The independence of the judiciary is guaranteed by Article 87 of the 2005 Constitution.
The Federal Judiciary and the Higher Judicial Council
The Iraqi Federal Judiciary (which includes the judges sitting on the Federal Court of Cassation, appellate judges, trial judges, investigative judges and prosecutors) comes under the authority of the Higher Judicial Council (HJC) which is the administrative body which also oversees the affairs of federal courts and court staff. The federal court system comprises the ordinary civil, labour, personal status and criminal courts (including the Central Criminal Court). It does not include the Federal Supreme Court, military courts, the administrative court function of the Shura Council or the Iraqi High Tribunal. Under Article 91 of the Constitution the HJC is mandated:
First: To manage the affairs of the judiciary and supervise the federal judiciary and prosecution system.
Second: To nominate the Chief Justice and members of the Federal Court of Cassation, the Chief Public Prosecutor, and the Chief Justice of the Judiciary Oversight Commission, and to present those nominations to the Council of Representatives to approve their appointment.
Third: To propose the draft of the annual budget of the federal judicial authority, and to present it to the Council of Representatives for approval.
The Council of Judges was re-established by CPA Order 35 of 13 September 2003 and CPA Memo 12 of 8 May 2004 as a body independent of the Ministry of Justice. It evolved into the Higher Judicial Council pursuant to Article 45 of the Transitional Administrative Law and CPA Order 100, section 3(13). Those laws amended the Judicial Organisation Law No. 160 of 1979 and the Law of Public Prosecution No. 159 of 1979, however the precise law governing the Iraqi Judiciary is in need of a single piece of legislation providing clarification. The HJC themselves provided a draft law to the Council of Representatives in Summer 2008 which led to a bill which reached its second reading but has not yet led to primary legislation and the Constitutional Review Committee have been considering some amendments to the present system.
In addition to the presentation of the senior judiciary for approval by the Council of Representatives, the HJC is responsible for the selection and discipline of the lower judiciary and prosecutors.
According to the HJC’s report published in April 2009, there are 1207 serving members of the federal judiciary in Iraq of whom 881 are judges (301 of those being investigative judges) and 326 are prosecutors. 62 of the 1207 are women – 12 judges and 50 prosecutors.
Over 40 members of the judiciary have been murdered in Iraq since 2003. Other judges have been attacked and family members kidnapped, assaulted or murdered.
The Federal Supreme Court
The Federal Supreme Court is a Constitutional Court originally established under Article 44 of the Transitional Administrative Law (TAL) and Law No. 30 of 2005, an order of the Transitional Government made under the TAL which had been signed on 8 March 2004 by the Iraqi Governing Council. The TAL came into effect on 28 June 2004 and remained in place until the 2005 Constitution came into effect. The Court is now firmly established under Articles 92 to 94 of the 2005 Constitution. A draft new law, originally drafted by the Higher Judicial Council, providing more detail on the Federal Supreme Court’s powers reached the second reading stage at the Council of Representatives on 26 January 2010.
Article 92 (Second) of the Constitution states that:
The Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, the method of their selection, and the work of the Court shall be determined by a law enacted by a two-thirds majority of the members of the Council of Representatives.
However no such law has yet been enacted and the experts in Islamic Jurisprudence and Legal Scholars have not yet been incorporated into the operation of the court.
At present, there are 9 members of the Federal Supreme Court. The court issued rules of procedure in 2005.
Article 93 of the Constitution sets out the jurisdiction of the Federal Supreme Court as follows:
First: Overseeing the constitutionality of laws and regulations in effect.
Second: Interpreting the provisions of the Constitution.
Third: Settling matters that arise from the application of the federal laws, decisions, regulations, instructions, and procedures issued by the federal authority. The law shall guarantee the right of direct appeal to the Court to the Council of Ministers, those concerned individuals, and others.
Fourth: Settling disputes that arise between the federal government and the governments of the regions and governorates, municipalities, and local administrations.
Fifth: Settling disputes that arise between the governments of the regions and governments of the governorates.
Sixth: Settling accusations directed against the President, the Prime Minister and the Ministers, and this shall be regulated by law.
Seventh: Ratifying the final results of the general elections for membership in the Council of Representatives.
A. Settling competency disputes between the federal judiciary and the judicial institutions of the regions and governorates that are not organized in a region.
B. Settling competency disputes between judicial institutions of the regions or governorates that are not organized in a region.
The Federal Supreme Court website contains three type of FSC decisions:
1. opinions on the meaning of various aspects of the constitution – these come after e.g. a reference from the Speaker of the CoR
2. decisions (from 1/2005 through to 45/2009)
3. appeals from the decisions of the administrative court function of the Shura Council
We have compiled an English language index of Federal Supreme Court decisions from 2005 to 2009 and the full texts of some decisions and opinions which can be found here.
Analysis on this site
- Special Courts and Tribunals
- Three decisions of the Court of Cassation – Penal Board
- The Judiciary and the law in the Kurdistan Region of Iraq
- Federal Judiciary
- Law of lawyers 173 of 1963 with amendments
- Public Prosecution Law 159 of 1979 updated to include all amendments made up to 27 January 2010
- Public Prosecution Law 159 of 1979 from the English language version of the Official Gazette as originally published. Numerous subsequent amendments not included and unfortunately the translation is terrible but of some historical interest given the references to socialism and the revolution.
- Judicial Organisation Law No 160 of 1979 as amended up to 2001. Subsequent amendments not incorporated.
- Instruction 4 of 1999 Setting Up Judicial Institute Courses (Page 1)
- Instruction 4 of 1999 Setting Up Judicial Institute Courses (Page 2)
- CPA Order 35 Re-Establishment of Council of Judges
- CPA Memorandum 12: Administration of Independent Judiciary (signed 8 May 2004)
- CPA Order 100: Transition of Laws, Regulations, Orders, and Directives Issued by the CPA
- Amnesty Law 19 of 2008 from the Iraq Slogger site
- Draft Federal Supreme Court Law
- Draft Higher Judicial Council and Amendment to Federal Supreme Court Laws
- ABA ILDP Judicial Reform Index for Iraq 2006
- ABA ILDP Judicial Reform Index for Iraqi Kurdistan 2006
- Basic Principles on the Independence of the Judiciary
- Bangalore Principles on Judicial Conduct
- Beirut Declaration
- The Cairo Declaration on Judicial Independence
- English Bar Council International Relations Committee Guide to Professional Conduct and Discipline of the Legal Profession 2007
- ILAC Iraq Report 2003
- Iraqi Judicial Forum 2-4 October 2004
- Judicial Reform Index for Iraq
- Judicial Reform Index for Iraq – Kurdistan supplement
- UN Basic Principles on the Role of Lawyers 1990
- UN Human Rights Training Manual for Judges, Prosecutors and Lawyers 2003
- USIP Sept 2006 Safeguarding Judicial Independence in Iraq