Politics undermine Iraq’s judiciary

It is a truism that the de-Baathification process in Iraq was turned into virtual “de-Sunnification” in many respects and thus helped to fuel the Sunni Arab insurgency in the period 2003-2005. However, one area that stands out as a notable exception is the judiciary.

Here, the majority of the judiciary is in fact a remnant of the Saddam Hussein era, and the question of how the judiciary might rule in favor of one faction or another does not so much depend on sectarian affiliation as much as on who holds the position of prime minister. Currently the position is held by Nouri al-Maliki of the Shiite Islamic Daawa Party.

A case in point is Medhat al-Mahmoud, who until recently was the head of the Supreme Judicial Council and currently still leads the Federal Supreme Court. Mahmoud has acquired a reputation as a Maliki loyalist, helping secure the prime minister’s monopolization of power over branches of administration that should be beyond his control.

However, not only was Mahmoud officially removed from his post as head of the Supreme Judicial Council recently, he was also declared to be subject to the proceedings of de-Baathification (subject to appeal within 60 days) that would have barred him from the judiciary entirely. What brought about this development?

We can trace two factors. First the offensive against Mahmoud on the part of the independent Shiite Islamist parliamentarians Sabah al-Saedi, a longtime opponent of Maliki (and by extension, of Mahmoud) who often claims access to leaked information on corruption scandals in government.

At the end of last year, a new judiciary law was passed stipulating that the head of the Supreme Judicial Council should be the same person who heads the Cassation Court (the court of appeal). When the Supreme Judicial Council claimed at the end of last month that Mahmoud was also head of the Cassation Court, Saedi accused Mahmoud of falsely claiming positions he did not hold. Besides this, Saedi noted that Mahmoud was well beyond the retirement age for members of the judiciary.

Realizing that it would not be prudent to attack Mahmoud as a Maliki loyalist, Saedi also began to raise the issue of Mahmoud’s service as a judge under Saddam’s regime, and drew up a list of 28 judges he said should be subject to de-Baathification for that reason.

However, Saedi was particularly vehement about Mahmoud, specifically accusing him and Tariq Harb, a lawyer close to Maliki, of “crimes against humanity.” Harb has claimed that many of the current Sunni Arab protests against the government in Anbar are illegal because of their use of the Saddam-era Iraqi flag.

The removal of Mahmoud from the Supreme Judicial Council was announced on Feb. 12. Judge Hasan Ibrahim Humairi, of generally unknown profile, was declared Mahmoud’s replacement. At the same time, the Federal Supreme Court affirmed that Mahmoud was still in his position as head of the court.

Nonetheless, just one day later, the de-Baathification committee (known officially as the Justice and Accountability Commission) declared that Mahmoud was being subjected to its proceedings. In this context, it appears that the commission – a body headed by the Sadrist Falah Shanshal since October 2012 – saw its chance to implement a hard-line anti-Baath stance against a Maliki ally. Indeed, the Sadrists, who form a large part of the commission, have often been at odds with the prime minister, even if the tension normally manifests itself in words, not deeds.

Unsurprisingly, the reaction to Mahmoud’s dismissal from his posts was divided along partisan lines. Thus, one parliamentarian from the pro-Maliki White Bloc, Aziz Sharif al-Mayahi, criticized his removal as an example of partisan politics. Conversely,one parliamentarian from the Al-Iraqiyya bloc, characterized the removal of Mahmoud as a welcome step toward an independent judiciary. In addition, a defector from the White Bloc, Hasan al-Alawi, said that the government had lost a third of its credibility with the public following Mahmoud’s removal and that come the next elections, corrupt members of the political class would be voted out of office.

In response, Maliki sought the removal of Shanshal from Justice and Accountability Commission, apparently intending to replace him with ally Basim al-Badri and annul all of Shanshal’s decisions. Maliki’s countermove appears to have been successful, for on Feb. 19 the commission announced thereversal of the decision to subject Mahmoud to a de-Baathification process, allowing Mahmoud to maintain his position as head of the Federal Supreme Court.

What this whole affair illustrates is how politicized de-Baathification has become. In one way the process has become a game of political chess between Maliki and his rivals, both Sunni and Shiite, indicating one symptom of the general lack of respect among the country’s political factions for following constitutional process and rule of law.

The Mahmoud affair, even if the annulment of Shanshal’s decision against him is reversed at some point, is unlikely to have any impact. True, the fugitive Sunni Arab Vice President, Tariq al-Hashemi, had called for Mahmoud’s dismissal. After all, Mahmoud was one of those responsible for issuing an arrest warrant against him.

Yet a key demand of the current protest movement is an end to de-Baathification. As consultant Kirk Sowell notes, such a concession will not be granted by any of the Shiite political factions. De-Baathification has both sectarian and personal political rivalry aspects. The controversy over Mahmoud is only the latest example of the inability of the Iraqi government to deal with more pressing national issues such as the need to develop a private sector, tackle the ever growing water crisis, and improve the quality of public services. Instead, the political elite is preoccupied with partisan infighting.

Update from February 26, 2013: In the article, I make reference to the question of whether Shanshal’s decision against Mahmoud could be reinstated. The evidence suggests that this is not likely. At present, only Shanshal himself is vocally objecting, alleging foul play in his removal and the announcement to reverse the decision to subject Mahmoud to the proceedings of de-Baathification. One source speaking to All Iraq News has claimed that Maliki has reached a compromise with the Sadrists. This may be corroborated by a letter Sadr recently wrote to Shanshal, in which he merely expressed gratitude to Shanshal for his services in de-Baathification, with no hint he would contest Maliki’s removal of him from the commission. In short, Maliki appears to have emerged on top of his rivals -- again.