by Iraq Watch Group

On 30 May 2024, the Court of Cassation, headed by Faiq Zidan – who also serves as the President of the Supreme Judicial Council (SJC) – issued a decision to overturn a ruling by the Federal Supreme Court. According to the Iraqi constitution, the Federal Court is the highest judicial authority in the land, it has the final say in all rulings, and is independent of the SJC.

The decision taken by the Court of Cassation in March is notable because it represents an attempt to compromise any constitutional independence the FSC might enjoy, centralising the judicial institution so that it is brought under the authority of the SJC and its President. This poses a substantial threat to the rule of law in Iraq, as it makes it easier to control the decisions of the judiciary and allows for its politicisation.

The Centralisation of Judicial Authority

The authority of the president of the SJC has grown gradually over time, primarily due to the absence of an effective law regulating the work of the judiciary. For example, Law No. 45 of 2017 on the SJC mentions the existence of a Council, which is headed by the President of the Federal Court of Cassation, along with other court presidents as members. In theory, this Council is responsible for regulating and overseeing all the work of the Iraqi judiciary, apart from that of the Federal Court. However, the law does not specify a precise mechanism for the election or dismissal of judges who sit on this Council. As a consequence, the president of the Council has de facto authority over nominations and dismissals, without any clear recourse for appealing these decisions.

The centralisation of authority within the Iraqi judiciary can be traced back to at least 2017, when Law No. 70 of 2017, transferred the Judicial Institute (responsible for training and selecting judges) from the Ministry of Justice, which is under the Council of Ministers’ Secretariat, to the SJC. This altered the process of selecting new judges, making it the direct responsibility of the SJC. In addition, the law abolished previous mechanisms and standards for managing the Judicial Institute and formed a new entity called the ‘Council of the Institute,’ chaired by the Head of the SJC. This has given the head of SJC three highly ranked positions within the judiciary system at the same time.

Furthermore, in 2018 the SJC issued directive (No. 1 of 2018) to facilitate the implementation of the Supreme Judicial Council Law. This gave control over financial and administrative matters of judges to the head of the SJC, allowing the body and its president to potentially arbitrarily punish judges that oppose their decisions.

Politicisation of Legal Decisions

The centralisation of judicial authority in Iraq has left it vulnerable to accusations of politicisation. For example, when Mohammed Al-Halbousi’s opponents within the Shiite Coordination Framework (SCF) were unable to get the parliamentary majority in the Council of Representatives needed to remove him, they resorted to judicial means as a shortcut to achieving their goal. Prior to this, following the 2021 elections, the Federal Court issued an interpretation of the parliamentarian majority that prevented Muqtada al-Sadr from forming a government. This phenomenon is not new; accusations of politicisation also surfaced in 2010 when similar tactics were used to prevent Iyad Allawi from forming a government, despite his party winning the most seats in the elections.

In recent years, there has also been an uptake in the persecution of critical voices in Iraq, particularly against those who have spoken up against the policies of the current ruling parties. The instrumentalisation of broad and vague articles within the Iraqi Penal Code has been central to this campaign. The centralisation of authority within Iraq’s judiciary has made it more difficult mount legal appeals against such decisions, or even to oppose them publicly due to fear of persecution.

Undermining the Rule of Law

The centralisation of authority within Iraq’s judiciary has led to a further decline in public trust in the rule of law in the country. This was highlighted by the skepticism that followed the arrest of a public figure, known as ‘Umm al-Loul,’ initially for indecent conduct and later for drug possession. What might have been a routine arrest escalated into a public opinion issue, with many using the details of the case to question the fairness and integrity of court decisions.

This centralisation of the authority within the judiciary has also undermined the judiciary’s credibility internationally. For example, the US Congress recently pushed to sanction the current President of the SJC, Faiq Zidan. This was met with statements of rejection and condemnation from various Iraqi politicians.

In order to rehabilitate the Iraqi judiciary and ensure that it as an impartial and credible institution, it is crucial to advocate for a reduction in the centralisation of power within the judiciary and the restoration of its independence. To this end, the establishment of accountability and oversight mechanisms, capable of holding the SJC and its president to account, especially when it seems to be slipping into politicisation, might be a good place to start.