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Judiciary in Post-War Iraq Is Under Political Pressure
Most theories of the constitution require that the judiciary be separate and independent from the government so as to ensure the rule of law. This implies that the law is enforced consistently and impartially without undue influence from internal and external forces and no matter who is in power. The central principle in Iraqi judicial system holds that judges should reach their decisions without any political pressure. The experts who framed the constitution of Iraq shared a commitment to independence of the judiciary, and they structured the government to ensure that the court judges would have appropriate measure of independence from the legislative and executive branches of the government composed of politicians. Post war in Iraq saw many political pressures on the judiciary from different political bearings. This section of the thesis will discuss politicization of the judiciary, how and why the politicians exercise pressure on the judiciary in general and also particularly in Iraq. Furthermore, this section will discuss what is wrong with the laws and with the constitution of Iraq. The ways the politicians exercise their pressure will also be elaborated in addition to how bad the situation is in Iraq. Moreover, how the situation affect the judicial independence and the rule of law in Iraq will be discussed deeply as well as how the courts work under the pressure, and how they try stopping the pressure. Lastly, the thesis will propose a solution to the politicization of the judiciary in Iraq before summarizing with a conclusion.
1.0 The meaning of Politicization of the judiciary
The politics role in the decision making of the judiciary, and the political influence on the judiciary has been a subject of debate for many decades. There are various forms of political influence on the judiciary and they vary considerably. Mallat noted that the question about judicial politics are interwoven often with the question about the court’s role in any government. For example, does the responsiveness of the decision of the judiciary to different political pressures undermine the core functions of the courts? That is to uphold at all times the rule of law? And if the decisions of the judiciary are shaped by the personal political views of the judges, from where do the courts get the legitimacy of overturning policy judgements of the institutions that are elected such as the parliament, president and the regional or state governments. According to International Crisis Group, most people agree generally that politics plays some role in shaping the decision making of the judiciary. However, this general consensus masks the broad diversity of conceptions, views, and theories of how the politics influence the behaviour of the judiciary. Simply put, the nature of the political forces that affect the courts and the ways in which these political forces are brought to bear.
Defining politics is quite capacious. David Easton defined and described politics as the allocation of values authoritatively for a society, while Harold Lasswell defined it as who gets what, how and when. In other words, politics can be described as the fights over whose values and views should prevail in the scarce resources allocation of the society, the struggle over who received different social benefits and also who bears the costs. Never the less, multiple conception of the meaning of politicization of the judiciary, and how it affects the judiciary differ markedly. Therefore, what follows will be a rough map of several possible meanings politicization of the judiciary.
- Politics as a discretion of the judiciary
Judicial discretion perhaps is the broadest conception of how politics applies to the courts. Based on this, decisions of the judiciary are political if they are not dictated strictly by the accepted legal authority sources such as relevant precedent, tradition, history or test. That is, when a court judge exercises their personal judgement, they had resorted to a criteria that is outside the law and hence rendered a political decision. For instance, Richard observed that the Supreme Court is political when deciding the constitutional cases in the sense of exercising and having discretionary powers as capacious as that of the legislature
Middle East Watch (Organization) stated that as an empirical matter, it is undeniable that the judges in reaching their decisions enjoy significant discretion. The law by its nature is incapable of providing objectively correct answers to several legal disputes, therefore, providing judges with a fair measure of an open space to operate despite the fact that different norms set acceptability boundaries around the ways in which the judges exercise their judgement, the discretion idea entails their personal choice
Despite this basic empirical validity, this politics conceptions seem too broad in advancing the understanding of the meaning of politicization of the judiciary in meaningful ways. Everyone are in agreement that the authoritative sources of law are typically of often indeterminate in many litigant cases. Therefore, judges exercise personal judgement routinely. As can be seen in many court cases, judges of equal training, commitments and intelligence to uphold the rule of law reach different conclusions in the same case
- Fact specific adjudication, case-by-case politics
A second possible meaning of politicization of the judiciary involves the common practice in judiciary that arguably enhance the discretion of the judges and hence is political for the similar reasons to those the thesis discussed in section one. The primary idea is that the judges politicize the judiciary when they fail in deciding the cases in accordance to the bright line and clear rules, bur rather use case specific narrow criteria.
Such kind of judges’ behaviour might be viewed as politicizing the judiciary in two reasons, first, when the courts decline embracing the clear legal principles, it provides the courts with the leeway of reaching the outcome they find genial without themselves committing to any specific rule of law. On this view, United States  asserted that weighing all the circumstances and facts then rendering a judgement that is highly contingent is more legislative in nature than judicial. Minimalist, case-by-case decision making inevitably leads to political, results-oriented, unprincipled jurisprudence.
