The Iraq Report: Judicial rulings dash dreams of Sadr, Kurds

A series of decisions by Iraq’s highest court have thrown a major spanner in the works for the ambitions of both Shia cleric Moqtada al-Sadr and the semi-autonomous Kurdistan Region, setting the stage for future political conflicts and compromises.

Sadr – whose Sairoun bloc won the largest share of votes in the last national election – had hoped to form a “national unity” majority government controlled by candidates selected by him and his allies.

However, the Federal Supreme Court has issued a major ruling on the constitutional requirements for the election of presidential candidates, forcing Sadr to begin considering compromising with parties he had vowed to sideline.

Meanwhile, the same court issued a further judgment ruling that stipulated that the Kurdistan Regional Government (KRG) had to cede all control of its oil output to the federal government in Baghdad.

"Rather than settling political and historical disputes... the court has arguably created the circumstances for a new round of conflict and continued instability in Iraqi political affairs, further entrenching the status quo"

The ruling further provided that Baghdad would then redistribute the KRG’s share of oil profits back to the Kurdish administration, triggering an outpouring of fury from Kurdish factions who have struggled for total independence for the better part of a century.

Rather than settling political and historical disputes, and considering the politicised nature of the judiciary, the court has arguably created the circumstances for a new round of conflict and continued instability in Iraqi political affairs, further entrenching the status quo.

Federal court torpedoes Sadr's majority government

As the political deadlock since October’s vote has continued to grind on, election winner Moqtada al-Sadr has faced a significant setback to his stated plan to form a majority government after the Federal Supreme Court ruled in February against his efforts to force through a president of his choosing.

Following a petition by other Iran-aligned Shia Islamist parties who performed poorly in the last elections, Iraq’s highest judicial authority issued a verdict on how Article 70 of the Iraqi constitution ought to be interpreted, insisting that a two-thirds majority in parliament was required in order to elect a president.

This means that 220 out of the 329 total number of lawmakers need to agree on a single candidate for the role of president.

However, the constitutional court’s verdict has caused significant consternation amongst not only politicians but also jurists, leading to allegations from Sadr himself that the judiciary is politicised.

Sadr called on lawmakers to “activate the parliament’s auditory role and prevent political intervention or a politicised judiciary”.

Article 70 – first adopted in 2005 following the US-led invasion in 2003 – consists of two parts. The first part stipulates that there must be a two-thirds parliamentary majority vote before the president – who must be a Kurd – is elected. This is in line with what the court ruled.

However, the second part of Article 70 also stipulates that, in case of a lack of a two-thirds majority vote, the top two candidates will then compete with each other in a second vote, with the winner declared president by simple majority.

The Shia cleric had formed an alliance with the Kurdistan Democratic Party (KDP) and a coalition of Sunni Arab parties named Taqaddum, led by the newly re-elected Parliamentary Speaker Mohammed al-Halbousi.

While the elections were very poorly attended – attracting a dire turnout of only 41 percent – Sadr’s tripartite coalition had hoped to form a majority government and had succeeded in reinstalling Halbousi into his post of speaker.

However, they have so far failed to clinch any further gains and are now poised to be forced into negotiations with their rivals, something they previously vowed not to do.

Sadr’s Sairoun controls 73 seats, while his Kurdish KDP allies led by Massoud Barzani control 31, and Halbousi’s Taqaddum bloc can lay claim to 37 seats – together falling short of the two-thirds required. Without significant defections from other blocs, their ambition to rule alone is all but dead.

This has opened up a golden opportunity for the remaining parties, and it is expected that Tehran will now apply additional pressure on Sadr to share power and ministries with those he fought alongside to violently quell the 2019 protest movement.

While much had been made of Sadr’s alleged anti-Iran and Iraqi nationalist credentials, he has in reality been very much in Iran’s orbit since before the United States led an illegal invasion and occupation of Iraq in 2003.

