Posted on | August 21, 2009
In 2009 Baghdad and Erbil are subject to a veritable barrage of law reform proposals. The Council of Representatives is sitting on proposals for constitutional review and bills such as those to give a sure footing to the judiciary; to give a proper structure to the various anti-corruption bodies; for a constitutionally compliant process to regulate the next national election; to establish a counter-terrorism bureau; to regulate NGOs; and to alter the Iraq flaq – not forgetting the hundreds of Revolutionary Command Council Resolutions that are queued up for repeal and the tens of international treaties requiring ratification. The Kurdistan Regional Parliament in Erbil is considering the Region’s own constitution; anti-terrorism legislation; and provisions on the protection of the environment amongst many other proposals. In both parts of Iraq, criminal justice reform and review of the personal status laws are the subject of scrutiny for various legislative and other committees and NGOs.
Both legislatures have been criticised for the pace of reform but on the other hand both have passed a great deal of important legislation since 2005 in Baghdad’s case and 1992 in the case of the Kurdistan Regional Parliament.
The last comprehensive law reform effort in Iraq commenced in the 1970s in a very different context and largely failed to achieve its aims. It is still worthy of study because of what it might tell us about the mode of communication and possibly thought processes of the legal community in Iraq at that time and subsequently. The Legal System Reform Law No. 35 of 1977, published in the Official Gazette, issue 2576 of 14 March 1977, is a mere 4 Articles long but it presents a lengthy report of a committee established by the Ministry of Justice aimed at providing a basis for law reform expressly directed towards achieving the goals of the Arab Ba’ath Socialist party. The language used seems dated and almost quaint now:
“legislation . . . becomes an element . . . in the process of destruction of feudal, tribal and capitalist values which hinder the march of Revolution towards building up the socialist society. The Revolution has faced legislation which expressed the ideology of the exploiting and ruling classes and groups in times of despotism and reaction and reflected their economic, social and political interests.”
The programme was ambitious and comprehensive. It attempts to justify the assumption of law making capacity by the Revolutionary Command Council and sets out a five year plan for the transformation of the legal system from top to bottom. It touches on public law and restrictions on the electoral franchise:
. . . in exercising democracy, whether in terms of right of election of democratic institutions or right to be represented therein it is inevitable to exclude all persons who take a politicial, economical or intellectual attitude hostile to the Revolution and its programme.
Civil, commercial, judicial and administrative law are all referred to. In relation to criminal law, the report states that:
Crime is a social phenomenon and not an individual phenomenon inherent in a certain man or a group of criminals by nature. Therefore the analysis of criminal conduct should emanate from the social structure and from the objective laws of society which govern human activity. . .
Settling contraventions according to suitable procedures which don’t take the form of a criminal lawsuit, resorting to education, warning and imposing special penalties, taking into consideration the circumstances of the case and the offender, will be greatly helpful to the growth of the spirit of conscious discipline of the citizens, the respect of the laws and treatment of the disease before it gets grave . . .
Punishment is a deterrent instrument and an endeavour to prevent committing new crimes and to re-educate the convicted. Except those who committed crimes affecting the security of the State, the people’s rights or the honour of loyalty to the homeland, it is necessary to protect the convicted from the harshness of punishment and to make him accustomed to the bases of socialism and rehabilitate him as an active member of society . . .
In case of recidivism, it is imperative to study the causes of the convict’s delay in assimilation into society and to get advice in this regard from those who are experienced specialists.
. . . criminal policy in Iraq should aim at:
-Protecting the socialist system . . .
-Protecting the basis and concepts of socialist life . . .
