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Demands for reform in the Iraqi judiciary were high on the list of the popular protests in Tahrir Square in Baghdad and other Iraqi cities in late 2015. The demonstrators accused the judiciary of corruption and serving influential officials in successive Shiite-dominated governments. The accusations directly targeted Midhat al-Mahmud, chief justice of the Iraqi Supreme Judicial Council and president of the Iraqi Supreme Federal Court. One of the accusations against al-Mahmud was that his verdicts were aligned largely with the policies of former Iraqi Prime Minister Nuri al-Maliki.
It became evident that the Iraqi judiciary was losing its independence when it issued Ministry of Justice Law No. 101 (1977), abolishing the Iraqi Council of Judges, which had been established by Judicial Authority Law No. 26 (1963). The Council of Judges was replaced by the Council of Justice, the presidency of which was conferred on the minister of justice. In other words, the executive authority sought to tighten its grip on the judicial system and subject it to the control of the ruling party in Iraq.
In 2003, following the US occupation of Iraq and the formation of the Coalition Provisional Authority (CPA) headed by civil administrator Paul Bremer, the CPA issued Order No. 35, reestablishing the Council of Judges, which consisted of the chief of justice of the Supreme Court (president of the Council), deputy chief justices of the Supreme Court, director-general of the State Council Assembly, director-general of the Office of Public Prosecution, director-general of the Legal Supervision Office, director-general of the Administration (if the person is a judge or prosecutor), and presidents of the appellate courts. During May of 2004, Memorandum No. 12 was issued to emphasize the independence of the judicial authority and confirm that it functioned independently of the Ministry of Justice.
The Iraqi Judiciary After 2005
The permanent Iraqi Constitution provided, in articles 87-101, a large margin for the regulation of judicial affairs. It has been more than ten years since the Constitution was approved and the first elected government formed, but the Iraqi judiciary continued to suffer profound imbalances in structure and performance.
On the structural level, Midhat al-Mahmud, president of the Council of Justice, assumed the post of chief justice of the Iraqi Supreme Federal Court under Article 45 of the Law of Administration for the State of Iraq for the Transitional Period, enacted after the CPA’s issuance of Order No. 35, under which the chief justice of the Cassation Court was appointed president of the Council of Judges. It is, however, unconstitutional for the chief justice of the Supreme Federal Court to be the president of the Council of Judges.
Article 143 of the Constitution stipulated that “the Law of Administration for the State of Iraq for the Transitional Period and its annex shall be abolished in the event of forming a new government.” Also, pursuant to Article 90 of the Constitution, the Iraqi House of Representatives is to approve a law that “regulates its establishment mechanism, competencies, and rules of action” of the Council of Judges.
Pursuant to Article 130 of the Constitution, “applicable legislation remains in force unless it is nullified or amended in accordance with the provisions of the Constitution.” For example, the justice chief of the Cassation Court may assume the presidency of the Council of Judges, pursuant to Order No. 35 issued by the CPA.
The House of Representatives approved Supreme Judicial Council Law No. 112 (2012), thus ending the dispute concerning the presidency of the Council of Judges. The Iraqi parliament approved the appointment of the chief justice of the Cassation Court as president of the Supreme Judicial Council, but the law was later abolished by the Federal Supreme Court, on the grounds that it violated the Constitution. Eventually, Midhat al-Mahmud, chief justice of the Federal Supreme Court, was allowed to resume his position as president of the Council of Judges.
The Federal Supreme Court was established during the transitional administration of the state, under Federal Supreme Court Law No. 30 (2005). Because the House of Representatives failed to enact a new law for the Federal Supreme Court pursuant to Articles 92, 93, and 94 of the permanent Iraqi Constitution, the incumbent Federal Supreme Court shall have specific competencies as guaranteed by the Constitution, although no law entitles the court to do so.
As for the performance of Iraqi courts, the Iraqi judiciary has been accused by legal experts, civil-society activists, and some politicians of failing to perform the functions assigned to it, to achieve justice, and to be professional in enforcing the law and applying it equitably to all citizens. The Federal Supreme Court and the Criminal Court were most vulnerable to criticism, as they were accused of issuing verdicts aligned with the policies of the government’s executive authorities.
The Federal Supreme Court, chaired by Midhat al-Mahmud, has always been criticized for making politicized and controversial decisions influenced by its close links with and subordination to the ruling party and former Prime Minister Nuri al-Maliki. The House of Representatives approved, by a two-thirds majority, a law limiting presidencies to two terms, but the Federal Supreme Court overturned the law as unconstitutional, angering all political blocs that voted for the law.
In the 2010 parliamentary elections, the Iraqi List Bloc, headed by former Prime Minister Iyad Allawi, won more seats than Maliki’s State of Law coalition, but the Constitutional Court declared Nuri al-Maliki eligible to form a new government because he was able to assemble a larger coalition after the beginning of the parliamentary session. This was one of many decisions by the Federal Supreme Court based on interpretations that served only the agenda of the government.
Legal adviser Ahmad al-Abadi, speaking to al-Sharq al-Awsat newspaper, said, “Al-Mahmud, while brought by the Americans upon an order issued by CPA Civil Administrator Paul Bremer, has focused his efforts during the eight years of al-Maliki’s rule [2006-2014] on providing interpretations of laws and making decisions through the Federal Supreme Court in line with al-Maliki’s wishes.”
The Iraqi Criminal Court has also been the subject of widespread criticism by local and international organizations. An Amnesty International report, for example, harshly criticized the death sentences issued by the court against 40 people in one day, following “a shameful mass trial” held on 18 February 2016. The organization considered the sentences evidence of “contempt for justice and the life of human beings.” The court’s verdict raised to one hundred the number of death sentences issued in the first two months of 2016.
In an earlier trial related to the same 2014 case, known as the Camp Speicher Massacre, in which 1,700 Iraqi army recruits were killed by Islamic State militants, “the Central Criminal Court” tried 28 people and condemned 24 of them to death only a few hours after the court session began and despite the defendants’ claims that their confessions were extracted under torture. The trial was criticized by Amnesty International and Human Rights Watch.
Judicial trials in Iraq are marred by many violations and irregularities that prevent defendants from receiving fair trials, particularly in capital cases. The judges base their decisions on questionable confessions, as many of the defendants claimed that their confessions were made under torture, as reported by the United Nations Assistance Mission for Iraq (UNAMI) and the Office of the High Commissioner of the United Nations for Human Rights (OHCHR) in 2014.
The report confirmed that the judges systematically ignored the defendants’ claims that they had made confessions under torture. The judges also relied on the testimony of informants, many defendants were tried in the absence of their legal representatives or without the court appointing lawyers for them, and defence lawyers are given insufficient time to meet with their clients to study their cases.