Iraq and Gulf Analysis

Iraq Gets A New De-Baathification Board but the Supreme Court Becomes a Parody

Posted by Reidar Visser on Monday, 7 May 2012 16:16

It’s an indication of why Iraq is not unraveling completely: In the midst of political crisis, the Iraqi parliament today actually managed to approve a new de-Baathification board. The decision on the issue had been stalled since 2009. After the death of former director Ali al-Lami in May 2011 an acting official close to Prime Minister Nuri al-Maliki had taken care of the de-Baathification file.

Of the seven new members who were nominated by the cabinet, two were Kurds. Those were incidentally the same Kurdish candidates that were nominated back in 2009. Today’s official parliament report mentions only one of these two and some press reports say one candidacy was withdrawn by the cabinet. Accordingly, it is quite possible only 6 members were agreed after all, which in itself is legally dubious. At any rate, two other members of the new board are close to the secular Iraqiyya party: Muzahim Darwish al-Jibburi, a former minister of state who lost his job after the cabinet was downsized last summer, and Faris Abd al-Sattar, a lawyer from Mosul who has previously worked for the Nujayfi brothers there. The remaining three commission members are connected with Shiite Islamist circles. Falah Hassan Shanshal is a Sadrist. He is considered a hardliner in de-Baathification issues and is seen as a frontrunner for the presidency of the commission. Like several other members he is a victim of the former regime in the sense that he has been previously imprisoned. Jabbar al-Muhmamadawi is also thought to have ties to the Sadrist milieu whereas Basim Muhammad al-Badri is probably linked to the Daawa.

The commission of 7 members makes its decisions with a simple majority of 4. In other words, the 3 Shiite Islamists will need at least one Kurd on their side to push through their agenda. Reflecting their electoral success in 2010, Iraqiyya is better represented than in the original commission proposed by the Maliki government in 2009. At that time, Maliki had hoped to install Walid al-Hilli, a party ally, as chief of the new commission; conversely the Daawa is less prominent in the current commission line-up. Still, the fact that the board was approved by the Iraqi cabinet suggests Maliki probably considers he can live with it.

It is reported that the vote went ahead in parliament without any major protests. (By way of contrast, Iraqiyya once more successfully obstructed the vote to sack the mayor of Baghdad of ISCI against the wishes of some Maliki allies and possibly the Sadrists as well.) The overall parliamentary attendance figure was given at 195. No split vote was reported nor were any massive walkouts mentioned.  In other words, the de-Baathification board decision does seem to be one of those rare cases in Iraqi politics where every side is satisfied. One possible interpretation of how it succeeded is that Maliki’s Daawa is apparently taking a back seat and is leaving the role of being Baathist hardliner to the Sadrists.

Today’s vote on the de-Baathification commission is interesting also as a possible harbinger of dynamics at an upcoming important vote in the Iraqi parliament: The approval of a new election commission (IHEC). Both these votes can be done legally with a simple majority. However, with respect to IHEC, Maliki is more determined to have the current board replaced since its make-up dating back to 2007 antedates his own rise to power.

Alas, there was also another possible harbinger of future trends in Iraq today. After weeks with pressure on the minister of higher education to appear before parliament for  questioning (and with an apparent ultimatum for him to do so this week) the Iraqi supreme court today produced a very timely ruling, as least as far as the minister’s point of view is concerned. In fact, the request for a constitutional clarification was dated as recently as 30 April, meaning that the court has been unusually effective. It should be added that the minister in question, Ali al-Adib, is from Maliki’s party.

Perhaps it is its effectiveness that has led to what must be described as one of its most scandalous rulings ever, perhaps second only to the Byzantine piece of jurisprudence pertaining to the independent commissions that it produced last year. Basically, the query is about the interpretation of article 61-7-c of the constitution. That article is very simple. It enables 25 deputies to request the questioning of ministers in order to “hold them accountable for matters within their specializations”, with at least seven days between the request to the actual hearing. And that is it.

But the ruling of the supreme court is far more complicated! It appears to say such requests must be accompanied by a specification of alleged constitutional and legal infractions and must define breaches and material damages in terms of criminal procedure. The court goes on to say questioning is the highest form of supervision parliament can exercise and considers it tantamount to withdrawing confidence in the minister.

The problem is, absolutely none of this can be found in the constitution. Actually, the court also refers to article 58 of the parliament bylaws, but the basis for the new interpretation just isn’t there either and the legality of those bylaws – currently under review – is disputed anyway. Certainly, most cases of Iraqi ministers being questioned in the past seven years have been void of specific accusations of criminality.

What we have here is a very clear case of the Iraqi supreme court producing a ruling that seems politically biased to the point where it apparently overrules the Iraqi constitution and the right of parliament to hold ministers accountable. Hopefully Iraqi politicians will use the specific problems at hand here – rather than the fantasies of the Arbil agreement, which in itself is full of unconstitutional and extra-constitutional ideas – to frame a reasonable debate about the independence of the Iraqi judiciary. They have got plenty of time to do so, because parliament is now on holiday until 14 June.

19 Responses to “Iraq Gets A New De-Baathification Board but the Supreme Court Becomes a Parody”

  1. Mohammed said


    This is a kangaroo court. While some may think it is futile, I believe these kind of challenges are still worthwhile. The follow-up should be ridicule of these bogus judges so they are on the defensive in the court of public opinion. What is the constitutional mechanism in place to get rid of these fools?

    If I was Nujaifi, I would order a truckload of bananas and drop it off by the steps of the court with a sign saying that a group of monkees could adjudicate better than these lackeys.


  2. Reidar Visser said

    I’m afraid there is no constitutional mechanism for getting rid of them as far as I see. But the banana truckload was a pretty good idea, given we are already firmly in extra-constitutional territory!

