Politics

Iraq’s most senior judge Fayeq Zaidan thrice refused the role of PM

The powerful head of the Iraqi Supreme Judicial Council gives a rare interview, talking about his battle for court independence, Iraq’s international relations, and why he isn’t a politician.

Judge Fayeq Zaidan, head of the Iraqi Supreme Judicial Council since 2017.

Iraq’s most senior judge Fayeq Zaidan thrice refused the role of PM

Ibrahim Hamidi

last update on 17 Jul 2024

Iraq’s most senior judge, Fayeq Zaidan’s list of achievements is long, but none are more important than his hoisting of the country’s judiciary to parity with its executive and legislature, with a strong new independence.

Head of the Supreme Judicial Council in Iraq since 2017, Zaidan likens the pursuit for the judiciary’s independence from politicians to waging war

Sometimes described as a “strongman”, Zaidan spoke to Al Majalla about law in his country in an extensive and rare interview, outlining his vision for the future.

“We have been waging a fierce battle to build an independent judiciary that establishes the principle of separation of powers as stipulated in the constitution,” he says.

“We are now very proud of what we have achieved, being a completely independent authority from the legislative and executive branches, which is a unique achievement for Iraq compared to other Arab and regional countries.

“After assuming the presidency of the Judicial Council, we confidently assert that this independence is total and absolute.”

With that in mind, Zaidan defended senior judges’ involvement in discussions with political leaders in October 2019 as anti-corruption protests gripped Iraq, given the legal element to the situation.

He is not interested in being a political leader, he says, despite having had offers to enter government at a senior level. Candidly, he cites “a lack of interest”.

Zaidan is clear on his views regarding international relations as well, in particular those with the United States and with Iraq’s Arab neighbours, both of which he sees as important. Here is the full text of the interview:

How would you describe your role in the Supreme Judicial Council and its activation of judicial independence and impartiality?

At the beginning of 2017, I assumed the presidency of the Supreme Judicial Council. My primary concern was to enhance judicial independence and impartiality. This is the dream of any judge from their first day.

I achieved a milestone in this context by administratively separating the Judicial Institute from the Ministry of Justice and attaching it to the Judicial Council. This was in mid-2017, a few months after I took office.

This achievement led Judicial Institute students to feel that they do not need the endorsement or intervention of a political party, given that the Ministry of Justice is allocated to parties in the formation of any government. Thus, we ensured that judges experience complete independence from their first days of study.

Zaidan during his visit to the Royal Courts of Justice in London on 3 November 2018.

We also fostered self-confidence among all judges, freeing them from concerns about political interference or external pressure about altering workplace conditions or influencing decisions regarding judicial appointments in case they did not comply.

Today, judges feel empowered and confident in making decisions that align with their understanding of the law.

Since America’s invasion of Iraq, the judiciary has played a role among the many institutions in Iraq. Can you shed light on this and on your own role?

After 2003, the judiciary contributed to rebuilding the state by investigating and prosecuting members of terrorist organisations that made Iraq a battleground. The judiciary paid a high price for this, with 85 judges and 187 employees martyred.

I chaired the Central Investigation Court from 2005-13. It was the most important court in Iraq as it had nationwide jurisdiction and dealt with crimes related to terrorism, organised crime, and corruption. It was an honour to help preserve what remained of Iraq’s state institutions and rebuild what had been destroyed.

For a period, terrorists controlled parts of Baghdad close to the court building, so for a while we could not leave to see our families. It became both our workplace and residence. We even used the office desk as a bed.

In 2012, I was nominated to the Court of Cassation along with 23 other judges, approved by Parliament. I helped align the court’s performance with the general approach to combating terrorism and building the post-2003 state.

Then I was Deputy President of the Court of Cassation by the Supreme Judicial Council. This carried greater responsibility and I became a member of the Supreme Judicial Council, which oversees the judiciary’s work. This let me correct errors, promote competent judges, and rectify decisions.

In 2016, the Council made me President of the Court of Cassation, and Parliament approved it. This expanded my authority to develop the judicial and administrative work of the courts.

When terrorists controlled parts of Baghdad, we could not leave the court to see our families. It became both our workplace and residence.

In 2017, the Law of the Supreme Judicial Council was enacted. This separated the work of the Council from the Federal Court.

