BAGHDAD-INA
He is sometimes described as the hidden force behind maintaining the rhythm of events in Iraq and preventing major disruptions. He has always appeared outside the prevailing pattern and distant from political agitation, even in the face of the challenges and criticism directed at the Iraqi judiciary itself over the past years. Yet, tirelessly, he has devoted himself to defining what appeared to be the priorities of his mission. Securing the independence of the judiciary amid a political environment inclined—through a legacy stretching back decades, perhaps even centuries—to usurp the judge’s bench for the benefit of politicians, political parties, religious figures, and rulers was an urgent and difficult objective. Ultimately, however, it was achieved.
The Usurped Bench
It is impossible, under any circumstances, to assume that the contemporary Iraqi state—let alone the Iraqi state in its historical manifestations—embraced the principle of judicial independence. The most that judges were able to wrest from successive authorities was a degree of professionalism and an attempt to adhere to established systems and laws. Yet rulers frequently intervened to distort or direct that professionalism, through exceptions, special courts, military courts, or the persecution of judges who refused to comply.
After 2003, the Iraqi Constitution stipulated the independence of the judiciary and declared that “judges are independent, and there is no authority over them in their judicial work except the law. No authority may interfere in the judiciary or in the affairs of justice.” Yet matters did not proceed in accordance with this provision. Before Faiq Zidan became President of the Supreme Judicial Council in 2017, accusations repeatedly surfaced regarding the penetration of the judicial body by Iraqi political parties and its occasional use in favour of a particular party or political actor. This extended to the Federal Supreme Court, whose independence was tested in some of the most controversial rulings.
For ordinary Iraqis, turning to the judiciary was both an ordeal and a tribulation. An influential politician merely had to turn to his party leader; directors and ministers did the same. This was not because the judges themselves were unequal to the task. Most possessed the expertise required for such a sensitive position. Yet, like all Iraqis, they found that state institutions had been subjected to political and partisan violation. At times, they watched in despair as political parties aggressively advanced into the judicial body, relentlessly attempting to inject the chaos of sectarian and partisan quotas into its veins. It would have taken only a few years for the judicial institution to become a bitter reflection of executive ministries hollowed out by corruption, power-sharing, and the division of spoils, and of legislative institutions from whose decaying corners all the pus of sectarianism had oozed.
Indeed, a deliberate political conspiracy had been directed against the judicial institution with the aim of impoverishing it and undermining the financial and security protections of judges, thereby creating the same environment of political manipulation that had been tested and had succeeded within executive institutions. This was pursued instead of nurturing and supporting judicial institutions and granting judges the special status and necessary security protection afforded to them in countries throughout the world.
The Ordeal of Change
Judge Zidan, who had risen through the various levels of the judicial institution, knew all its details, and had watched the immense political tide accumulating at its doors and seeping through its windows, was hardly removed from diagnosing the crisis. His approaches to change, however, were different.
When he assumed the presidency of this highly sensitive and distinctive institution—which may well constitute the last bastion of legitimacy for Iraq’s unity and cohesion—he understood that there was no room for impulsiveness in addressing any dysfunction within it. Deep traditions, shared among judges across the world, dictate that confrontational practices should not be pursued within the judicial environment. The judiciary must preserve its dignity, cohesion, and composure even amid a turbulent, agitated, and confused political, social, and economic environment. It must remain removed from the spotlight and the controversies in which Iraq abounds, and it must rely on discretion and calm in addressing the necessities of internal reform and development within its structures, renewing its blood, and activating the systems of justice it embraces.
It is logical to assume that Faiq Zidan asked himself in 2017, “Where do I begin?” This is what any official does at the moment of assuming responsibility. The equation of priorities inevitably imposes itself. In the Iraqi context, priorities resemble an ordeal for an honest decision-maker, besieged by the legacy of his institution and tested by overlapping networks of crises, necessities, and minefields. He may err in choosing the starting point and thereby unleash a chain of repercussions.
At that time, Iraq was waging a devastating war against ISIS. The economy had collapsed, and the people were angry at the policies that had led to these breakdowns, demanding comprehensive, rapid, and immediate reforms. Iraqis, for the most part, are no different from any other people: priorities are of little concern to them, and illnesses, in their view, should be cured by the touch of someone endowed with absolute power, rather than through long, painful treatments requiring patience. Politicians and rulers, preoccupied with building their own patronage, partisan, and economic kingdoms, had chosen morphine instead of treatment, regardless of how much it caused wounds to fester, cells to perish, and reality to be falsified.
Judge Faiq Zidan chose the path of patience, gradual reform, and cumulative institution-building, without overlooking realities or ignoring the facts on the ground—not only within his institution, but within it and outward from it, as a symbol and a core that, once it had recovered, would be required to lead the Iraqi ship that had long run aground.
Reform was not easy. Bringing in young blood untainted by biases, activating frameworks of work, linking the institution’s various branches to its centre, entrenching the frameworks of justice within the institution and its rulings, providing as much as possible of the requirements necessary to safeguard its judges, developing their capabilities, and strengthening their resolve in the face of the threats, risks, and apprehensions implanted by Iraq’s experiences—all of this was far from easy. Nor was the process without mistakes, missteps, or resistance. Rather, it was fraught with challenges that most often began outside the institution’s walls and then seeped into its interior.
