judicial independence: the bedrock for building the rule of law in the kurdistan region—iraq (a...
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Judicial Independence:
The Bedrock for Building the Rule of Law
in the Kurdistan Region—Iraq (A Comparative Study)
by
Kareem S. Salih Professor Heinz Klug, Thesis Supervisor
A thesis submitted in partial fulfillment of the requirements for the degree of
MASTER OF LAWS (LL.M-LI)
at the
UNIVERSITY OF WISCONSIN
LAW SCHOOL
2015
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“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
Caroline Kennedy
“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
Andrew Jackson
Copyright © 2015 Kareem S. Salih
All Rights Reserved
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Dedication
For Professor Heinz Klug for being patient and highly supportive
For Michael T. Mahoney for reviewing the paper
For my parents who stand by me no matter what
For Evan and Karya who love me and without whom this university experience would not have been possible
For Sandy Joseph who always encourages me and stands at my back, contributing to my success
For the University of Wisconsin Law School and a great chapter in my life journey
For all my teachers who taught me each letter, word, and sentence
For my lovely friends and relatives who enrich my life
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Abstract
This research looks at judicial independence and its implications in the Kurdistan Region.
This work primarily examines different judicial systems and their unique characteristics, paying
particular attention to all aspects of judicial appointment. This research will provide valuable
alternatives regarding the establishment of an independent judiciary. Currently the Kurdistan
Regional government is in a period of transition that makes judicial reform possible and seizing
this opportunity could plant the pillars of democracy and lead to the institution of the rule of law.
By the end of the paper, the reader will understand a strong, independent judiciary guarantees a
better and sustainable state.
There are contextual political factors related to the judiciary, but these factors must not
jeopardize its effectiveness. The judiciary must be strengthened and released from political
interference. It is crucial that the judiciary ensure equally both accountability and transparency in
their work. The primary goal is to create accountable and knowledgeable judicial officers who
are free from any internal or external influences.
This paper draws largely upon primary sources including laws currently in force in Iraqi
Kurdistan, academic research, books, memoirs, assessments of judicial systems conducted by
international agencies, and personal experience and observation.
The evidence shows that creating an independent judiciary and strengthening the rule of
law are as important as political efforts in establishing a long-lasting, stable future for the
Kurdistan Region of Iraq.
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Abbreviation and Acronyms CCP Chinese Communist Party
CJA Committee for Judges’ Affairs
CLE Continuing Legal Education
CPA Coalition Provisional Authority
CSJ Commission on the Supervision of Judicial
FSC Federal Supreme Court
HJC Higher Judicial Council of Iraq
ICCPR International Covenant on Civil and Political Rights
IJI Iraqi Judicial Institute
IKF Iraqi Kurdish Front
IMoJ Iraqi Ministry of Justice
IQD Iraqi Dinar
JSC Judicial Service Commission
KBA Kurdistan Bar Association
KBA Kurdistan Bar Association
KDP Kurdish Democratic Party
KJC Kurdistan Judicial Council
KJI Kurdistan Judicial Institute
KJU Kurdistan Judges Union (Judges Association)
KJU Kurdistan Jurists Union
KMoF Kurdistan Ministry of Finance
KMoJ Kurdistan Ministry of Justice
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KNA Kurdish National Assembly
KR Kurdistan Region
KRG Kurdish Regional Government
MPRE Multistate Professional Responsibility Examination
NGOs Non-Government Organizations
OC Office of Codification
OGK Official Gazette of Kurdistan
PUK Patriotic Union of Kurdistan
UK United Kingdom
UN United Nations
UNDP United Nations Development Program
UNDP United Nations Development Program
US United States of America
Table of Contents
Dedication ....................................................................................................................................... ii
Abstract .......................................................................................................................................... iii
Abbreviations and Acronyms ........................................................................................................ iv
Introduction ................................................................................................................................. 1
Historical Background of Kurdistan Region ....................................................................... 1
Chapter One: Background of Judiciary in the Kurdistan Region .......................................... 5
I. Establishment of the Judiciary in the Kurdistan Region ...................................................... 5
II. Structure of the Judiciary and Court Types ......................................................................... 7
A. Judicial Jurisdiction Over Civil Liberties ........................................................................ 8
B. Judicial Jurisdiction Over Civil Cases ............................................................................. 9
C. Judicial Jurisdiction Over Criminal Cases ..................................................................... 11
D. Judicial Jurisdiction and Administrative Courts ............................................................ 12
III. System of Appellate Review ............................................................................................ 13
IV. Constitutional Court ......................................................................................................... 14
Chapter Two: Judicial Independence ....................................................................................... 17
I. Definition ............................................................................................................................ 17
II. Elements of Judicial Independence ................................................................................... 21
A. Judicial Appointment ..................................................................................................... 21
B. Tenure ............................................................................................................................ 21
C. Promotion ....................................................................................................................... 24
D. Accountability and Transparency .................................................................................. 25
E. Removing and Disciplining Judicial Officers from the Office ...................................... 25
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· Code of Ethics: ............................................................................................................ 27
F. Adequate Compensation ................................................................................................ 28
G. Minimum Qualification ................................................................................................. 28
H. Judicial Immunity for Official Actions ......................................................................... 29
I. Financial Autonomy and Sufficient Resources ............................................................... 30
III. Types of Undue Influences: ............................................................................................. 31
IV. Ways to Safeguard Judicial Independence ....................................................................... 33
A. Constitutional Guarantees .............................................................................................. 33
B. Judicial Associations ...................................................................................................... 34
C. Open Court Requirement ............................................................................................... 34
D. Doctrine of the Separation of Powers ............................................................................ 35
V. Elements of Judicial Independence and Its Implication on the Kurdistan Region ............ 37
VI. Safeguard the Judicial Independence in the Kurdistan Region ........................................ 43
Chapter Three: Judicial Appointments .................................................................................... 47
I. Models of the Judicial Appointment ................................................................................... 47
A. Appointment by Political Institutions ............................................................................ 48
B. Appointment by the Judiciary Itself ............................................................................... 49
C. Appointment by a Judicial Council ................................................................................ 50
D. Selection Through an Electoral System ......................................................................... 51
II. Independence ..................................................................................................................... 53
III. Appointment Procedure ................................................................................................... 59
IV. Judicial Appointment in the Kurdistan Region ................................................................ 62
A. Appointing Judges in the Kurdistan Region .................................................................. 62
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1. Phases of Judicial Appointment ................................................................................. 62
2. Qualification Requirements For Judges ..................................................................... 63
B. Appointment of Public Prosecutors in the Kurdistan Region ........................................ 66
1. Role of Public Prosecutor ........................................................................................... 66
2. Administrative Structure of Public Prosecutor ........................................................... 68
3. Qualification Requirements for Public Prosecutor ..................................................... 69
C. Attorneys/Lawyers ......................................................................................................... 71
1. Role of Lawyers ......................................................................................................... 71
2. Lawyers and Professional Responsibilities ................................................................ 74
3. Qualification Requirements For Lawyers .................................................................. 75
4. Lawyers Immunity for Official Actions ..................................................................... 76
5. Fees ............................................................................................................................. 77
6. Retirement of Lawyers ............................................................................................... 77
7. Lawyers and Code of Ethics: ...................................................................................... 78
D. Appointing Court Staff: ................................................................................................. 79
Chapter Four: Conclusion ......................................................................................................... 80
First: Constitution ..................................................................................................................... 80
Second: Judicial Appointment .................................................................................................. 83
Third: Judicial Institute ............................................................................................................. 85
Fourth: The Impartiality of the Court and Justices ................................................................... 85
Fifth: Public Prosecutor ............................................................................................................ 86
Sixth: Lawyer/Attorney ........................................................................................................... 87
Seventh: Judicial Code of Ethics .............................................................................................. 88
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Eighth: Judicial Officer’s Remuneration .................................................................................. 89
Ninth: Improve Knowledge of the Judicial Officers ................................................................. 89
Tenth: Judicial Association ....................................................................................................... 90
Eleventh: Financial Autonomy and Sufficient Resources ........................................................ 90
Twelfth: Administration of Judiciary ........................................................................................ 90
Thirteenth: Supervision of Judicial Officers Work ................................................................... 91
Fourteenth: Coordination and Relationship Between the Judiciary and Other Branches of
Government ............................................................................................................................... 92
Fifteenth: Parties rights ............................................................................................................. 92
Sixteenth: Amnesty ................................................................................................................... 92
Bibilography ................................................................................................................................. 93
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Introduction
HistoricalBackgroundofKurdistanRegion
The Kurdistan Region (KR) of Iraq, also known as Southern Kurdistan, is an autonomous
region of Iraq. The Kurds are an ancient people and their history goes back over 4,000 years1.
Over decades, Kurdish people fought with the former Iraqi dictatorship, led by Saddam Hussein2.
Eventually in a national uprising of the Kurdish people against the regime in 1991, and despite
significant casualties and the crisis, Kurdish fighters3 succeeded. Iraqi forces finally left
Kurdistan with de facto autonomy in October 1991.
To protect civilians from attacks by Iraqi military forces following the 1991 Gulf War,
the US, UK and France initiated a “no-fly zone,” above the 36th line of latitude, which cuts
across Kurdistan,4 in accordance with the United Nations Security Council’s Resolution No. 688
adopted on 5 April 19915. This also paved the way for the creation by the Coalition Powers of a
“safe haven,” located north of the 36th parallel in Iraq, a line just south of Erbil, in which Iraqi
aircraft were forbidden to fly.6
After Saddam Hussein withdrew his forces and his administration from parts of the
Kurdistan Region, in late 1991, and compounding the hardship already caused by an
international UN embargo on Iraq, Saddam Hussein enforced an additional internal embargo on
1 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.3 2 He was notoriously repressive and dictator leader. Hussein ruled Iraq from 1979 until 2003. 3 Well known as “Peshmerga”, the peshmerga means (“those who face death”) 4 Kurdistan Regional Government, The Kurdistan Parliament, 11/30/2006 <
http://cabinet.gov.krd/a/d.aspx?r=160&l=12&s=04070000&a=15057&s=010000> 5 Read more: http://www.un.org/Docs/scres/1991/scres91.htm 6 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p3
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the region stopping food and fuel supplies, disconnecting electrical power and preventing the
movement of people to other parts of the country.7
Faced with the administrative vacuum and double embargo, the Kurdish political parties
reorganized themselves into a single front, which was called the Iraqi Kurdistan Front (IKF).8
Thereafter, they organized regional government, independent from Baghdad, to deliver basic
needs for the citizens. Hence, the IKF, with advice from a committee of judges and lawyers,
drafted and ratified the first law9, which structured the first Kurdistan National Assembly
(KNA).10
The first democratic effort by KFI was their decision to hold the first general election
held on 19 May 1992.11 The election led to the formation of the first Kurdistan National
Assembly (hereinafter KNA), and the establishment of the semi-autonomous Kurdistan Regional
Government (hereinafter KRG).12
Kurdistan is a “democratic republic with a parliamentary political system”13 and there
exists today, all three branches of government—Legislative, Executive, and Judiciary. The
Kurdistan Parliament (KNA) is a 111-member unicameral body in which 11 seats are reserved
for non-Kurdish minority communities of the Iraqi Kurdistan Region. Parliament meets in Erbil,
7 Kurdistan Regional Government, The Kurdistan Parliament, 11/30/2006
<http://cabinet.gov.krd/a/d.aspx?r=160&l=12&s=04070000&a=15057&s=010000> 8 Mohammed, Zardasht Khalid, "Enhancing the Parliament Capacity to Hold Government Accountable in Kurdistan
Region" (Indiana University Maurer School of Law, 2015), p.11. See more about (IKF) at Michael M Gunter, The KDP-PUK conflict in northern Iraq, 50 THE MIDDLE EAST JOURNAL 224, 226 (1996) (IKF was established in 1988. The main purpose of IKF was to overthrow the Ba’ath regime and to seek to create a democratic regime in Iraq and to establish Iraqi Kurdistan as federal state in inside Iraq).
9 The Law of Kurdistan National Assembly No.1 of 1992, ratified by the IKF on 04/08/1992 10 Id, p. 12.11 Article (12) from the Law of Kurdistan National Assembly allows IKF to appoint the date of election. 12Id.13 Article (1) in the Kurdistan Region Draft Constitution.
http://webcache.googleusercontent.com/search?q=cache:Q_dH2DX22VoJ:kurdistantribune.com/wp-content/uploads/2012/08/Kurdistan-Draft-Constitution-2009.doc+&cd=1&hl=en&ct=clnk&gl=us
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the official capital of the Iraqi Kurdistan region14. The three main functions of the Parliament are
to: examine proposals for new laws and pass legislation; scrutinize government policy and
administration; and debate the major issues of the day.15
The significant focus of this research addresses the issues related to the judicial
independence of Kurdistan Region-Iraq. Without a doubt there have been enormous advances in
a variety of sectors such as the economy, politics, education, and law-making in the Kurdistan
Region in the last decades, but having a strong judiciary is key to guaranteeing the continuity of
these improvements.16 In addition, having an independent judiciary guarantees the checks and
balances among other branches; and it can become an active body to fight for transparency,
integrity, and democracy.
To provide a clear path for the reader to understand the issues raised in this thesis it will
be divided into three main chapters. The first chapter provides the background to the judiciary in
the Kurdistan Region including how the judiciary was established in the Kurdistan Region, the
structure of the judiciary and types of courts, the system of appellate review, and the creation of
the constitutional court.
The second chapter is a review of the idea of judicial independence in general, the
specific elements of judicial independence such as judicial appointment, tenure, promotion,
accountability and transparency, thediscipliningandremovalofjudicialofficersfromthe
bench, adequate compensation, minimum qualification, judicial immunity for official actions,
and financial autonomy and sufficient resources. Further, it also elaborates ways to safeguard
14 <https://en.wikipedia.org/wiki/Kurdistan_Parliament> (07/08/2015) 15 Kurdistan Regional Government, The Kurdistan Parliament, 30 November 2006.
http://cabinet.gov.krd/a/d.aspx?r=160&l=12&s=04070000&a=15057&s=010000 (08/5/2015)16 Improving Technical Vocational Education and Training in the Kurdistan Region-Iraq, KRG, Ministry of
Planning & Ministry of Education, 2014. Read more: <http://www.rand.org/content/dam/rand/pubs/research_reports/RR200/RR277/RAND_RR277.pdf>, and see more at <http://www.investingroup.org/publications/kurdistan/overview/economy/>
4
judicial independence such as constitutional guarantees, judicial associations, the open court
requirement, and the doctrine of separation of powers. Lastly, this chapter considers the
application of these elements and safeguards to the judiciary in the Kurdistan Region.
The third chapter addresses judicial appointments including models of the judicial
appointments of judges, public prosecutors, lawyers, and court support staff.
The last chapter of this thesis concludes with an analysis of the key issues and makes
significant suggestions to strengthen the judiciary in the Kurdistan Region.
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ChapterOne:BackgroundofJudiciaryintheKurdistanRegion
I. EstablishmentoftheJudiciaryintheKurdistanRegion
There are three phases in the history of the judiciary in the Kurdistan Region. The first
phase started with the established judiciary in Iraqi up until the Kurdistan uprising in 1991. In
general, there were not many differences between the Kurdistan Region and other parts of Iraq
because there was no stability in the Kurdistan Region at that time. The second phase started
within the creation of the first Kurdistan Government cabinet in 1992, which remained in place
until 2007. This period was the first experience of having a judiciary run by the Kurdistan
Regional Government. The first cabinet in 1992 included the Ministry of Justice (MoJ) as part of
the structure of its government.17 The KNA passed the Law of the Ministry of Justice No.12 of
1992 to organize the structure of its ministry. Also, it passed the Judiciary Law No.14 of 1992
which created the Judiciary of Kurdistan Region as part of the MoJ.18 Articles 8-12 of this law
established a Cassation Court, the highest level of court for the Kurdistan Region. One criticism
of the MoJ’s law was that according to article 52(1)(A), the Ministry of Justice had the power of
supervision over the judges, courts, and judicial institutions.19 In fact, the way the KR judiciary
was organized was influenced by the Iraqi Judiciary Law No.160 of 1979, in which the judiciary
was part of the Iraqi Ministry of Justice.
