The Judiciary

The Judiciary

Although the Constitution guarantees an independent judiciary, it contains no provisions for the organization of courts. Consequently, the legal system has been formed on the basis of laws promulgated by the RCC. In early 1988 the judicial system consisted of courts that had jurisdiction over civil, criminal, administrative, religious and other matters. The courts were under the jurisdiction of the Ministry of Justice, and all judges were appointed by the president. The secular courts continued to function partly on the basis of the French model, first introduced prior to 1918 when Iraq was under Ottoman rule and subsequently modified, and partly on Islamic law. The three dominant schools of Islamic jurisprudence were the Hanafi among the Sunni Arabs, the Shafii among the Sunni Kurds, and the Jafari among Shia Arabs. The Christian and Jewish minorities had their own religious courts for the adjudication of personal status issues, such as marriage, divorce, and inheritance.

For judicial administration, the country was divided into five appellate districts centered, respectively, in Baghdad, Basra, Al Hillah (Babylon), Kirkuk, and Mosul. Major civil and commercial cases were referred to the courts of first instance, which were of two kinds: 18 courts of first instance with unlimited powers, and 150 courts of first instance with limited powers. The former were established in the capitals of the eighteen governorates (provinces); the latter, all of which were single-judge courts, were located in the district and subdistrict centers, and in the governorate capitals. Six peace courts, two in Baghdad and one in each of the other five judicial district centers, handled minor litigation. Decisions of these courts could be appealed to the relevant district court of appeals.

Wherever there were civil courts, criminal cases were judged by magistrates. Six sessions courts reviewed cases appealed from the lower magistrates' courts. The personal status of both Shia Muslims and Sunni Muslims and disputes arising from administration of waqfs (religious trusts or endowments) were decided in sharia (Islamic law) courts. Sharia courts were located wherever there were civil courts. In some places sharia courts consisted of specially appointed qadis (religious judges), and in other places of civil court judges. Christians, Jews, and other religious minorities had their own separate communal councils to administer personal status laws.

Civil litigation against government bodies and the "socialist sector" and between government organizations were brought before the Administrative Court, set up under a law promulgated in November 1977. Jurisdictional conflicts between this court and other courts were adjudicated by the Court of Cassation, which on appeal could also review decisions of the Administrative Court. Offenses against the internal or external security of the state-- whether economic, financial, or political offenses--were tried before the Revolutionary Court. Unlike the other courts described above, the Revolutionary Court was not under the jurisdiction of the appellate court system. In addition, the RCC periodically established special security courts, under the jurisdiction of the secret security police, to handle cases of espionage, of treason, and of "antistate" activities. The proceedings of the Revolutionary Court and of the special security courts, in contrast to the practice of all other courts, are generally closed.

The court of last resort for all except security cases was the Court of Cassation. It consisted of a president; vicepresidents ; no fewer than fifteen permanent members; and a number of deputized judges, reporting judges, and religious judges. It was divided into general, civil, criminal, administrative affairs, and personal status benches. In addition to its appellate function, the Court of Cassation assumed original jurisdiction over crimes committed by high government officials, including judges. The Court of Cassation also adjudicated jurisdictional conflicts between lower courts.

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