A deeply divisive conflict between Iraq’s two foremost judicial figures has recently come to light, raising alarm that the country’s political stability may unravel, threatening the delicate state-building process and potentially triggering sectarian violence. The dispute between the Federal Supreme Court (FSC) and the Supreme Judicial Council (SJC) is ostensibly about legal powers and jurisdiction, but in reality it is grounded in the desire of their respective chief judges, Jassim Mohammad Abboud and Faeq Zaidan, to become the sole voice of the judiciary on political matters. Though the FSC is the court mandated by the constitution to issue rulings on constitutional and political conflicts, it has faced an increasing challenge to its authority in this regard since the creation of the SJC in 2017. This division within the judiciary threatens to forestall any national reform efforts, as well as to delay and challenge legislation. The two courts choosing different political sides would also allow the elite to prevent accountability.
The most recent clash came about after the parliament in January passed three laws on personal status, general amnesty and land return that were drafted to please the Shia, Sunni and Kurd constituencies. Members of parliament approved these controversial laws as a package in a single vote rather than separately. The laws allow for more conservative religious practices to be recognized in place of the civil code for issues such as marriage, make it possible to grant amnesty to tens of thousands of convicted criminals including killers and those involved in corruption, and could ignite local conflicts over land and property on an ethno-sectarian basis. Numerous parliamentarians have expressed strong grievances about the process, citing issues such as not only the failure to vote on each law individually but also the absence of a full reading of the General Amnesty Law amendment, the lack of quorum confirmation, inaccurate voting numbers due to the use of a show of hands instead of electronic voting, and the speaker’s violation of several parliamentary procedures. These concerns highlight a breakdown in parliamentary procedure that undermines accountability. This situation led to an effort to oust the speaker and to several cases being lodged at the FSC challenging the passage of the laws on constitutional grounds.
On 3 February, while the FSC was deliberating these cases, the SJC announced that it was forming committees of judges to begin identifying prisoners eligible for the amnesty as per the General Amnesty Law. The next day, the FSC issued a temporary injunction suspending the three laws until it could rule on their legality. Politicians framed the subsequent uproar in a sectarian manner, with Sunni Arab parties hinting that the FSC was doing the bidding of the Shia parties in order to block the amnesty and embarrass Sunni politicians who had been pushing for it. The local governments in Anbar, Kirkuk, Ninawa and Salahaldin provinces then announced a shutdown of their offices as a protest against the FSC’s injunction. The SJC seized on the anger to issue a statement criticizing the FSC for acting outside its powers and jurisdiction, perhaps expecting this to be a watershed moment when it could gain permanent political backing over the FSC.
From 2005 until 2017, the chair of the FSC headed the judiciary. This role was then assigned to the chair of the SJC when the law creating it was passed and it became operational in 2017. Zaidan’s ascendancy was backed by powerful elements of the political elite as a counterbalance to the FSC. When the FSC was reconstituted in 2021, Zaidan oversaw the nominations for it backing Abboud for the position of FSC president. Soon after, however, Zaidan discovered that Abboud, was not the pliant figure he had expected. Since then, the FSC has played a hugely significant political role, much more so than in the years prior to 2021, for example, by issuing rulings that effectively defeated the effort to form a Sadr-Halbusi-Barzani majoritarian government in 2022. Meanwhile, the SJC has pursued a policy of increased centralization of the judiciary and aggressively defended itself against its critics. The judiciary has thus become a formidable player in the political system and no real accountability or reform is possible within it without its consent.
In May 2024, the Court of Cassation, which Zaidan also chairs, attempted to overrule the FSC’s ruling in favour of a judge who had challenged Zaidan’s decision to force him into retirement. The same court challenged the FSC’s jurisdiction again on 10 February with regard to the three controversial laws, but the next day the FSC ruled that they were passed legitimately and lifted the temporary injunction against them. It seems that this round in the battle between the FSC and SJC has ended in a draw, but it is likely the SJC will again attempt to challenge the FSC in the future.
One obvious solution to end the dispute, which is the easiest to implement, would be to amend Article 2 of the Supreme Judicial Council law of 2017 so that the FSC and the SJC are chaired by the same judge. This would require only a majority vote in parliament and would be a return to how the judiciary was led before 2017. It would decisively end the struggle for power within the judiciary. This could also be achieved by passing a new FSC law that would have the same outcome. Another solution would be to amend Article 94 of the constitution so that FSC decisions can be overturned by the Court of Cassation on appeal, effectively giving the SJC the upper hand. This would be much harder to achieve, given the minefield that is constitutional reform, and require a national referendum.
However, it is unclear if any of these steps would directly improve the prospects for reform in Iraq, given that the judiciary itself is not blameless with regard to politicization and collusion to prevent accountability.
More of a compromise solution that would preserve the power-sharing in the judiciary would be to amend the SJC law to state clearly that it cannot appeal, overturn, investigate, criticize or challenge FSC decisions, reinforcing Article 94 of the constitution. This would suit the political elite more as it would avoid making the judiciary potentially stronger by keeping it with two poles of power rather than one.
With elections due later this year, whatever solution is pursued needs to be implemented quickly. If there is a challenge to the electoral results, as there has been before, and a possible repeat of the 2021–22 stalemate, the political elite will look to the judiciary to settle the outcome. In 2022, the FSC and SJC managed to close ranks and agree on a path that satisfied opponents in the political elite as a way of maintaining balance in the political system. If the disputes between them are not resolved or escalate, the two courts may end up on opposite sides in the political competition, which would threaten the integrity of the state. A divided judiciary would also make any reform efforts a battlefield as the political elite would seek to stifle them to maintain the status quo.
This article is part of the Reform Monitor series which provides in-depth insights into the inner-workings of Iraq’s government and evaluates what recent developments – both public and behind the scenes – reveal about the future of the Iraqi state. The Reform Monitor aims to offer policy recommendations to the Iraqi government, international policymakers, multilateral organizations, and NGOs working in Iraq to inform decision-making and programming aimed at building a more stable, accountable and prosperous Iraqi state.
The Reform Monitor series is part of the workstream on the political economy of reform, under the Middle East and North Africa Programme’s Iraq Initiative, led by project director Dr Renad Mansour.
