Iraq and Gulf Analysis

Is the Iraqi Presidency an Appellate Court?

Posted by Reidar Visser on Saturday, 6 August 2011 19:00

The controversy surrounding the refusal of the Iraqi presidency to sign an execution order for Sultan Hashim – a defence minister of the former regime sentenced to death for his actions against Iraqi Kurds in the lethal Anfal campaign in the late 1980s – has brought to the fore some interesting statistics regarding the death penalty in Iraq. According to recently-revealed statistics from the federal supreme court, out of 516 death penalties sent to the presidency by the court since 2009, only 83 or less than a fifth have been confirmed by presidential decree to date. A spokesperson for the federal supreme court added that they were “awaiting presidential confirmation for the remainder of the verdicts”, meaning that all or most of those remaining death sentences have yet to be implemented.

This remarkable piece of statistical information inevitably raises the question of whether the Iraqi presidency possesses appellate powers in cases involving the death penalty. As far as the constitution is concerned, the position is somewhat unclear. Signing execution orders is indeed enumerated as a presidential prerogative in article 73. But no specific authority to issue a pardon is mentioned (unless the prime minister specifically recommends it) , and the constitution does not say what should happen if the president refuses to sign an execution order.  It is noteworthy in this respect that there is a certain parallel to the presidential “prerogative” to issue laws: In that case the constitution says laws are automatically considered issued within 15 days, meaning that they become law whether the presidency likes them or not. This kind of automaticity is not specified as far as execution orders are concerned.

On the other hand, one should perhaps not go too far in pontificating about the “intentions of the framers” in the case of the Iraqi constitution in 2005, since it was adopted in such a hurried atmosphere and is so full of glaring contradictions that the assumption of any coherent “intention” behind the document is sometimes quite difficult to maintain. And in practice, since 2005, Iraqi judges have frequently made the case that strictly speaking no presidential decree is needed to implement a death sentence.  This issue became acute back at the time of the sentencing of Saddam Hussein in 2006 since President Jalal Talabani is an avowed opponent of the death penalty. In that and other cases, however, the deputies of the president signed presidential decrees, thereby completing the procedure specified in the constitution.

The current problem relates to cases where President Jalal Talabani seems to go beyond his opposition to the death sentence in principle and instead is attempting to furnish the institution of the presidency with real appellate powers. This came on the agenda in a serious way in autumn 2010 when the death sentence against Tariq Aziz was passed. Talabani’s reference to the Christianity of Aziz as a basis for attempting to pardon him inevitably came across as somewhat odd, but the more important point that emerged from that as well as the more recent case of Sultan Hashim is the apparent willingness of Talabani to block the presidency as a whole from issuing execution orders in selected cases. This impression has only got strengthened by the case of Sultan Hashim, since it was widely believed that the selection of Khudayr al-Khuzaie (a Daawa hardliner) as third deputy president was in part based on a desire by Shiite Islamists to have a presidential deputy that would be prepared to sign execution orders for members of the previous regime in cases where the president himself or Tareq al-Hashemi (his only other remaining deputy after the resignation of Adel Abd al-Mahdi in late May) might be reluctant to do so.

Politically, this is an interesting issue too. It comes amidst a growing number of instances where Kurds and the secular Iraqiyya have found common ground, pitting them against the Shiite Islamists in the National Alliance. A case in point are the recent protests against Iranian incursions into the Kurdish areas, to which the Kurds have reacted vociferously, but with the Shiite Islamist response slow and seemingly ambivalent. Of course, given the largely secular orientation of many Kurdish leaders, there have been instances of such confluences of interests with Iraqiyya in the past that nonetheless ended up with frustration in the final instance, as seen most pointedly in the case of the Kurdish embrace of a second premiership for Nuri al-Maliki in the autumn of 2010.

This time, the death-sentence dispute comes at a time when Iraqiyya is wavering between deeper integration in the second Maliki government and calls for early elections. It is only the Kurds that can make the final push against Maliki, and in making that choice the discussion about death penalties is only one piece in a much bigger puzzle for the Kurds.

