Iraq’s judiciary in theory, is supposed to be independent and provide a check upon the government. When it comes to corruption, the courts have consistently failed to take on any serious cases that involve high officials. Either they are dropped or the guilty are given light sentences. When someone important is taken to court for graft it is because someone more powerful is manipulating the judicial system to intimidate them. In the last couple years, the country’s chief Justice Medhat Mahmoud has come under the sway of Prime Minister Nouri al-Maliki. That means that even less is likely to happen in the courts when it comes to fighting theft, bribery, and nepotism in the public sector.
Chief Justice Medhat Mahmoud is at the apex of Iraq’s court system. He heads both the Higher Judicial Council and the Federal Supreme Court, which are supposed to guide and oversee the justice system. Mahmoud has been criticized for trying to concentrate power over the judiciary in his hands, and interfering in the decisions of the lower courts. One United Nations official told the International Crisis Group (ICG) that the Judicial Council makes no decisions without the chief justice’s approval either. That means that any politician who gains influence over Mahmoud can control the courts. That has happened recently with Prime Minister Nouri al-Maliki. Since 2010, he has gotten a series of court rulings that favor his views on government. That included a January 2011 decision that said the independent agencies such as the Central Bank of Iraq, the Election Commission, and the anti-corruption Integrity Commission were under the cabinet despite the constitution explicitly stating that they were to be overseen by parliament. A senior judged remarked to the IGC that the reason why the judiciary has gone along with Maliki recently is because their mindset was shaped by the Saddam Hussein period. Meaning they don’t think independently, and look to the executive for direction. That helps explain why the courts have made these questionable rulings.
The legacy of the Saddam era is seen in the make-up of the country’s judges. Many are holdovers from the Baathist period including Chief Justice Mahmoud. Early attempts to reform the court system by the Coalition Provisional Authority (CPA) were largely ineffective, because the Iraqis were not included in the process, and rejected much of the American effort. There was some vetting of the judges from 2003-2004, resulting in 180 being dismissed. That still left around 530 holdovers. With the majority of the judiciary being from the Saddam era, the remarks of the judge to the Crisis Group are given added weight. The government has changed in form, but the judges are still largely the same. The training that the United States has provided to them has probably not transformed their views much from the Saddam times when nothing important was done without the approval of the authorities.
Violence and corruption have plagued the judges as well. From 2003-2008 40 judges and family members were killed. Many investigative judges who decide whether cases should go to court were afraid to carry out their work, because of attacks. Corruption was also endemic within the judiciary with judges taking bribes to ignore or drop dockets before them. Both of these had a great affect upon the justice systems’ willingness to deal with graft. In effect, the political parties have cooed and cajoled the judges. They know that they will pay a price for taking on any major cases or they have their own price to look the other way. That means the judiciary has given up its role of overseeing the government.
The examples of this are many. From 2004-2007 only 8% of corruption cases sent to court by the Integrity Commission received a guilty verdict. The number of successful prosecutions has gone up since then, but almost all of them are of low-level officials, which meant they do not challenge the status quo. During the first Maliki administration from 2006-2010, Vice President Adel Abdul Mahdi not only demanded that he review all corruption cases, but ordered specific dockets to be withdrawn from the courts. When the Integrity Commission refused to cooperate it got a call from Justice Medhat telling it to cooperate with the Vice President. In 2010, the courts dropped charges against then Trade Minister Falah al-Sudani and his family members who worked under him who were accused of stealing $4-$8 billion from the Food Ration System. This year, the courts have also prosecuted and then overturned corruption charges against the head of the Election Commission, and then issued an arrest warrant for the head of the Central Bank of Iraq. There’s no way these two events happened without Maliki’s approval since judges have been reluctant to take on anything that involves high officials. Likewise Minister Sudani likely got off, because he was a member of the prime minister’s Dawa Party. All of these events show how the justice system refuses to act against corruption, unless prodded to by the political leadership such as Prime Minister Maliki.
The courts represent the fourth element of the anti-corruption institutions in Iraq. They along with the Inspector Generals, the Integrity Commission, and the Board of Supreme Audit are all supposed to work together. Those first two pass along their findings to an investigative judge to see whether there is enough evidence to go to court. They then prosecute the case and render a verdict. Rather than working together to oversee the government, each one of these organizations has been undermined by the powerful. The courts have not done their fair share of adjudicating corruption cases, and have largely fallen under the sway of the prime minister. That points to a growing trend within Iraq of the premier attempting to impose his will over independent institutions. The result is that theft and graft go largely unpunished in Iraq unless they involve lowly officials or are political motivated, because the ruling elite are intent on enriching themselves and will not allow anyone to stand in their way.
International Crisis Group, “Failing Oversight: Iraq’s Unchecked Government,” 9/26/11
Special Inspector General for Iraq Reconstruction, Hard Lessons, 1/22/09