The Debate over Balance
During that arduous phase of building and cleansing, the judicial institution was not spared criticism and attacks. Some were political in nature; others cloaked themselves in Socratic deliberations on the meanings of epistemic completeness and awareness of deficiency. The most dangerous, however, originated from external sources and often conflated the judiciary’s areas of work with the decisions of the Federal Supreme Court. They also seized upon investigative procedures and violations for which the executive authority bears responsibility. Some, meanwhile, singled out references to “balance,” interpreting them to mean that the judiciary was attempting to strike a balance between the demands, needs, and powers of political parties, the demands of the people, and the requirements of justice—whereas there can be no balance when it comes to the essence of justice.
The reality is that Judge Zidan sought to achieve a balance between the requirements of change and development within the judicial body; the necessities of preserving the institution’s prestige, integrity, distinctiveness, and symbolic standing; and the available capabilities and immediate tasks required to fulfil judicial obligations in the face of the challenges of terrorism, crime, corruption, and the grave deviations that assailed the Iraqi situation from every direction.
It was remarkable that the judiciary, among Iraq’s various institutions, did not adopt the sectarian and ethnic classifications that had hollowed out the body of the state. In doing so, it restored the prestige of its judges, institutions, and procedures, and kept changes and particularities within its walls without turning them into an arena for publicity festivals. It thus generated a process of resurgence and the restoration of its presence.
There is no guarantee that all of this occurred without mistakes, setbacks, attempts at obstruction, distortion, or misrepresentation. The good news is that the judicial institution, at its core, possessed opportunities for self-correction, allowing it to move as close as possible to the fullest requirements of justice.
Yet reaching “justice” as an ultimate goal cannot even be envisioned without guaranteeing the independence of the institution entrusted with justice—which, in the Iraqi context, is represented by the Supreme Judicial Council. Was that possible?
For the Sake of Securing Independence
Nine years after the judiciary’s silent revolution of change, no one today can claim that judicial decisions in Iraq originate from outside the judiciary. Indeed, observing the trajectory of objections—which has shifted entirely from grievances over judicial rulings to insinuations that Faiq Zidan is now the most powerful authority in Iraq—points to a degree of independence acquired by the institution under this man’s leadership that is unparalleled not only in the region, but even across international experiences.
Without ambiguity, Judge Zidan succeeded in wresting the judiciary from the claws of watchful political parties and centres of power, including religious ones. This is no ordinary development, particularly in the Iraqi experience, where, only a few years ago, everyone anticipated the inevitable collapse of the judicial institution following the collapse of other institutions, under the impact of partisan, sectarian, and ethnic policies of encroachment that had spread like cancer through the body of the state.
At the risk of exaggeration, this unexpected development could not have occurred—and its continuation in the future cannot be guaranteed—without the presence of an exceptional personality conscious of his role, duties, and priorities and capable of ensuring its sustainability.
The Iraqi state, quite apart from its long history of dominating the judicial authority, had its institutional relationships structured after 2003 in a manner that left the executive authority singularly empowered through its prerogatives, resources, and capacities to exercise broad dominance. It had gone beyond the constitutional provisions urging the separation of powers, using its security, financial, and administrative instruments as means of pressure to subordinate the other branches of authority. Faiq Zidan was ultimately able to break this trajectory. Yet further amendments to laws, regulations, and procedures will be required to ensure the protection of the separation of powers and prevent the executive authority—or any other authority—from becoming overbearing in the long term.
What Comes Next?
It was hardly surprising that, at a moment when the Iraqi ship of state had run aground and its fragile balances had been thrown into confusion amid crushing international, regional, and domestic crises, everyone would search for a stable Iraqi actor amid the chaos—one capable of producing solutions and guarantees and possessing the necessary capabilities to pull Iraq’s ship out of the ordeal of its dangerous historical grounding.
Nor is it strange that the judiciary should become the last hope for saving the state. Neither is this outside the context of the great crises with which events and histories across the planet abound—provided, first, that it is acknowledged that Iraq is facing a major crisis.
It may not be satisfactory that Iraq’s legislative and executive institutions have reached the threshold of paralysis and ineffectiveness, and that they now require the momentum of statehood generated by the judicial institution, with endurance and patience over nearly a decade, in order to reactivate their capacities.
Yet the question remains suspended: can the judiciary, after assuming its leading position in Iraq amid competing pressures and challenges, contribute on its own to reviving the state, correcting its deviations, and treating its ailments? This is without denying that some traces of these symptoms remain within the body of the judiciary itself, by virtue of Iraq’s broader environment, and continue to require constant fortification and prevention.
The reality is that the judiciary is capable of doing so. Yet, as it seeks to save the state, it must transform the popular momentum embracing its current trajectory into an explosive driving force capable of ensuring harmony and integration among institutions and branches of authority—similar to that which Faiq Zidan generated within the judicial institution. Such a force could formulate corrective laws and regulations and take decisive, difficult, and painful measures along the path towards Iraq’s existential reform.
SOURCE: DIRECT POLICY FOUNDATION