11 Responses to “Is the Iraqi Presidency an Appellate Court?”

  1. Santana said

    Sultan Hashim and most of the officers on death row is a big farce. I challenge anyone to tell me that Solagh or Ahmed Chalabi or Hadi Alameri or Ali Aladeeb are wataneeyoon more than Sultan Hashim or Hussain Al-Tikriti or others!

    These guys were military men and followed orders. Their loyalty to Iraq is unquestionable unlike those Iranian puppets . Besides,the guys who gave them orders are all executed and gone.

    The hundreds of Iraqi officers on death row is an Iranian ploy to get rid of them. Thousands of them were already killed by JAM and Badr since 2003 or living in Syria or Jordan or Yemen.

    I hope what is left are all released and hired back to serve Iraq and clean the Army and Police from Iran’s filth.

  2. Salah said

    He done it with the tyrant’s death penalty, so why this time taken larger than this one. Is there any difference?

    Looks the time come hunting him down by other mongers…

  3. Reidar,
    Iraqi presidency functioning as an appellate court is testament to the politicizing and ineptitude of the legal system. The conviction of Sultan and Rasheed is part of a larger much more serious malaise: Guilt by Association is so widespread and accepted in Iraqi culture, judges concur for fear or ignorance. But the most serious consequence affects the peaceful transfer of power; those affiliated with the ruling parties expect to be victimized for their association rather than be treated as innocent beneficiaries, so they would put the fight of their lives rather than accept legitimate vote change. While I agree with all what you and Santana said, I think it is wrong to point to the innocence of of two or 500 without referencing the general phenomenon.

  4. Ahmed said

    Santana dream on, this will never happen, Iraq will never be ruled by unpatriotic haters like you. Its over, the likes of you can never rule until you change your backward and destructive views and start seeking support and votes from the south. Until then, just carry on being upset and stressed.

  5. Reidar Visser said

    Seems like many of you are concerned about the integrity of the Iraqi judicial system as a whole rather than with the relationship between the presidency and the current federal supreme court. Which makes some sense since the current court has not been seated according to the special law called for under the constitution of 2005. The bad news is that little progress seems to have been made on that law since the second reading in parliament earlier this year, which revealed enormous gaps between the political blocs, not least regarding the criteria for serving as a judge on the prospective supreme court.

  6. observor said

    Reidar, and all
    I am not one of those who support the pardoning of those with blood on their hands. I have met many Iraqi “professionals” who had to become party members to get up the ranks. It seems to me, from a practical point of view, that punishing those who joined to move up in their careers is tantamount to “cutting off your noes to spite your face”. Simply put, many of the technocrats in Iraq are being deprived of opportunities simply because they joined….

    At any rate, this is a side issue. The point that will become clear with time is that the constitution must be reformulated sooner or later. I repeat the comparison with the US between 1776 and 1789. We must simply allow for a few more elections before it downs on everybody that the system needs to be overhauled. But meantime, we need to build democratic institutions. More than anything else, we need an independent judiciary that do not respond to pressures from political entities to interpret ambiguous and poorly written laws.

    I hope that executions be abolished though given the culture in Iraq.. i truly doubt it.

    As to the execution of Sultan. Well, i do not buy the argument that he was following orders. That argument tried in Nuremberg and the principal of disobeying unlawful orders is not strange in Iraq (hell – the army is the kind of disobeying orders given the number of coups!). But I would submit to you and others that changing the orders from execution to life in prison maybe a good step forward to “musalha”….. I may be am justifying it based on my abhorrence of capital punishment, and thus positively spinning it, but worse was done by the aforementioned court to change the interpretation of the winning block post elections!!! So what is good for the goose should be good enough for the gander…

  7. Wladimir said

    I wrote a column, earlier before, about this issue (confluences of interests Iraqiyya and KDP/PUK for a local newspaper). It was very strange for me to see the Arab Political Council releasing a statement that ‘Arabs brothers were ready to sacrifice themselves to fight Iran’ at the border.

