By Marta Wojtowicz
Description: The Iraqi Federal Supreme Court ruled on the unconstitutionality of the Revolutionary Leadership Council’s decision no. 120 (1994) in a decision from March 8, 2017.  The case concerned extending the duration of imprisonment of a public official sentenced for public money embezzlement. In addition to constitutional guarantees, the plaintiff evoked both the Islamic law and international human rights instruments as sources of Iraqi law, but the Court adopted a narrow basis for the decision in the constitutional catalogue of rights.
Article 2, Section 1, of the Iraqi Constitution establishes the role of Islam as a primary source of law:
Islam is the official religion of the State and it is a fundamental source of legislation:
- No law that contradicts the established provisions of Islam may be established.
- No law that contradicts the principles of democracy may be established.
- No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.
This decision from March 2017 is one of the few Federal Supreme Court cases when the Islamic law was evoked outside of the family and personal law context in Iraq. The case was brought by a public official convicted under article 340 of the Iraqi Penal Code:
Any public official or agent who willfully inflicts damage on the property or interests of the authority for which he works or to which he is associated by virtue of his position or on another’s property that has been entrusted to him is punishable by a term of imprisonment not exceeding 7 years or by detention.
In 2014, the plaintiff was sentenced to two years in prison and restitution of damages to public finances. The lower court applied the provisions of the Ba’athist Revolutionary Leadership Council ’s Decision from 1994, which allowed for an extension of imprisonment in cases concerning public funds’ embezzlement.
The plaintiff appealed the decision, challenging the 1994 Regulation. He claimed that such a provision violates the “true Sharia”, the Iraqi Constitution, as well as Iraq’s international human rights obligation. He maintained that the imprisonment for an indeterminate period, beyond the court’s sentence, would violate the rights outlined in the Constitution without a due process of law.
The Court ruled against the pre-2003 law which would be the basis for the extended imprisonment. It found that the 1994 Regulation violates the rights and freedoms guaranteed by the Constitution, articles 37 and 46 in particular. The court evoked Article 2 to affirm that no laws can infringe on these fundamental rights. The decision itself, however, does not discuss the issue of Islamic law in detail. The relevance of the sharīʿa for the ruling is underlined in a comment on the reasoning behind the decision subsequently published by the Court, where the reference to the Islamic law is elaborated, recommending a favorable treatment of a debtor.
Direct references to Islamic law are relatively scarce in the Federal Supreme Court’s recent jurisprudence, with the consistent but limited exception of cases related to personal and family law. In his analysis of two decisions issued in 2010 and 2011, Haider Ala Hamoudi suggested that the Supreme Court purposefully refrains from actively interpreting Islamic law, leaning towards a narrow interpretation of Article 2 provisions. Notably, the cases discussed by Hamoudi regard the right to divorce and the management of religious endowments, where “legislation is largely Islamic in its source material”. 
The construction of Iraqi Constitution Article 2 is analogous to but notably different to Article 2 of the Egyptian Constitution: Islam is the religion of the state and Arabic is its official language. The principles of Islamic Sharia are the principal source of legislation. As argued by Clark Lombardi, through almost forty years the Egyptian Constitutional Court has developed a more consistent approach to the Islamic law application through cautious jurisprudence. Although the position of Islamic law in Egypt’s Article 2 is spelled out more clearly than in Iraq, the Court seems to have adopted a limited review of state legislation and a particular method of identifying Islamic principles. The Court would apply the threshold of “absolutely certain with respect to their authenticity and meaning” to identify the applicable rulings of the sharīʿa, leading to the reliance on the Qur’ān and a limited number of the hadīths. Another appropriate test would relate to the “goals of the sharīʿa” in a more complex treatment. 
In the case in question, the Federal Supreme Court does not undertake an attempt to articulate interpretative rules on Article 2 which could serve as guidelines in cases of conflict between the various legal orders mentioned.  This would be in line with the argument that the Court may wish to limit the scope of review of state legislation under the Islamic law. One explanation for such a treatment of Islamic law by the Federal Supreme Court, as seen in the decision discussed, may be the intent to enhance the status and legitimacy of the Court’s decision, without an elaborate engagement with Islamic legal reasoning. The Egyptian approach was partly the result of the attempts to increase the government’s legitimacy in the periods of political turmoil, but its meaning evolved with the changing approach to Islamization.  Unlike Egypt, Iraq has not yet seen an intense political pressure on the Islamization of state institutions after 2003 that would demand such an approach more urgently, with the current sectarian quota system in the government largely thwarting attempts to adopt more stringent interpretations of Islamic law in relation to state regulations. The Court may yet to develop a consistent approach regarding the Islamic law and its relationship with the state legal system.
 Mahkamah al-Ittihādiyah al-‘Ulyā [Federal Supreme Court], Decision No. 57 of March 8, 2017. The English version is an official translation prepared by the Court.
 Article 2, Dustūr Jumhūrīyat al-ʻIrāq [The Constitution of the Republic of Iraq] of 2005.
 Article 340, Penal Code (Iraq), Law No. 111 of 1969.
 Federal Supreme Court, المحكمة الاتحادية العليا توضح مبررات إلغاء قرار للنظام السابق يتعارض مع “الشريعة وحقوق الإنسان (2017), https://www.iraqfsc.iq/news.3885/ (last visited Oct 12, 2018).
 Naẓira ilā mīsra. The Qurʾan 2:280 ” 2:280: If the debtor is in difficulty, then delay things until matters become easier for him; still, if you were to write it off as an act of charity, that would be better for you, if only you knew. Translation after: Oxford Islamic Studies Online.
 Haidar Ala Hamoudi, Judicial Review of Islamic Law Under Iraq’s Constitution Jurist, https://www.jurist.org/commentary/2012/04/haider-hamoudi-iraq-islam/ (last visited Oct 27, 2018).
 Id. at 186.
 One of the interesting points in the case are references to the international human rights instruments. The plaintiff evokes the International Declaration of Human Rights, the International Covenant on Civil and Political Rights. The Court agreed that the imprisonment on the basis of the 1994 Regulation would violate basic civil rights. This can also point analogies in the interpretation of Egypt’s Supreme Constitutional Court requiring the government to follow “international human rights norms” as a part of the constitutional system, posing a question of the relationship between such norms and the Islamic law. See: Clark B. Lombardi, State law as Islamic law in modern Egypt: the incorporation of the Sharī’a into Egyptian constitutional law 158 (2006).
 Haidar Ala Hamoudi, supra note 6.
 Id. at 123.