The Iraqi Supreme Court’s decision last month to strike down a law restructuring the Judicial High Court (JHC) has wrought a political coup within the judiciary, returning Midhat Al Mahmoud, an ally of Nouri Al Maliki, the prime minister, as the head of the legal system.
The JHC oversees the judiciary, including the appointment of judges below the Supreme Court. Mr Al Mahmoud became head of the JHC when it was established under the 2004 interim constitution and became chief justice when the Supreme Court was formed the following year.
Mr Al Mahmoud remained head of both institutions but last December parliament passed the JHC law, which among other changes provided that the chief of the Federal Appeals Court would be its head. So in February, Mr Al Mahmoud was replaced as JHC head.
Mr Al Mahmoud had kept a relatively low profile politically in his first few years as chief justice.
Then in March 2010, the court decided that the constitutional provision stating that the prime minister-designate be nominated by the “largest bloc” could refer to a group formed by a coalition after the election.
The decision allowed Mr Al Maliki to merge his bloc, which fell two seats short of the Iraqiya coalition, with that of other Shia Islamist parties.
That decision was defensible, but the court then spent several months ignoring lawsuits brought by Mr Al Maliki’s opponents to force parliament to elect a president, which the constitution requires that it do within 30 days. Such a decision might easily have cost Mr Al Maliki his reelection as it ended up taking him nearly six months to negotiate a majority coalition.
This was followed by further pro-Mr Al Maliki decisions, the most consequential being a May 2012 holding that parliament could only begin removal proceedings against a minister for violation of the law or the constitution. That particular decision shielded a key Maliki ally, but it has since also aided the prime minister himself in escaping parliamentary questioning.
So it is not a surprise that this case was brought by Khalid Al Attiyah, who leads Mr Al Maliki’s State of Law bloc in parliament. Nor is it a surprise that reactions to both Mr Al Mahmoud’s removal in February and his return fell exactly along party lines.
The court’s reasoning focused primarily on separation of powers and what it views as parliament’s inherent lack of authority to amend legislation.
Having previously ruled that parliament cannot initiate legislation, but that only the cabinet or the presidency can, the court noted the presidency had introduced the bill in November 2008, only to have parliament not act upon it until 2012.
When it did so, the court wrote, “political blocs undertook to make fundamental changes to most of the bill’s provisions, and then parliament voted on it with haste and without the opinion of judicial authorities regarding the bill or the fundamental changes made”.
Furthermore, the court found that the amended bill “undermined the judicial stability which had been built since 2003”, by Mr Al Mahmoud himself.
Noting that the presidency requested in 2011 that parliament return the bill for review, a request it refused, the court concluded the amendments “made it differ entirely from the original bill”.
Note too that Jalal Talabani, Iraq’s president, who has been incapacitated by a stroke since last December, had a common interest with Mr AlMaliki in ensuring Mr Al Mahmoud’s continued control, as none of his decisions have ever threatened the vital interests of the Shia or the Kurds.
The court did provide specifics for its claim that the law violated the separation of powers.
Focusing on the law’s creation of an “administration commission” within the JHC, it argued this violated separation of powers, since only the executive branch can oversee administrative hearings, including those for employees of the judiciary.
The irony is rich: since the Administrative Court is part of the justice ministry, the statute would have eliminated a lever for executive control over judges. But since the Supreme Court already has exclusive jurisdiction over appeals from the Administrative Court, it can influence such outcomes anyway.
Similarly, the law provided for the JHC to have a “general director”. But since the term “general director” is used for office heads in the executive branch, this, the court reasoned, violated the separation of powers.
Finally, the court argued that the law undermined the independence of the judiciary, noting that the presidency’s original bill had the JHC appointing the chief and members of the Supreme Court, but parliament instead reserved this power to itself. So in practice the original bill would have allowed Mr Al Mahmoud to choose his successor, ensuring a court friendly to the executive.
Indeed the ultimate irony from the decision’s numerous references to “separation of powers” is that this result concentrates power in the hands of one man over both of Iraq’s leading judicial institutions, and if the court’s past record is anything to go by, guarantees continued close relations between the executive and judicial branches of government.
Kirk H Sowell is a political risk analyst based in Amman, Jordan, and is also the editor-in-chief of Inside Iraqi Politics