The invasion of Iraq in 2003 and the political changes that followed led to the ratification
of a new Constitution of Iraq on October 15, 2005.20 This constitution made fundamental
changes in favor of creating a democracy and establishing the rule of law. For example, article
17 The Law of Council of Ministers No. 3 of 1992 18 Judge Othman Y. Ali, Iraqi Kurdistan Judicial System and comparative with the German Federal judicial system,
Judge Magazine, (Kurdistan Judges Union, 2010) p.17. (Author’s translation) 19 Id.20 Robertson, Nic, and Ingrid Formanek. "The Iraqi Draft Constitution Has Passed, According to Final Results
Released Tuesday by Iraqi Election Officials," (CNN 25 Oct. 2005). Http://www.cnn.com/2005/WORLD/meast/10/25/iraq.constitution/ (06 Aug. 2015).
6
(1) states, “the system of government is republican, representative, parliamentary, and
democratic, and this Constitution is a guarantor of the unity of Iraq.”21 Fortunately, chapter
three, article (87), affirms the independence of judicial power relative to the other two branches
“The judicial power is independent. The courts, in their various types and levels, shall assume
this power and issue decisions in accordance with the law.”22
From the beginning of KR self-autonomy in 1992 until ratification of the new
constitution in 2005, the KR Courts applied the Iraqi laws that existed before 199223 and the new
laws passed by the Kurdistan Parliament during this period.24 After the new Iraqi constitution
was ratified, save for laws relating to the exclusive federal powers as listed in article 110 of
the 2005 Constitution, post 1992 laws and amendments to existing laws originating from
Baghdad are not recognized as applicable in the Kurdistan Region of Iraq unless expressly
endorsed by legislation passed by the Kurdistan Parliament.25
The third phase of the judiciary started on October 3, 2007, when the KR Parliament
passed a statute called the “Judiciary Law of Kurdistan Region-Iraq No.23 of 2007.” This created
the separate judicial branch for the Kurdistan Region. Also, this became the second Judiciary law
for the Kurdistan Region.26 The new law was approved based on the presidency decree No.30 of
2007 and published in the Official Gazette of Kurdistan (OGK)27 No. 76 of 2007.
21 Iraqi Constitution 2005, UN/US/UK agreed Final English Translation of Constitution 25 January, 2006)/
http://gjpi.org/central-activities/constitution/ (06/27/2015) 22 Id.23 Unless subsequently repealed or amended by Kurdistan Parliament.24 Judicial Reform Index For Iraq: Kurdistan Supplement, American Bar Association, 2006, p.4 25 The Judiciary and The Law in The Kurdistan Region of Iraq, Global Justice Project: Iraq, August 14, 2009
http://gjpi.org/2009/08/14/the-judiciary-and-the-law-in-the-kurdistan-region-of-iraq/ (06/24/2015) 26 The Judiciary Law No. 14 of 1992 was superseded. Art. 68. 27 It is an official journal in the Kurdistan Region. It has published by the MoJ and includes all the laws, regulations,
and orders. In order for the new legislation to enter into force, it must first be published in the OGK. The OGK is a monthly publication and it is usually distributed to judges in the main cities in Kurdistan in a timely manner.
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This law provides financial independence and separation of power from the executive
branch28. Furthermore, the law grants supremacy of the courts over all individuals and
institutions in settling specific types of cases in article (5); and the Kurdish language became the
official language of litigation, however in cases of necessity, article (6) provides that, the Arabic
language can also be used. While this law provides for more judicial independence, it remains a
consolidated justice system. According to this law, the judicial body is empowered to handle all
disputes arising between individuals or between individuals and administrative bodies29.
Thereafter, the KR Parliament (KNA) passed a statute titled “Shura Council Law of the
Kurdistan Region-Iraq No.14 of 2008”.
This law changed the KR Judicial system into a dual justice system. Now, there exists
two independent court bodies; the administrative court30 which has jurisdiction in disputes
arising between individuals and administration bodies (government agencies)31. In civil law
systems, citizen complaints about the actions of low-level officials are handled in special
administrative courts32.
II. StructureoftheJudiciaryandCourtTypes
As a separate branch, the judiciary needs to have a governance structure that allows it to
manage its operations effectively. The structure of the courts in the Kurdistan Region is nearly
identical to the structure of the courts in the rest of Iraq33.
28 Article (2), and (4) in the Judiciary Law of Kurdistan Region-Iraq No.23 of 2007. 29 See Judicial Supervision, Star Times Forume, (Author’s translation) http://www.startimes.com/?t=26693109
(06/29/2015) 30 France is the cradle of the administrative court then spread the system in many countries such as Greece, Belgium,
Egypt. 31 See Judicial Supervision, Star Times Forume, (Author’s translation) http://www.startimes.com/?t=26693109
(06/29/2015). 32 Mark Tushnet, Advanced Introduction to Comparative Constitutional Law, (Edward Elgar Publishing Limited,
2014), p. 94. 33 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006) p.5.
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The governance structure for the Judiciary of the Kurdistan Region is separated into four
geographical appellate court jurisdictions: Erbil, Duhok, Sulaimanya,and Garmyan.34 In addition,
pursuant to article (11) in the Judiciary Law of Kurdistan Region-Iraq, the Court of Cassation35 is
the highest court of appeal in Kurdistan Region. The Court of Cassation is completely separate
from the federal government Court of Cassation in Baghdad. Indeed, the federal Court of
Cassation in Baghdad cannot review the KR judgments. Residents of Kurdistan Region are
obliged to bring claims arising in Kurdistan before the KR’s court.
The KJC is the highest judicial power in the Kurdistan Region and consists of the Chief
Judge of the Court of Cassation and the following members: two of the most senior deputies,
Chief of Commission on the Supervision of the Judiciary, Chief Public Prosecutor36, and Chief
Judge of the Appellate Courts or their representatives37.
The number and types of courts depend upon the caseload and regional population. Article (9) of
the Judiciary law, lists the types of courts, which include: Cassation Court, Appellate Court,
Felony Court, Civil Court, Juvenile Court, Personal Status (Family) Court, Misdemeanor Court,
Labor Court, Investigative Court, and Court of Personal Affairs for the Christian, Yazidis, and
other religions.38 Article (10-33) describes the jurisdiction of each court, the creation of new
courts, and their responsibilities.
A. Judicial Jurisdiction over Civil Liberties
The judiciary has exclusive, ultimate jurisdiction over all cases concerning civil rights
and liberties. Furthermore, the courts in Kurdistan have jurisdiction over all cases concerning
34 The KJC has not yet created a structure for the Halabja province, which recently this new province created by the
KR 35 The US comparison is the US Supreme Court. 36 In the US is known as the Attorney General, but AG’s office is a component of the MOJ. 37 Article (33) (1) in the Judiciary Law of Kurdistan Region-Iraq No.23 of 2007. 38 Author’s translation.
9
human rights and liberties guaranteed by the Iraqi Constitution, and are competent to adjudicate
disputes relating to these rights.39
The courts in the Kurdistan Region have civil jurisdiction over all persons, be they
natural or juridical, including the Kurdish government; and over all disputes, including civil
rights and liberties, except those removed by special provisions of the law. According to article
(30) on the Law of Civil Procedure, courts are prohibited from refusing to adjudicate a case on
the grounds of ambiguity of the law or the absence or deficiency of a provision. In addition, the
Iraqi Constitution, article (61)(4), provides that international treaties containing standards for
civil rights and liberties may be enacted by national legislation in Iraq; also there are lists of
protected civil rights and liberties in section two, articles (14-36).
B. Judicial Jurisdiction over Civil Cases The courts in Kurdistan have civil jurisdiction over all persons and institutions. The First
Instance Courts, are the civil courts where civil cases are initiated. The Iraqi Civil Procedure
Code No. 83 of 1969 includes all aspects of civil procedure. Article (1) states that, “ This law
shall be the reference for all action and procedures laws, save for any stipulation therein that
explicitly contradict with the provisions of this law”40. Related to the court’s jurisdiction, article
(29) of this law stipulates, “The jurisdiction of civil courts shall cover all natural and juridical
persons, including the government. Such courts shall have the competence to hear all kind of
disputes, save for disputes that were excluded by a special provision”.41
Regarding the jurisdiction over subject matter, article (31) identifies it as follows “ The
court shall have the competence/authority to resolve the following type of suits, whereby its
39 Judicial Reform Index For Iraq: Kurdistan Supplement, American Bar Association, p. 13, 200640 Translated by GLPI, See more at Global Justice project: Iraq, Civil Procedure and Evidence, May 12, 2009, “Civil
Procedure Code, p.1” http://gjpi.org/2009/05/12/civil-procedure-and-evidence/ (08/7/2015) 41 Id. p.7
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judgment is challengeable by way of cassation:42
1. Debt and movable property suits. 2. Suits for end of joint ownership in Real Estate or movable property, irrespective of its value. 3. Leased property suits irrespective of the value of the rent. 4. Possession suits, and claims of damages relating thereto (provided filed in association
therewith. 5. Claims of due installments provided that the amount thereof does not exceed five hundred
Dinars43, and the claim for the remainder of a debt provided not exceeding five hundred Dinars. However, if the proceedings were geared towards establishing the principle debt, which exceeds the said amount, then the suit shall be transferred to the competent court of first instance and the fees shall be retained.
6. Other types of suits that fall under the jurisdiction of the Courts of First Instance according to the law.
In addition, article (33) provides that, the Courts of First Instance have jurisdiction over
summary matters, which need to be resolved quickly, without touching upon the core of the
dispute. It shall also cover matters relating to personal status for non-Muslims and foreigners
whose personal status is subject to civil law. In such suits the judgment of the First Instance
Court shall be of final degree and challengeable only by way of cassation.44
Regarding the legal methods for challenging judgments, article 168 points out the legal
methods available to file an objection to judgments in absence, appeal, retrial, cassation,
rectification of cassation decision, and objection by third party.
Generally, the decisions of the Court of First Instance are subject to appeal before the
Appellate Court, so the Appellate Court in some types of cases can make its decision as a final
decree decision, otherwise their decision is subject to appeal before the Cassation Court. On the
other hand, if the judgment of the Court of First Instance is as a final appellate decree, the
litigants must challenge the decision before the Cassation Court.45 Indeed, the appeal should be
42 Translated by GJPI. Civil Procedure Code, p. 7 43 The amount has been changed 44 Translated by GLPI, See more at Global Justice project: Iraq, Civil Procedure and Evidence, May 12, 2009, “Civil
Procedure Code, p.1” http://gjpi.org/2009/05/12/civil-procedure-and-evidence/ (08/7/2015)45 Articles (154-218) in Civil Procedure Code detailed on the methods of challenging judgments
11
made by the litigants because a third party may not participate in the appeal unless he requests
joining either party, or if he has the right to challenge the judgment by way of “objection by third
party,” article (186)(1).
C. Judicial Jurisdiction over Criminal Cases
The courts in Kurdistan have criminal jurisdiction over all individuals. Basically the
criminal cases must be initiated in the Investigative Courts. Article (31) in the Judiciary Law
creates the Investigative Court. This is the lower court for criminal cases. Article (31)(1st)
provides that, The Investigative Court will be formed in every location that has a Court of First
Instance “known civil court”, and the judge of the Civil Court will become the Judge of the
Investigative Court, unless another specific judge is appointed to it.46 In addition, at the
suggestion of the Chief of the Court of Appeal, the chief of the Judicial Council can specify the
jurisdiction of the court and type of crime,47 such as the Investigative Court for police traffic
tickets and Investigative Court for gender based violence cases.
The initial investigation shall be conducted by investigative judges or by judicial
investigators48 acting under the supervision of investigative judges.49 Indeed, the investigative
judges shall conduct the investigation into all offences in person or by using judicial
investigators50; the scene of the incident shall be examined by the judicial investigator or judge
[…]51; the investigative judge may move to any other place within his/her area or jurisdiction to
conduct any part of his investigation […];52 the investigative judge is permitted to issue a
46 Author’s translation. 47 Article (31)-Second, Author’s translation. 48 Judicial Investigator, sometimes called judicial assistant, is a class of persons employed by the Higher Judicial
Council to assist judges in the collection of evidences. 49 Iraqi Criminal Procedure Code No 23 of 1971, article (51). 50Id, article (52)(A). 51 Id, article (52)(B).52Id, article (56)(A).
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warrant and arrest or apprehend a person.53 In this regard, the investigative judge has massive
power to conduct the investigation, including the power to hear witnesses;54 to appoint experts;55
to search;56 to summon, arrest, detain, question and release the accused, to seize properties.57
After all the investigation has been done by the court, if the investigative judge finds
that the action is not punishable by law or that the complaint has been withdrawn, […], the
judge issues a decision rejecting the complaint and closing the case file.58 On other hand, if the
act is punishable by law and the investigative judge finds that there is sufficient evidence for a
trial, a decision is issued to refer the accused to the appropriate court, which is either a felony or
misdemeanor court.59 The judge’s decision after the end of the investigation is subject to appeal
before the felony court.
D. Judicial Jurisdiction and Administrative Courts
The statute of Shura Council of the Kurdistan Region-Iraq No.14 of 2008 changed the
KR judicial system into a dual justice system. Thus, it established two independent court bodies,
the administrative court and the regular court. The administrative court in the Kurdistan Region
shall have jurisdiction in disputes that arise between individuals and administrative bodies.
Besides the administrative tribunals, according to the article (6) of its law, the KR Shura Council
has authority to give codification, consultation, and opinion on legal affairs.
53 Iraqi Criminal Procedure Code No 23 of 1971,article (92).54Id,articles (58-68).55Id,articles (69-71).56Id,articles (72-86).57Id,article (87- 129). 58 Id, article (130)(A). 59Id, article (130)(B).
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Oftentimes, in the three-branch model, the only plausible location for administrative
courts was within the executive branch.60 The administrative court, as part of Shura council, is
part of the executive branch specifically the KMoJ.61 Also article (13) of the law provides its
jurisdiction over various disputes. The administrative court decisions are subject to appeal before
the General Committee of Shura Council within 30 days from the second day of the announced
decision.62 In this way they are a court of last resort.
III. SystemofAppellateReview
Judicial decisions may be reversed only through the judicial appellate process. Under
Iraqi procedural laws, which apply in Kurdistan, judicial decisions can only be reversed through
the judicial appellate process. This principle is upheld in practice by the Kurdish courts63.
However, there is a military court in Kurdistan. The decisions of this court cannot be challenged
before the civil courts, unless one of the parties is a civilian. Indeed, there is a military court of
appeal in Kurdistan, competent to hear such appeals according to the Law of Military Criminal
Procedure No.17 of 201164. Decisions of the special courts established to try Kurdistan security
personnel can be appealed to the Court of Cassation65.
Below the Cassation Court are four high courts, known as Appellate Courts. These courts
have territorial jurisdiction over their designated regions. The appellate court consists of the
judicial body and the presiding chief judge (or president) with a number of members.66 Appeals
to high courts come from the lower courts (district courts) such as Felony Court, Misdemeanor
60 Mark Tushnet, Advanced Introduction to Comparative Constitutional Law, (Edward Elgar Publishing Limited,
2014), p.95. 61 Shura Council of the Kurdistan Region-Iraq No.14 of 2008, article (2).62Id,article (4).63 Id. p.14 64 The law known as “The Law of Enforcement of the Iraqi Law of Military Criminal Procedure No. 30 of 2007 in
the Kurdistan Region.” 65 Judicial Reform Index For Iraq: Kurdistan Supplement, American Bar Association, p. 14, 200666The KR Judiciary Law, article (14)(1st).
14
Court, Family Court, and the Court of First Instance.
