July 30, 2019 | By Nina Shea | Real Clear Politics
While it struggles to constrain Iran-controlled militias it once welcomed to help defeat ISIS, Iraq now appears poised to make another policy blunder, drawing it further into Iran’s orbit. Iraq’s parliament is considering a new law that would effectively align it with its neighbor’s theocratic governance, undermine its fragile democracy and jeopardize religious freedom and other basic rights.
As early as September, Iraq’s parliament is to vote on a draft federal courts law that, for the first time, provides for mullahs to sit as judges on that nation’s highest court. Furthermore, it confers these Islamic judges with enhanced powers to veto laws they deem to be in conflict with Islam – laws passed by the duly elected parliament. These jurists would likely be drawn from Iraq’s dominant Twelvers branch of Shia Islam, which is also Iran’s ruling sect.
The bill’s second paragraph provides for four new supreme court seats for Islamic scholars to serve not as advisers but as judges with the exceptional power of veto to ensure a vague constitutional provision that “[n]o law may be enacted that contradicts the established provisions of Islam” (article 2). Iraq’s 2005 Constitution also stipulates parallel protections for democracy and citizens’ rights (article 2), asserting that “[t]he people are the source of authority” (article 5). But, the bill relies on another constitutional provision — the “Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars,” (article 92) — and makes no requirement for the Islamic jurists to be educated in civil law.
Iraq’s parliamentarians still must resolve who will appoint the Islamic judges and which sect of Islam they should represent. The Kurds want greater control over the appointments since jurisdiction would extend to the autonomous Kurdistan region. The religious blocs in parliament insist that a quorum for the Islamic judges be specified.
Such factors could mitigate but not eliminate the threats from having mullahs on the supreme court in the first place and, moreover, ones with greater powers than the other judges. They would be able to oppose, and even invalidate, religious freedom, women’s equality, the rest of the bill of rights, or the constitution itself.
Iraqi civic society activists, who met in Baghdad in June, expressed fears that the bill would turn the high court into a “supreme religious authority.” Iraq’s Christians, too, are alarmed and their leaders have lodged complaints with the U.S. and Iraqi governments, sources within that community told me.