Taming the Shrew

On May 30th, Iraq’s Court of Cassation (CC) issued an unprecedented decision invalidating a previous ruling by the country’s highest court in the land, the Federal Supreme Court (FSC). The decision subverted the appropriate hierarchy between both courts and has subjected the FSC under the judicial oversight mandate of the Court of Cassation.

In this blog, we take issue with the view of the CC on its mandate over the FSC as well as its reasoning with regards to the scope of the FSC’s constitutional review powers. Despite the notorious self-aggrandizing proclivity of the FSC, we show that the Court of Cassation fails to offer a legally sound or theoretically coherent defense for its claim to judicial supremacy.

Marbury in Baghdad

In a Marbury-like scenario, Iraq’s current judicial crisis began similarly with a dispute involving judges. A retiring judge challenged a provision in the Pension Law (2014) which allows judges to retain 80% of their salary after 30 years in the prosecution or judiciary. The FSC sided with the judge, finding that excluding career time spent in other state entities, inter alia, violates the principles of equality and equal opportunity enshrined in the Constitution. The decision struck down the unconstitutional part of the article and maintained the rest of it.

In April 2024, another judge’s retirement request was denied by the Supreme Judicial Council and on appeal. Citing the FSC decision, he appealed to the Court of Cassation but lost again. In a five-page decision, the CC invalidated the FSC ruling, asserting that it overstepped the parliament by exercising the function of lawmaking through amending the contested article itself. The CC flagged the separation of powers violation and declared the decision of the FSC as sententia non existens, stillborn with no legal effect, since it falls outside the competence of the FSC to begin with. More critically, the CC asserted its own mandate in reviewing decisions by all courts, based on Article 12 of the Judicial Organization Law, including those by the FSC.

Damage control efforts were initiated within a week of the ruling by the President of the Supreme Judicial Council (who is also the President of the CC), in the form of a meeting between the CC and the FSC. The meeting concluded with both courts agreeing to adhere to their respective constitutional jurisdictions and to consult each other to reach consensus before issuing decisions regarding matters not explicitly covered by law. Instead of settling the competition for judicial supremacy, this agreement could open the door for all parties aggrieved with FSC decisions to contest them, potentially plunging the entire Iraqi judicial system into wilderness. This is especially troubling given that many FSC decisions involve appeals against the Court of Cassation. What is more, allowing external influences to affect judges beyond the confines of the FSC courtroom that might occur through the envisioned consultations runs counter established norms of judicial independence.

Self-Aggrandizement and Pandora’s Box

The Iraqi Federal Supreme Court is not popular amongst many political factions in Iraq. This is likely due to the FSC’s significant influence over Iraqi federal and electoral politics, despite the fact that it has operated without a law specifying its composition, rules of procedures and so on for more than 19 years now. Instead, the FSC still functions under Law 30/ 2005 of the transitional phase which leaves major questions unaddressed.

The Court’s self-aggrandizement has earned it many enemies both inside and outside Iraq, with some calling for intervention from Washington and the EU, accusing it of serving foreign interests. Internally, it faces charges of politicization, overstepping authority, undermining democracy, and emulating the Ba’athist Revolutionary Court. The Court’s composition (9 judges: 5 Shias, 2 Sunnis, and 2 Kurds) and its simple-majority voting system have raised concerns about bias against Sunni and Kurdish minorities. Decisions, such as allowing Nouri Al-Maliki to form the government despite not winning the largest electoral bloc, centralizing power away from Kurdistan’s Autonomous Government, denying Kurdish quota in parliament, and removing the Sunni Speaker of the Parliament, are criticized as patterns of flawed constitutional interpretations and judicial overreach.

New Democracies and Judicial Supremacy

Struggles for judicial supremacy are common in new democracies, where a newly-introduced constitutional review body often competes with existing structures. Struggles can take the shape of legal contestation (e.g. Postwar Italy), gatekeeping (e.g. Arab-Spring Jordan), or public defiance (e.g. post-coup Turkey). Courts with a tradition of constitutionalism are less susceptible to such struggles as they have developed doctrinal safeguards for judicial self-restraint such as presumptions of constitutionality, constitutional avoidance, political questions doctrine, non-justiciability, etc.

Iraq is no exception to the pattern seen in new democracies. Rather than treating the Pension Law challenge as an administrative dispute – to be referred to the Administrative Judiciary, the FSC inappropriately elevated the issue to a constitutional matter and refused, once again, to exercise judicial self-restraint. This is not to suggest that the CC decision is a fitting response, but rather to explain how extreme judicial activism can be detrimental to new courts. The major difference in Iraq is however the far-reaching impact of the decision, which extends beyond a single case. In Iraq, the conflict – which seems to have been settled with the CC winning – has been about the essence of judicial review power and terminating the FSC’s reign as a final arbiter and highest court of the land. The CC’s judicial coup, however, rests on a flawed doctrinal foundation and runs counter to the judicial hierarchy set out by Iraq’s constitution.