At that time, the head of the Federal Court also chaired the Council, but a 1963 law was reinstated. This stated that the head of the Court of Cassation was also the head of the Supreme Judicial Council.

I assumed the position on 23 January 2017. Ever since, I have been fighting a fierce battle to build a strong, independent judiciary that does not allow any party to interfere in its judicial or administrative work.

I have reinforced the principle of separation of powers as stipulated in Article 47 of the Constitution, ensuring that the judiciary functions as a parallel authority to the legislative and executive branches.

This has indeed been achieved, and I am now very proud that it is now a completely independent authority from the legislative and executive branches. This achievement is unique to Iraq compared to other Arab and regional countries.

How do you evaluate the Iraqi judiciary's performance? How independent is it in a country where politicians control everything?

The independence achieved for the judiciary from 2003-17 was relative and incomplete in terms of performance and influence on judicial decisions.

However, after I assumed the presidency of the Judicial Council at the beginning of 2017, I confidently assert that this independence is now total and absolute. This explains the periodic media attacks against us, driven by political agendas.

Zaidan met the late Iranian President Ebrahim Raisi when the latter was head of Iran's judiciary on 9 February 2021

Thanks to my positive personal relationships with the country's leaders, who come from various ethnic, religious, and political backgrounds, I have been able to limit politicians' desire to interfere with our work.

We have protected the legislation related to the judiciary and clarified to Iraq's political leaders the importance of maintaining judicial independence.

How do you view the presence of the Head of the Supreme Judicial Council or the Head of the Federal Court at meetings of the three presidencies during a crisis, such as during the events of October 2019?

Iraq's constitution delineates three branches of government: the legislature, represented by the Speaker; the executive, represented by the President and Prime Minister; and the judiciary, represented by the Head of the Supreme Judicial Council.

At times, purely political situations arise that necessitate a convening of (what is known as) the three presidencies (the President, Prime Minister, and Speaker).

Occasionally, a scenario with judicial implications occurs. This requires a meeting that includes the Head of the Supreme Judicial Council, alongside the three presidents. This is called "a meeting of the three branches". The media can confuse the terminology, hence it is sometimes called a "meeting of the four presidencies".

The Head of the Federal Court has never attended these meetings. My attendance has been limited to meetings that address judicial matters, such as those held in 2019, related to the 'October events'.

Issues included arrest warrants for some demonstrators, investigations into the killings of protesters and security personnel, and other crimes associated with the demonstrations. Such issues cannot be adequately addressed by the three presidencies alone. It needs judicial representation, hence my attendance.

How would you describe your personal relationship with the Head of the Federal Court, especially after the decision of the Court of Cassation regarding the Federal Court's rulings?

Our relationship is positive, both personally and professionally. He worked under my administration for many years. I nominated him as Head of the Federal Court in 2021. It is normal to have legal disagreements. This does not imply personal conflict.

The Federal Court erred in its decision to amend a clause in the Unified Retirement Law concerning the retirement conditions for judges and prosecutors. Doing so is not within the Court's jurisdiction, but that of the Council of Representatives. Therefore, the Court of Cassation had no choice but to annul it.

What is your interpretation of the requirement for a two-thirds majority to elect the President of the Republic or form a government?

The requirement is explicitly stated in Article 70, Paragraph One of the 2005 Constitution of the Republic of Iraq.

This says that "the Council of Representatives shall elect a President of the Republic from among the candidates by a two-thirds majority of its members".

This provision is therefore clearly constitutional, not a matter of judicial interpretation, and has been in effect since 2005, guiding the elections of Presidents Jalal Talabani, Fuad Masum, Barham Salih, and currently Abdul Latif Rashid.

I nominated the current head of the Federal Court in 2021. It is normal to have legal disagreements. This does not imply personal conflict.

From the minutes of Council of Representatives sessions since 2005, it is evident that the Speaker's first action is to verify the attendance of a two-thirds majority.

After speaking to political leaders from various affiliations, they recognise that this requirement serves as a constitutional guarantee for smaller components, ensuring that important laws or significant positions cannot be decided without their approval.

For instance, Article 65 mandates a two-thirds majority to legislate the Federal Council law, Article 52 requires two-thirds to decide on the validity of the membership of the House of Representatives, while Article 92 stipulates that a two-thirds majority is necessary to legislate the Federal Court Law.