  8. Mohammed said

    I agree with everything you wrote. Iraqi constitution needs to be overhauled. Regarding sultan hashim I simply don’t know enough to judge if he has blood on his hands. I agree that “following orders” is never an excuse as shown in Nuremburg. I think your argument about life in prison is excellent. Any sane person should realize that killing him will only bring about further violence and retribution. The Islamic parties in Iraq should learn from the prophet Mohammed and from Nelson mandela. The Prophet forgave his enemies when he conquered Mecca even those with blood on their hands. Santana my definition of a “wattanny” is somebody who will defend his people’s rights to life liberty and the pursuit of happiness. If saddam gave an order to oppress innocent Iraqi people including women and children, a true Iraqi patriot would disobey those orders and fight against the army that tries to carry them out.

    Observer: regarding your previous post about the Mahdi…you called it a fairy tale—well I have good news and bad news for you. The bad news is that a majority of the Iraq people including leading Shia politicians may have some level of belief in this fairy tale. The good news is that it really shouldn’t matter. Afterall the principles of the Shia imams is that people should serve their fellow man, not cheat or steal or lie or oppress others (even secular or atheists). The problem with corrupt Shia politicians is that they dont follow their religion correctly. As an aspiring leader or advisor I trust that you understand that. And yes I share your cynicism that there are indeed Shia politicians who probably don’t believe a word of religion but use it as a means to achieve power.

    Speaking of corruption the latest news about the electricity minister is troubling. It stinks of corruption. I can’t believe how little thought went into this. It took me 15 minutes on google to see that this Canadian company is likely a sham. Somebody was trying to pull a Hazzem Shalaan.

  9. Jason said

    “But meantime, we need to build democratic institutions. More than anything else, we need an independent judiciary that do not respond to pressures from political entities to interpret ambiguous and poorly written laws.” Observer.

    Hear, hear! Even if I occasionally abhor some of its decisions, I am a huge fan of the S.C.O.T.U.S. It has been an essential part of successful democracy. A completely independent supreme court with true power of judicial review of the executive and legislative branches, would be just as transformational an event in the ME as democracy itself.

    It should be obvious that the two issues, the integrity of the entire judicial system and the relationship of the Supreme Court with the presidency are inextricably intertwined.

  10. M said

    I have a word for the commentators here. Eight years later, we are playing the same old tune. The way to move on is treat matters with the objectivity of a foreign observer. Look at the facts and events, then subject them to the references of the constitution, legal frameworks and universal standards and procedures to be able to make an at least an informed judgment if not a fair one. In terms of trying war criminals, history is full of precedents if we examine carefully we can make our own sentence fair. The balance between justice and forgiveness is no easy matter as it requires reconciling the wounds of the past with the aspirations of the future (forwarders and backwarders struggle). Forwarders can only move forward if they can truley understand and not readily write off the plight and victimhood of the people of south and the people of the north over the many decades of an almost sectarian and ethnic cleansing. Backwarders should realize: the way to retain what is left of hope for the future is to “lower the wing” on some of the “minimal” acts committed by the personnels of the old regime. The case of Sultan Hashim way exceeds the minimal I am afraid but that does not mean he should be put to death! The legal ambiguity in this case is a manifesttion of a bigger underlining political-philosphical conflict among power holders between the paranoia of the past and trust in the future – explaining the constant alliances shifts. Examine any move by Maliki, Allawi or Talabani and see how this framework almost always applies ..

  11. observer said

    Dear Muhammad,
    Glad that we see eye to eye on some issues. That is a start :)….
    On the electricity. there is more than meets the eye. The parliament should not only look at the misdeeds of the current minister, but the entire file. I can not believe that $30 billion has been spent in 8 years and the electrical services are as bad as they are.
    Do we agree that looking for corruption should be independent of the block to which a certain minister was. I recall in 200l4, Alawi fired his brother in-law, Badran, who was minister of interior at the time for suspecting him of corruption and sent the files of different ministers for investigation (a committee headed by Barham Salih). When was the last time a minister was held accountable? I am looking forward to Iraqiya to take the responsibility for the corruption of a minister that belongs to to its block. I am also looking forward to pointing out the deputies and all those who have a hand in this crooked deal (while I have no proof, I am sure that many different hands from many blocks are involved).Lets hope that this is the first step to cleaning up Iraq from corruption…If Iraqiay has a hope of capturing a large vote next time, they have to take on the mantel of leadership on corruption.

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