-Discarding the capitalist nature of the existing criminal legislation, particularly the Penal Code, No. 111 of 1969 . . . it is imperative that a concentration is made upon the violations of public ownership of the means of production . . . in a form that harms the national ecomony
-To limit the problem of juvenile delinquency . . by adopting a complete system founded on scientific bases
-To adopt the principle of jury participation in issuing judgements
The Penal Code should:
-cease regarding some acts which do not conflict with socilaist philosophy as punishable crimes, and to regard the acts which conflict with the state’s economic interest as punishable crimes
-reconsider dividing crimes into felonies and misdemeanours
-consider the scientific view of the criminal
-stress that legal defence shall include the interests of the state
-concentrate on the prohibition of activities aimed at the destruction of national unity, raising racial or sectarian strife, regionalism, attacking the achievements of the Revolution or calls to distinguish between citizens because of sex, race, language, social origin or religion
The Criminal Procedure Code should:
-adopt the principle of increasing the number of judicial investigators and investigating judges
-develop modern methods to investigate crimes
-grant investigative and criminal powers to non-magistrates for infractions and simple misdemeanours
simplify and speed up court proceedings
-repeal automatic rights of appeal save for death sentence and life imprisonment cases
-study the possibility of establishing popular social committees to deal with infractions
-organise appeals from misdemeanours to go to the Court of Appeal, not the Court of Cassation
We have highlighted some of the elements of the report that seemed particularly to refer to socialist principles – there is much else that could be seen as enlightened and there is a focus on the rehabilitation of offenders and the consideration of community based penalties. An interesting aspect of the language is the frequent reference to the “science” of juvenile reform or the “science” of rehabilitation generally. Globally such attempts to engineer a new society are frequently based on an optimistic view of the value of empirical standards.
The 1977 report was correct to state that the laws of Iraq were at that time primarily based upon essentially bourgeois European Codes (referred to as “backwards legislation” in the report) and they remain so to this day. Some of those who sat on the committees established under this law to review the Penal Code, the Criminal Procedure Code, the Personal Status Law, and the Civil Code amongst others are still serving members of the judiciary. Others now retired or dead will have taught some of the lawyers and judges of today. Textbooks still used in Iraqi law schools contain chapters which for example extol the virtues of the ‘socialist prosecutor’. The committees collected laws from around the then socialist world – now forgotten Codes from now defunct nations such as East Germany and Czechoslovakia – and spent years working on revised texts. By the time that final reports were filed the tide of socialist rhetoric had ebbed. Saddam Hussein had formally seized power in 1979, by the early 1980s the United States was supporting Iraq in its war with Iran, by 1983 Saddam was receiving Donald Rumsfeld as his guest.
Some minor legislation was passed such as the Iraqi Engineers Union Law No. 51 of 1979, the Ministry of Local Rule Regulations 33 of 1981 and the Labour Culture Institute Law No. 9 of 1987 and small reforms were enacted to the primary legal codes. Some of these laws were stamped in the Official Gazette as a product of the “Legal System Reform Law – a support to the march of the Revolution and to achieve the society of Unity, Freedom and Socialism”.
One of the more important laws passed during this era was the Public Prosecution Law No. 159 of 1979 (referenced here in its originally published version – also available as currently in force here). Article 1 of the law as passed and originally published in the Official Gazette, issue 1723 set out aims including “to defend the achievement of the revolution and maintain the assets of the state and the socialist sector; to support the socialist system; to avoid unreasonable delay of trials especially crimes that impede socialist transformations.” These exhortations were repealed by Amendment Law No. 10 of 2006.
It argued before the Federal Supreme Court in Case 37 of 2009 that Law 35 of 1977 and the reform laws that flowed from it were contrary to the 2005 Constitution. The decision was however based on other grounds.
There is no doubt that between the 1958 Revolution and the 2003 invasion, the law making authorities in Iraq have been influenced by socialism to one degree or another at least in regards to rhetoric and substance. The three stars on the Iraqi flag between 1986 and 2008 represented the principles of unity, freedom and socialism according to Law No. 33 of 1986 (although according to the previous Flag Law No. 28 of 1963, the same three stars were said to represent Egypt, Syria and Iraq). References to socialism within the text of legislation are common up to the beginning of the 1980s and almost absent thereafter. The 1970 constitution (as amended in 1973) referred in Article 1 to Iraq’s principal aim as being “. . . to achieve the United Arab State and establish the Socialist System.”
The socialism of the Arab Ba’ath Socialist Party which took power for a few months in 1963 and again from 1968 to 2003 did not appear to extend to the top ranks of the party, many of whose members became multi-millionaires. Nationalisation of the banking and insurance system had already occurred in 1964, oil followed in 1972 and 1973 and most other large scale industry came into public ownership. By 1980 the centrally controlled sector had reached 91 per cent of foreign trade and 70 per cent of domestic trade.