشعبي عام 2002 كما جاء في مقالته المنشورة مع صورة على طاولة
    واحدة مع صدام حسين في جريدة القادسية المؤرخة في 15 تشرين الاول لعام
    2002 وهو صاحب المقولة المشهورة ( اعظم قائد لأعظم شعب ) المنشورة بنفس
    الجريدة كما ظهر له لقاء مع الرئيس الراحل صدام حسين على شاشة التلفزيون
    ونشر حديثه في جريدة الثورة المرقمة ( 9861 ) في 3 تشرين الاول عام 1999 ( والذي يشبه
    صدام وعدله بالرسول الكريم وقضائه يعتبره في عهد صدام حسين هو بمثابة عهد
    صدر الإسلام ) .

    بعد عام 2003 اي بعد الاحتلال أسرع الى كبار المسؤولين الأمريكان
    وخصوصاً المسؤولين عن ملف القضاء وبتوسط من ابن شقيقته المدعو (سرمد )
    الذي جاء مع الجيش الأمريكي وهو متجنس بالجنسية الأمريكية وقد تعرف على
    كارنر ومن ثم بريمر وبالتزكية من شقيقه في امريكا وابن شقيقته الذي يعمل
    مع الامريكان اصبح مدحت المحمود هو الشخص المضطهد وقدم سيرته للأمريكان
    بأنه كان مفصول

    صباح الساعدي يفضح القاضي مدحت المحمود

    القاضي مدحت حمودي النعلبند رئيس مجلس القضاء الأعلى

  6. Salah said

    القاضي مدحت حمودي النعلبند رئيس مجلس القضاء الأعلى

  7. Timely piece. However, Al-Mahmud’s downfall may not necessarily be unfavorable to Al-Maliki. When the Supreme Court reverses the parliament’s Term Limit Law (which is very likely), Al-Maliki’s opponents will not have Al-Mahmud to blame. Also, did Shiite Islamists really need Iranian support to push forward with the De-Baathification issue in Iraq’s politics?! Show a better understanding of Iraqi Shiite politics, please?

  8. It was the Iran-sponsored half of the Shiite alliance, INA, that initiated the push for de-Baathification in early 2010.
    Some background at http://historiae.org/INA.asp and
    http://gulfanalysis.wordpress.com/2010/01/17/the-bloc-that-has-no-de-baathification-worries/

  9. faisalkadri said

    Reidar,
    What’s a sectarian census?
    I call for UN run census, this is more important than the questions it asks. BTW, I hear that the Kurds are accepting the necessity of census even if it leads to lower share of oil income, this is admirable. This leaves only Maliki and part of his block.
    BTW #2 I believe we are all sectarians or can be turned into one very quickly under the right conditions. Calling for census shows keenness on the unity of Iraq, not on divisions.

  10. Anbar protestors specifically called for census that would register people according to their sectarian denominations.

  11. faisalkadri said

    Yes I know, I called for the same plus the proviso of accepting neutral negative and positive responses responses, this allows for non-believers, non-muslims and the many don’t-knows with mixed parents. But it primarily targets the Kurds who may want dual Kurdish-Iraqi citizenship.

  12. Mohammed said

    Faisal and Reidar

    I think the Sunnis and Kurds have different reasons for wanting to pursue a census.

    For Sunnis, this is about the doubt that they harbor regarding the contention Shia make-up 65% of all Iraqis. Many Sunnis refuse to fathom the idea that Iraq is a Shia-majority state and hope a census settles this, and hence presents evidence that sunnis are under-represented in govt.

    Regarding the Kurds, their big concern is not whether they are 14 or 17% of the total population. What they want is a census that accounts for the ethnic make-up of Kirkuk and disputed territories. Their goal is for a census to pave the way for KRG to annex Kirkuk & disputed territories through a subsequent referendum.

    Maliki is hesitant when it comes to a census because of the ramifications it could have between Kurds, Arabs, and turkomen. I don’t think he cares about the Sunni/Shia numbers as much since it is highly unlikely any census would show Shia are any less than 55% of the population.

