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Challenges to the judicial role and judicial independence in Iraq
1- Supreme Court Tuner
There are several ambiguities regarding the laws concerning the Iraqi Federal Supreme Court that have the potential to negatively impact upon judicial review. This court possesses the authority to rule on inconsistencies that exist between Iraq’s Transitional Administrative Law and the other laws that govern the nation, disputes between the regional governments and transitional government, and ordinary appeals that are prescribed by law. However, the only criteria for this court’s membership are that it contains a total of nine members. This creates the possibility of individuals becoming members who do not have an adequate level of separation from the government or the interests of other specific groups in society, which constitutes a direct threat to judicial independence.
It is also notable that the Federal Supreme Court Law does not contain any provision stating when judges should be removed from the court. This means that the court is susceptible to judges being removed because they do not comply with the wishes of figures within the government. If judges can be removed for their comments or their conduct in court then it creates a situation in which they no longer possess complete independence. Therefore, the lack of clear laws governing this issue means that the impartiality of judges within the nation is called into question.
Anderson and Pimentel have identified ‘de-Ba’athification’ as posing a risk to judicial independence in Iraq by weakening the judicial review. De-Ba’athification refers to the process of banning anybody who had previously been a member of Saddam Hussein’s political party from occupying a role in any public office in Iraq or taking part in politics within the nation. The Ba’ath Party was the Arab nationalist, a secular political party that ruled Iraq before the conclusion of the conflict. The motivation for implementing this process was that if Saddam’s power was to be stripped away from him, logic dictated that his associates should also have their power taken away from them.
However, there have been suggestions that this process has been utilized to remove judges from their positions because of unpopular decisions that they have made rather than because they were formerly allied with Saddam Hussein. An example of this is Medhat Al-Mahmoud, a Chief Justice of the Federal Supreme Court who was alleged to have previously supported Saddam and taught other judges to carry out actions that were against the interests of the Iraqi people. Some argued that this was not the true motivation for his removal from the judiciary and that it was actually motivated by the controversial decision that he made to get rid of the terms-limit legislation, which was a ruling that was viewed as proving the prime minister with a degree of protection against political challenges throughout the years to come.
Al-Mahmoud was reinstated after appealing the decision at the Court of Cassation. However, it has been argued that his initial removal sent a message that judges were vulnerable to being removed from their positions if they made decisions that the government did not agree with. The point has been made that the fact that the de-Ba’athification Commission, which was established to carry out the process of de-Ba’athification, can remove judges from their positions, is a challenge to Iraq’s judicial independence. It means that the Commission can utilize Ba’athification proceedings to influence the judiciary.
In 2003, a special panel of the highest appellate court in Iraq, the Court of Cassation, in their ruling reversed an important determinant of the Accountability and Justice Commission (AJC) of Iraq. AJC was the body responsible for and mandated to purge the members of the Baath party from the offices of the government. One of the earliest determinations as discussed earlier concerned Medhat al-Mahmoud, the former justice of the federal Supreme Court of Iraq. Specifically, AJC determined that Medhat was not in any way eligible for any public office because of his previous positions he had held during the era of Saddam Hussein. The AJC went as far as to refer to the highly respected judge in Iraq as “Saddamist” who during his tenure taught other judges to commit offenses to the people of Iraq. . The reversal of the determination by the Courts of Cassation was a deep indictment of the whole process by which the process of de-Ba’athification was being conducted and how it infringed on the independence of the judiciary.
Some of the suggestions of AJC were disqualifications of the Baath party’s former members as set for the in ten different subsections under Article 6 of the Iraqi law. The provisions stated that government employees at that time who belonged to the higher ranks from the fourth rank in the hierarchy Ba’ath party were to be retried forcibly. Those who belonged to the third rank or even higher were not to serve in any security ministries specified: the presidency, the Higher Judicial Council, and other sensitive positions. The influence and authority to determine who serves in the Higher Judicial Council by AJC were seen as contravening the independence of the judiciary and also putting societies deem as normal gender roles. Gender is personal, part of everyone’s developing identity and web of relationships, but it is also political pressure on the judiciary.
