Clerics role debated in bill for Iraq’s federal supreme court

BAGHDAD, January 2 — Advisor to the Prime Minister Mohammed Shia al-Sudani for Constitutional Affairs, said that the new draft of the “High Federal Court” law, recently presented by the government, attempts to “resolve the dispute” regarding the membership and role of religious figures in the court. However, informed sources indicated that the position of clerics and Sharia experts would be advisory, and they would not participate in the voting.

The government announced last Wednesday the completion of a new bill for the stalled Court Law, emphasizing the start of discussions with the political parties in preparation for its approval.

According to Advisor Hassan al-Yasiri, the committee recently formed by the government is working to “resolve” the disputes that accompanied the previous law project when presented by Nouri al-Maliki’s government in 2014.

The office of Prime Minister Mohammed Shia al-Sudani released a statement confirming that the committee “has completed its work and prepared the draft project.”

Al-Yasiri heads the government committee responsible for preparing the new law, and he is expected to engage in dialogues in the coming days with legal experts, party representatives, and officials in the Iraqi presidencies.

Background:

Months before voting on the permanent constitution, the head of the Coalition Provisional Authority, L Paul Bremer, issued Law No. 30 to cover the activities of the court known as the “Federal Court,” filling the legal vacuum in the country after the fall of Saddam Hussein’s regime.

After the constitution was approved, political forces were required to legislate a new law regulating the court’s work and defining its powers. However, the parliament failed to pass it three times since 2008 due to sharp disagreements over the court members’ selection mechanism, the membership of Sharia jurists, and the court’s powers within or separate from the Judicial Council.

Now what?

Information indicates that the dispute over Sharia jurists has been settled even before the formation of the current committee, adopting the formula of the “The advising cleric” who becomes a member of the court but without the right to vote.

However, the major challenge that the government committee might face relates to determining the “independence” of the court. Two factions are conflicting over isolating it completely from the Judicial Council to perform the function of the “Constitutional Court” or keeping it as part of the judiciary while granting it financial and administrative independence.

Al-Sudani’s Constitutional Affairs Advisor, told 964media:

Article 92 of the 2005 Iraqi Constitution stipulates that the Federal Supreme Court should consist of judges, experts in Islamic jurisprudence, and legal scholars. The number and selection method are determined through legislation by a majority vote in the Council of Representatives.

Article 93 outlines the court’s powers and jurisdiction, but Parliament struggled to pass the law regulating its functions.

In this new bill, we aim to address previous disputes, notably regarding the nomination process for judges and legal scholars and defining their roles. The constitution states that their roles are integral, forming a mix of judges, experts in Islamic jurisprudence, and legal scholars. The new draft formulates mechanisms for their nomination, moving from the Ministry of Higher Education to a specialized committee from multiple entities to streamline the Federal Court’s operations.

The quorum for the court’s sessions was also a contentious issue, whether it requires consensus with all members present or can convene with a two-thirds majority.

We are currently engaging in dialogues with political blocs to resolve these disputes, working on the formal and technical fine tuning of the law to overcome obstacles and clarify ambiguities present in the previous draft.

In the new law draft, we expanded the jurisdiction of the Federal Court to include cases arising from the application of federal laws or those arising between the federal government and regional governments.

If legislation for this new law is successful, we anticipate a significant enhancement of the Federal Supreme Court’s work and the consolidation of judicial authority.