Kurdistan in the politics of the judiciary in Iraq: the Federal Supreme Court as a challenge or an opportunity
Iraq’s judiciary was under the authority of the Ministry of Justice prior to 2003. The Justice Minister supervised all aspects of the court system. After 2003, however, the judiciary was established as an independent branch of the government. According to Iraq’s new constitution, a Federal Supreme Court with significant jurisdiction and the power to issue final and binding decisions regarding the constitutionality of legislation, interpretation of constitutional provisions, and resolving disputes among the various Iraqi government agencies, was supposed to be created.
In democracies, an independent judiciary is an integral institution in ensuring the supremacy of the constitution and upholding the rule of law. In Iraq’s post-war emerging democracy, the federal judiciary has played a crucial, and often controversial, role in managing the legal and political uncertainty of the country.
The Court has, indeed, issued rulings on controversial and often politically decisive constitutional questions–ranging from elections, government formations, the validity of the presidential post, and the dissolution of the parliament. Disputes between the Iraqi Federal Government and the Kurdistan Regional Government (KRG), arising from the interpretations of the constitution, have been ongoing since 2003. Recently, the Federal Supreme Court has substantially increased its judgments against the KRG, such as the 2017 Kurdistan Referendum and the 2007 KRG’s Oil Law. Furthermore, sections of the 2008 Family Law in Kurdistan (an amended version of the Iraqi Family Law and considered more women-friendly) were ruled unconstitutional for contradicting Islamic law. This represents one of the few times that the federal court explained and interpreted Sharia law and jurisprudence regarding Islamic marriage in such detail.
Another ruling expected to be issued in January 2023–originally to be issued by December 2022–involved a complaint filed by the New Generation party, challenging the constitutionality of the Kurdistan Parliament Law of October 9, 2022, which extended Parliament’s session for a year due to its expiration under Article 51 of the Law of the Parliament of 1992. The extension was necessary due to disagreements among the political parties to hold parliamentary elections in the Kurdistan Region. Based on legislative precedent and prior court rulings, the judges can easily rule the extension of the Kurdistan Parliament unconstitutional. The Court recently issued a detailed interpretation of the importance of holding timely elections and guaranteeing the people’s right to elect their representatives and participate in political life. On September 26, 2022, the Court (case no. 156 and 160) ruled parts of Article 2 of the Kurdistan Independent High Commission for Elections Law and referendum No 4 of 2014 issued by the KRG parliament unconstitutional. The ruling explained the constitutional principles and rights regarding elections, the democratic process, and the mechanism to guarantee the people’s right to freedom of expression. Most importantly, the Court ruled that a political process is only democratic and legitimate when those responsible for organizing elections do not rely on tactics to delay and undermine the constitutional political process.
The Iraqi Federal Supreme Court was a legacy court under the former Saddam Hussein government, prior to the establishment of the 2005 Iraqi constitution. Efforts to comply with constitutional requirements to create a legitimate federal court have failed. Political parties are either unable or unwilling to agree on the Law of the Court. To date, only the first amendment to the Court’s 2005 Law, which required the appointment of new judges, has been completed. Since then, the Court has been extremely active in ruling on the election and political processes in Iraq. The 2021 Amendment Law expands the Court’s jurisdiction beyond what was originally intended in the 2005 constitution. At the same time, there has been a growing demand from within the Region, namely cases brought by opposition parties and actors against the KRG. As a result, Kurdish policies will continue to be subjected to more scrutiny by the Federal Court.
It is, however, unclear at this time whether political parties will seek out legal opinions from the Federal Supreme Court for issues in contention, or they will themselves resolve issues through dialogue and internal agreements. This is important not only with power struggles between the two governments but with everyday politics in Kurdistan. The recent development that made headlines, the Federal Court’s decision regarding the unconstitutionality of certain provisions of the amended Kurdistan Family Law, as more women-friendly than the law in Iraq, might suggest that the Federal Court will continue to play a critical role in Iraqi and Kurdish politics.
The views expressed in this article are those of the author and do not necessarily reflect the views of Kurdistan 24.