Nomination Trouble for the De-Baathification Appellate Bench

The process of filling the appellate bench with new members illustrates the problems of reconciling old Iraq and new Iraq. The two judges that were cleared by parliament last week were Jalil Khalil Shakir and Sulayman al-Qaradaghi. Judge Jalil is a Fayli Kurd and his approval by parliament was loudly celebrated by Fayli Kurd media of a rather ethno-sectarian calibre: They even forgot to mention the outcome of the remaining nomination attempts! As for Judge Sulayman, his family name (Qaradaghi) could be Kurdish and could be an indication that he is a replacement on an ethno-sectarian quota basis for the Kurdish judge of the previous bench that was killed.

But two of the other judges that were also likely nominated on an ethno-sectarian quota basis were not approved by parliament. This applies firstly to Numan al-Bayati, whose family name sounds Turkmen and in fact is the same as one of the retiring judges (Hamid al-Bayati). The second case relates to Yas al-Saadi – was he intended as replacement for the retiring chief of the court, Muhammad Sahib al-Khafaji? In those cases, despite the quota imperatives, legacies of the past were not readily accepted by parliament, once more underlining how the previous regime was so much more than a bunch of relatives of Saddam Hussein from Tikrit. More broadly, this relates to a general problem that has delayed the passage of a new law for the federal supreme court: In Iraq, it is almost impossible to find qualified judges with decades of experience that do not have any ties to the past regime. That in turn has prompted some of the Shiite Islamist parties to demand changes to the draft law on the new supreme court (which was prepared by the existing court). In particular, they want lower service thresholds for nomination to the new court.

Unless the Iraqi parliament can find pragmatic and consistent solutions for incorporating professionals that served in the previous regime, it is unlikely to be able to pass legislation on a new federal supreme court at all. In that sort of context, the old court and its various appellate institutions will continue to serve – with the legitimacy problems and susceptibility to political pressure that come with its own genesis during the days of Paul Bremer back in 2003–2004.