There are claims that you set to become Prime Minister after retiring from the Supreme Judicial Council. Can you comment on this?

Before the formation of the last three governments, I was offered the position of Prime Minister by various parties. Each time, I declined for several reasons, chiefly a lack of interest in political work, and a desire to continue my judicial duties to complete my mission of building the judicial system I have envisioned.

Zaidan meeting his counterpart, the Head of the Jordanian Supreme Judicial Council, Muhammad Al-Ghazou, on 19 December 2018

My conviction against assuming the position of Prime Minister remains unchanged, even after I retire, because the reasons for declining the role remain, particularly a lack of desire to engage in political work and its complexities.

Are you concerned about the potential fragmentation of Iraq? How do you view federalism and the relationship between Baghdad and Erbil?

I am not currently concerned about Iraq's fragmentation. The idea of fragmentation often arises due to the existence of the Kurdistan Region, a reality that emerged after the 1990 invasion of Kuwait by the former regime and was constitutionally formalised after 2003 and the implementation of the 2005 Constitution.

Through my personal interactions with Kurdish leaders in Erbil and Sulaymaniyah, I have discerned no inclination toward separation from Iraq. On the contrary, they affirm their dedication to Iraq's unity and their role as an integral part of Iraq within the constitutional framework that defines federalism.

The crux of the matter lies in the interpretation of constitutional provisions concerning federalism and the relationship between the central government and the Kurdistan Region, especially regarding the management of natural resources such as oil and gas, border management, and revenues.

Varying interpretations of the Constitution's articles contribute to fluctuating relations between the central government and the Kurdistan Region, influenced by each party's interpretation of their constitutional rights and responsibilities.

How do you view Iraq's relationship with its Arab and regional neighbours?

Iraq is an Arab country, that is an undeniable fact. Its relationship with its Arab neighbours mirrors the relationship between the heart and the body—each is indispensable to the other.

Similarly, Iraq's relations with regional countries are grounded in geographical and social realities, forming a pragmatic and inevitable bond. Iraq endeavours to maintain good relations with all nations, guided by principles of sovereignty and non-interference in internal affairs.

Judge Fayeq Zaidan says he has 'waged a fierce battle' for the independence of Iraq's courts and judiciary.

Given that the judiciary operates as a constitutional authority within the broader state framework, Iraq's judiciary strives to maintain relationships with Arab, regional, and international judiciaries on an equal footing.

We work with Arab countries such as Qatar, Kuwait, Jordan, Saudi Arabia, the UAE, Lebanon, Syria, Morocco, Turkey, and Iran, as well as other countries like Britain, France, Germany, Belarus, and Azerbaijan most recently. The goal is to strengthen these collaborations and foster greater openness with other nations.

What is the future of Iraq's relationship with the United States?

There is a historical reality concerning America's role in overthrowing Iraq's dictatorial regime and establishing a new system after 2003 based on peaceful power transition in accordance with a Constitution and principles of democracy, freedom of expression, and human rights.

For the judiciary, 2003 marked the achievement of complete independence from the legislative and executive branches for the first time, so we consider a positive relationship with the United States crucial for Iraq.

The Iraqi judiciary works with those in countries such as Qatar, Kuwait, Jordan, Saudi Arabia, UAE, Lebanon, Syria, Morocco, Turkey, and Iran.

This is built on the same principles governing Iraq's relations with its Arab and regional neighbours, recognising Iraq as a sovereign, independent state.

Through Iraqi political leaders' interactions with American representatives, we perceive a mutual desire to maintain a constructive relationship grounded in bilateral agreements that shape future relations.

A US congressman tried to pressure you in Congress, which drew criticism and condemnation from Iraq for his interference in Iraqi affairs. How did you see it?

In parliamentary systems, members are entitled to express their opinions on a wide range of political, economic, and legal issues. Their views do not necessarily represent the official view of the government.

I do not attach significance to the statement made by the US Congressman, because I understand the broader position of the White House and the US Congress.

There are underlying reasons behind his statement. He was given inaccurate information by specific Iraqi individuals who have been affected by judicial rulings.

While some live in Iraq, others live abroad and evade legal proceedings. It seems they mistakenly believe that such statements can influence us.

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