Errors in the Judgment

Article 12 of the 1979 Judicial Organization Law, enacted before the creation of the Postwar FSC, is the legal basis for the CC’s decision. The Article, which designates the CC as the “highest judicial body that exercises judicial oversight over all courts ….”, has been interpreted recently by the CC to include decisions by FSC. This runs against Article 94 of the 2005 Constitution’s clear-cut language declaring the decisions of the Federal Supreme Court “final and binding on all authorities.” As it attempted to invoke a legal article to override a constitutional provision, the CC established itself as the final arbiter over the FSC, a capacity which the CC clearly lacks.

What is more, the CC’s reasoning with regards to the FSC’s lawmaking function also misunderstands the nature of constitutional review. The CC claims that because the FSC does not have the power to amend a legal provision in the course of invalidating it, the FSC should have requested Parliament to amend it. Besides the self-contradiction – since the CC itself erred by not referring the case back to the FSC for reconsideration, which could have addressed the interests of both courts – there are two key pieces of evidence against the CC’s view.

First, imagine a scenario where the court faced the provision: “No one shall criticize the government or incite violence”. It would be erroneous to suggest the court lacks the power to strike the phrase “criticize the government” while maintaining the rest of the article intact. The power to declare a statute unconstitutional can be seen as an exercise of negative lawmaking. This would render the CCs assertion that lawmaking is an exclusive parliamentary prerogative not entirely correct. Lawmaking certainly starts with the parliament, but it never ends with it. The CC understands judicial review as a veto power, where in fact it is more like lawmaking, in its negative sense. The judiciary participates in the process through a range of actions from striking down an unconstitutional statute to interpreting one more narrowly or broadly. By simply removing the unconstitutional language in statute, the court is neither introducing ex novo or substantive language nor dismembering the statute (using the Richard Albert term). This is not to deny that the FSC was after a positive law-making role (examining legislative oversight – failure of the legislature to enact constitutionally-mandated legislations), but removing unconstitutional parts of an article is far from “transgression”, as the court itself affirmed in earlier judgments.

Second, nothing in the 2005 Constitution prohibits the FSC from partaking in amending an article by deleting the unconstitutional part of it. Likewise, there is nothing regarding the modus operandi of the Court that requires it to send the amendment back to Parliament or freeze the article altogether until Parliament takes an action. While many constitutional laws and traditions delineate the permissible court action in relation to parliament, the Iraqi constitution does not. In the absence of legal parameters, constitutional courts may legitimately and reasonably self-empower to fill in any legal void by the power vested in them for exercising judicial review and acting as the final arbiter. This has been observed in tens of cases on the evolution of judicial review, even in the Arab region, but also on unconstitutional constitutional amendments in India, Colombia and elsewhere.

Who Tames the Shrew? Not you, CC.

Admittedly, self-empowering is a precarious situation since courts can do it egregiously, with little room to challenge the final arbiter, unless they change their minds about certain powers or judgments. In Iraq, the FSC has, in fact, changed its mind several times, for better or worse, which leaves this as an option on the table, especially considering the recent conflict.

Yet, the biggest deterrent to an unfavorable judicial power grab by courts is always constitutional change. In all cases however, taking away from the highest court of the land, is not the job of any other court, but is that of parliaments or constituent assemblies – for the purpose of relieving the counter-majoritarian anxiety and not to exacerbate it. Whether it’s jurisdiction stripping in the USA or mechanisms such as Article 66(2) of the Mongolian Constitution (requiring the Constitutional Court to revisit its judgment if rejected by parliament), such decisions are about the rules of the game and should not be made by any court.

Conclusion

The FSC’s extreme display of judicial power and self-aggrandizement was detrimental to its long-term survival as the rightful contender of judicial review and res judicata. The CC decision and the judicial cohabitation proposal of the Supreme Judicial Council aim to turn the relationship between the FSC and the Court of Cassation into a circular one rather than hierarchical. One where the FSC maintains its “power of final decision” while the CC holds this power in check.

We maintain the view that the CC was wrong on two counts, legally and doctrinally. First, by restructuring hierarchy and declaring itself above the purview of the highest court of the land without a constitutional authorization. Second, in assuming that lawmaking should not intersect with judicial review and denying the FSC the right to remove (not even to add) part of an article that it sees unconstitutional.

Should Iraq want to curb the power of the FSC – and it should – the country must not rely on judicial power struggle and instead address it through democratic means.