"Sadr's hesitancy to form political alliances with his rivals has nothing to do with any ideological split, but it is simply a pragmatic move to consolidate power into his own hands so that he can be both king and kingmaker in Iraq"

Far from being a “saviour”, Sadr has presided over some of the bloodiest Iran-backed sectarian Shia militias who have committed countless atrocities against Sunni Arabs in particular, cleansing entire neighbourhoods in major Iraqi cities – including Baghdad – of their presence.

Months before renowned Iranian commander Qasem Soleimani was assassinated by a drone strike ordered by then-President Donald Trump in January 2020, Sadr attended the 40th anniversary commemorations of the Iranian revolution that brought Ayatollah Ruhollah Khomeini to power.

He was photographed alongside not only Soleimani, but paying homage to Khomeini’s successor, Supreme Leader Ali Khamenei, who has very recently directly leaned on Sadr to embrace “Shia unity”.

Therefore, Sadr’s hesitancy to form political alliances with his rivals has nothing to do with any ideological split, but it is simply a pragmatic move to consolidate power into his own hands so that he can be both king and kingmaker in Iraq.

However, with the Supreme Court’s ruling he will now be compelled to speak to his ideological brethren once more, all but guaranteeing the continuation of the weak minority government system that has plagued Iraq since 2003.

Kurds reject court decision on Iraqi oil

In another bout of legal drama, the Kurdistan Regional Government blasted the Supreme Court for allegedly issuing unconstitutional verdicts after the court ruled last month that the KRG would have to cede control of oil exports to the federal government in Baghdad.

The court’s decision found the KRG’s oil and gas law of 2007 to be “unconstitutional,” and ordered the Kurdistan Region’s oil and gas sector to come under the purview of the central authorities in Baghdad.

“This decision by the Federal Supreme Court is unjust, unconstitutional, and violates the rights and constitutional authorities of the Kurdistan region,” the KRG said in a statement.

“The Kurdistan regional government will not forfeit the rights of the Kurdistan region as codified in the Iraqi constitution, and will continue its attempts to reach a constitutional solution with the federal government on this matter.”

"Considering the decades of Kurdish separatism that led to an attempt to declare independence as recently as 2017 – an attempt that was militarily crushed by Baghdad – trust has always been in short supply on both sides"

Iraq's federal government has fought to regain control of output from oilfields in the Kurdistan region ever since its autonomous government began marketing it independently more than a decade ago, signing its own contracts with customers.

Currently, Erbil has been selling oil in international markets through a deal with neighbouring Turkey, whereby Ankara allows the KRG to sell oil through its Ceyhan port. This has been the source of considerable tension between Ankara and Baghdad.

However, the federal authorities have long argued that Iraqi oil should be sold jointly rather than piecemeal, with Baghdad promising Erbil its share of the profits.

Considering the decades of Kurdish separatism that led to an attempt to declare independence as recently as 2017 – an attempt that was militarily crushed by Baghdad – trust has always been in short supply on both sides.

The man who led the aborted attempt at independence, Massoud Barzani, slammed the Supreme Court’s decision as a “political decision”, echoing Sadr’s sentiments regarding the unrelated presidential election.

This demonstrates that a number of powerful factions within the political process view the judiciary with distrust and have openly accused it of being politicised. Considering the petitions were filed by lawmakers close to the divisive former Prime Minister Nuri al-Maliki, the suggestion is that there is an “old guard” who control or at least heavily influence the decisions of Iraq’s highest court.

This will now set the stage for a whole host of new problems as Iraqi parties attempt to navigate not only the post-election landscape, but also the division of power and finances in an already fractured Iraq divided along ethno-sectarian lines.

Rather than being a venue to resolve disputes, the courts are now being viewed as a source for those disputes to manifest themselves in the first place. Without trust in the judiciary, this may lead Iraqi factions to turn to violence to settle disagreements rather than a commonly agreed legal process.

The Iraq Report is a regular feature at The New Arab.

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