Heavy political influence on the judiciary in Iraq after post-war was also evident in the trial of Medhat al-Mahmoud, the former justice of the federal Supreme Court of Iraq. Rather than a clear judicial process, the AJC engaged in politicization and innuendo, and name-calling than anything that resembles a proper judicial process. Therefore, the AJC indicated only that they rendered their decision by Article 6 of the law as guided bysection1 (9). The quoted section 1(9) merely defined “supporters of the regime,” and also do not constitute a ground for any disqualification. Additionally, for section 6, the AJC in their submissions did not specify any subsection or even point to anything that seemed to fit under any of the subsections applicable. The evidence of AJC was that (1) the chief justice has assisted in appointing of judiciary members to higher positions who later turned out to be regimes’ strong supporters, (2) that justice had been promoted rapidly through the judiciary ranks, including appointment to the court of Cassation in a process that was unusually and involved Saddam intervention, and (3) that the chief justice was awarded different honors and awards during the period.
From the submissions and arguments of AJC, a body entrusted with the expedition of the de-Ba’athification process, it is evident that the processes intended to undermine the judiciary, politicize judicial processes, and influence its operations. There is nothing in Article 6 that authorized the AJC to disqualify any individual from a government position, on the grounds set forth by AJC. This was the point the panel of the court of Cassation correctly made with some force. () argued that the decision was to such controversial since it was agreed widely that the chief justice was a Ba’athist of a higher rank, the point in the judicial process was not to act on the basis that it is agreed widely, but only that which is proven.
3- Politicians influences:
The judicial independence of post-war Iraq from the influence of the politicians has been a subject in many forums. Historically, the judiciary in Iraq built a reputation for neutrality, independent thinking, a proactive adaptation of the new techniques, learning, and methodology, and search for justice ().To some extent, () indicated that the historical structure gets credit for this as the civil law system allowed the judges to explore both evidence and the arguments provided or presented in the courts. However, () pointed out that during certain times, the post-war Iraqi judiciary faces extreme pressure on the judges where different forces and actors prefer less independent cases review.
According to (), the issued provisional constitution in 1970 stipulated that the independence of the judiciary was a fundamental principle in the new constitution. Additionally, it detailed the methods of courts levels and formation, courts jurisdictions, judicial appointments requirements, conditions for the transfer, salary increases, accountability standards, and retirement guidelines (). Similarly, the judicial Oversight Law No 124 of 1979 expanded further this principle since it entrusted the supervisors of the judiciary, who at that time were the judges, with the task of inspecting and overseeing courts and the judicial and administrative work of the judges. This was a major break for the judiciary from the previous practices where the executive and colonial authorities would do their tasks, and in the process creating potential manipulation areas for the judges or even interference with cases. The post-war Iraqi judiciary needs a more detailed examination as there are many instances of Company has occupied the market niche for an automobile in Japan. To overcome the political or executive interference with the independence and the rule of law
Anderson and Pimentel have pointed out that there have also been noted instances of politicians influencing the judiciary. An example of this took place before the parliamentary elections in 2010. The Supreme Commission for Accountability and Justice stated that it had banned more than five hundred nominees from taking part in the elections under the logic that it was upholding the de-Ba’athification laws by doing so. This decision was overturned by the Court of Cassation, as it was deemed that there was insufficient time before the elections to adequately review the claims that had been made against the individuals who would be banned from the elections. The Court of Cassation held that the nominees should all be permitted to take part but their involvement should be a party to a post-election review.
However, the overturning of this decision by the Court of Cassation was extremely unpopular with Iraq’s prime minister. Officials from the Court of Cassation were placed under immense amounts of pressure by the prime minister and attended numerous meetings with him. The court eventually reversed its decision on account of this pressure, only permitting twenty-six candidates to participate in the elections. This move was criticized by the Iraqi people, who believed that it was clear affected by mental or physical health disability. However, research evidence of a deficiency of judicial independence within the nation.
This case casts doubt upon the judiciary’s power to withstand interferenc.............
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