The original idea was decent enough for the institution to retain power for over two decades despite disputes and deficiencies; securing the rule of law amid the political and sectarian clashes devouring the country ever since the downfall of
Saddam Hussain in 2003. The Federal Supreme Court (FSC) underwent transformations during the years with its role in shaping the political and judiciary dynamics of the country diminishing during the early 2010s. The court, nevertheless, has its footprints on some of the main political and governance developments of Iraq in the twenty-first century.
The FSC has always faced a legal challenge with critics questioning the legitimacy of the entity based on the constitution. Controversial decisions on critical issues reverberated the disputes about its intervention and arbitration of key political contentions like the election results. A most recent ruling against former Speaker of Parliament revitalized the conflicts around the FSC. Mohammed al-Halbousi was finally revoked from membership in the legislature based on a complaint filed against him alleging that he forged a resignation letter.
Establishment
The Federal Supreme Court was established shortly after the takeover of Iraq by the United States in 2003 to ensure the legal process working dynamically. The occupying force formed the entity as a way to facilitate the development of the fresh constitution that was realized two years later.
Law No. 30 structured the functioning of the Federal Supreme Court, passed shortly before the constitution was finalized. The Law of the Federal Supreme Court granted the entity unexpected authorities over various federal and jurisdiction processes of the country. Based on the Law No. 30, the FSC retained the authority over jurisdictions against high-rank political figures. Besides, conflicts between the central administration and local governments would be adjusted and decided by the FSC.
A further source of power was endowed to the FSC when it assumed the dominion over the election. The Court’s validation of the election results would be the preliminary precondition before the formation of the legislature and the ensuing administration. The FSC is also in charge of scrutinizing the constitutionality of the laws and acts passed in the legislature and elsewhere. The FSC’s spheres of power, in effect, extended to far beyond the original mission defined for the entity.
The disputes amplified few months later when the adoption of constitution questioned some of the main tenets of the FSC and Law No. 30. The constitution required the legislative body to pass a law characterizing the Federal Supreme Court, its status in the political and judicial structure, and the domain of its authority. No law has ever been passed, giving the FSC more volatile power on the one hand and its critics more room to cast doubt on its legitimacy and impartiality.
Disputes
An early foundation by a foreign force and failing to provide the legal support has put the FSC in a precarious condition. During the years, the Court has made controversial decisions not favorable for many groups involved in Iraqi politics. It was first in 2010 when an interpretation of the law by judges in the Federal Supreme Court impeded Ayad Allawi to have the upper hand in forming government. Despite securing the majority, Allawi’s party lost the battle to Nouri al-Maliki’s coalition who managed to form an alliance after the election.
11 years later, the Court played a similar role after the controversial 2021 election that was held following long months of popular protests. Inducing from the already two-thirds vote requirement to elect the Prime Minister, the FSC ruled that there needs to be a two-thirds quorum for the Parliament session to have the legitimacy to elect the new PM. The new induction blocked the Sadr movement in forming the government as the losing parties boycotted the parliament sessions leading to a fresh political stalemate. The ensuing Skirmish which culminated in a revolt by Sadr followers resulted in his faction’s collective resignation.
Few months ago, the FSC ruled that the KRG does not have the legal right to use the revenue from the federal budget. The Court asserted that the oil and gas law which is the legal basis for the industry in the region is against the constitution and shall not have legal effect from February, 2024. Four months later, the extension of the KRG parliament term was rejected by the court as an illegal act. The FSC’s intervention in KRG’s local affairs meant to solidify its superior role in adjusting and enforcing any legal process across the country. Besides, FSC has long born the appetite to surpass and overrule the political, regional, and partisan accommodations. As an entity facing the label of unconstitutionality, the best defense may be a good offense.
Faiq Zaidan
Disputes over the domain and extension of Federal Supreme Court authority in Iraqi judicial and political arena skyrocketed following the onset of Faiq Zaidan’s tenure in the FSC. Zaidan managed to cement his authority in the Court after taking over the power in Iraqi Supreme Judicial Council, the apparatus that watches the enforcement of law and looks after the selection process of the judges and prosecutors. His leadership at the SJC lent him the chance to set off the career management commission, an initiative that transformed the recruitment, transference, promotion, and retirement system of the judicial apparatus.
The career management commission and an amendment to the Supreme Court Law provided Zaidan with the legal tool to cross out his main rival at the SFC. As a compulsory law enforcement act, Medhat al-Mahmoud, then chief of the SFC, was removed from the judge board of the entity due to a fresh age limit in Law No. 30. Zaidan’s power monopoly was reinforced when he retained the authority over the selection of judges and prosecutors in the entire provinces of the country.
Revoking Mohammed al-Halbousi’s career as the speaker of the Parliament has been the last in a series of controversial policies adopted by Faiq Zaidan. Despite similar view on spheres like the necessity of recentralizing the power in Baghdad and amending the electoral process to evade the post-election impasses, affiliations with various local and regional patrons necessitated the removal of one figure. The Jungle law works better in power struggle; the fittest may survive.
| The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Al-Sarira. |
