The Iraqi High Court's Understated Rise to Legitimacy

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a look at recent decisions by Iraq's Federal Supreme Court illustrates the court's growing authority as an independent and legitimate voice in matters of constitutional interpretation....



There has been much attention recently devoted to the Iraqi elections and the government that will result from them. Unfortunately, the elections have detracted from a more interesting salutary legal development that has made the entire political process run much more smoothly. This is the growing independence of the Federal Supreme Court and its ability to solve what would be rather intractable problems in a manner that has been broadly accepted as legitimate.

Any number of cases come to mind, but perhaps the two which stand out most prominently are the Court's recent decision, No. 25 of 2010, as well as an earlier decision issued in December, No. 76 of 2009. The latest decision issued by the Court, concerning Article 76 of the Iraqi Constitution, was probably the more important. While Rod Nordland of the New York Times reported recently that until the Court's ruling, the meaning of Article 76 was not contested, in fact almost the reverse was true. The provision had been deeply and seriously debated in legal and political circles for months. The provision requires the President to choose a prime minister-designate from the "representative bloc with the highest number," who would have first opportunity to form a government. The phrase, however, is hardly clear in that it might refer to an election list—in which case the list that had done the best in the elections would have first opportunity—and it might refer to a post election coalition. Ironically, throughout 2009 it was the Sunni coalitions—and most pointedly the Vice Chair of the Legal Committee, Selim Al-Jibouri—who had advanced with some passion the latter interpretation, and it was Maliki's men, Ali Allaq and Abbas Bayati, who had insisted that the phrase had to mean the winning pre-election list. The reasons they held to these positions seemed rather clear from considerations of self interest—everyone assumed until rather early in 2010 that Maliki was most likely to win the plurality of seats in the election. After the election, which a Sunni coalition had won, and in which Maliki came a close second, the positions of the two groups on the question of Article 76 were precisely reversed, precisely in keeping with their self interest.

For those of us following Iraqi politics, this matter of Article 76 was of serious concern because of the rather fierce nature of the debates concerning its interpretation for some time. Given that the politicians themselves had flipped on the matter, they clearly had no credibility or authority to impose a sensible interpretation of the Article. It seemed as if the matter has to be resolved by the Federal Supreme Court, but that even if it did make a ruling there was a real risk the Court itself would be maligned by one side or the other. Fortunately, the Court ruled and the criticisms were muted. The Court, in a tersely worded one-page opinion, indicated that as the term "bloc" does not necessarily seem to reference any pre-electoral coalition, and as the sequence of events pursuant to which the government is formed is careful and detailed, the natural conclusion is that the bloc did not have to be a pre-election coalition. As contested as the continuing political wrangling has become, this particular decision, of potentially enormous consequence, has been accepted by the major parties. The Court had thus used the law to defuse a potentially violent debate.

The second important decision came last year just as the Iraqi Council of Representatives was getting ready to approve a resolution concerning the interpretation of an Amended Electoral Law, as demanded by Vice President Hashimi if he was not to veto the law. Some parliamentarians, however, argued that the ten-day deadline to veto the law had already passed and that Hashimi's veto threat was therefore empty. Again, the matter was referred to the Federal Supreme Court for clarification. The narrow legal issue was whether Article 138 of the Constitution, which required a veto within ten days, included only business days, or whether all calendar days were included. Analogizing from similar provisions in the Civil Procedure Code, the Court concluded that in fact the days did not include any holidays, but that if the last day of the ten-day period fell on a non-working day, then the period extended until the next working day. Applying this rule, the Court ruled that the veto would not expire until Sunday, December 6. Again, the decision was followed without objection from the legislature, which did in the end issue a resolution that avoided a veto before the deadline.

To be clear, Iraq's Federal Supreme Court is hardly able to defuse all political crises within Iraq that have a legal component, and if it were to attempt to do so, its credibility could be damaged. This may well be why the Court has wisely avoided attempting to deal with the thorny constitutional issues concerning ownership and management of oil and gas, or the fate of Kirkuk. But this limitation of judicial authority in the realm of the political is true of all judicial institutions, including our own Supreme Court, which—when it has entered into highly charged political debates, whether those concern the election of a President in this century, or the institution of slavery in an earlier one—seems to have lost some credibility in the process.

The remarkable fact is not therefore the limitations of the Iraqi High Court, but rather its rising authority as an independent and legitimate voice in matters of constitutional interpretation. We can only hope that this encouraging trend will continue.


Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.
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