Sources of Law in Iraq

Posted on | November 13, 2009

Below, we have attempted to set out the major sources of law in Iraq. Giving examples from the criminal law field.

1. Post 2005 by law (qanun) passed by the Council of Representatives, approved by the Presidency Council and Published in the Official Gazette
e.g.
• Law No. 13 of 2007, Reintroducing the safeguards contained in the Criminal Procedure Code for the application of the death penalty
• Criminal Procedure Law for the Internal Security Forces, No. 17 of 2008
• Amnesty Law No. 19 of 2008

2. The 2005 Constitution (dustur)

3. 2005 to 2006 by law (qanun) passed by the Transitional Assembly under the authority of the Transitional Administrative Law
e.g.
• Law of the High Iraqi Criminal Tribunal No 10 of 2005
• The Anti-Terrorism Law No. 13 of 2005

4. 2004 to 2005 by order (‘amr) passed by the Interim Government under the authority of the Transitional Administrative Law
e.g.
• Order 3 of 2004 re-introducing the Death Penalty
• Order 14 of 2005 re-instating Article 136(B) of the Criminal Procedure Code

5a. 2003-2004 CPA Regulations, Orders and Memoranda
see Status of Coalition Provisional Authority Orders
e.g.
• CPA Order 7 on Penal Law
• CPA Order 13 establishing the Central Criminal Court of Iraq
• CPA Order 31 Modifications of Penal Code and Criminal Procedure Code (signed 15 September 2003)
• CPA Order 35 re-establishing the Council of Judges (later to be referred to as the Higher Judicial Council)
• CPA Memorandum 3 (amending the Criminal Procedure Code)

5b. Interim Governing Council Resolutions (qarar) 2003-2004
• Resolution 4 of 2003 resolving to establish a special tribunal
• Resolution 44 of 2003 concerning former political crimes

6. 1963 to 2003 Revolutionary Command Council Resolutions (qarar)
see Status of Revolutionary Command Council Resolutions
e.g.
• RCC Resolution 1630 of 1981 giving Governors and heads of administrative units some of the powers of a Misdemeanor Judge
• RCC Resolution 104 of 1988 (transferring cassation authority for misdemeanors from the Court of Cassation to the Court of Appeal in its Cassation Function)
• RCC Resolution 234 of 2001 on anal sex, indecent behaviour, prostitution, procurement and brothel keeping

7. Pre-2003 by law (qanun) either passed by the legislature or ordered by RCC Resolutions
e.g.
• Penal Law No. 111 of 1969
• Criminal Procedure Law No. 23 of 1971
• Public Prosecution Law No. 159 of 1979
• Medical Legal Institute Law No. 57 of 1987

8. Other legal instruments from various eras and with varying legal validity including: Prime Ministerial Executive Orders (legal status unknown); Instructions (secondary legislative instruments issued under the authority of expressly specified primary legislation); and Regulations (secondary legislative instruments issued by the Council of Ministers); Circulars (guidance issued by e.g. the HJC or ministries or other bodies)
e.g.
• Ministry of Justice Instructions 3 of 1986 Regulating the work of Public Prosecutors
• Council of Ministers General Secretariat Circular No. 4416 of 25 May 2005 repealing powers of administrative detention given to non judicial governmental bodies
• Executive Order 207 (requiring cooperation between government entities in relation to detainees)
• Higher Judicial Council Circular No. 849 of 2007 on the verification of information provided by anonymous informants

9. Other sources of law include International Treaties which have been ratified; and decisions of superior courts. There is no system of binding precedent in Iraq but Federal Supreme Court and Cassation Court decisions are influential.