Iraq and Gulf Analysis

Archive for May 15th, 2012

The Hashemi Trial Begins amid Signs the Iraqi Constitution Is Dying

Posted by Reidar Visser on Tuesday, 15 May 2012 18:30

It was perhaps inevitable. An Iraqi politician would eventually declare the Interpol red flag notice for Vice President Tareq al-Hashemi “unconstitutional”.

There are many good reasons for being critical about the reasons that led to the original prosecution of Hashemi. In particular, the timing of the original Iraqi arrest warrant – just hours after the departure of the last US forces from Iraq in December 2011 – smacked of political opportunism. Subsequent allegations about mistreatment of the imprisoned guards of the Iraqi vice president have been met with unsatisfactory replies from the Iraqi judiciary that have prompted suspicion of  whitewash on more than one occasion.

However, the Interpol red flag notice is in itself not “unconstitutional”. Iraq is an Interpol member and the government has the option of turning to Interpol to request international assistance for bringing suspects to court. The built-in checks and balances in the system in this case have nothing to do with the Iraqi constitution as such but with the ability of other Interpol member countries – including Turkey, where Hashemi is currently staying – to ignore the warrant or deny extradition if they judge its basis to be unsound or the prospects of a fair trial unlikely. This is precisely what Turkey is doing.

Alas, as the trial of Hashemi finally went ahead in absentia in Baghdad today, the meaningless declaration of the Interpol red flag notice as  “unconstitutional” serves as a reminder about much deeper problems in the “new” Iraq. It doesn’t really matter who said it, Sunni, Shiite or Kurd: Today, the Iraqi constitution is merrily being violated by all sides. The term  “unconstitutional” (ghayr al-dusturi) has no real meaning anymore in Iraqi Arabic. It is simply shorthand for  “I wholeheartedly disagree with you (and, besides, I despise you)”.

There are of course numerous indications that the Iraqi judiciary is under severe political pressure from Iraqi Prime Minister Nuri al-Maliki. Over the past year or so it has produced a string of quixotic rulings and constitutional interpretations that leave doubts about its impartiality. Perhaps most noteworthy are the ruling on the independent commissions from January 2011 and the recent ruling on the right of parliament to question ministers (which, symptomatically perhaps, has yet to receive the mainstream media scrutiny it so badly deserves). Maliki’s own refusal to deal in a legal fashion with the various request for federalism referendums over the past year or so is in itself a flagrant constitutional violation – as is his consistent failure to present senior security officials for parliamentary approval.

But the critics of Maliki are not an inch better in terms of adhering to supposed constitutional ideals. With a series of extra-constitutional inventions in the Arbil agreement of 2010 – the centrepiece of their current campaign to unseat Maliki – they, too, are showing scant respect for the Iraqi constitution. In fact, their frequent assertion that they demand adherence to the Arbil agreement and the Iraqi constitution is a contradiction in terms since so much of Arbil involves upsetting the basic balance of power outlined in the constitution and as such should require a popular referendum before being implemented.

It should be added that the international contribution to this anti-constitutional trend in Iraq is generally shameful. The frantic attempts by the United States to get a government seated in 2010 brought about the unhelpful marriage between Iraqiyya and the extra-constitutional strategic policy council scheme, a key ingredient of the Arbil agreement. Similarly, the United Nations agency in Iraq recently issued an unhelpful and naive message of optimism in Iraq, narrowly focusing on security indicators while conveniently brushing obvious political problems under the carpet. Of course, the leverage of both the US and the UN is declining in Iraq as regional players are strongarming their way to fill the vacuum, but the very least they should do after having played such a dominant role since 2003 is to try to emphasize constitutional consistency as a guiding principle for handling political conflict in the country.

Finally, with respect to the green light for the Hashemi trial to go ahead today (it will continue on 20 May), a few comments are in order. Hashemi lawyers had argued that article 93-6 of the constitution gives jurisdiction to the supreme court, rather than to the criminal court, in all cases involving the presidential deputies. On this isolated issue it is possible to agree with the prosecution since said article in fact only mentions the president of the republic (rais) rather than the presidency (riyasa). Another potentially mitigating factor is that Hashemi can appeal the case until it reaches the cassation court, which was recently appointed with at least some new members who were disliked by the Maliki bloc in parliament.

Perhaps the best thing Hashemi’s allies can do going forward is to make sure their own discourse is as loyal to the Iraqi constitution as possible. This, in turn, should make it easier to win international solidarity whenever constitutional infractions become part of the political struggle in Iraq.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 77 Comments »