IV. ConstitutionalCourt
This court has a crucial role in stabilizing democracy in the context of constitutional
transitions.67 While the Constitutional Court is central, it is not the only instrument of democracy
and constitutionalism.68 Therefore, the role of the Constitutional Court should be viewed in a
wider perspective embracing the general issues of democracy, the constitution, and
constitutionalism.69A judicial organ must have the power to determine the ultimate
constitutionality of legislation and official acts, and such decisions are enforced. For instance, in
Marbury v. Madison, Chief Justice Marshall implie that the courts must have the final word
because it is the role of the court to declare the law and there is no one else to resolve the
meaning of the constitution.70 In fact, the constitutional court will need to exist when a country
has a written constitution such as in France.
Beside the traditional and well-known task of constitutional review of legislation, the
Constitutional Court has other tasks, such as constitutional review of political parties, disputes
arising from elections, and the authorization of the impeachment of persons in power.71 In this
way, the Constitutional Court confronts politics at every step and any decision would be settled
in favor of or against a political party or parties. 72Nevertheless, this decision does not mean that
the Constitutional Court is automatically a political tool. There is a difference between making a
legal decision in a dispute that involves a political party and a decision where the Constitutional
67 Heinz Klug, Constituting Democracy Law, Globalism and South Africa’s Political Reconstruction, (Cambridge
University Press, 2000) p.142 68 Rait Maruste, The Role of the Constitutional Court in Democratic Society, (Juridica International XIII/2007) p.8 69Id.70 Heinz Klug, Constituting Democracy Law, Globalism and South Africa’s Political Reconstruction, (Cambridge
University Press, 2000) p.142 71 Rait Maruste, The Role of the Constitutional Court in Democratic Society, (Juridica International XIII/2007) p.1072Id.
15
Court intentionally makes a decision in favor of a specific party irrespective of the law.73
Most of the constitutions of Arab countries stipulate the establishment of constitutional
courts or committees.74 For instance, article (192) of Constitution of the Arab Republic of Egypt
2014 states that “The Supreme Constitutional Court is exclusively competent to decide on the
constitutionality of laws and regulations, interpret legislative texts […]”.75 Article (173) in the
constitution of Kuwait is the first among Arab constitutions to refer to a competent authority to
consider the constitutionality of laws.76 In contrast, since the founding of Jordan, the Jordanian
constitutions from 1928 to 1952 did not address having a competent court decide on the
constitutionality of the law. There was prevailing jurisprudence at the time which indicated it
was not expected that the courts would examine the constitutionality of laws such as the
Jordanian Court of Appeal’s decision No. (35/59).77 Thereafter, the concepts of constitutionality
changed and culminated in the High Court of Justice Act No. (12) of 1992, which granted court
the right to examine the constitutionality of the laws.78
Related to that, the Iraqi Constitution, article (93), states “The Federal Supreme Court
(FSC) shall have jurisdiction over the following: First—overseeing the constitutionality of laws
and regulations in effect; Second—interpreting the provisions of the Constitution.” Thus, the
FSC, based in Baghdad, only has the authority to review the constitutionality of federal
legislation.79
73Rait Maruste, The Role of the Constitutional Court in Democratic Society, (Juridica International XIII/2007) p.1074 Judge Salem Roudhan al-Moussawi, The Formation of the Federal Supreme Court in Iraq Between the
Constitution and the Law: Analytical and Critical Reading, (Al-Hiwar Al-Mutamaddin, No. 2519, 01/07/2009), < http://www.ahewar.org/debat/show.art.asp?aid=158837> (08/03/2015)
75 Dr. Jaber Fahmi Imran, Judicial Independence; comparative study, (Dar elgamaa elgadida, Askandria 2015) p.464 76 Judge Salem Roudhan al-Moussawi, The Formation of the Federal Supreme Court in Iraq Between the
Constitution and the Law: Analytical and Critical Reading, (Al-Hiwar Al-Mutamaddin, No. 2519, 01/07/2009), < http://www.ahewar.org/debat/show.art.asp?aid=158837> (08/03/2015)
77Id.78 Id.79 Judicial Reform Index For Iraq: Kurdistan Supplement, American Bar Association, p. 11, 2006
16
In fact, the KNA has passed the Law of Adopting the Draft of the Kurdistan Region
Constitution No. (16) of 2008; according to article (6) of this law, the draft must pass a
referendum before being added to the constitution of the KR. The newly formed political party,
Goran (Change Movement), received about 25% of the Parliament seats on September 25, 2009.
Thereafter, this party with other two Islamic political parties, Islamic Union and Islamic Group,
formed a new block and became an official opposition. These parties did not agree with the
majority text of the draft of constitution, so the draft of constitution for Kurdistan Region never
went to a referendum.
Fortunately in 2015 after a coalition of all the major parties, the KNA passed the Law of
Preparing the Draft Constitution of Kurdistan Region for Referendum No. (4) of 2015. Then, the
major parties of the parliament formed a committee that is preparing the final draft of the
constitution for the KR. As there is currently no constitution for the KR, there is no
constitutional court to consider the constitutionality of legislation. Practically, when there is
ambiguity in the meaning of the statute or between two statutes, if the parties agree that the
Shura Council resolve the problem, the Shura Council delivers its opinion and the parties are
obliged to follow it, article (7)(1st).
17
ChapterTwo:JudicialIndependence
I. Definition There are different ways to define “Judicial Independence”, generally the definitions are
focusedonthemeaning: Independence of judges from the other branches of government or
from politicians; independence from political ideology or public pressure including ethnic or
sectarian loyalties; and the independence of the individual judges from superiors in the judicial
hierarchy and makes a best decision based of his/her view of what the law required80.
Judicial independence is generally viewed as an important character of liberal
democracy, but the key question here is how much judicial independence is required.81 Securing
minimal requirements of judicial independence is necessary even in the countries that are in the
process of transformation from “peoples’ democracies” or other kinds of authoritarianism to
liberal democracy.82 In political science literature, judicial independence has been used to refer
to two concepts; first, the autonomy of judges together or individually from other people or
institutions; and second judicial behavior that is considered indicative of judges enjoying a high
measure of autonomy.83 Both concepts are closely related, in the sense that both want to have a
high degree of autonomy for judges in their decisions rather than be controlled by others.84
Judicial independence is best understood as a two-dimensional relationship.85First, the
external dimension, in terms of the source of dependency, external controls and influences must
be distinguished from internal controls and influences.86Indeed, this applies to all governmental,
nongovernmental, public, and private forces outside of the judiciary that can encroach on the 80 Judicial Appointments and Judicial Independence, (United States Institute of Peace, January 2009), p 1. 81 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001) p 1. 82 Id.83 Id. p.6.84 Id.85 Id, p.11.86Id.
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autonomy of the entire judiciary or of the individual judge.87 This dimension of judicial
independence is more recognizable and embraces what is normally meant by the separation of
powers principle.88
Second, the internal dimension, in terms of the targets of influence or control, the
individual judge must be distinguished from the judiciary institutions as a whole package.89 From
the internal perspective, only judge personally is at stake.90 On the other hand, some kinds of
influences do not violate judicial independence. For example, the influence of the decision of
higher courts on lower court judges is surely not a violation of judicial independence.91
Independence and impartiality are closely linked and both are cornerstones of the
institutional independence of the judiciary.92 In general terms, independence refers to the
autonomy of a given judge or tribunal to decide cases solely by the law to the facts. This
independence pertains to the judiciary that has “institutional independence” from other branches
of power, and a particular judge’s independence from other members of the judiciary, or
“individual independence”.93 Thus, independence requires that neither the judiciary nor the
judges be subordinate to the other public powers.94 “Impartiality” refers to the state of mind of a
judge or tribunal towards a case and the parties to it.95 The Human Rights Committee has stated
that in the context of article (14.1) of the ICCPR, “impartiality of the court implies that judges
must not harbour preconceptions about the matter put before them, and that they must not act in
87 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World,(University Press of Virginia, 2001) p 11. 88Id.89 Id.90 Id, p.12.91Id. 92 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 21.93 Id.94 Id.95Id.
19
ways that promote the interests of one of the parties”.96
Of course, such independence does not mean that judges can decide cases according to
their personal preferences.97 Indeed, judges have a duty to decide cases according to the law.98
For instance, Principle 2 of the UN Basic Principles says: “The judiciary shall decide matters
before them impartially, on the basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.”99
In reality, a completely independent judiciary entirely free of outside influences is
impossible.100 The general theory of judicial independence cannot deal comprehensively with all
possible undue influences that may impinge on judicial autonomy.101 Judicial Independence
recognizes the main points of interaction within the judiciary and between the judiciary and
outside forces where undue influences put judicial independence at risk.102
In the case of the United States, the founding fathers considered an independent judiciary
to be the cornerstone of a free society and the rule of law. Thus, Article III of the U.S
Constitution is a pillar of the separation of powers designed to provide honest judicial
independence103. On the other hand, there are examples in United States legal history, in which
the actions of political interests or branches of government have jeopardized the judiciary. In a
famous moment in US Supreme Court history, the “Court-Packing” plan by Franklin Roosevelt
96Communication 387/1989, Arvo. O Karttunen v. Finland (Views adopted on 23 October 1992), UN Document
CCPR/C/46/D/387/1989 (Jurisprudence), para. 7.2. 97 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 24. 98Id.99Id.100 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World,(University Press of Virginia, 2001) p. 12. 101Id.102 Id.103 Henry J. Abraham, The Pillars and Politics of Judicial Independence in the United States, Peter H. Russell and
David M. O’Brien, (University Press of Virginia, 2001) p. 25.
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threatened to add six justices to the US Supreme Court to sway a constitutional case to be
decided in his favor.104
Political interests or conflicts always affect judicial independence. In the case of Pakistan,
President Pervez Musharraf was laying the foundation for the evisceration of the judiciary. He
repeatedly assured judges they would not be affected by the change in regime.105 Despite all of
Musharraf’s promises, however, the situation changed when deposed Prime Minister, Nawaz
Sharif, initiated legal action challenging the military coup.106 When the Supreme Court agreed to
entertain a hearing on the legitimacy of the new government, Musharraf began to feel the heat
from the spurned judiciary.107 The court was about to issue their decision with a ruling favorable
to Sharif, when Musharraf struck another blow to judicial independence.108 Using his emergency
powers, Musharraf issued an “Oath of Office Order” that required judges to swear loyalty to him
and his provisional constitutional order rather than to the 1973 constitution.109 The judges who
refused the new oath were deemed unqualified to sit on the bench and were forced out of their
offices. As a result, they were replaced with Musharraf-loyalists who would support him and
conform the law to his standards.110
In the Serbian judiciary system, Judge Karamarkovic111 described the two ways Slobodan
Milosevic started his attack on the judiciary. First, he appointed or promoted judges who were
104 The plan was never implemented, only threatened.See more details related to Court-Packing plan at http://legal-
dictionary.thefreedictionary.com/FDR's+Court+Packing+Plan.105 Harold Baer, JR., Judges Under Fire; Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p.71. 106 Id.107Id, p. 72.108Id.109Id.110Id.111 She was appointed to the supreme court of Serbia in 1991. During the time of war, repression, and genocide
under the brutal regime of Slobodan Milosevic, she fought for the rule of law and the independence of judges for nearly a decade. See Interview in Belgrade, [Harold Baer, JR., Judges Under Fire; Human Rights, Independent Judges, and the Rule of Law, (American Bar Association, 2011), p.80].
21
obedient to him and his goals.112 The second form of interference was more insidious; court
presidents, who were responsible for case assignments, were instructed to give politically
sensitive cases to judges willing to rule in line with the government.113 Through this approach,
government-favored defendants received particularly light punishments or were allowed to go
free, resulting in a further disintegration of the rule of law.114
In conclusion, the perspective of scholars defining judicial independence differs, but most
of them concur that real judicial independence has three characteristics: impartiality—judges
must not have any personal interest in the outcome of the case; judicial authority—judicial
decisions must be respected and implemented by the other branches of government; and lastly,
independence—the judiciary must be free from any kind of interference, whether the interference
comes from outside forces or those inside the judiciary.
II. ElementsofJudicialIndependence
A. Judicial Appointment
Individuals of differing professional status work for the judiciary. Basically, these
individuals fight to protect the judiciary from undue influence. The mechanisms of appointing
judicial officers, taking into consideration their skills, abilities and qualifications, are key to
creating a strong and independent judiciary. Because of the crucial importance of judicial
appointments, this subject will be explored in greater detail in a separate chapter.
B. Tenure
112 Harold Baer, JR., Judges Under Fire; Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p. 81. 113Id, p. 82.114Id.
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Tenure provides job security for judiciary officers and is part of the process of developing
an independent judiciary. The term of office of judges is one of the basic guarantees of judicial
independence. This is especially true in countries where there are no checks and balances
between the powers, and the executive power plays a predominant role in the selection and
appointment of judges, and/or prosecutors. In such countries, judges may be subjected to
political pressure in order to have their posts renewed, thereby compromising their
independence115. In addition, some countries require a probationary period before the
appointment becomes for life. For instance, The German Judiciary Act in Section (10),
Appointment for Life, (1) states “Whoever has worked as a judge for at least three years after
acquiring the qualification to hold judicial office may be appointed a judge for life.”116
International standards on the independence of the judiciary establish a number of
requirements related to the conditions of service and tenure of judges. For example, the UN
Basic Principles stipulate that, “The term of office of judges, their independence, security,
adequate remuneration, conditions of service, pensions and the age of retirement shall be
adequately secured by law.”117 In addition, in the African system, the Principles and Guidelines
on the Right to a Fair Trial and Legal Assistance in Africa provide that:
“Judges or members of judicial bodies shall have security of tenure until a mandatory retirement age or the expiry of their term of office” and that “the tenure, adequate remuneration, pension, housing, transport, conditions of physical and social security, age of retirement, disciplinary and recourse mechanisms and other conditions of service of judicial officers shall be prescribed and guaranteed by law”118.
115 José Zeitune, The independence and Accountability of Judges, Lawyers and prosecutors, (International
Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007) p.51. 116 The German Judiciary Act, (Third Chapter, Judicial tenure), p.6117 UN Basic Principles on the Independence of the Judiciary, Principle 11. Principle I.3 of the Council of Europe’s
Recommendation No. R (94 12) is identical. 118 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, op. cit., Principle A,
paragraphs 4 (l) and (m).
23
In fact, security of tenure is essential, because if the office holder can be removed for
decisions someone else dislikes, that person or group controls the decision maker. For example,
the Supreme Court of Canada in Valente v. R, at p. 206 C.C.C, identified that the security of
tenure was one of the three essential conditions of judicial independence. J. Le Dain stated that
the three essential ingredients were security of tenure, financial security and “institutional
independence of the tribunal with respect to the matters of administration bearing directly on the
exercise of its judicial functions.”119 The constitutional judges who have a enormous power in
judicial review, and who are appointment a limited-term rather than for life may well strike a
better balance between democratic accountability and judicial independence.120
Having fixed term for judges does not indicate that this country has not secured tenure.
For instance, in Germany qualified judges of the Federal Constitutional Court are appointed for a
twelve-year non-renewable term.121 On the other hand, two other countries, Belgium and the
United States, have life tenure.122 Specifically in the US system, a federal judge’s tenure assuring
good behavior is essentially a life tenure; Supreme Court justices, court of appeals judges, and
district judges may serve as long as they wish.123 Moreover, the individual state judges in the US
judiciary system are often appointed for fixed terms. In the State of Wisconsin, judges in Circuit
119 Justice F. B. William Kelly, An Independent Judiciary: The Core of The Rule of Law, p.7.
www.ruleoflawus.info/Judiciary/An_Independant_Judiciary.pdf (08/13/2015) 120 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.15. 121 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.16. <http://www.ejcl.org/113/article113-24.pdf>. 122Id.123 Guidance for Promoting Judicial Independence and Impartiality، (Office of Democracy and Governance &
Bureau for Democracy, Conflict, and Humanitarian Assistance & U.S. Agency for International Development, January 2002), p.134.
