An important legalistic change in post-Saddam Iraq is the incorporation of Islamic experts to the Supreme Court. Article 89 of the Constitution specifies that “the Federal Supreme Court will consist of judges, legal scholars, and ‘experts in Islamic jurisprudence’” (IRD). Thus the provision allows individuals with little or no formal legal training to sit on the Iraq’s Supreme Court. Such experts are responsible for presiding over cases where expertise in Islamic jurisprudence is required, while all other matters are dealt with by judges (“Fundamental Misunderstandings of Law and Islam in Iraq,” 2008). However, neither Article 89 nor any other provision of the Constitution specifies under what circumstances such expertise will be called upon, or who will decide so.
In the case of the Supreme Court, Islamic institutions have so far proven true their desire to refrain from “direct involvement in the government.” As of February 2011, no Islamic experts have been appointed to the Court (Hamoudi, 2011). Islamists also seemed less interested than their secular counterparts in the wording of the important provision. In the original text of the article, Islamic experts were referred to as “jurists” (mujtahidun) – wording that was immediately opposed by American advisors to the drafting committee who objected to the term being used to describe individuals with no legal training. When consulted about the term, Shi’ite clerics were entirely unconcerned with the wording of the article (see below), and expressed that the English alternative proposed by the Americans, with seemingly less legal significance—“experts” (khubara)—was a fine replacement for “jurists” (“Fundamental Misunderstandings of Law and Islam in Iraq,” 2008).
تتكون المحكمة الاتحادية العليا من عدد من القضاة، وخبراء في الفقهه الاسلامي وفقهاء القانون يحدد عددهم
وتنظم طريقة اختيارهم، وعمل المحكمة، بقانون يسن باغلبية ثلثي اعضاء مجلس النواب
Some surmise that the relative lack of involvement by Islamists at the Supreme Court level thus far is reflective of additional efforts to remain autonomous from the state apparatus. Since partaking in the national legal process signifies acknowledgment of its legitimacy (as well as bearing responsibility for its failures), something clerics have little interest in doing, they have opted in the meantime to check state power, rather than represent it.
In doing so, they have also avoided issues at the court level that would portray them as sectarian or divisive (such as women’s clothing issues). Predictions that Article 2 would rarely be invoked have so far proven true; as of February 2011, the issue had arisen only once, in December 2010. The case involved a contract suit in which the appellant maintained that his written contract could not be used as evidence against him, since doing so violated the laws of Shari’a (as only oral contracts are valid in Islam), and as a consequence, Article 2 of the Constitution (Hamoudi, 2011). His claims fell on deaf ears and the case was dismissed.
Though in theory the case could have been appealed as a breach of Islamic law, it was not. According to some, Islamic authorities have chosen to avoid conflict where unnecessary, and instead enforce Islamic law in other areas considered more pressing—that of family law.