Secondly, by the courts failing to articulate rules that are clear, the judges expand or even preserve the discretion courts will enjoy in the future cases. By this, the understanding is that the critical norm of making decisions in courts is that they must justify publicly their rulings with rationales that in future cases will bind them through stare decisis force. When the courts in their decisions fail to articulate such principles, they leave wider legal questions for another future day, which implies more discretion on the judiciary, and hence more decision making in the future that are result oriented.
1.3 Individual policy preferences as politics
The most common meaning of politicisation of the judiciary perhaps concerns the judges tendency in voting the policy results they find in the immediate cases before them to be most attractive. Courts act politically because or when the judges cast their votes in line with their short term political ideologies of policy preferences. This meaning makes an assumption that judges exercise discretion because without it, there will be no room for pursuing of their policy goals. Just like the other government officials, judges employ their power in cementing their personal views of public policy into law. The judges who are politically conservative would vote consistently vote for conservative results, and the judges who are politically liberal vote consistently for liberal results.
This conception of politicization of the judiciary is associated generally with attitudinalism, a school of thought prominently championed by Spaeth and Segal. The duo together with other scholars have empirically demonstrated that, in certain cases at least, there is a significant association between the pre-existing political views of the judges and their votes. Ricchiardi observed that at all federal judiciary levels, especially the Supreme Court, the variance of voting patterns of the judges correlated with their political ideologies. For instance, in United States, the republican judges vote ore frequently for conservative results whereas the democratic judges vote more frequently for the liberal results.
According to Sullivan, it is unclear that the tendency of the judges in voting in ways reflecting their political ideologies is detrimental to the judicial systems or to the legitimacy of the government. Mallat argued that when the judges’ vote in ways reflecting political ideologies of the power holders who were responsible for their appointment such as the voters, parliament or the president, at least to some degree, they are acting in a representative fashion.
- Politics as a response to the external power holders
Another way in which the judges might politicize the judicial system is by altering the views so as to accommodate the wishes or the desires of the power holders who are external to the court. This concepts is in contrast to the concept in which the judges promote the judicial institutional interest. According to Middle East Watch (Organization), for the judges to respond to the power holders outside the court, it is majorly because the judicial system is dependent. Largely court are impotent in the face of a determined political opposition from the executive, president or the parliaments. Without the tacit cooperation of these other organs, the decisions of the judiciary are irrelevant largely.
- Politics as a response to the public opinion
Another politicization of the judiciary is the concern is the courts responsiveness to the public opinions. In most courts, they are institutionally designed to the judges to consider the opinion of the public when rendering their decisions. Similarly, other courts are buffered institutionally from majoritarian pressures. United States asserted that in some circumstance, the public can exert pressure to the judiciary independently. For instance the public might defy or ignore judicial decisions hence making the courts look powerless. Additionally, the curt judges might care about their public opinions for different reason because it is important to their self-esteem especially the judges of the highest courts inland, the supreme court.
The judges of the courts are appointees of either political parties or the executive. According to Richard , many people expect the judges to be competent and fair regardless of their political leanings. Richard further indicated that many judicial rulings in family disputes, traffic cases, personal injury, petty theft and damage and most disputes in business are rarely affected by the judge’s political leanings. Where the philosophical and political views of the judge do affect the rulings are mostly in cases that involve economic freedoms and basic civil liberties. According to Richard, most studies indicate that judges whether thy lean to the left or right side with the government of the day, the majority of the cases which make news often are those where the courts go against the position of the government.
