The Iraq judiciary has made great strides in its capacity and independence since the fall of the Saddam regime, as demonstrated by brave and politically unpopular decisions made in the name of fair and impartial adjudication. In 2008 the Iraq Supreme Court vacated the Council of Representative’s decision to strip a parliamentarian’s immunity so he could be prosecuted for traveling to Israel. In so doing the court held that a 1950’s law making travel to Israel illegal violated the Constitution’s freedom of movement. In 2009 the Supreme Court overturned the de-baathification (and subsequent disqualification from office) of the President of the Iraqi Bar Association. In its brave and unpopular decision, the Supreme Court determined that de-baathification only applied to public posts and that the Bar Association, as a non-governmental entity, did not qualify. The previously de-baathified individual was allowed to resume his position.
It was hoped that these decisions were indicators of the type of judiciary Iraqi courts were becoming — independent, fair and impartial, and grounded in sound legal reasoning – and gave hope that the judiciary could play a pivotal role in the development of the rule of law in Iraq. Unfortunately, a recent decision involving the March parliamentary elections gives cause for concern.
In the wake of Iraqiyya’s (led by Ayad Allawi) victory over the State of Law Party (led by Prime Minister Maliki) – Iraqiyya won two more seats than State of Law – the Prime Minister has looked to the courts to secure his chances of retaining his post. Article 76 of the Iraq Constitution calls for the President to “charge the nominee of the largest Council of Representatives bloc with the formation of the council of Ministers.” In 2006 there was no uncertainty over the meaning of this provision – the United Iraqi Alliance, a coalition (formed before the election) of Shia parties, had the largest number of seats in Parliament and was charged with forming a government.
Arguing that the word “bloc” is ambiguous (the Constitution does not specify whether “bloc” refers to pre or post-election groups and the word itself can mean large or small coalitions), Maliki asked the Supreme Court to interpret Article 76 so that “largest Council of Representatives bloc” would be defined in terms of post-election coalitions that come together to form a government — giving Maliki the chance to reach agreement with other parties in order to create the “largest bloc” and therefore first crack at forming a government. In a disappointing reversal of the earlier (and more democratically principled) understanding of Article 76, the Supreme Court adopted Maliki’s reading of Article 76.
The Iraqi judiciary’s development over the past seven years is admirable and should be the envy of most other Arab judiciaries. One might even be tempted to give it a pass given the high stakes surrounding these elections – clearly emerging courts must pick their battles carefully, asserting too much strength and independence too soon could have long-lasting negative consequences. Still, one has to be disappointed with a decision that seems to favor the political establishment over the rule of law.