Iraq and Gulf Analysis

Archive for July 8th, 2011

Nomination Trouble for the De-Baathification Appellate Bench

Posted by Reidar Visser on Friday, 8 July 2011 18:53

Remember the special appeals court for de-Baathification cases? That’s the Iraqi judicial entity of seven judges that came into existence in January 2010 in a supposed attempt at harmonising the laws in force on de-Baathification with the process of vetting candidates for the March 2010 parliamentary elections. Of course, that attempt failed miserably and resulted in gross miscarriage of justice against hundreds of candidates, including such prominent Iraqiyya figures as Salih al-Mutlak who was barred from participating on the basis of a non-existing law.

While it is true that the Iraqi federal supreme court must shoulder ultimate responsibility for the failure to apply due legal process to the mechanisms of electoral candidate approval back in early  2010, the de-Baathification appeals court also played a certain role. However, after the parliamentary elections the court has been less prominent and the reason is very simple: After two judges were pensioned and one was killed, by September 2010 it no longer had any quorum to make decisions.

Early attempts by the Iraqi parliament to install replacement judges were aborted thanks not least to the efforts of the militantly anti-Baathist Bahaa al-Aaraji of the Sadrist movement. Last week, another attempt was made (the Sadrist are also worried about the lack of quorum on the court, since “Baathists continue to serve in government”), but again the process ran into trouble: Only two new judges were approved, whereas two others were left unconfirmed – ostensibly pending the examination of their curricula vitae by parliament, but with rumours about past Baathist ties swirling around (and with Maliki allies in his  State of Law alliance featuring prominently in the proliferation of those accusations).

The process of filling the appellate bench with new members illustrates the problems of reconciling old Iraq and new Iraq. The two judges that were cleared by parliament last week were Jalil Khalil Shakir and Sulayman al-Qaradaghi. Judge Jalil is a Fayli Kurd and his approval by parliament was loudly celebrated by Fayli Kurd media of a rather ethno-sectarian calibre: They even forgot to mention the outcome of the remaining nomination attempts! As for Judge Sulayman, his family name (Qaradaghi) could be Kurdish and could be an indication that he is a replacement on an ethno-sectarian quota basis for the Kurdish judge of the previous bench that was killed.

But two of the other judges that were also likely nominated on an ethno-sectarian quota basis were not approved by parliament. This applies firstly to Numan al-Bayati, whose family name sounds Turkmen and in fact is the same as one of the retiring judges (Hamid al-Bayati). The second case relates to Yas al-Saadi – was he intended as replacement for the retiring chief of the court, Muhammad Sahib al-Khafaji? In those cases, despite the quota imperatives, legacies of the past were not readily accepted by parliament, once more underlining how the previous regime was so much more than a bunch of relatives of Saddam Hussein from Tikrit. More broadly, this relates to a general problem that has delayed the passage of a new law for the federal supreme court:  In Iraq, it is almost impossible to find qualified judges with decades of experience that do not have any ties to the past regime. That in turn has prompted some of the Shiite Islamist parties to demand changes to the draft law on the new supreme court (which was prepared by the existing court). In particular, they want lower service thresholds for nomination to the new court.

Unless the Iraqi parliament can find pragmatic and consistent solutions for incorporating professionals that served in the previous regime, it is unlikely to be able to pass legislation on a new federal supreme court at all. In that sort of context, the old court and its various appellate institutions will continue to serve – with the legitimacy problems and susceptibility to political pressure that come with its own genesis during the days of Paul Bremer back in 2003–2004.

Posted in De-Baathification, Iraqi constitutional issues, Sectarian master narrative | 34 Comments »