Session Report
Justice System, Criminal Law, Liberties
Who protects whose rights? Which cases are dealt with by which bodies?
Participants had a great deal of material to discuss, as the challenges of building a justice system after years of abusive over-centralised regime have been faced by other federal countries, most notably Germany and South Africa. The discussion centred on some of the criteria required to establish a justice system, noting how the other federal countries established their judicial systems and outlining the failures of Iraq’s previous system. Hierarchies of courts, appointment of judges, criminal law and liberties, elections and truth and reconciliation commissions were also mentioned.
In Germany, the federal model was adopted for historical and political reasons, namely to guarantee freedom and human rights, but also to secure a division of powers, a system of checks and balances, transparency and to encourage regional participation. State powers are divided among legislative, executive, and judicial branches with a system of taxes and revenues divided between the central state and regional states. Regional states’ participation is ensured with a balancing mechanism in the form of a second chamber. National lawmakers write bills, which should be approved by the second chamber, which has a veto power as well. Rights, competences and procedures contained in the Constitution can only be amended by means of a 2/3 majority in both the National Parliament and the second chamber. Though amendments pragmatically change areas of exclusive competences and areas of cooperation between central and regional states, not even a 2/3 majority can abolish certain eternal principles of the Constitution.
There is a hierarchy of courts: local, then District, then Court of Appeal First Instance, National Courts and finally the Supreme Court. Regional state court judges are selected by committees composed of members of the regional state executive, judges, regional state parliamentarians and representatives of the public, while federal high court judges are elected by a joint committee of National Parliament and the second chamber. There are no federal prisons, as the prison system is considered an exclusive competence of regional states. In addition, policing is almost exclusively a regional state responsibility though a federal police force is available in particular situations.
The South African Constitution, with the courts as its main guardian, protects basic rights and defends against government abuse. The justice system is centralised, though it is not under government control; there is a hierarchy of courts: the local courts, then Magistrate’s Courts, High Provincial Courts, Supreme Court of Appeals and, at the apex, the Constitutional Court Only the Constitutional Court has the authority to decide on the constitutionality of an act of parliament. The Constitutional Court is also the final arbiter of disputes between the national government and the provinces. Judges should be impartial and a Judicial Service Commission maintains the legitimacy and independence of the courts. Both race and gender are considered when appointing judicial officers.
Participants were interested in the truth and reconciliation commission which was employed in South Africa, and particularly the fact that through the commission, an individual could be granted freedom from criminal or civil prosecution for crimes allegedly committed. Individuals applying for such amnesty had to be part of a recognised command structure, for example the security forces, to show their alleged crimes had a genuine political motive. Amnesty was time-limited and claims were subject to a deadline. Commission hearings were held across the country; statements were gathered, stories told and on rare occasions there were dramatic public apologies and forgiveness. Participants discussed the beneficial aspects of these public hearings, which permitted individuals to tell their stories, but also pointed out that there were negative aspects to the process, particularly when statements implicated other persons, leading to endless defamation court cases. Furthermore, and particularly when considering the potential to have a similar commission in Iraq, participants considered the strong feelings among many South Africans that the process has not been adequate, the people who were given amnesty should have been prosecuted (e.g. the killers of Biko were mentioned), and that restorative measures had failed.
Participants were interested to hear that India’s Constitution is federal, though the term in itself is not used. As with other constitutions, this protects fundamental rights, including the right to life and equality and provides constitutional remedies while setting out a structure of checks and balances, but, unlike other systems, it cannot be modified, even by 2/3 majority.
Canada has a single judicial system with a hierarchy of courts. Provinces can appoint magistrates though the federal government is responsible for appointing all other judges. All courts throughout the system should follow the rulings of the Supreme Court, which acts as the ‘umpire’ of the federal system.