24
Courts and Courts of Appeal are elected to six-year terms in non-partisan elections, and State of
Supreme Court justices are elected to ten-year terms.124
Judicial independence requires a guarantee of tenure but is consistent with limited-term
appointments and mandatory retirement.125 In the case of retirement, the judges are subject to a
retirement age identified by the law. Thus, the retirement ages are not uniform. For example, in
Germany it is age 65 in general and 68 for the Constitutional Court; in Greece it is 67; in the
Netherlands it is 70; and in the United Kingdom it is 70, which may be extended to a maximum
of 75; in India it is 62. In Japan, members of the Supreme Court retire at 70 and lower courts at
65.126 Hungary, India, Japan and Spain all protect judicial tenure up to the retirement age,
although not in the context of a theoretical life-tenure.127 After an initial three-year probationary
period, Hungarian judges have permanent tenure with the option of retiring either at the general
retirement age of 62 or, compulsorily, at 70.128
C. Promotion
Another element of judicial independence is the advancement of judicial officers. In this
case, the UN Basic Principles establish that “Promotion of judges, wherever such a system
exists, should be based on objective factors, in particular ability, integrity and experience”129
The advancement of judges and prosecutors is handled differently. For example, in Italy,
advancement through the judicial ranks has come to depend entirely on seniority and not at all on
124 Court System overview, Wisconsin Court System, Updated: March 25, 2014,
https://www.wicourts.gov/courts/overview/overview.htm (07/25/2015). 125 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.15.126 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.16. <http://www.ejcl.org/113/article113-24.pdf>. 127Id.128Id.129 UN Basic Principles on the Independence of the Judiciary, op. cit., principle 13. Principle A, paragraph 4 (o) of
the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa is identical.
25
merit130. However, in common law systems, the implication of a system of judicial promotions is
less important. In countries like Canada and the United Kingdom, judges are not promoted; they
are “elevated” – lifted mystically by an agency to a higher position.131
D. Accountability and Transparency
The greatest danger to judicial independence occurs when there is lack of transparency
from the appointment process to the process of making judicial decisions. The judiciary can lose
accountability when the people become suspicious due to a lack of transparency. In order to
maintain the accountability of the public services provided by the judges and courts, there should
be some public accountability for how well that service is provided and how public funds are
spent.132 Conversely, if this accountability is too high, political authorities are able to control
vital aspects of adjudication, and judicial independence can be seriously undermined.133
Judicial transparency increases accountability. In many countries, civil society plays a
role in monitoring judicial decisions and performance. This can involve bar associations, the
media, and non-governmental organizations “NGOs.” 134
E. Removing and Disciplining Judicial Officers from the Office While judicial independence forms an important safeguard, it also has the potential to act
as a shield behind which judges have the opportunity to conceal possible unethical behavior.135
Judicial officers, judges and prosecutors, should not be removed unless there are reasonable 130 Carlo Guarnieri, Judicial Independence in The Latin Countries of Western Europe, p.17, University Press of
Virginia, 2001. 131Id. p. 17.132 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.19-20. 133 Id.134 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p.10. 135 For a discussion on corruption in the judiciary, see Richard J. Scott, “Towards an ethic to control judicial
corruption”, in Strengthening Judicial Independence, Eliminating Judicial Corruption, CIJL Yearbook 2000, p. 117.
26
grounds for removal. That could include a judge treating people differently based on race, sex,
religion, political beliefs, ethnicity, etc. It is important to distinguish between inappropriate
behaviors of a judge from the decisions rendered by judges.
A clearly defined, written code of ethics that includes specific actions and consequent
punishments provides a necessary guide for judicial behavior. For instance, the UN Basic
Principles contains a number of provisions on discipline and removal of judges such as Principle
17 that states:
“A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.” Principle 18 deals with the grounds for removal from the bench states,“Judges shall be
subject to suspension or removal only for reasons of incapacity or behaviour that renders them
unfit to discharge their duties”136.
Grounds for removing judges vary in different systems. Normally, the basis of removal is
misbehavior or incapacity. Misbehavior can include: commission of a crime, serious or repeated
violations of codes of judicial ethics or corruption.137 Federal judges in the United States can be
removed only through an impeachment process, which involves a judicial investigation and then
a formal process by the legislature in which one house accuses the judge (“impeaches”) and the
other house decides whether to remove the judge.138 In the United States, the Constitution allows
impeachment for treason, bribery or serious crimes. Removal is very rare, however, having
136 International Principles on the Independence and Accountability of Judges, Lawyers and prosecutors, José
Zeitune, International Commission of Justices, Geneva, Switzerland, p. 56, Practitioners Guide No.1, 2007.(there is also a 2004 edition)
137 Judicial Appointments and Judicial Independence, United States Institute of Peace. January 2009, p. 8. 138Id.
27
occurred only six times.139
In the civil law tradition, exemplified by France, the discipline procedure initially
involves allegations of misconduct to the head of the court.140 In the event of a finding of
misconduct, the court will forward allegations to the Ministry of Justice, if the judiciary is part of
MoJ, otherwise the actual process of removal is handled by the judicial council.141
Undoubtedly, if there is a strict system of judicial tenure, judicial independence is less at
risk in terms of removing judges from the bench.142 So the removal of judges before the end of
their terms would be very difficult because there needs to be a strong demonstration and
convincing evidence that the judge is incapable of discharging the responsibilities of their
judicial office.143
Code of Ethics:
“Ethics might be more important to judges than any other professional legal practitioner because a judge must interpret the law fairly and independently without personal feelings, religious values, past experiences or self-promoting agendas that interfere with that responsibility.”144
In the United States, for example, all respectable law schools incorporate ethical training,
or “Professional Responsibility” into their curricula, and passing a standardized PR exam is a
prerequisite to sitting for the bar exam in almost every state.
Historically China has not had rigorous legal or ethical training. Until recently judges
were not even required to attend law school and no such ethical code exists. Predictably, judicial
139 Judicial Appointments and Judicial Independence, United States Institute of Peace. January 2009, p. 8.140Id.141 Id.142 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.16. 143Id.144 Kristine Tucker, The Importance of Ethics to the Criminal Justice Practitioner,
http://work.chron.com/importance-ethics-criminal-justice-practitioner-6542.html (07/09/2015).
28
malfeasance became a common complaint and hushed stories circulated concerning judges
blackmailing litigant, fabricating ruling, embezzling court funding, and asking outright for bribes
in exchange for hearing or appeals145.
F. Adequate Compensation
The adequate remuneration, condition of service, pensions and age of retirement, and
vacation shall be adequately secured by the law. International standards advocate laws to
guarantee adequate compensation for judicial officers. According to The Universal Charter of
the Judge, article (13) stipulates, “The judge must receive sufficient remuneration to secure true
economic independence. The remuneration must not depend on the results of the judges work
and must not be reduced during his or her judicial service.” 146 So, the remuneration must be
high enough to secure for them a standard of living and which not stop experienced lawyers of
integrity and independence of judgment from applying for those positions. Higher salaries also
suppress attempts to influence court decisions through bribery. For instance, in Estonia the
judges’ remuneration is tied to the salary of the Prime Minister.147
G. Minimum Qualification
The eligibility requirements to become a judge are not uniform in every country. In
Hungary, for example, the law graduates have an opportunity through an open application
145 Harold Baer, JR., Judges Under Fire Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p.66. 146 Compilation of International Standards on Judicial Reform and Judicial Independence, (Central European and
Eurasian Law Initiative; Judicial Reform Program, January 2004), p.8. file:///Users/kareemsalih/Downloads/judicial_reform_compilation_international_standards_2004%20(2).pdf
147 Anja Seibert-Fohr, Judicial Independence in Transition, (Springer Heidelberg New York Dordrecht London, 2012) p.765.
Read more: https://books.google.com/books?id=l6dxEBCBQPcC&pg=PA765&lpg=PA765&dq=In+Estonia+the+judges%E2%80%99+remuneration+is+tied+to+the+salary+of+the+Prime+Minister&source=bl&ots=Q0iRc9pIe-&sig=0nB9LB-m0vQb-_hOvq2U9LYjFLI&hl=en&sa=X#v=onepage&q&f=false
29
process to be appointed to the bench for a three-year apprenticeship period, as “junior clerks”.148
In South Africa, traditional selection of judges from the ranks of senior counsel at the bar has
been modified to also extend appointments to the ranks of practicing attorneys, legal academics
and magistrates.149 According to the South African Constitution, any person appointed to judicial
office must be “an appropriately qualified man or woman who is a fit and proper person to be
appointed”, with the additional requirement that appointees to the Constitutional Court must be
South African citizens.150
H. Judicial Immunity for Official Actions
Judicial immunity protects judicial officers from any acts they perform pursuant to their
judicial function. Judges or prosecutors have immunity relating to any civil or criminal damages
while performing his/her duty. Judicial immunity is a common-law concept, derived from
judicial decisions, which originated in the courts of medieval Europe to discourage persons from
attacking a court decision by suing the judge.151 Judicial immunity was first recognized by the
U.S. Supreme Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed. 285 (1868).152 The
court held that “an attorney who had been banned from the practice of law by a judge could not
sue the judge over the disbarment. In its opinion, the Court stated that a judge was not liable for
judicial acts unless they were done maliciously or corruptly.”153
Another kind of immunity for judges and prosecutors can protect them from criminal
prosecution for personal acts outside of duty. For such criminal cases, the judge or prosecutor
148 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.7. http://www.ejcl.org/113/article113-24.pdf . 149Id, p.8.150Id.151 Judicial Immunity - Stump V. Sparkman, Should Judges Have Absolute Or Qualified Immunity?, Further
Readings http://law.jrank.org/pages/7885/Judicial-Immunity.html 152 Id.153 Id.
30
has granted relief in cases of prosecution unless the party receives prior permission from the
judiciary. Obviously, to enhance the judicial independence and its decisions, the judiciary must
protect their officers from any prosecutions driven by the losing party or political party in
judicial decisions.
I. Financial Autonomy and Sufficient Resources
As one of the branches of government, the judiciary needs financial resources to
discharge its functions appropriately. Generally the judiciary receives its financial resource from
the national budget and is assigned by either the legislature or the executive. It is essential that
those outlining and approving the State budget take the needs of the judiciary into consideration.
Inadequate resources may render the judiciary vulnerable to corruption, which could result in a
weakening of its independence and impartiality.154 In addition, lack of the participation of the
judiciary in the elaboration of its budget is another significant factor that undermines judicial
independence.155
International standards on financial autonomy emphasize having sufficient funds for the
judiciary. For example, the UN Basic Principles establishes that “It is the duty of each Member
State to provide adequate resources to enable the judiciary to properly perform its functions”.156
The European Charter on the statute for judges stipulates “the State has the duty of ensuring that
judges have the means necessary to accomplish their tasks properly, and in particular to deal with
cases within a reasonable period”.157 In the African context, the Guidelines on a Right to a Fair
Trial in Africa establishes that “States shall endow judicial bodies with adequate resources for
the performance of their functions. The judiciary shall be consulted regarding the preparation of 154 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p.33. 155Id.156 UN Basic Principles on the Independence of the Judiciary, op. cit., Principle 7. 157 Council of Europe, European Charter on the statute for judges, DAJ/DOC (98) 23, operative paragraph 1.6.
31
budget and its implementation.” 158
III. TypesofUndueInfluences:
In fact, judicial independence may be encroached upon by different influence categories
such as structural, personnel, court administrative, and direct approaches.159 The following
demonstrates the types of undue influence, both internal and external, that may arise in each area.
Structural: Refers to the power of governmental bodies outside the judiciary to create
and modify judicial institutions. Liberal democracies are vulnerable to the power of legislatures
to create, modify, and destroy judicial structures as well as to establish and alter the system of
appointing, removing, and remunerating judges.160 To ensure this does not happen, some
countries restrict executive or legislative control over the judiciary by constitutional
guarantees.161
Personnel: Refers to policies and procedures that apply to all aspects of judicial
personnel including appointing, removing, tenure, promotion, remunerating, training, and
continuing education. These aspects are important, in varying degrees. For instance, the security
of tenure required for judicial independence, might be taken advantage of by some unworthy
person.
Nevertheless, sometimes the judiciary faces tremendous pressure when a judge makes an
unpopular decision or embarrasses powerful politicians. Sometimes the negative media attention
leads to a judge’s early “retirement or resigning.”162
Court Administrative: Refers to all management of courts and judges work. Judges and 158 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, op. cit., paragraph A, 4 (v).
See also the Universal Charter of the Judge, op. cit., article 14. 159 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.12. 160Id, p.13.161Id, p.14.162 See more at Donald P. Kommers “Autonomy Versus Accountability,“ The German Judiciary (2001): 131-154
32
courts provide a public service. In order to maintain the principles of democratic accountability,
there should be some public accountability for how well that service is provided and how public
funds are spent.163 Conversely, if this accountability is at risk, political authorities are able to
control vital aspects of adjudication, and judicial independence can be seriously undermined. For
instance, O’brien and Ohkoshi164 show how the senior judges in the Japanese system can reward
or punish judges by assigning them to different location.165 Also, David Marshall, an experienced
Canadian Judge, has pointed out how the chief justice can unduly influence judges on their court
through administrative control over their assignments.166
Direct Approaches: Are there efforts to directly approach and influence judges to favor
or oppose a particular party or interest? All three categories outlined above are threats to judicial
independence, either among judges themselves or between the judiciary and outside authorities.
Bribery or threats to the judges or judges’ families are obvious examples of direct approach.167
Requiring judges to sever ties with political organizations, businesses corporations, and
most social and professional associations reduces the opportunities for corrupt influences to
interfere with the judicial process.168 A judge who has not recused him/herself in cases where
there are direct ties would be disqualified in most liberal democracies.169 On the other hand, the
political parties, specifically in less democratic countries, can have improper influence. For
instance, the Chinese Communist Party (CCP) retains strong control over all aspects of the
163Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p. 20. 164 See more, David M. O’Brien and Yasuo Oshoshi, Stifling Judicial Independence From Within: The Japanese
Judiciary (2001) 37-62. 165 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p.20. 166 See David Marshall, Judicial Conduct and Accountability (Toronto: Carswell, 1995). 167 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p. 21.168Id.169Id.
33
legislative and judicial processes.170 The judges must subordinate themselves to the government
and face extreme pressure to make their decisions conform to CCP directives, otherwise the
judges who do not conform are promptly removed from their posts.171
IV. WaystoSafeguardJudicialIndependence
The following four examples are methods of protecting judicial independence.
A. Constitutional Guarantees The primary way of protecting judicial independence is by including guarantees in a
written constitution172. Constitutional recognition of the judicial power as a separate branch of
government has featured prominently in the U.S. tradition.173 Many modern democracies,
Australia for example, were inspired by the American model, which included such a guarantee in
their formal constitution.174 Article III of the U.S constitution is a pillar of the separation of
powers designed to provide honest judicial independence.175
The constitutional entrenchment clause may be one of the most useful methods for the
safe harbor of judicial independence.176 However, it does not mean if a country does not put this
clause in its constitution, or the country does not have a constitution in the first place, that
judicial independence is at risk; UK, Sweden, and Israel are real examples.177 One problem with
170 Harold Baer, JR., Judges Under Fire Human Rights, Independent Judges, and the Rule of Law,( American Bar
Association, 2011), p. 60. 171 Id.172 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p. 22. 173 Id.174Id.175 Henry J. Abraham, The Pillars and Politics of Judicial Independence in the United States, Peter H. Russell and
David M. O’Brien, (University Press of Virginia, 2001) p. 25. 176 Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p. 22.177Id.