    But in my mind whether Shia are 55 or 70 percent should not justify a monopoly on power or tyranny of the majority. However, I don’t think Iraq is yet ready to deal with the results of a census when it comes to the Kurds and it may lead to worse violence.

    Regards
    M

  13. Santana said

    Mohammed-
    Sunnis ARE under-represented in Government and not because they are 35% as you claim (-which BTW is total rubbish and daawa propaganda) but because of your scumbag darling Maliki and his Sectarian agenda….ethnic cleansing of Sunnis is the upcoming thing. Iran is behind it as usual. So census or no census what Iran wants is what what Iraq gets…..nothing else will help or matter as long as the Snake Iran is injecting it’s poison in Iraq.

  14. Mohammed said

    Santana,

    I am not endorsing the statistic that Iraq is 65% Shia. It is a claim made by some politicians. I am all for having a census. My point is that even if Shia are a majority, it doesn’t give them a right to deny Sunnis their constitutional and human rights.

    And yes, I agree that Iran is driving a sectarian agenda in Iraq. The anti-Maliki camp makes it way too easy for Iran and any Sectarian Iraqi political groups. As recent reports show, sadrists appear to have made a deal with Maliki regarding re-appointment of the supreme court head judge Midhat. Nujaify’s recent interview from Qatar was a gift for those wanting to drive the sectarian master narrative. Iran should send Nujaify flowers and thank you card for his performance. Any Shii listening to it will quickly embrace the Shia camp. Any Sunni listening to it will embrace the Sunni camp. It appears to me that both sides (Maliki and Nufayfi) are driving this and incentivized for upcoming elections to keep Iraq polarized.

    Given that half of my family are Sunnis, I only want a peaceful co-existence for all Iraqis. Given that sunnis clearly have the weaker hand when it comes to Iraqi politics, they need to be far smarter than what they are now doing. With every confrontation, they put themselves in bigger holes. Your instinct to blame Iran will not help. Iran doesn’t give a damn about welfare of Iraqi people. The Iraqi people must examine their own actions and motives and not be willing pawns in a dirty sectarian game played not only by Iran, but iraq’s other neighbors as well.

    M

  15. bb said

    Is it the case that the sadrists have subsequently made a deal with Maliki to reappoint judge Midhat?

  16. Yes, partly true. More specifically, the appeals board for de-Baathification reversed the ruling and reinstated Midhat. The Sadrist head of the de-Baathification committee withdrew and the Sadrists were given another post. The reinstatement does seem like a whitewash when you look at the CV of Judge Midhat http://iraqja.iq/minister.php It is hard to imagine he could have achieved all that without being a high-ranking member of the Baath. It is also dubious whether the PM had the right to intervene in the de-Baathification committee structure. I will see if I can find something more specific on these issues later.

  17. bb said

    Goes to the adroitness of PM Maliki doesn’t it – and even more to the shameless, self interested wheelings and dealings in the Iraqi political system – reminds me of the US congress. Am sure it doesn’t happen that way in Norway, heh,heh? Probably the climate.

    You are right about Judge Midhat having a distinguished C.V. That probably explains why he has ruled in favour of government on those issues you complain about. – ie Baathist or not, he is doubtless a conservative who would be reluctant to lead Supreme Court into opposition to the government of the day. A bit like when Judge Roberts disappointed the Republicans on Obama Care.

    btw – I see in UK the 10th anniversary of the liberation of Iraq is causing a lot of heart burning and hand ringing. But nobody ever mentions the Iraqi parliament! I hope you are going to write a good, long piece about it?

    10 years on. Was reminded that the Iraqis have been governed by a prime minister and parties democratically elected to parliament for 8 years now – through three general elections, one constitutional referendum and a ruthless, depraved insurgency. Plus 3 provincial elections. Lots of moans and groans, some if not most of them justified – but the system.is.still.standing all these years later, Reidar. That’s got to be worth some points?

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