Unlike the other countries discussed, in the United States federal and state governments have concurrent powers, extending also to the courts, and so allowing for prosecution under both state and federal law. There are State Basic Trial Courts, State Courts of Appeal, State Supreme Courts, Federal Trial Courts, Federal Courts of Appeal and the Supreme Court. A citizen has the right to bring a federal case in a state court and vice versa. The Constitution states that if a State Court fails to proceed with a trial, the Federal Court is available as the final answer on human rights, which gives people more confidence that their rights are protected.
Participants used the presentations of these various systems as a starting point for the discussion of the possibilities to consider in establishing a justice system in Iraq. It was noted that the justice system prior to Saddam’s regime, appears to have been fair, and it is claimed that this was one of the reasons Iraq was accepted in the League of Nations. Participants went on to describe the position of judges during Saddam’s regime, when they were afraid, remaining silent on human rights violations, corrupt and breached many laws, for instance avoiding cases against the government. All this is seen to have resulted in judicial unfairness and contributed to a general degradation of the system.
To enrol in the law faculty at university, which was under Ba’ath party control, prospective students, if not already members, were requited to join the party, leading to an overall politicization of the legal system. Because under Saddam the voice of justice was silenced, participants spoke of a widespread feeling that the judicial system should now be de-politicised, and judges should come from all groups of society regardless of race or gender. Discussion centred on the need to recruit and train new judges and to establish new law schools, as well as to review the law curriculum and perhaps require a two-year apprenticeship. Participants also spoke of the need to improve efficiency in the judicial system, taking as an example the five-year waiting period (during which the accused were kept in prison) for cases to be heard by the Supreme Court during Saddam’s regime.
Appointment of Judges
In Canada the Supreme Court has nine Justices, representing various provinces, though at least three for Quebec. Representation on the basis of gender is improving.
The United States Constitution does not detail the procedure for the appointment of judges, but participants noted that a main difference between federal and state systems is in appointment of judges, who at the state level are elected. Federal judges are instead appointed by the President, but should be approved also by the Senate (the second chamber representing every state). Interestingly, federal judges need not have a judicial background; in fact, some have been politicians or academics prior to becoming judges, although all do have legal training. Each state can establish its own rules for the appointment of judges. Some states (such as Washington State) have non-partisan elections while in others candidates are affiliated with a political party.
In considering the possible methods to employ in the appointment of judges in Iraq, many of the participants agreed that it should be based on professional expertise rather than on characteristics such as gender, religion or ethnicity. Regarding the issue of the continued employment of judges who worked under Saddam’s regime, participants pointed out that they may be professional and well-qualified and should not necessarily be penalised for having worked under the regime. However, participants agreed that much more analysis is necessary before a decision can be made on the method of judicial appointments.
Liberties and Freedoms
Participants talked about the many liberties and freedoms that were curtailed or entirely removed under Saddam’s regime, and pointed out that it is fundamental that in the new system these liberties and freedoms be reinstated. There was considerable debate about the provisions in the Constitution on the law and foundations of Islam. A consensus was reached on the fact that there is no contradiction between the foundations of Islam and the principles of democracy which guarantee individual human rights and personal liberties, including religious tolerance. For Iraqis to understand and support the new Constitution, issues such as these should be clarified to prevent misinterpretation. There are several provisions of the Constitution which support human rights, including the establishment of organisations of civil society, the Ministry for Human Rights and the Committee for Human Rights within the Parliament. A Higher Commission for Human Rights, responsible for defending human rights, has also been established independent of any ministry.
Liberties related to arrest and detention need much further in-depth consideration. Some participants suggested the possible utility of placing strict limits, for example by not allowing police to detain an individual for more than 48 hours before bringing criminal charges.
Conclusion
Participants discussed how Iraq could utilise and build on methods employed in Canada, Germany, India, South Africa and the United States, taking successful aspects of each in order to formulate a fair and lasting justice system best suited to the country and its people.
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Main issues
- Should there be a single judicial system for the whole country?
- Who should appoint the judges?
- What are the necessary criteria for appointment of qualified judges?
- Who should set the criteria for the appointment of judge?
- What criteria should be used for the appointment of Supreme Court judges?
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