I have been spending some spare time looking at the draft Iraqi constitution (hereinafter DIC)and some analyses of it. The prospects for the effective administration of justice seem pretty bleak in the present draft. Nathan Brown's critique does a particularly good job of pinpointing the difficulties.
If appellate courts are to exercise their control function over lower courts, there has to be some way to insure that a) the structure of the court systems involved allows effective appeal routes and b) there is clear legal authority for appellate writs to run within the system. The DIC appears set to fail both prongs of this test.
Some might question concerns about the structure of Iraq’s new court system since, at present, there isn’t one specified in the draft. But here is where the leeway the DIC gives for forming regional confederations becomes problematic. The scope of federal power in document is limited by a few exclusive powers; most of the central government's power is shared with the regions (Articles 107 - 110). Further, the regional authorities described in the DIC are given considerable grants of power to establish their own legal and judicial systems in Article 117. It is worth noting that this article provides that regions can “amend the implementation” of federal laws when they conflict with regional statutes. But, some might say, how about the new Supreme Federal Court? It has powers of judicial review and explicit power to adjudicate disputes between the federal and regional authorities (Article 90). Subsequently, however, the DIC provides (Article 111) that, unless the limited exclusive powers of the federal government are involved, regional or provincial law will be given “priority in disputes”. Or, short DIC, the Supreme Federal Court applies regional law when there are any conflicts and Article 13 (constitutional supremacy) isn’t worth a bucket of warm spit.
This might not be such a big deal if the federal courts had concurrent jurisdiction and there was a clear statement of the scope of civil rights and liberties. I think it is pretty clear, however, that the regional court systems will have relatively free rein to apply regional laws without much interference from the center. This is especially worrisome when we consider the waffles on rights in the final draft. Take, for instance, the inclusion of “personal status” law in the DIC (Article 39). As Brown points out, this is Middle East code for laws about marriage, divorce, and inheritance. The DIC provides that law in these matters would be applied to Iraqis according to their “religion, sects, beliefs, or choices”. So who hears your divorce case in Basra, the judge or the cadi? Given the place of Islam as a source of law in the DIC AND the powers given the regions to establish judicial systems AND the priority given regional law AND Article 39, it looks like anybody’s guess. And it doesn’t look like the decisions - whatever they are and whoever made them - could be readily appealed to any federal court at all.
I guess I should sum up: if anyone asks you to consult on setting up the administration of justice in Iraq, be sure you ask for a big fee. Up front.
- Tracy Lightcap
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