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constitutional guarantees is that they are interpreted and enforced by the judiciary.178 Judges
interpret the constitution, but in the end, judges are human and their own personal interests—
sometimes in a very material sense—may be an issue.179 For instance, when English judges
threatened a court challenge to salary cuts during the 1930s depression, it was suggested that the
case would have to be heard by a panel of retired judges who would have no personal interest in
the case.180
B. Judicial Associations
Judicial officers through their associations or unions can enhance their own rights and
protect them from outside influences. Judge Harold Baer in his book Judges Under the Fire
interviewed Judge Karamarkovic regarding Serbia’s judicial system. When Slobodan Milosevic
attacked the judiciary, Judge Karamarkovic said, “she and others decided that the judges needed
a voice, and she spearheaded the formation of the first Judges Association.”181 Basically, the JA
spoke out against the parties who committed illegal activities, identifying corruption as it
occurred, and demanding increases in judicial salaries.182 Later, because the goals of the JA were
opposite to the goals of the state, reprisals resulted in approximately two thousand judges being
fired.183
C. Open Court Requirement
In order to guarantee the integrity of a trial, the tribunal must be independent and impartial.
Proceedings that are open to the public help the judiciary achieve this goal. Typically,
178Peter H. Russell and David M. O’Brien, Judicial Independence in The Age of Democracy, Critical Perspectives
From the World, (University Press of Virginia, 2001), p. 23.179 Id.180 Id.181 Harold Baer, JR., Judges Under Fire Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p. 83. 182 Id.183Id, p. 84.
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democratic countries have a provision allowing public hearings in judicial proceedings. For
example, court proceedings are generally public in the US legal system. To guarantee a fair and
transparent trial, the judiciary must let the court hearings be public for individuals and
institutions such as NGO’s or the media. Furthermore, records of all public cases should be
published and maintained.
D. Doctrine of the Separation of Powers
Judicial independence and the separation of powers are important principles or doctrines,
and each of them is of fundamental importance to the system by which our society is
governed.184 It may be that judicial independence is not related historically to the doctrine of the
separation of powers, but even if that is so, there is an intimate relationship between the two
doctrines which make it appropriate to consider them together.185 On the other hand, the
principle of an independent judiciary derives from the basic principles of the rule of law, in
particular the principle of separation of powers.186 Within the constitutional framework the
separation of the three main spheres of government are legislative, executive and judiciary. The
manifestation of the responsibilities of each branch include: (a) Legislative authority – power to
make, amend and repeal rules of law, (b) Executive authority – the power to execute and enforce
rules of law, (c) Judicial authority – the power, if there is a dispute, to determine what the law is
and how it should be applied.187
The principle of the separation of powers is the cornerstone of an independent and
184 Hon John Doyle AC, Judicial Independence and the Separation of Powers, Parliament House South Australia,
(Annual Conference, 22 AUGUST 2003) http://netk.net.au/SA/SA16.asp (July 30th 2015) 185Id.186 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p.18. 187 Judge Phineas M Mojapelo, The doctrine of separation of powers (a South African Perspective), (Advocate,
April 2013), p. 37 < http://www.sabar.co.za/law-journals/2013/april/2013-april-vol026-no1-pp37-46.pdf>.
36
impartial justice system and is an essential requirement of the proper administration of justice.188
The Special Rapporteur on the independence of judges and lawyers has underscored that “the
principle of the separation of powers ... is the bedrock upon which the requirements of judicial
independence and impartiality are founded. Understanding of, and respect for, the principle of
the separation of powers is a sine qua non for a democratic State....”.189 In the judgment on the
Constitutional Court (Peru) case, the Inter-American Court of Human Rights says, “one of the
principal purposes of the separation of public powers is to guarantee the independence of
judges.”.190 In addition, The Human Rights Committee related to the principle of separation of
powers as a “lack of clarity in the delimitation of the respective competences of the executive,
legislative and judicial authorities may endanger the implementation of the rule of law and a
consistent human rights policy.”191 Thus, having an independent judiciary from other branches is
a necessary condition for fair judicial decisions and is intrinsic to the rule of law.192
While most often the branches of government work independently, there are times when
two branches can work together to resolve a specific issue, but this does not mean there is no
separation of power. For instance, regarding the power to transfer of a sheriff in Scotland in the
circumstances outlined in section (14)(4) the Sheriff Courts Act 1971, a transfer may be made by
Ministers following consultation with the Lord President, so that would seem the correct balance
when the issue is one of the supply of judicial resources.193
188 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 18-19
189 Id.190 Id.191Id.192 Id, p. 20.193 Strengthening Judicial Independence in a Modern Scotland; A consultation on the unification, appointment,
removal and management of Scotland’s Judiciary, (Scottish Executive, Edinburgh 2006), p. 19.
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V. ElementsofJudicialIndependenceandItsImplicationontheKurdistanRegion Judicial Appointment: Chapter three addresses this in more detail.
Tenure: There is no probationary period for judges in the Kurdistan Region or the other
parts of Iraq. Judges and public prosecutors have life-time appointments. Their permanent
tenure is secure until the age of retirement, which is 65 in Kurdistan, article (64)(1st), the
Judiciary Law of Kurdistan Region-Iraq.
Promotion: There are four categories of judges, levels A, B, C, and D, with A being the
highest and D the lowest. The new judges start at level D.194 After Kurdistan Judicial Council’s
(KJC) approval, judges must serve in one category for a term of five years before they are
eligible for promotion to the next category.195 Several criteria are used by the Judicial Council to
determine the suitability of each judge for promotion. Judges are advanced through the judicial
system on the basis of objective criteria such as ability, integrity, and experience. In order to
promote judges, KJC must receive a candidate report from the chief of appellate courts and a
report of a supervising judiciary regarding to his/her competences, good management, and
behavior.196 Consequently, the KJC issues promotions.197 In case of unqualified candidate, the
KJC can decide to postpone his/her promotion only once based on specific reason for a period of
not less than three (3) months and not more than one (1) year.198
Removal and Discipline of Judicial Officers: The important principles included in the
rules of conduct are partiality, independence, dignity, transparency, equality, competence and
diligence. The Iraqi Constitution in article (97) states, “Judges may not be removed except in
cases specified by law. Such law will determine the particular provisions related to them and
194 Article 40 (1) (Author’s translation) the Judiciary Law of Kurdistan Region-Iraq, No. 23 of year 2007. 195 Id, article 40 (2) 196 Id, article 40 (3) 197 Id, article 40 (4) 198 Id, article 40 (5)
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shall regulate their disciplinary measures.” In this case, the KR judiciary doesn’t have a specific
rule of ethics or judicial conduct for judges, public prosecutors, and lawyers, which does exist in
the rest of Iraq. However, there are provisions in the Iraqi Constitution, the Judiciary Law of
Kurdistan Region-Iraq, the Civil Procedure Law, and the law of criminal procedure that govern
the conduct of judges in the performance of their functions. These provisions are fairly
comprehensive.199 For example, the Iraqi Constitution, article (98)(1), prohibits judges from
holding other employment. Also, article (98)(2) prohibits judges from joining any political party
or organization and from engaging in any political activity.
Furthermore, the provision related to the duties of Judges outlined in Chapter Seven,
articles (52-53) in KJC Law, addresses general conduct. Judges must conduct themselves in an
honest, dignified, and impartial manner; preserve confidentiality of documents and information;
and may not engage in trade or any other work incompatible with judicial functions. Judges who
violate these provisions are subject to the disciplinary measures outlined in article 57-61 of the
KJC Law, which starts with a warning and goes to removal. These provisions are fairly
comprehensive. Members of the judiciary are considered civil servants and must adhere to laws
regarding misconduct as do all civil servants. Also, the Law of Civil Procedure No. 83 of 1969
addresses the issue of conflict of interest.
Specifically, there is no written code of ethics in the Kurdistan Region for judges,
public prosecutors or lawyers. However, many ethical concepts have been incorporated
into the legal system as binding provisions which the judges must observe and apply in the
performance of their functions. 200 For instance, the Iraqi Constitution includes this
199 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 24.200 Id.
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provision, “A judge or public prosecutor is prohibited from joining any party or political
organization or performing any political activity.”
Judicial Conduct Complaint Process: As stated previously, there is no clear guide to
delineate what is unethical and how to pursue a complaint, but there are provisions within the
penumbra of the law to file a complaint alleging judicial misconduct.201 Only the litigant and
their lawyers (not including other judges, public prosecutors, or lawyers) have a right to file a
complaint against a judge who is alleged to have violated judicial ethics provisions in any
case.202
In civil cases, according to the Civil Procedure Law, each of the litigants may file a
complaint against the judge presiding in that case, article (286) Further, the complaint shall be
made by a petition to the Court of Appeal to which the judge in question is connected, or to the
Court of Cassation if the judge is an appeal court judge, article (287)(1). The petition shall be
signed by the complainant or his attorney pursuant to a special and notarized power of attorney,
article (287)(2). Complaints must be based on legally specified grounds, such as fraud or serious
error in the exercise of a judge’s functions, article (286). The accused judge has the right to rebut
the accusations and the right to appeal the decision before the Court of Cassation, articles (290,
292).203 The time limit for judges to file such an appeal is (30) days, article (204).204
Adequate Compensation: As stated above, the Iraqi Constitution does not allow judges
to have an additional job, article (98)(1st); specifically, judges or public prosecutors may not
combine their position with a legislative or executive position. The state must set a sufficient rate
of pay to ensure the independence of judges and public prosecutors in their decisions.
201 Id, p. 25. Read more in Civil Procedure Law, articles 286-292. 202 Id.203 There is no official statistic on complaints brought against judges by litigants. However, per a conversation with
the speaker of the KJC, Judge Omed, on 08/08/2015 and he has no knowledge of any judge ever facing charges. 204 Id.
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Accordingly, salary reform is a positive factor in retaining judges and public prosecutors
in the Kurdistan Region, which provides an income sufficient to support a dignified standard of
living without an additional source of income.205 This improvement has attracted accomplished
lawyers in private practice and other legal professionals to become judges and public
prosecutors.206
The Judiciary Law of Kurdistan Region-Iraq does not specify a salary range, but article
(39) requires the states “ determine by law the salaries and allowances of the Judges of the Court
of Cassation and other judges.” Also article (38) grants the “chief of Court of Cassation, chief of
Judiciary Council as well, has a rank of minister207 and earns the salary and allowances of
mister.” According to the data, Judges and Public Prosecutors in addition to their salary, receive
a special allowance equal to 150% of their basic salary and a risk allowance equal to 50% of
their basic salary. The following table shows the current total monthly compensation paid to
Judges and Public Prosecutors in the Kurdistan Region:
Judicial Compensation in the Kurdistan Region208
Category Salary (IQD)
Special Allowance
(IQD)
Risk Allowance (IQD)
Total (IQD)
Total (USD Equivalent)209
One 2,250,000 3,375,000 1,125,000 6,750,000 $ 5,532
Two 2,000,000 3,000,000 1,000,000 6,000,000 $ 4,918
Three 1,750,000 2,625,000 875,000 5,250,000 $ 4, 303
Four 1,500,000 2,250,000 750,000 4,500,000 $ 3,688
205 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.16. 206Id.207 This position is well known as a secretary of a government department, like Secretary of State in the US. 208 I received this data from the speaker of KJC, Judge Omed, on 08/08/2015. 209 The rate is $100=122000 IQD, on 08/08/2015.
41
For the past two decades, in addition to the stated compensation package, judges and
public prosecutors are also entitled to a car and a plot of land for a house from the government
“executive branch.” Conversely, in Serbia, Judge Karamarkovic showed one way President
Milosevic influenced the judiciary in controlling justices to follow his party line was by
rewarding judges with “…condos, apartments, good credit ratings and professional
advancement” to get rulings advantageous to his party line.210 Hence, judicial officers must be
very careful before accepting any allowance from another branch and there must be strict laws
regarding this.
Vacations: Judges and public prosecutors are also entitled to vacation with full benefits,
which is calculated as one day for every eight days worked, KR Judiciary Law article (44)(1st)
not to exceed (30) days a year. Unused vacation can be accumulated and used in later years
according to article (44)(2nd and 3rd).
Judicial Security: Judges and public prosecutors are protected from any risk of threat,
such as harassment, assault, and assassination. Each judge or public prosecutor is assigned two211
guards to provide security to him/her, unless they refuse the security guards. The Kurdistan
Ministry of Interior provides these guards. Additionally, the Judicial Police, also directed by the
Kurdistan Ministry of Interior, is responsible for protection of court facilities. Fortunately, judges
and public prosecutors in the Kurdistan Region have not suffered assassinations which their
colleagues in Baghdad experience routinely.212
210 Harold Baer, JR., Judges Under Fire; Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p. 82. 211 This number assigned for the regular judges and public prosecutor and it must be different with the higher rank of
judge like Cassation Court Judge. 212 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.18. Updated this
information by the speaker of KJC, Judge Omed, on 08/08/2015.
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Minimum Qualification: The requirements to become a judge or public prosecutor
addressed in a separate chapter entitled “Judicial Appointment”.
Continuing Legal Education: After getting a law degree and completing KJI training,
there is no required continuing legal education (CLE) for judges or public prosecutors in
Kurdistan and in the rest of Iraq, which may hinder them from keeping up with developments in
the law.213 However, according to article (41)(2nd) to be eligible for promotion from one category
to the next, judges must submit legal research. In fact the research becomes a legal-academic
source and been used by the other researchers.
Minority and Gender Representation: Ethnic and religious minorities in both genders
hold positions in the judiciary. Article (16) of the 2005 Iraqi Constitution, which applies in
Kurdistan, guarantees equal opportunity. Unfortunately, neither the JI Law nor the Judiciary Law
in the Kurdistan Region stipulate any provision prohibiting discrimination or prejudice in the
judicial field on the basis of minority status or gender. Also, the JI Law does not assure any seats
for religious or ethnic minorities in the Institute to become a judge or public prosecutor in the
future. Currently there are (19) female judges and (51) female public prosecutors in total in the
Kurdistan Region.
Judicial Immunity for Official Actions: According to article (64) of the Judiciary Law
Kurdistan Region “Judges shall not be prosecuted or arrested for a crime before obtaining
approval by the Judicial Council, unless the judge is caught in the act of willfully committing a
felony.” In Kurdistan, as is the case in the rest of Iraq, judges are assured immunity from criminal
prosecution. Even though, judges and public prosecutors have immunity for actions taken, but
they can be sued in civil cases on specific grounds.214
213 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 10. 214 Id, p. 20.
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Financial Autonomy and Sufficient Resources: The Iraqi Constitution in article
(91)(Third), states the Higher Judicial Council has the authority “to propose the draft of the
annual budget of the federal judicial authority, and to present it to the Council of
Representatives for approval.” In addition, the Judiciary Law of Kurdistan Region-Iraq, article
(4), states “the Judicial Power has its own budget; it has prepared by the judicial council, is then
sent to the Kurdistan National Assembly for approval, and then becomes part of the general
regional budget.”215 In addition, article (62) states that the KJC’s budget consists of “the fines
and fees charged for judicial services, and the amount of funds provided to the judiciary as part
of the annual budget assigned in the Kurdistan Region’s budget”.216 So, the KJC is responsible
for all aspects of the administration of the judiciary including paying the salaries of the judges
and other court staff.
VI. SafeguardtheJudicialIndependenceintheKurdistanRegion
Constitutional Guarantees: The Iraqi Constitution generally guarantees the principle of
judicial independence. For instance, article (19)(1st) states “The judiciary is independent and no
power is above the judiciary except the law.” This indicates no power shall have the right to
interfere in the judiciary and the affairs of justice. According to article (87) “ The judicial power
is independent. The courts, in their various types and levels, shall assume this power and issue
decisions in accordance with the law.”217 Indeed, article (2) in the Judiciary Law of Kurdistan
Region-Iraq No.23 of 2007 repeats the exact text of the article (19)(1st) of the Iraqi Constitution.
Regarding the elements of judicial independence and its implications of the Kurdistan Region.
