Iraq's Supreme Court yields its independence to Maliki
Recent events suggest that Iraq's Supreme Court is determined to shed whatever standing it may still have as a non-political institution. The court has come under criticism for looking like a willing accomplice in Prime Minister Nouri Al Maliki's efforts to prosecute Vice President Tariq Al Hashemi for allegedly running death squads.
Whatever the truth of the allegations, the manner in which Mr Al Maliki has carried out the prosecution - investigations carried out by forces which answer only to him, and Saddam Hussein-style televised confessions - has not been good. But at least the Hashemi case involves alleged criminality.
Lower in profile, but perhaps more troubling, has been the use of legal action against politicians who have merely made statements critical of the government.
The judiciary set a troubling precedent last September when it issued an arrest warrant for MP Sabah Al Saidi, an independent Shia Islamist and longtime critic of Mr Al Maliki. The action came after Mr Al Saidi took a risk, going beyond his normal allegations of corruption to claim that a leaked intelligence report showed that Mr Al Maliki was setting him up.
Mr Al Maliki sought to prosecute him under Criminal Penalties Law No 111, a Baath-era statute which allows prosecution for criticism of the state. And as if that weren't enough, the arrest warrant was announced at a press conference by a politician, Ali Al Shilah of Mr Maliki's State of Law Coalition, not by a legal officer. The judiciary confirmed the warrant two days later.
And this month, legal cases have been brought against two MPs for political statements. Both Adnan Al Janabi and Haidar Al Mulla belong to opposition leader Iyad Allawi's Iraqiyya coalition.
Mr Al Janabi is a member of Wifaq, Mr Allawi's own party, and the chairman of parliament's oil and energy committee. Mr Al Mulla belongs to the Dialogue Front, headed by deputy prime minister Salih Al Mutlak, and is that party's official spokesman. Mr Al Mutlak and Mr Al Maliki have a long-running personal conflict, and the prime minister recently locked Mr Al Mutlak out of cabinet meetings, after demanding that parliament approve his removal from office.
These cases are based on public statements critical of the judiciary.The Judicial High Council was ostensibly just processing demands to have parliamentary immunity removed so opposition figures could face legal process. But the court could refuse to enforce a statute that violates the constitution's guarantee of free speech.
Although parliament is unlikely to vote to remove the two MPs' immunity, legal action could be brought against them after they leave office. Mr Al Mulla has offered to waive immunity so he can challenge the charges in court, but these cases could silence other MPs.
Chief Justice Midhat Al Mahmud, increasingly criticised for his dominance of the judiciary - he also heads the Judicial High Council - is now coming under criticism for his personal conduct. On February 10, Kurdish leader Mahmud Othman criticised Mr Al Mahmud for attending political meetings, noting that he had seen the chief justice attend several gatherings of the political blocs.
The judiciary has publicly distanced itself from the televised confessions that are to be used in the Hashemi prosecution, but shows no indication of doing anything about it. It could, for example, adopt an "exclusionary rule" saying evidence obtained in a prejudicial manner cannot be used. But that seems unlikely. Prosecution of Mr Al Hashemi and his guards has gone forward in their absence.
There are also questions about the Supreme Court's role in the dispute over efforts by the Sunni-majority provinces of Salah Al Din and Diyala to form semiautonomous regions, as the constitution permits. After Salah Al Din declared itself semiautonomous on October 27, Mr Al Maliki said this could not be enforced, even though the 2008 statute involved gives the executive no discretion.
Then on December 12, Diyala's council members signed a demand for a referendum. Mr Al Maliki responded by imposing de facto martial law on the province.
Mr Al Maliki's initial reaction was to say that he would not enforce the law because the initiatives were "based on sectarianism". Since this is not a legal basis for not enforcing the law, he shifted ground, arguing in December that the "disputed territories" prevent implementation. Both Salah Al Din and Diyala contain such territories.
This is where the Supreme Court enters the picture. On December 14, just two days after the Diyala demand, the Kurdish council chairman asked the court for an opinion on a potential legal conflict in region formation: can a province declare itself a region when part of its territory is subject to the constitution's Article 140 on disputed territories? Despite the clear constitutional implications, the court took 14 days to consider, and then declined jurisdiction. Remember that it took an appeals court appointed by Mr Al Mahmud just a single day in December to review the case against Mr Al Hashemi.
The incident shows that Mr Al Maliki can now permanently close off legal channels for addressing local frustration over excessive central control. Since the disputed-territories issue has been frozen for years in the conflict between Arabs and Kurds, Mr Al Maliki can act as he pleases.
This leads us to the dead end where so many of Iraq's crises terminate. Many of the most contentious disputes of the past year could be handled through non-political institutions - the Supreme Court, or the anti-corruption Integrity Commission or through non-political investigations of criminal allegations against political actors. But that is not the direction in which Iraq is headed.
Kirk H Sowell is a political-risk analyst based in the Washington area. He writes a biweekly newsletter entitled Inside Iraqi Politics
Updated: February 29, 2012 04:00 AM