Despite the several talks about the autonomy of the Iraqi judiciary, and the exerted efforts by the legislatures to take resource in the various constitutions to confirm some of the general principles on the judicial systems autonomy, and also to assure that the Iraqi judiciary is not subjected to any other authority other than that of the law and also that the litigation right is guaranteed to all Iraqi citizens. However, from several studies, it is evident that the rule in post war Iraq is practically becoming more restrictive
The regression in Iraqi judiciary pre-war was massive with respect to practice, organization and orientation and one of its major indicators was the judiciary council suppression and transferring the judges affairs and prosecution of the members of the public to the justice council, a body which placed the interest of the government before the autonomy, impartiality and criteria of justice of the judiciary. However, upon judiciary council reinstitution in 2003, opening statement of the preamble read”… the manner in which to impose the rule of law is a judiciary comprised of a free, competent staff that is independent and free from external influences. There is no constitution that is true despite all the freedoms and rights include in it without the judiciary that is autonomous. The Iraqi constitution needs a constitutional judiciary which protects individual rights and not only the rights of small groups, and this is the path to democracy”
The impact of the Iraq occupation by united states on 9th April 2003 raise a number of intellectual, jurisprudence, political and legal problems on the legality on the implemented procedure by the occupation forces, especially those which led to constitutional;, structural, judicial and legal changes. Scharf pointed out that these same changes were rejected in 1949 by the Geneva conventions and their 1977 addendums, except for the necessary procedures on managing occupied zone matters. Although the issuance of resolution No. 1483 UN Security Council in May 2003 legitimised the occupation of Iraq and regarded the international coalition forces as the occupation forces subjected to the Geneva Convention, the laws, decisions and procedures issued by Paul Bremmer, the American civil governor surpassed the adopted international description of the international law.
2.0 How politicians exercise pressure on judiciary and on Iraqi Judiciary
There are several ways in which politicians can exert pressure on the judiciary. First of all, the politicians can influence the public opinion of the judiciary and this may influence how they make decisions that affect the people. Moreover, the executive and the legislature can exert pressure on judiciary through intimidation of demotion, freezing of their administrative funds, passing bad laws so as to affect the decisions of the judges. Intimidation can also be of the personal lives of judges and their families.
In his Article to Iraq Pulse, an online News Paper in Iraq, Harith Al-Qarawee  pointed out how the politicians exercise their reassure on the Iraqi judiciary. Harith Al-Qarawee stated that the opponents of Prime Minister Nouri al-Maliki accuse the judiciary of being influenced strongly by the government. Moreover, the opponents accused Nouri al-Maliki of using the judiciary against his perceived opponents. The accusations first came up during the elections of 2010 where the Iraqi Federal Court adopted Article 76 of the constitution interpretation allowing Nouri al-Maliki to form his government despite the fact that his party did not get the highest number of votes. Furthermore, the accusations further arose in July 2010 when the same Iraqi federal court ruled in a disagreement case between the government and the legislature, favoring the government. The ruling eventually weakened the parliament by stripping them off the power of independently legislating from the government. Jeffrey further highlighted the fear of the speaker of the parliament, Osama Nujaifi, that Maliki could again turn to the judiciary for a ruling in which the legislature will be stripped off one of their core remaining powers, of introducing amendments to draft laws sponsored by the government.
According to Easton, many people believe that the judiciary is under political influence in Iraq and the government of Nouri al-Maliki succeeded in political influencing and using the judiciary in targeting his political opponents after indictment in 2011 of former Vice President, Tariq Al-Hashemi on charges on terrorism. Similarly, similar terrorism charges were made against Rafi al-Issawi, former finance minister in December 2010.
Poloitical pressure on the Iraqi judiciary has been also evident months leading to the last legislative elections. The Electoral Judicial Committee barred several would-be candidates who were known to be harshly opposing Maliki. For instance, Lasswell indicated that the committee ruled that Rafi al-Issawi was ineligible because he was facing arresting warrants that stem from terrorism and corruption charges and also because he has refused to defend himself in court. Similarly, Electoral Judicial Committee also banned a parliamentarian, Jawas al-Shahaili from the sadrist movement after a complaint by Hanan al-Fatlawi, a legislature in the Maliki’s coalition. Jawad was being accused of embezzling funds. However, despite barring the opponents of Maliki from contesting, the same Electoral Judicial Committee acquitted Mishan al-Jubouri in charges of financially supporting terrorism and corruption. Jubouri was a former opponent of Maliki and later became his ally then his charges were dropped.
3.0 Why politicians exercise pressure on judiciary
The politicians tend to exercise pressure on the judiciary for political gains, revenge, settling personal scores or even to get authority to manipulate the judiciary. The underlying reasons why people tend to exert political pressures on the judiciary globally and Iraq are the same. In 2003, a special panel of the highest appellate court in Iraq, the court of Cassation, in their ruling reversed an important determination 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 determination 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 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 was disqualifications of the Baath party 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 positions that were sensitive. The influence and authority to determine who serve in the Higher Judicial Council by AJC was seen as contravening the independence of the judiciary and also putting 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 resemble a proper judicial process. Therefore, the AJC indicated only that they rendered their decision in accordance to Article 6 of the law as guided bysection1. The quoted section 1(9) merely defined “supporters of the regime,” and also do no.............
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