The Iraqi Constitution and Kurdistan Judiciary Law guarantee the principle of judicial
215 Author’s translation. 216 Author’s translation.217 The Constitution of Iraq - UN/US/UK agreed translation of Constitution 25 January 2006. See http://gjpi.org/library/primary/iraqi-constitution/
44
independence. For instance, article (88) in the Iraqi Constitution states that “Judges are
independent, and there is no authority over them except that of the law. No power shall have the
right to interfere in the judiciary and the affairs of justice.” On the other hand, the Judiciary Law
of Kurdistan Region doesn’t specifically cite such provision related to independent of judges, but
it states “The judiciary is independent and no power is above the judiciary except the law,” in
article (2).218 Theoretically, article (98)(2nd) prohibits judges and public prosecutors from joining
any political party or organization and performing any political activity.
In practice, the system in Kurdistan Region, or in Iraq as a whole, does not implement all
these constitutional principles. The country, like other countries where the rule of law has been
breached, has mostly ignored the principles of judicial independence. For example, personal
interests related to family, ethnicity, religion, politics, and tribal affiliations are strong and
prevalent in Kurdistan. While it is not possible to measure the effect these forces have,
absolutely they influence judicial decisions.219
Judicial Associations: There is a professional judicial association in the Kurdistan
Region. The Kurdistan National Assembly passed a Statute No.16 of 2006, known as the Judges
Union Law of Kurdistan Region-Iraq. This union is open to judges only pursuant to the article
(5)(1st)(A) as the public prosecutors have not been permitted to join the association. In contrast,
the Iraqi Judiciary Association, was formed in Baghdad in June 2006, and is open to both judges
and prosecutors.220
Further, article (4) outlines the objects of the KJU. The KJU aims to: develop rule of law
and judicial independence in order to prevent under influence; guarantee the rights of judges;
218 This article is identical of article (19)(first) in the Iraqi Constitution. 219 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 23. 220 Id, p. 22.
45
maintain the reputation and status of the profession; improve the judges knowledge and
encourage them to do legal researches and provide training courses inside and outside the region;
improve the standard of their life…; join the international judges unions…; cooperate with the
executive and legislature branches in order to develop the judiciary; guarantee the constitutional
rights and respect for individuals; and participate in enhancing legislation. Unfortunately, there is
not any data to prove that they have achieved any of these goals.
Open Court Requirement: According to the article (7) in the Judiciary Law of KR, the
court proceedings, as elsewhere in Iraq, are generally open to the public unless the court decides
that closing the court in necessary to protect public interest and morals or respect the unity of
family.
Public and Media Access to Proceedings: This article gives a flexible power to the
judge to close court proceedings, if found to be necessary, so in most of the important cases the
court decides the proceeding should be closed.221 In addition, judges and public prosecutors
cannot grant any media interviews except the public information officer (speaker) of KJC and
Public Prosecutor.222
Publication of Judicial Decisions: The KR Judiciary has no obligation to publish their
decisions, so most of the time there is no publication of the judicial decisions.223 On the other
hand, there is no prohibition for the courts if they choose to publish their decisions, but
unfortunately they do not publish yet.224 Indeed, the KJC website225 published some decisions
and occasionally the legal magazines or individual judges has published some decisions of the
221 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 25. 222 Id.223Id, p. 26224 Id.225 See the judicial decisions: http://krjc.org
46
Court of Cassation.226 Access to get an official record of judgments is restricted to the parties in
the case and judges only. According to the Civil Procedural Law, article 163(2), “A third party
may not be given a copy of the judgment except pursuant to an order on a petition made by the
judge, commissar or the head of the court’s panel”.
Maintenance of Trial Records: In the Kurdistan Region transcripts of court proceedings
are maintained for fifteen years after a decision is rendered, as they are in rest of Iraq.227 They
are generally accurate and are accessible to the political parties but the general public does not
have the right to view them.228
Doctrine of Separation of Powers: After the creation of the first Kurdistan Government
cabinet in1992, the Ministry of Justice (MoJ) was included as part of its structure. Later, the
KNA passed the Judiciary Law No.14 of 1992, which did not respect the separation of powers
because it made the Judiciary of the Kurdistan Region part of the MoJ229. The KR judiciary
continued with this structure until 2007. Fortunately, the KNA passed the Judiciary Law of
Kurdistan Region No. 23 of 2007. Since this statute was passed, the KR has had a judiciary
separate from the executive and legislature branches.230.
226 For instance, THE LAWYER’S MAGAZINE and BALANCE MAGAZINE published some decisions, but they
must not assign with fully name of the parties. 227 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 26.228Id, p. 27.229 Judge Othman Y. Ali, Iraqi Kurdistan Judicial System and comparative with the German Federal judicial
system, Judge Magazine, (Kurdistan Judges Union, 2010) p.17. (Author’s translation) 230 Article (2), and (4) in the Judiciary Law of Kurdistan Region-Iraq No.23 of 2007.
47
Chapter Three: Judicial Appointments Judicial independence is a main goal of most legal systems, and systems of judicial
appointment are seen as a crucial mechanism to achieve this goal.231 Individuals of varying
professional status work for the judiciary. Generally, countries can be divided into three groups
with regard to their qualifications for the position of judge.232 First, in the countries where the
judiciary is a career, judicial recruits come almost exclusively from the ranks of university law
graduates. Denmark, Germany, Greece, Hungary and Japan are examples.233 The second group
of countries combines career judges with judges appointed from experienced legal professionals.
Examples include Belgium, the Netherlands, Serbia, Montenegro, and Spain.234 The final group
of countries includes India, South Africa and the United Kingdom. They appoint from judges
exclusively from the ranks of the legal practitioners.235
I. Models of the Judicial Appointment
Countries also follow different models on the judicial selection process. Typically the
highest power of the state appoints judges as a formal matter, but the process of nomination or
actual selection is done by another institution, such as the executive, legislative, or the judiciary
branch itself.236 In Thailand, the judiciary plays the primary role in candidate selection. They
prepare and administer the judicial exam. Candidates must first pass this exam and serve a one-
year term as an apprentice judge. The King then makes the official appointment decision.237
Generally, the systems of judicial appointments come in four basic configurations: 231 Judicial Appointments and Judicial Independence, (United States Institute of Peace, January 2009), p. 1. 232 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.6. Read more: http://www.ejcl.org/113/article113-24.pdf .
233 Id.234Id.235Id, p. 7.
236 Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p.2. 237Id.
48
A. Appointment by Political Institutions
A mechanism of political appointment has different models.238 Constitutional or
Supreme Court appointments occur though either “representative” system or a “cooperative”
model.239
A representative system selects a certain percentage of the court by several political
institutions.240 For instance, in Italy and South Korea, the constitutional court is formed by
1/3 of the members being appointed by the president, 1/3 by the legislature, and 1/3 by the
Supreme Court. This model focuses on the collective nature of the court to safeguard
independence and accountability.241
A cooperative system appointment must occur through two or more institutions
cooperatively.242 For example, in the US, Brazil and Russia, Supreme or Constitutional Court
Justices are nominated by the president (executive) and are approved by a majority vote in a
house of the legislature. This model gives a chance to bring very qualified and modern
justices to the bench because the candidate needs to have a supermajority of support.243 The
appointment requires the agreement of different institutions to go forward, so if there were
political conflicts, the appointment would likely not be made at all.244
This system is criticized because it is possible for a single political institution to
dominate appointment. In Germany appointments for the Constitutional Court require a
supermajority of two-thirds vote. Thus the system allows the majority party to virtually hold
238 Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p. 2. 239Id.240 Id.241Id, p. 3.242Id.243Id. 244Id.
49
permanent placements on the Constitutional Court.245
In short, the system of appointing judges by the political institutions leans toward
accountability rather than independence.246 Further, political actors are involved in
appointing judges in this system.247 Requiring a supermajority and cooperation between
multiple institutions makes the appointment process take longer, but it tends to lead toward a
modern and more diverse judiciary. Id.
B. Appointment by the Judiciary Itself In this system the judiciary is self-appointing. For example, in India, while the president
appoints judges, it is done only after consulting with judiciary, so the judiciary becomes
practically self-appointing.248 Another example of a country with a self-appointing judiciary is
Japan. Although Supreme Court judges are appointed through a political process, the Supreme
Court Secretariat has complete authority to appoint, train, promote and discipline lower-level
judicial officers.249 This system provides maximum independence for the judiciary as a whole,
but the criticism of the Japanese judiciary is that individual judges at higher-levels may be less
independent, and the political parties can control the judiciary.250
Scotland provides another example of a judiciary appointing itself. The Lord President251
is responsible for appointing judges of the Court of Session but has no responsibility for the
245Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p.3246 Id. p. 4. 247 Id. 248Id. 249Id. 250Id.251 The Lord President of the Court of Session is the most senior judge in Scotland, the head of the judiciary, and the
presiding judge of the College of Justice and the Court of Session.
50
appointment of sheriffs252, other than the limited role of assigning sheriffs who can be appointed
temporary judges to act as such from time to time.253 Indeed, the Principle Sheriff has
responsibility for appointing sheriffs within his or her sheriffdom.254
The primary criticism of the judiciary appointing itself is that it provides very little
accountability, and the judicial officers have become extensively involved in politics.255
C. Appointment by a Judicial Council
This system is designed to let judges manage their own affairs including appointment,
promotion, and discipline.256 This system insulates judicial functions from the partisan political
process while ensuring some level of accountability.257 Judicial councils are very popular and
roughly 60% of countries have adopted them in some form, including Iraq and Kurdistan
Region.258
In the US system, most of the states adopted the judicial council called a “merit
commission,” which is a mixed body to nominate judges for appointment by politicians, and
were created in reaction to systems of partisan judicial elections.259 This model creates a balance
between demands for accountability and independence. For instance, in France and Italy, the
judicial council was designed to enhance independence in the early period of limited
democracy.260 Some judicial councils play a role in judicial appointments, others manage
252 Sheriffs deal with the majority of civil and criminal court cases in Scotland. The main role of sheriffs is to sit as a
trial judge, though they do have some appellate functions. See < http://www.scotland-judiciary.org.uk/36/0/Sheriffs>
253 Strengthening Judicial Independence in a Modern Scotland; A consultation on the unification, appointment, removal and management of Scotland’s Judiciary, (Scottish Executive, Edinburgh 2006), p. 18.
254Id.255 Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p. 4.256Id.257 Id.258 Id.259Id, p. 5.260Id.
51
judiciary budgets. Some, like the Judicial Council in Kurdistan Region, do both.261
D. Selection through an Electoral System
Selecting judges through direct election by citizens is common in some judicial systems.
Electoral systems gained popularity in the 19th century to enhance accountability of the
judiciary.262 These systems differ in two ways—whether or not the election is partisan, and
whether elections are used for initial appointment or only for retention.263
In the US system for example, a partisan election allows judges to run on a party ticket264
while non-partisan elections do not allow party affiliation. Currently eight states265 have partisan
elections and (13) 266 states have non-partisan elections for State Supreme Court justices.267
In retention elections the public decides whether to retain the judge on the basis of his or
her judicial record.268 Retention elections can be used for non-initial appointments. For example,
in Japan the supreme court appoints lower judges, but they are subject to recall election every ten
years; although no judge has ever been recalled.269 Only rarely have judges been recalled as a
punitive measure by the public in the US. In one famous incident, three members of the
California Supreme Court were recalled in 1986 because of their vocal opposition to the death
penalty.270 “Chief Justice Rose Bird voted to overturn every death sentence pronounced by a
lower court. This led to the successful campaign to recall her and is an example of judicial 261Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p. 5.262 Id, p. 6. 263Id. 264Id.265 Bill Raftery, 8 states continue to have partisan elections for their top courts; a look at legislative efforts to move
to nonpartisan, (Gavel to Gavel, March 9, 2015 ), http://gaveltogavel.us/2015/03/09/8-states-continue-to-have-partisan-elections-for-their-top-courts-a-look-at-legislative-efforts-to-move-to-nonpartisan/ (07/24/2015).
266 Non Partisan Election of Judges, (Ballotpedia) http://ballotpedia.org/Nonpartisan_election_of_judges (07/24/2015).
267Id.268 Id.269Id.270Non Partisan Election of Judges, (Ballotpedia) http://ballotpedia.org/Nonpartisan_election_of_judges
(07/24/2015).
52
accountability.”271 Appointing judges through an election system promotes accountability to the
public.272
Selecting judges through popular vote is more democratic and transparent than
appointment by a designated body. The terms of judges between elections is different from
country to another. For example in the United States the terms between elections are usually
between (6) and (14) years.273 Governors appoint temporary candidates to fill vacancies between
election cycles.274
Russia selects judges by the public vote, generally in two ways.275 For the courts that
have public jurisdictions, people vote directly and secretly to select their judges who hold five-
year renewable terms. The rest of the judges are selected through indirect election by elected
representatives for terms of varying lengths.276
The public sometimes believes the judicial election system is more democratic and would
provide diversity in judicial appointments, but it brings with it issues related to the suitability of
the candidates elected, political influence, financial support, and the relative length of the
process.277 For instance, the costs of judicial elections are increasing and judges must raise
money for their campaigns, which can lead to politicization of the judiciary.278 In addition,
judicial elections lead to the bench unqualified people who are attracted by the power, money or
name recognition.279 In an actual case in Washington State, a small-town lawyer with little
271 Non Partisan Election of Judges, (Ballotpedia) http://ballotpedia.org/Nonpartisan_election_of_judges
(07/24/2015).272Id.273 Id.274Id.275 Dr. Jaber Fahmi Imran, Judicial Independence; comparative study, (Dar elgamaa elgadida, Askandria 2015) p.
426. 276 Id.277Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p. 7.278 Id.279 Id.
53
experience shared a name with a popular judge.280 He ran for the State Supreme Court and won;
he also was re-elected twice.281
There are other problems with using the popular vote to select judges. The Human Rights
Committee expressed concern “about the impact it may have on the implementation of the rights
provided under article (14) of the Covenant [on the right to be tried by an independent and
impartial tribunal]” and welcomed “the efforts of a number of states in the adoption of a merit-
selection system.”282 Furthermore, the Committee recommended that the system of “appointment
of judges through elections be reconsidered with a view to its replacement by a system of
appointment on merit by an independent body”283.
Realistically, no matter which of these major systems of judicial appointment is in
place—appointment by political institutions, by the judiciary itself, by judicial council or by
direct election—there is always the possibility of political forces outside or within the judiciary
trying to influence the course of adjudication by putting persons “susceptible to influence” on the
bench.284
II. Independence
Strong filters and strict rules for appointing judges promote an independent and impartial
judicial system. The process of appointing judges must be transparent and integrated to provide
280 Judicial Appointments and Judicial Independence, (United States Institute of Peace. January 2009), p. 7.281 Id, p. 8.282 Merit selection is a way of choosing judges that uses a nonpartisan commission of lawyers and non-lawyers to
locate, recruit, investigate, and evaluate applicants for judgeships. The commission then submits the names of the most highly qualified applicants (usually three) to the appointing authority (usually the governor), who must make a final selection from the list. For subsequent terms of office, judges are evaluated for retention either by a commission or by the voters in an uncontested election. See more on Merit Selection: The Best Way to Choose the Best Judges, doc. http://www.judicialselection.us/uploads/documents/ms_descrip_1185462202120.pdf (07/08/2015).
283 José Zeitune, The independence and Accountability of Judges, Lawyers and prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007) p.46.
284 Peter H. Russell, Toward a General Theory of Judicial Independence, Judicial Independence in The Age of Democracy, Critical Perspectives From the World, Peter H. Russell and David M. O’Brien, (University Press of Virginia, 2001), p. 16.
54
equal opportunity for candidates and to bring autonomous judges to the bench. What conditions
allow a judge to be independent? Simply, a combination of personality and job security; the
personality comes in large measure from a combination of influences: parents, teachers, inspiring
role models, and a good grasp of human history. Job security insulates and protects judges from
outside pressures—from officials, politicians, and the news media.285
The fundamental requirement for judicial independence is that judges at all levels should
be officers of the judiciary and not subordinate or accountable to other branches of
government.286 For example, in Findlay v. The United Kingdom, the European Court of Human
Rights considered “court martial was neither independent nor impartial because its members
were hierarchically subordinate to the officer discharging the function of both ‘convening
officer’ and prosecutor, who, in his capacity as ‘confirming officer’ was also authorized to
change the sentence that had been imposed.”287.
