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Iraq
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
(see Glossary), 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 (see Criminal Justice System , ch. 5).
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.
Data as of May 1988
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