Loyal readers of the blog know my longstanding contention (see link for a shorter scholarly article on the subject) that the Iraqi Federal Supreme Court will turn over heaven and earth to avoid the undertaking the interpretation of shari'a.  The reason is that the court's position is from a legal standpoint somewhat precarious--technically it is a "caretaker" court, composed on the basis of a law that was enacted prior to the current Constitution, and the current Constitution clearly envisions the enactment of a new law in Article 92 pursuant to which a new court will come into being.  Hence when it makes a decision that one faction does not like, as when it decided that Maliki could form the 2010 government post election rather than Allawi, this is pointed out to it, thereby translating that legal precariousness into one with political implications. 

For the most part, the Court has managed to do a fairly good job burnishing its credentials despite these vulnerabilities--the above referenced complaint by Allawi ally Tariq Al Hashimi was easily brushed away given that Hashimi himself had come to the court not long before to demand his presidential council salary on the basis of his participation in an institution that preceded the constitution (and pursuant to a law that set the salary that likewise preceded the constitution).  Other institutions that are far more controversial, for example the Accountability and Justice Commission (fancy ne official name for the de-Baathification Commission) have a harder time justifying their caretaker status.  Still, the Court is aware of this.

In addition, there is Najaf.  A famous commentator on the Egyptian Supreme Constitutional Court once told me that the Court when it interprets Islamic law always gets a view from the Azhar in Cairo, that pinnacle of Sunni learning, and always throws it away.  Well if that's what they do in Egypt, it's certainly not what they do in Iraq.  The Court doesn't need Grand Ayatollah Sistani as an enemy, it knows that, and it's not likely to provoke him by interpreting shari'a differently than he does.  (One exception provided in the linked article).

But this post isn't about that, I say three paragraphs in burying my lead.  It is instead a response to those, including not a few lawyers, who object and tell me the Court simply cannot avoid Article 2 questions on Islamicity and law because its jurisdiction is mandatory, unlike that of the U.S. Supreme Court, whose jurisdiction is basically discretionary.  The Supreme Court decides to hear a case through a process known as issuing a writ of certiorari--the Iraq Federal Supreme Court is obligated to hear particular matters.  There you go, they say, the procedure proves you wrong, they say.

And I say, oh, how cute, formalists!  (Too smarmy?  Maybe, sorry.)  Anyway, the fact that a court doesn't have discretion to turn down a case doesn't mean it will decide it, it just makes it a little bit harder to avoid.  But it still can be done, it is done with some regularity, in fact, everywhere.  To illustrate, let us take a closer look at the Iraq Supreme Court in operation:

Decision 54 of 2010

Parents of a soldier killed in war want his apartment.  It was given to his widow I think and the decree giving it to her (issued by the Ba'ath era Revolutionary Command Council, or RCC) stipulated it could not be inherited, it would go back to the state when she died.  Allegation is this violates shari'a inheritance rules. 

Decision: The parents took a sum certain pursuant to the same RCC decree.  You can't take with one hand and then insist the decree violates Islam on the other.  It's what those of us familiar with the common law and the equity courts would refer to as "unclean hands".  Shari'a avoided.


Decision 39 of 2011

Husband divorces his wife unilaterally through the Islamic procedure available to husbands known as talaq. But he does so arbitrarily a lower court finds, and therefore holds him liable for alimony for two years after his divorce.  He claims the relevant provision permitting this alimony violates shari'a because the jurists never suggested such a result, or any financial consequences for issuing a divorce like this for a good or bad reason.

Decision:  The wife isn't the person who can defend the constitutional claim, it's not her claim, it's the state's claim to defend. Dismissed.  Shari'a avoided.  

[This actually isn't as crazy as it seems to Americans.  In the U.S., it would be insane because the Supreme Court is the highest appeals court, so if you are challenging a statute, say a defamation statute as in New York Times v. Sullivan or Flynt v. Falwell, effectively you have to do it as a defense to the defamation claim against you, and take it up.  The other side is a private party, that's who raises these claims.  Naturally there's probably an amicus brief filed by the sovereign with the law, but they aren't really part of the case.  But when you have a constitutional tribunal, the way it is supposed to work is the question usually gets certified by a lower court or maybe raised by a litigant, and it isn't unusual for the constitutional tribunal, which really only deals with that one issue, to hear it separately and involve the state.  The French Constitutional Council for example did get the PM's view on its own defamation statute before ruling in 2011 that its existing defamation law was unconstitutional because it did not permit truth to be a defense more than ten years after whatever is being reported occurred.  

Still, you'd think the court could have sought the state's view, rather than merely see it wasn't present and then dismiss the case because of that.  Still, as I said, not crazy, in fact depending on unpublished procedural details respecting how it got there quite plausible.]

Decision 99 of 2011

The Basra Appeals Court certifies the following question to the Iraq Federal Supreme Court.  Does the Liquor License Law, No. 3 of 1931, violate the settled rulings of Islam as per Article 2 of the Iraq Constitution?

Decision: There's no pending reported case about this, so the Basra Court acted out of order and beyond protocol by asking this question.  Dismissed, with costs to that court.

[Ouch.  I honestly don't know what happened here.  If I was in Basra right now, I'd find out.  But since I'm not, I'll speculate.  Iraqi judges have their foibles like all of us, but they are professional, serious, hardworking people  I cannot believe three appeals judges sat around Basra drinking tea and eating baklava and thought to themselves, "Hey here's a question!  Let's go ask the Federal Supreme Court about it, just for kicks." If they did, they deserved the Court's smackdown.

More likely, they just didn't include reference to the underlying case because they didn't think it important, or they were pressured by some Sadrist notable down there to issue the question despite there being no pending case, or they did mention it somewhere but it helpfully got "lost" on the way to Baghdad and hence the Federal Supreme Court ignored it.  Something in the nitty gritty happened here, something not relayed in the facts, that made it helpfully easy to get rid of.]

Avoided, avoided, avoided.  In each case, on plausible grounds. In each case, an alternative result was not impossible to reach.  And that's how you do it when you don't have the power of cert.

HAH