It is not enough to evaluate the quality of judges based on their knowledge of legal
materials, precedents and procedures, but it is also important to examine the personal character
of the judge.288 Justice and fair decisions are achieved only when the judge has strong personality
and believes in the judicial process, so called “committed judge”.289 This does not happen unless
a judge is aware of the political and social philosophy of the State.290 Thus, committed to rule of
law, educated judge, obligated judge, and independent judge, are factors of guaranteed
“achieving justice”.291
285 Harold Baer, JR., Judges Under Fire; Human Rights, Independent Judges, and the Rule of Law, (American Bar
Association, 2011), p.117. 286 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 25. 287Id.288 Dr. Munzer Al-Shawi, State of Law, (Al-thakera for Publishing and Distribution, Baghdad, 2013), p.234. 289 Id.290Id.291Id, p. 235.
55
There is no precise international standard method of appointing judges.292 In this area,
states have different perspectives and a certain degree of discretion. So Judicial Selection must
be based on the candidate’s professional qualifications and personal integrity.293 Hence, there are
two essential issues related to the appointment of judges: First, international law stipulates that
“clear guidelines should be applied the appointment” The second issue concerns which body is in
control of appointing the judiciary.294 The fundamental guarantee in processing judge’s
appointment must respect judicial independence (both institutional and individual) and
impartiality (both subjective and objective).295 This requirement derives from the principles of
separation of powers and checks and balances.296
Regarding appointment criteria, international law specifically excludes some criteria—for
example the candidate’s political beliefs, race, or color.297 The UN Basic Principles in
Qualifications, Selection and Training Section, Principle 10, states:
“Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the ground of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.298”
Similarly, the Universal Charter of the Judge stipulates that: “The selection and each
appointment of a judge must be carried out according to objective and transparent criteria based
292 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 41. 293Id.294 Id.295 Id.296 Id.297Id.298 Basic Principles on the Independence of the Judiciary, doc. Cit., Principle 10 Available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
56
on proper professional qualification.”299 The European Charter on the Statute for Judges also
excludes improper criteria.
“The rules of the statute [...] base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity. The statute excludes any candidate being ruled out by reason only of their sex, or ethnic or social origin, or by reason of their philosophical and political opinions or religious convictions.300”
African Principles and Guidelines on the Right to a Fair Trial establishes that:
“The sole criteria for appointment to judicial office shall be the suitability of a candidate for
such office by reason of integrity, appropriate training or learning and ability”. Furthermore, the
Guidelines refer to the essential skills a candidate must possess: “No person shall be appointed
to judicial office unless they have the appropriate training or learning that enables them to
adequately fulfill their functions”301. In the Asia-Pacific region, the Beijing Principles also
contain a provision against discrimination with a similar caveat on nationality.302
In addition to the judge’s position, countries have their own paths to appoint different
ranks of judges or to determine how to become a judge. For example in the Netherlands, in
addition to professional judges, there is a category of deputy judge, consisting of lawyers “with
relevant professional experience who take part in the administration of justice on an incidental
basis.”303Another example, Serbia and Montenegro have in addition to professional judges, lay-
judges who work primarily in different professions and they cannot be “lawyer[s], or anyone
299José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 42.300 European Charter on the statute for judges, op. cit., operative paragraph 2.1. The Charter further envisagesthat
“The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.”
301 José Zeitune, The independence and Accountability of Judges, Lawyers and prosecutors, International Commission of Justices, Geneva, Switzerland, (Practitioners Guide No.1, 2007), p.42.
302Id, p. 43.303 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.7. <http://www.ejcl.org/113/article113-24.pdf>.
57
providing legal services for compensation” but who enjoy “all rights and responsibilities of a
professional judge.”304
The Kurdistan Region has the position of Judicial Investigator, sometimes called Judge’s
Assistant. Judicial investigators have a legal educational background; they assist judges with
their work, and also prepare themselves for promotion to the next professional level of official
judge.
The path to be a judge is not uniform in every country. In Hungary law school graduates
have an opportunity to be appointed to the bench as “junior clerks” for a three-year
apprenticeship period, and they gain skills during this period in all areas of judicial work
including drafting sentences.305 During this experience they are evaluated on various aspects
such as personal capabilities, character and talent; and they take medical and psychiatric
examinations.306 In Belgium this period of training is not exclusive to be judges, but is also
followed by would-be public prosecutors and in the case of Japan would-be advocates as well.307
In the Japanese Supreme Court one-third of professional judges have gone through this period of
practice, the other members are drawn from the ranks of practicing lawyers, prosecutors and
administrators plus one professor of law.308
In South Africa the traditional practice of appointing judges from the ranks of senior
counsel has been modified to include appointment from the ranks of practicing attorneys, legal
academics and magistrates.309 The appointees to the Constitutional Court must be South African
citizens, and according to the constitution be “an appropriately qualified man or woman who is a 304José Zeitune, The independence and Accountability of Judges, Lawyers and prosecutors, International
Commission of Justices, Geneva, Switzerland, (Practitioners Guide No.1, 2007), p.43.305 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.7. <http://www.ejcl.org/113/article113-24.pdf>. 306 Id.307 Id.308 Id, p. 8.309Id. p. 8.
58
fit and proper person to be appointed.”310
In some countries, there are differences between the appointment to the Supreme Court
and appointment to the regular courts. For instance, the High Court Judges in the United
Kingdom must select from “the senior barristers of at least 10 years’ standing”.311 In Japan, the
Constitutional Court Judges must be confirmed at “ten-yearly intervals at the general
parliamentary elections, and regular judges selected by the Supreme Court from the persons who
have completed the professional training for 10 year renewable term.312 Hungary’s Supreme
Court’s president is elected by a two-thirds majority of the Parliament upon the recommendation
of the President of the Republic.313
In the United States both executive and legislative branches, play a role in judicial
selection. Presidents “nominate, and by and with the Advice and Consent of the Senate, [to]
appoint ... Judges of the Supreme Court.”314 The other federal judges appointments go through
the same process.315 This is part of “the Constitution’s scheme of checks and balances.”316
Conversely scholars might hold a different perspective and interpret this as direct influence by
the President and Congress on judicial decision-making.”317
In South Africa, the President and Deputy President of the Supreme Court of Appeal are
appointed by the President of the Republic with the advice of the Judicial Service
310John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p. 8. 311Id. 312 Id. p.11.313Id.314 The United State’s Constitution, article II, Section (2). 315 John Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC
JOURNAL OF COMPARATIVE LAW, (December 2007), p.12. 316 Id.317 Id.
59
Commission.318 By convention, judges of the Court are appointed from the ranks of High Court
judges. The need for the judiciary to reflect broadly the racial and gender composition of the
country must be considered when judicial officers are appointed.319
In Denmark, the “Appointment of Judges Council” recommends candidates for the
Supreme Court who then participate in four ‘test’ cases; this is considered the last safeguard
against unsuitable candidates.175 In Hungary, a judge’s work is evaluated “before indefinite
appointment and then at six and twelve year intervals following that.”320 Further, if the judge’s
ability is in question, he/she may be asked for an additional evaluation by the President of the
Regional, Appeal or Supreme Court or their designee who conducts this evaluation.321
III. AppointmentProcedure
The major threat to judicial independence comes from political manipulation of the hiring
or promotion process to create ideological conformity.322 Surely, this can happen often when
there is lack of transparency in the appointment process and political parties can easily hire their
political and social friends. To avoid having a politically unbalanced judiciary, the liberal
democracies recommend creating balance by building social and political pluralism into their
judicial appoints.323 For instance, South Africa has carefully structured the Judicial Service
Commission to give the pluralism and transparency in the judicial appointments by the
combination of judicial independence with democratic responsiveness in the multiracial
318 Supreme Court of Appeal of South Africa, Appointment of judges, (Updated: 22 May 2015)
http://www.justice.gov.za/sca/aboutsca.htm (08/03/2015). 319Id.320 Id.321 Id.322 Peter H. Russell, Toward a General Theory of Judicial Independence, Judicial Independence in The Age of
Democracy, Critical Perspectives From the World, Peter H. Russell and David M. O’Brien, (University Press of Virginia, 2001), p.17.
323Id.
60
constitutional democracy.324
International law does not lay down one single appointment procedure. In general terms,
it is preferable for judges to be elected by their peers or by a body independent from the
executive and the legislature325. For instance, for example, the European Charter on the Statute
for Judges stipulates that:
“In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary326”.
On the other hand, the African Guidelines support the idea of an independent body
entrusted with selecting judicial officers, but allow for other bodies, including the other branches
of power, to perform this function as long as they comply with certain criteria:
“The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.”327
Furthermore, the European Court of Human rights has dealt with cases in which the
independence and impartiality of a tribunal was challenged due to the manner in which its judges
had been appointed. For example,
“In Incal v. Turkey, the Court had to determine the impartiality of the tribunal that had convicted Mr. Incal. The defendant argued that the presence of a military judge violated his right to be tried by an independent tribunal because the said judge was subordinated to the executive. The
324Peter H. Russell, Toward a General Theory of Judicial Independence, Judicial Independence in The Age of
Democracy, Critical Perspectives From the World, Peter H. Russell and David M. O’Brien, (University Press of Virginia, 2001), p.17.
325 Id. p. 45 326 Id, p.42. See more: European Charter on the statute for judges, op. cit., operative paragraph 1.3. 327 Id, p.43. See more: Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, op. cit.,
Principle A, paragraph 4 (h). See also the Beijing Principles, Principles 13 to 17 and the Latimer House Guidelines, op. cit., principle II.1.
61
Court ruled that “In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. [...] In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified.” The Court concluded that Mr. Incal “could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case” and, therefore, that he “had legitimate cause to doubt the independence and impartiality of the [...] Court”328.
In South Africa, for example, when appointments have to be made, the Judicial Service
Commission (JSC)329publishes a notice within the details of the vacancies that exist and calls for
nominations then shortlists suitable candidates for interviews.330 Fortunately, professionals and
members of the public have the opportunity to comment prior to the interviews or to make
representations concerning the candidates to the commission.331 The interviews are conducted in
public.332 Afterward, the JSC deliberates and makes its decisions in private and its
recommendations are communicated to the president, who then makes the appointments.333
Further, the President appoints other judges on the advice of the JSC, but in the case of the chief
justice and the deputy chief justice, the leaders of parties represented in the National Assembly are
also consulted.334
A mechanism for increasing accountability is to facilitate judicial transparency. In many 328 José Zeitune, The independence and Accountability of Judges, Lawyers and prosecutors, International
Commission of Justices, Geneva, Switzerland, p. 44, Practitioners Guide No.1, 2007. Also in its cite states (Incal v. Turkey, op. cit., paras. 71-73. See also Sahiner v. Turkey, ECtHR judgment of 25 September 2001, Series 2001-IX, paras. 45-46, where the Court said that “where, as)
329 The JSC was established in term of Section 178 of the South African Constitution, and its function is to select fit and proper persons for appointment as judges and to investigate complaints about judicial officers. It also advises government on any matters relating to the judiciary or to the administration of justice.
330 The Judicial Service Commission, Department of Justice and Constitutional Development <http://www.justice.gov.za/faq/faq-jsc.html>
331Id.332Id.333Id.334Id.
62
countries, bar associations, media, and non-governmental organizations play a role in monitoring
appointment process. To increase accountability of the process, the judicial appointment process
should be open, with candidate names and qualifications being made public.
IV. JudicialAppointmentintheKurdistanRegion
A. Appointing Judges in the Kurdistan Region
Judges and prosecutors are appointed through the same process. As a principle, the Iraqi
Constitution points out that Judges must be independent, article (88) states “Judges are
independent, and there is no authority over them except that of the law. No power shall have the
right to interfere in the judiciary and the affairs of justice.”
1. Phases of Judicial Appointment
There are different phases to the appointment of Judges and prosecutors in the Kurdistan
Region. First, Prior to 1991 when the Kurdistan Region was part of Iraq the structure of the court
system was identical to the rest of the country. During this period, the training of Kurdish
judicial candidates was conducted at the Judicial Institute (IJI) in Baghdad335. The JI prepared
the judiciary officers such as judges and prosecutors and other legal officials. It is part of the
Iraqi Ministry of Justice (IMoJ), established according to the Judicial Institute Law No. 33 of
1976.
During the second phase from 1991 to 2007, there was an absence of coordination
between the KR and the central –government so most of the bench, new judges, did not graduate
from JI. Thus, during this period, the KR executive power appointed the judges and public
prosecutors directly from the ranks of practicing lawyers and officials working in the legal
335 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.4.
63
departments of government offices336. Unfortunately, the lack of high legal knowledge combined
with the influence of political domination created a set of legal officers without a high degree of
legal knowledge.
Lastly, after the Judiciary Law passed in 2007, the KJC was granted the exclusive
authority to appoint judges337and in cooperation with the KMOJ to appoint public prosecutors.
Thereafter, in 2009 the KNA passed the Judicial Institute Law of Kurdistan Region-Iraq, No. 7,
which created the Kurdistan Judicial Institute (KJI). In fact, this legislation has for the first time
made a legal education, a completed law degree, a prerequisite to judicial appointment as a judge
or public prosecutor. Article (2)(1) states the main aims of this institute are to prepare the judges,
public prosecutors, and lawyers. Article (2)(2) provides for the training of judges and public
prosecutors, only category A and B, who are already in service. Thus, enhancing the capacity of
many legal officials. The institute is part of the KMoJ. However, since the law passed in 2009
and up to 2013, the institute could not offer this opportunity to judges and public prosecutors.
Despite having a provision in KJI that judicial appointments must be the graduates from KJI, the
Kurdistan Judicial Council appointed another group of judges and prosecutors.338 Precisely, the
KJC appointed (52) judges based on decree No. 119 on 11/03/2009.339 Indeed, the KJI had its
first group of graduates in 2014. This group of graduates has been appointed, (25) as judges and
(16) as public prosecutors, according to the decree No. 2 and 3 on January 14, 2015.340
2. Qualification Requirements For Judges
To qualify for appointment as a judge and prosecutor in Kurdistan Region, a candidate 336 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.4. 337 Articles (35-39) in the KR Judiciary Law. 338 Article 21 in the Kurdistan Judicial Institute, as an exception, empowers Kurdistan Judicial Council to appoint
Judges and Public prosecutors if it is necessary until the first group of candidates graduates from KJI. 339 This is the first time the KJC appoint judges by itself. The official decree included the list of appointees that
starts with the name (Aram Jamal Muhamadamin) and ended with the name (Othman Jamal Othman). 340 The date received from the official speaker of the KJC, Judge Omed, on 08/08/2015.
64
must have a Bachelor degree in law or equivalent;341 be an Iraqi citizen;342 be at least 30 years of
age343; he/she must speak and write Kurdish and Arabic languages344; he/she must pledge not to
engage in political activity after being appointed345; he/she has not been convicted of any non-
political willful felony or dishonorable misdemeanor;346 and he/she must graduated from the
Kurdistan Judicial Institute347. Accordingly, the qualifications required in the Kurdistan Judiciary
Law are not in the place anymore, since graduating from KJI became a prerequisite after the KJI
law entered into force. Indeed, most of qualifications in the KJI law in article (8) are identical to
the article (35) in Kurdistan Judicial law with a few differences such as the candidates must not
have reached 40 years348.
In addition, some categories or levels of court can impose different requirements.