  3. Samir Abdallah said


    ” It appears to say such requests must be accompanied by a specification of alleged constitutional and legal infractions and must define breaches and material damages in terms of criminal procedure.”

    If such allegations exist, do we need the signatures of 25 PM? Allegations can be submitted to respective authorities (Integrity commission or the judiciary) to do proper investigation.

    Doesn’t this practically give the ministers immunity from the Parliament?

  4. Reidar Visser said

    Yes, good point. I just don’t get why the Iraqi press is not making more of this story. Maybe they are still digesting it.

  5. Sorry to run off the subject of this particular blog post, but does anyone have any idea what the “big picture/behind the scenes” story is behind the recent mosque and land grab taking place between the Sunni and Shia Arabs in the north ( in Ninewa, ; and in Kirkuk, )?

  6. Reidar Visser said

    Now, that is a true sectarian driver – the Shiite endowment offices. Symptomatically, perhaps, Free Iraqiyya is being quoted as saying Maliki is trying to intervene to avert catastrophe. If we are to believe critical voices, hardliners within his own party may well be the moving forces…

    Anyway, as you said, that is off subject so let’s revert to the perfectly non-sectarian but nonetheless thoroughly shameful judicial sorcery of the Iraqi supreme court.

  7. Zuhair said

    Thank you for very enlightening article,Supreme court interpretation of the constitution only proves again it is a tool for political control of Dawa party &PM Maliki .So Iraqi judicatory is not independent but very biased ,it looks like a department of PM office used when needed .

  8. @ Reidar – I hope Iraqiya use this opportunity to cite a concrete, incontrovertible example for both the Supreme Court’s lack of independence and Maliki’s misbehavior.

    The *Supreme Court* is contravening the Constitution, for God’s sake! Even Kuwait and Bahrain’s *sham* of Parliaments can question Ministers!

  9. Observer said

    Sooooo. Rv do you still redommend that we file a complaint ith the supremes?
    Honestly rv, i would rather see iraq fragmented than going back to the age of dictatorship which is where we are heading regardless of the protestation of mo and other apologists (sorry mo, but you do come off as an apologist at least to me)

  10. Reidar Visser said

    Observer, yes, file the request and make the court look stupid. It will have a greater effect than accusations of general authoritarianism which will only prompt shrugged shoulders internationally and nothing more.

    Also, I think your criticism of Mohammed as “apologist” comes across as unfair when he has in fact made clear his distaste of the ruling at #1 above.

  11. Observer said

    Rv. Mos critique is to the supremes not to malikim and da3wa. Trust me i can read english and the nuances within.
    We will not file becuase we can not undo the ruling. If those who can influence events can not read the signs of coming dictatorshipthen no ruling is going to help us make the case any stronger. By the way, as i told you earlier privately, even the kurds do not want to file in areas where there is no ambiguity in the constitution!!!! So it is not iraqia alone that does not want to give dawa and maliki more chances to get interpertations worthy of ali wardi inclusion n waadh al salaten…

  12. @ Observer – I concur with Dr. Reidar, file the complaint, make the court look increasingly dumb and in the pockets of Maliki.

    While you can’t undo the ruling, surely soon when there is either a new PM or Govt, won’t it be able to replace the Supreme Court Justices? And surely the new judges will be able to overturn the rulings of the current court?

    After all, the US Supreme Court has overturned a number of rulings that in hindsight were judged to be invalid.

  13. Observer said

    I know you all mean well and do care for iraqs future, but please give us the benfit of the doubt. We are on the ground and while you all believe we are amatures and know nothing about how to do things… But truly changing the interpertation is going to require changing the constitution not the court…. Much to say, but i have talked too much already. We know that dawlat al fafon watches this site and i am not going to tell them what we are planning…

  14. Samir Abdallah said

    I read observer’s point. I have heard the same argument from another leading politician about creating the dispute of creating federal regions. I can understand the reasons as copied here by observer clearly. My comment is, if all political parties revert to their interpretation of the constitution, and no one wants to submit requests for legal interpretation of certain issues in the constitution to the supreme court, then all disputes can only be solved politically, not according to constitution.

    In this case we are in a dilemma when the supreme court is biased. We either have to solve everything politically (perhaps by muhassasa, or give and take, …etc.) or be in a stalemate, as we have been for the last several months. That doesn’t sound like a democratic system to me.

  15. observer said

    The point that maybe missing from your calculations is that the other major political blocks are lined up against Da3wa’s attempt to take over, each for their own purposes of course. But if we get him unseated, then we can actually re-write the rules to make sure that there is no hegemony over the system. The judges are a product of the Baath regime and the constitution is in desperate need for a revision. The more time passes the more the need is obvious.

    A few months and weeks past, i was saying that Da3wa is similar to Baath in methods and I see a repeat of the 70;s. People here ridiculed me but now I think there is enough evidence to all of you that sadly I was not exaggerating.

  16. @ Observer – fair enough, Sir.

    May what you do be the best for Iraq.


  17. bb said

    Reidar, when these questions are referred to the Supreme Court, what is the procedure then? Does the Court take submissions and evidence in public? Are these submissions and evidence published when they make their decision?

  18. Reidar Visser said

    Bb, no, it’s a closed supreme court hearing. Only thing that comes out in public is the report of the meeting, which is what you see in the snippet image in the post above.

  19. bb said

    Thanks RV. That’s what the problem is, not the decision they made of course.

    I remember back post 2003 the International legal community gave great help to repairing the system, partic in preparation for the war crimes trials – there was a website, Grotion Moment, as I recall.

    The absence of proper and transparent processes in Supreme Court is a very damaging thing for Iraq – or any country.

    Quite clearly the clause in the consitution is unworkable, because on the face of it the Iraqi parliament would have time to do nothing else but question ministers.

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