The Federal Supreme Court of Iraq from interpreting to amending the constitution: KRG’s oil judgement as an example

Has the federal supreme court of Iraq taken every opportunity to address and get involved in the political process in the country? Why, for many observers of the political process in Iraq, have the recent judgments issued by the court uncovered the long process of politicization of the judiciary in post-2003 Iraq? When political authorities are powerful, would the court avoid deciding politically high-profile cases and questions than when there is political and legal uncertainty?

In our legal opinion, as we follow the court over the past decade, we agree with other academics and observers that the recent decisions issued by the court, in early 2022, on matters of elections, political process, formation of the new government, and most importantly the KRG’s oil legislation are alarming and raise some fundamental constitutional questions on the legitimacy of the court and judgments’ compliance or contradiction with the constitution. The latest judgment on the KRG’s oil legislation has intensified academic and political criticisms of the court and re-emerged the debate on the constitutionality of the court itself.

-- There are different views on whether the court is constitutional or not? The federal supreme court- composed of judges (only)- was established during the transitional period and before the approval of the 2005 constitution. During the process of writing the constitution, as with many other matters, constitutional drafters and political parties failed to agree on the membership and work of the highest court of the country and, in an unclear language, let the parliament decide such an important matter. They have since failed to implement constitutional provisions that require parliament to pass the law of the federal supreme court, with slightly different powers and totally different membership (judges, Islamic jurists, and legal experts). In early 2021, amid a sea of public and academic criticisms, the parliament once again failed to pass a new law and only managed to pass the first amendment to the law of the Court. Accordingly, the court was staffed with a whole set of new judges.

-- The legitimacy and constitutionality of the court is a crucial issue. There is an argument that how the highest judicial body of the land, which is not established in accordance with the constitution and the rule of law, can issue binding and final interpretations of the constitution and uphold the constitution and the rule of law. There are also constant attaches and criticisms directed to the court, especially whenever it decides constitutional questions that are politically of high profile, from its infamous 2010 decision on interpreting the largest block of the parliament to its 2022 decision declaring the KRG’s 2007 oil legislation unconstitutional.

There are few points that we are intended to address here.

-- This particular case has been with the court for over a decade, as it was first brought before the court in 2012, and it was only decided in late February 2022. It took ten years and two courts (two sets of different judges) to decide the case. This long period doesn’t mean that the previous court under the chief justice, al-Madhat (which was functioning till 2021), was unable or incompetent to decide the case. However, the previous court had avoided addressing some of the most controversial constitutional questions that are central to the ongoing power struggles between the Erbil and Baghdad, the case of oil and gas is an example. This was an opportunity for political parties to agree through other legal and political means to settle their difference, which they didn’t.

-- The decision clearly allows centralization that empowers the federal government at the expanse of the region and governorates, contradicting the fact that the 2005 constitution listed federal powers (Article 110); entrusted sub-federal entities, including the Kurdistan Region, to exercise substantial remaining powers (Article 115); and to share with the federal government in significant matters of shared interest.

-- The court, instead of interpreting the constitution, has amended, re-established the balance of powers, and redrafted - if not tried to abolish - federalism and the distribution of powers. It interprets article 110 in its widest possible way to conclude that oil and gas fall within the powers of the federal government. Even though articles 111 and 112 clearly require the federal and sub-national authorities to work together on this matter. In fact, it totally disregards the constitutional right of the region. It did not engage in the fact that both governments work together and settle their differences through new legislation.

-- The decision contradicts the constitution's previous decision and contradicts itself in several places. For example, it reaffirms that Kurdistan is a federal region with its existing authorities, including parliament and government (ministry of natural resources included), and at the same time deprives the region of its constitutional rights.

There are substantial examples where the current court and, to some extent, the previous court, through their interpretations, have set the stage for the governments to rely on the judiciary whenever it sees or wishes the judiciary to do the job for them. It, therefore, made it easier for the government to transfer political matters to constitutional and legal questions when it seems unable or unwilling to address them through democratic and political means.

One of the explanations might be that, before 2003, Iraq did not have a constitutional judiciary and arguably an independent competent judiciary. Since 2003 the county has seen fundamental political and legal changes and often political and legal chaos. It is, therefore, common to see in countries that transferring from authoritarian regimes to constitutional democracies, Iraq as one of the many examples, that courts understand their newly achieved independence to mean freedom without any accountability. Their activism and involvement in political crisis may not only undermine the political process, but it might also undermine their own legitimacy and independence.

The views expressed in this article are those of the author and do not necessarily reflect the views of Kurdistan 24.