After simmering in the background through the nineties, Iraq burst into the awareness of many when it became a battleground against the war on terror under the Bush administration. Few realize that in the midst of the fierce policy battles, one partially implemented state-building exercise took root, and Iraq became the first country in the Middle East, democracy or otherwise, to have a constitutionally mandated independent judicial branch. In The Judiciary in Iraq, Madhatal-Mahmood, chief justice of Iraq, examines the many elements contributing to the creation of the first independent judicial branch in the Middle East in 2003, tracing the roots of the Iraqi judicial system from Islamic and Ottoman origins through to the fortuitous opportunity created by the US state-building machinery that so often misfired. Providing guidance for support to the justice sector in Iraq and to new democracies in the region, Chief Justice al-Mahmood draws on his decades of work in both academic and government sector positions to discuss why Iraqi courts were positioned for independence in 2003 and on how the new branch has expanded access to services in spite of challenges. This study examines the evolution of the judiciary and courts in Iraq, starting from pre-Islamic developments, and then moving through the impact of Ottoman and British rule before considering the role of the judiciary and courts in a modern, stable, and democratic state in the Middle East following US interventions.
The Judiciary in Iraq
The Path to an Independent Judiciary and Modern Court System
By Madhat al-MahmoodiUniverse LLC
Copyright © 2014 Chief Justice Madhat al-Mahmood
All rights reserved.
ISBN: 978-1-4917-3102-4Contents
Dedication, vii,
Notes on the First English Edition, ix,
Introduction, xi,
Addendum: The Passage of Law No. 112 of 2012, xxii,
Part 1 The Historic Foundations of the Modern Judiciary & Courts,
Chapter One: The Arrival of Civil Law Structures Under the Ottoman Empire, 1,
Chapter Two: The Judiciary & Courts During the British Occupation, 10,
Chapter Three: The Judiciary & Courts Under the British Mandate, Monarchy, and Republic Periods, 16,
Part 2 Growth of the Unique Iraqi system,
Chapter Four: Judicial Independence Under the Judicial Organization Law No. 160 of 1977, 37,
Chapter Five: One View on the Role of the Judiciary in a Modern State, 40,
Chapter Six: A Second View on the Role of the Judiciary in a Modern (Democratic) State, 43,
Chapter Seven: Towards a Functional View of the Role of the Judiciary in a Modern Iraqi State, 47,
Chapter Eight: Judicial Organization Law No. 160 of 1977, 51,
Part 3 Modern Iraqi Judicial & Court Systems,
Chapter Nine: The Re-establishment of the Judicial Council, 60,
Chapter Ten: The Federal Courts Supported Through the Higher Judicial Council, 70,
Chapter Eleven: Judicial Bodies Managed Within the Higher Judicial Council, 95,
Chapter Twelve: Judicial Offices Overlooked by the 2005 Constitution, 129,
Part 4 A Personal Note on the Constellation of Martyrs Created Through the Sacrifice of Iraqi Judges, Court Staff, and Families,
Appendices,
Coalition Provisional Authority Order Number 35, 171,
Coalition Provisional Authority Memorandum Number 12, 176,
Law of Administration for the State of Iraq for the Transitional Period, 180,
2005 Constitution – Judicial Provisions, 185,
Additional Resources, 189,
A Brief Note on Justice Madhat Al—Mahmood, 191,
Editor's Epilogue, 195,
CHAPTER 1
The Arrival of Civil Law Structures Under the Ottoman Empire
We discuss in the introduction the development of the judiciary in Iraq from the pre-Islamic to the Islamic state.
In this overview of the judicial system in Iraq, we are turning to more modern developments, and need to look more specifically at the impact of Iraq's time as part of the Ottoman Empire. There were large scale social and cultural impacts of Ottoman rule on Iraq, however in the context of the current discussion I am focusing on three general themes initiated by the Ottomans that significantly impacted the modern legal environment in Iraq. First, the Ottomans created a professional class of judges by establishing formal, objective requirements for people appointed as judges. Second, the Ottomans codified laws built from Sharia foundations and based on the Ottoman's exposure to French systems. Third, court structures and procedural rules evolved under the Ottomans into shapes recognizable to modern Iraqis as early as the beginning of the 20th century.
The Ottomans occupied Iraq from 1532 to 1918 when the British completed the takeover they began in Basrah in 1914. For political and administrative purposes, Iraq was divided into three primary wilayah, or provinces, Mosul, Baghdad, and Basrah, which included the historic areas of Sharazur to the east of the Tigris River and Al-Hassa on the west coast of the Persian Gulf. Ottoman administration in Iraq changed over the centuries to reflect the priorities of various rulers at different points. The early highly centralized rule of the Ottomans gave way to semi-autonomous structures by the seventeenth and eighteenth centuries, albeit with Ottomon governors. The Ottomons returned to direct central control over Iraqi provinces in the nineteenth century.
The Ottomans divided their administrative framework into three primary commissions:
1. The Academic Commission;
2. The Pen Commission; and
3. The Military Commission.
The Academic Commission addressed the needs of the Islamic religious institutions covering the principle religious men and religious (Sharia), including religious education, religious schools themselves, the affairs of religious courts, endowments, and so on. The Academic Commission was presided over by a Sheikh al Islam, or Chief Theologian, who chaired the Commission and was at the same time the prime authority for judges. The central Ottoman state appointed judges in occupied areas in an attempt to ensure a uniform application of justice and thereby provide security. The judiciary in the Ottomans state was Islamic oriented just as other institutions of the times. It also had unique and independent characteristics. As the tumultuous events pressured the Ottoman state, the framework for the judiciary was amended several times through decrees of the Sultans. Ultimately, the central authority responsible for the judiciary was divided into three branches:
1. The Roman judiciary;
2. The Antalya judiciary to which the judiciary of the Arab territories and the judiciary of Iranians were added; and
3. The Egyptian military judiciary.
The judges in the territories of what is now Europe were beholden to the judge within the Roman branch, the Antalya and Arab territory judges to the Antalya branch, and the Egyptian judges to the last branch. The title of "Judge of the Military" is equivalent to Chief Justice within the traditions of the Islamic judiciary, however the position also maintained a distinct responsibility for the religious affairs of the military. The Judge of the Military accompanied the Sultan and his army during their invasions, and would also perform as the second chairman of the Academic Commission in the Ottoman state and participate in the sessions of the Ottoman State Council. The Military Justice submitted applications of candidates for the post of judge for the Sultan's consideration until 1574 when the Sheikh of Islam took over this responsibility. After 1574 the Military Justice still appointed judges and teachers within his region of responsibility.
During most of the Ottoman rule, Iraq, with its three wilayahs, knew only one type of court. All cases were heard by religious courts that based their judgments on Sharia law and related religious edicts. The Sultan in Istanbul, which remained the capital, appointed judges to these courts by a decree called the Sharifiya Certificate; the Sultan was the only one who could dismiss a judge once they were appointed. A body of laws and regulations governing the judiciary began to grow under the Ottomans. The scope and depth of laws passed by the Ottomans demonstrate the investment in courts and judges during the period. In a brief span of time, the following laws were published:
• Regulations on selecting a judge issued on 11.4.1329
• Judges Law issued on 13.12.1329 and its amendment
• The Characteristics of Legal Arbitrators and Judges issued on 17.5.1320
• The Characteristics of Legal Arbitrators issued on 17.5.1320
In particular, the laws created standard requirements for candidates for the post of a judge, a major step forward in creating an objective professional class. For example, the regulations established the following requirements for candidates:
• Must be at least 25 years of age;
• Candidate must not be covered by any other...