According to article (37)(1st) in the Judiciary Law, the chief of the Cassation Court must be
selected from the Deputy’s Chiefs of the Cassation Court or senior judges who have served as a
judge for not less than twenty-five years. Further, the Deputy Chief of the Cassation Court is
elected from the member judges of the Cassation Court who have served as a judge for not less
than (22) years, article (37)(2nd). Finally, the Cassation Court judges are selected from the first
category judges who have served for not less than twenty years and held one of the following
positions for not less than a (2) years: 1) Chief of Appellate Court; 2) Deputy Chief of Appellate
Court; 3) Judge of Appellate Court; 4) Chief of CSJ; or 5) a lawyer who has served for not less
341 Article (35) (First)-(1), (Author’s translation), Judiciary Law of Kurdistan Region-Region No.23 of year 2007 342 Citizenship is a specific requirement in many courtiers for judicial appointment such as Germany. See John
Bridge, Constitutional Guarantees of the Independence of the Judiciary, vol. 11.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2007), P.8. <http://www.ejcl.org/113/article113-24.pdf>.
343 Id. Article (35) (First)-(3)(4). 344 Id. Article (35) (First) (5). 345 Id. Article (35) (First) (9). 346 Id. Article (35) (First) (10).347 Article 20, the Judicial Institute Law of Kurdistan Region-Iraq No. 7 of year 2009. 348 Id. Article (8)(1st-6) (Author’s translation).
65
than twenty-five years.
The first level judges are appointed based on objective criteria, such as passage of an
exam, performance in law school, other training, experience, and professionalism. While
political elements may be involved, the overall system should foster the selection of independent
and impartial judges349.
Although, there is no probationary period for judges and prosecutors in Kurdistan, there
was unfairness in the appointing process. In Kurdistan during the second phase of appointing
judges and prosecutors where judges were mostly appointed by the executive power from 1991-
2009, the two major political parties, KDP and PUK, had the dominant power to appoint them.
Furthermore, given the strength and the predominance of the KDP and the PUK within
Kurdistan, and the historic rivalry between these two political parties, it is likely that judges who
have connections to these parties are susceptible to political pressure by these parties350.
According to the Kurdistan Judicial Council (KJC), there are currently 217 judges in
Kurdistan including:
Name of the KR Provinces
Number of Judges (Male & Female)
Total in Each Province
Erbil 71 M 7 F
78
Sulaymaniyah 57 M 8 F
65
Dohuk 39 M 2 F
41
Garmian Block 31 M 2 F
33
Total 198 M 19 F
217
349 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p.9. 350 Id, p. 23.
66
In addition, there are 16 justices in the Cassation Court of Kurdistan Region.351 Recently,
KRG recognized the fourth province, named Halabja, in Kurdistan Region.352 The KJC has not
yet established a specific administrative structure for this new province.
B. Appointment of Public Prosecutors in the Kurdistan Region The public prosecutor is the other cornerstone of the judiciary. However, the public
prosecutor’s role as a ombudsman is significantly more important to create balance among other
judicial officers. Therefore, to ensure their role in litigation and to achieve justice, they need a
powerful law to give them the authority to perform their roles.
The Iraqi legislature passed the Iraqi Criminal Procedure code No.23 of 1971, which
includes the powers and jurisdiction of public prosecutors. While this was a good first step in the
judicial reform, public prosecutors required additional improvements in the law. Afterward, the
legislature passed the Public Prosecutor Law No. 159 of 1979, which has been amended a few
times.
1. Role of Public Prosecutor
The English term ‘public prosecutor’ does not accurately reflect the full role of this
position in the Iraqi criminal justice system.353 The inquisitorial nature of the job ranges far
beyond criminal law.354 A public prosecutor can be viewed as an ombudsman.355 In criminal
351 This data received from the official speaker of the KJC, Judge Omed, on 08/08/2015. 352 The KNA passed the Halabja Administration Law No.1 of 2015 on Feb. 5th 2015, accordingly, the new province
created for the KR. 353 Public Prosecutor Law No. 159 of 1979, Global Justice Project: Iraq, December 18, 2009
http://gjpi.org/2009/12/18/public-prosecutor-law-no-159-of-1979/ (08/04/2015) 354 Id.355 Id.
67
cases, for instance the public prosecutor must be present in trial and their opinion is required
before making a decision by the investigative judges.356 At the trial, the public prosecutor might
appear to present the case against a defendant.357 Also, a public prosecutor can appeal the
decision of the trial court up to Cassation Court.358
The public prosecutor has the authority to investigate any possible misuse of public assets
by any government or nongovernmental agency, but this role has been minimized or blocked by
the political parties and other government branches through the creation of competing
institutions meant to diminish the effectiveness of the public prosecutors office.359 Due to the
importance of the role of the public prosecutor during the new transitional period in Iraq, it is
important to look at the Law of Public Prosecutors to determine the basic principles on which
this law was created:360
1. To protect the system of Kurdistan Region, its security and institutions through monitoring legitimacy of laws, establish the rule of law, integrate enforce decisions.361
2. To work in participation with the judiciary and the competent authorities to quickly unveil criminal offences and the handling of lawsuits and to avoid any mistrial especially in crimes related to Region’s security and its democratic system.362
3. To oversee the implementation of orders, verdicts and penalties in accordance with the law.
4. To participate in the assessment of existing legislations to measure their configuration with the developing circumstances.
5. To participate in determining reasons behind criminal offences and disputes and to present suggestions on how to deal with and minimize them.
356Public Prosecutor Law No. 159 of 1979, Global Justice Project: Iraq, December 18, 2009
http://gjpi.org/2009/12/18/public-prosecutor-law-no-159-of-1979/ (08/04/2015). 357 Id.358Id.359 Judge Nasser Al-Omran al-Musawi, Means of activating the role of the Public Prosecution in light of the legal
changes in Iraq, (Civilized dialogue No. 2217, 03/11/2008) <http://www.ahewar.org/debat/show.art.asp?aid=127566> (08/03/2015)
360 Article (1) of Public Prosecutor Law No. 159 of 1979. 361 This clause had been amended by the provision of article (4)/1 of the Supplement Law of Public Prosecutor Law
No. 159 of 1979 of Kurdistan Region-Iraq. 362 Id.
68
6. To participate in the protection of family and childhood.
In addition, article (9)-Second states that “Sessions of Criminal Courts…shall not convene
without the attendance of an appointed or assigned member of the Public Prosecution before the court.”
In fact the public prosecutor presents in all levels of criminal courts except the “Supreme Court”,
but their role ranges much further than just criminal courts. For example, article (3)-First states
“the Public Prosecutor may appear before Personal Status Courts (family court) or Civil Courts on cases related to minors, incapacitated persons, absentees, missing persons, divorce, separation, permission for polygamy, family abandonment and child homelessness, and any other cases that the Public Prosecution deems it necessary to intervene in order to protect family and childhood”
These authorities and the others set in the law made public prosecutors been attacked. On
the other hand, scholars pointed out that the law gave enormous powers to the public
prosecutors, but either they are not exercised or are vague on the specifics of to how put them
into practice. Additionally, there is no clear delineation between the roles of judges and public
prosecutors.
2. Administrative Structure of Public Prosecutor
The public prosecutors are responsible to dual administrative offices. The main office of
the public prosecutor is under the KR Ministry of Justice. In terms of supervision and
monitoring, the public prosecutors are linked with the MoJ. At the same time, in terms of
appointment, promotion, and upgrade, they are under the Kurdistan Judicial Council.363 Further,
the chief Public Prosecutor is a member of the Kurdistan Judicial Council, article (33)(1) of
Judiciary Law, and is also a board member of Judicial Institute, art. (3)(6) of the KJI Law.
363 Public Prosecutor Abdul-Hadi Abdullah Yusuf, The Real Litigant in Eyes of Public Prosecutor in View of Law
and Its Philosophy, Bahzad Hashim Sadiq (Kurdistan Judicial Council, 11/28/2012), p.14. (Author’s translation).
69
Objectively speaking, the public prosecutors exercise their functions independently and no
authority is above them except the law.
In addition, the public prosecutors or deputy public prosecutors have an administrative
hierarchy. Article (38)(1st) states
“Administratively, Deputy Public Prosecutors shall be directly attached to the Public Prosecutors in their provinces. The Public Prosecutors in provinces shall be directly attached to the Public Prosecutors in the appellant district”; Second: “The Deputy Chief Prosecutor, the Public Prosecutors before the Court of Cassation, Supreme Labor Court and appellant districts, and the State institution for Social Reform shall be directly attached to the Chief Prosecutor.”364
3. Qualification Requirements for Public Prosecutor
As it pointed out in the section titled “Phases of Judicial Appointment” judge’s and
public prosecutors share the same requirements for appointment, promotion, vacation, sabbatical,
and retirement rights. Indeed, article (1) of the Supplement Law of the Public Prosecutor Law in
Kurdistan Region365 states that “the members of Public Prosecutors will apply the same rules
which shall apply to judges and they are granted the same rights and privileges of judges.”
Further, the Public Prosecutor Law listed requirements for becoming a public prosecutor. Article
(41)(1st) states “After the enforcement of this law, the appointee to the Public Prosecution
Service must be Iraqi by birth, married and a graduate of the Judicial Institute”. Nevertheless,
after the Judicial Institute Law in Kurdistan region passed, the new applicants must fulfill the
requirements stipulated in article (8). Article 43(3rd) states “Members of Public Prosecution are
entitled to the same cost of living allowances as members of the civil service.”
In addition, the public prosecutor has responsibility for his/her decisions and the litigants
can complain against public prosecutors if they find him/her negligent. For instance, article 364 Public Prosecutor Law No.159 Of 1979 as amended to 14 March 2010, GJPI Annotated Translation 365 This supplement law issued by Kurdistan National Assembly and added to the original Public Prosecutor Law
No. 159 of 1979; is law only in the Kurdistan Region.
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286(1) in Iraq Civil Procedure Law applied in the Kurdistan Region, states “Each of the litigants
may file a complaint against… [court’s panel]… in any of the following cases: If the complained
of committed a cheat, fraud, or a material professional mistake in performing his duties in an
illegal manner, or on the account of partiality, or with the intent to harm one of the litigants…”
Obviously, there is not any code of ethics to guide their acts. Nevertheless, the Public Prosecutor
Law provides guidance related to their duties such as, article (39) stipulates “A member of public
Prosecution shall:
First: Maintain the dignity of his position and act with honesty and integrity. Second: Act with perfect neutrality not permitting for any interference with the course of justice. Third: Retain undisclosed matters, information and documents to which he has access because of his position or the term there of, if so be classified or entail concerns that if they became known to the public would affect the state or persons. This obligation shall survive even after the end of his services. Fourth: Not to engage in trade or any other business that is inconsistent with the function of Public Prosecution. Fifth: Wear the “special uniform” during proceedings in accordance with the instructions issued by the Minister of Justice366.
Also with regard to the need to step down or excuse him/herself, article (40) states
“Member of the Public Prosecution may not exercise his duties before a judge related to him up
to the fourth level of kinship.”
In short, the law pointed out the enormous authority to the Public Prosecutor from
appearing in cases before all types of courts and in all the levels of proceedings; however their
influence does not always produce direct legal effects, when they submit requests, ask for
clarifications, or file appeals.367 Thus, because the Judge makes the final decisions the prosecutor
does not always have a direct legal effect.368
366 Where necessary, the term Minister of Justice is to be replaced with the most appropriate body pursuant to CPA
Memorandum 12, section 7. 367 Public Prosecutor Abdul-Hadi Abdullah Yusuf, The Real Litigant in Eyes of Public Prosecutor in View of Law
and Its Philosophy, Bahzad Hashim Sadiq (Kurdistan Judicial Council, 11/28/2012), p.16. (Author’s translation). 368Id.
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According to the KR Ministry of Justice369, there are currently (198) public prosecutors in
the Kurdistan Region including:
Name of the KR Provinces
Number of Public Prosecutors (Male
& Female)
Total in Each Province
Erbil 71 M 14 F
85
Sulaymaniyah 31 M 22 F
53
Dohuk 28 M 6 F
34
Garmian Block 17 M 9 F
26
Total 147 M 51 F
198
C. Attorneys/Lawyers
1. Role of Lawyers
Lawyers, with judges and prosecutors are one judicial family; they are the pillars
supporting human rights and the rule of law. They play an essential role in guaranteeing the right
to a fair trial by providing a proper defense in courts. Lawyers provide legal assistance to their
clients as well. Effective legal assistance must be carried out independently. This is recognized in
the preface to the UN Basic Principles on the Role of Lawyers, which states that “adequate
protection of the human rights and fundamental freedoms to which all persons are entitled, be
they economic, social and cultural, or civil and political, requires that all persons have effective
access to legal services provided by an independent legal profession.”370
Lawyers have their own administrative structure which is separate from the judiciary. For
369 The date received from the public prosecutor Nzar Saber on 08/12/2015.370 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 64.
72
lawyers to carry out their professional functions in an independent manner, it is necessary for
states to protect them from any unlawful interference with their work.371 For instance, the UN
Basic Principles includes a set of provisions that establish safeguards in this respect.
“Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”372
Further, The Human Rights Committee has referred on a number of occasions to
obstacles faced by lawyers in the discharge of their professional functions.373 For example, when
examining a new Law on the Bar in Azerbaijan, the Committee concluded that the law “may
compromise lawyers' free and independent exercise of their functions,” and recommended the
Government “ensure that the criteria for access to and the conditions of membership in the Bar
do not compromise the independence of lawyers.”374 Also, the international law recognizes the
need for lawyers to have access to all the relevant information.375 Thus, States must “ensure
lawyers access to appropriate information, files and documents in their possession or control in
sufficient time to enable lawyers to provide effective legal assistance to their clients”376
According to Principle 18 of UN Basic Principles, “Lawyers shall not be identified with
their clients or their clients' causes as a result of discharging their functions”; this rule is
extremely important due to the tendency, in certain countries, to assimilate clients’ causes to
371José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 64.372 Id, principle 16. 373 Id. 374 See more, Concluding Observations of the Human Rights Committee on Azerbaijan, UN document
CCPR/CO/73/AZE, para. 14. 375Id.376Id.
73
their lawyers.377 In one report to the UN Commission on Human Rights, the Special Rapporteur
on the independence of judges and lawyers noted his concern at “the increased number of
complaints concerning Governments' identification of lawyers with their clients’ causes.
Lawyers representing accused persons in politically sensitive cases are often subjected to such
accusations.”378
In addition, practicing in a specific area of law might cause more or less risks for the
lawyers. For example, in China, one of the most hazardous jobs one can have is as a human
rights lawyer.379 Lawyers are not even allowed to meet with their clients without first asking the
government for permission.380 Human rights violations in China persist, in part, because of the
relative weakness of the rule of law.381 Between 1997 and 2002, at least five hundred Chinese
lawyers were detained for reasons directly related to their efforts to uphold the rule of law while
representing defendants.382 While China has taken some positive steps toward modernizing its
justice process and improving universal access to the legal system, economic progress
consistently outpaces legal reform, and economic rights and legal duties still outweigh
considerations of individual legal rights.383 Judges and lawyers continue to find themselves under
attack for ignoring political considerations and seeking to secure or redeem individual rights.384
377 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 66.378 Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1998/39,
para. 179. 379 Harold Baer, JR., Judges Under Fire Human Rights, Independent Judges, and the Rule of Law,( American Bar
Association, 2011), p. 59. 380 Id. p. 60.381Id.382Id, p. 61.383Id.384Id, p. 62.
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2. Lawyers and Professional Responsibilities
Lawyers are obligated to observe certain fundamental professional duties when
representing their clients. Thus, Principle (13) of the UN Basic Principles establishes the basic
obligation of providing legal assistance to the best of their abilities.
“(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate”.385
Furthermore, “lawyers shall always loyally respect the interests of their clients”.386
Lawyers are not "licensed" to promote conflict; they must be more than skilled legal
technicians. Lawyers should be skilled, but in a larger sense, they must be legal architects,
engineers, builders, and from time to time, inventors as well.387 To obtain a license to practice
law in the United States, almost all law school graduates must apply for bar admission through a
state board of bar examiners, and must pass the Multistate Professional Responsibility
Examination (MPRE). This exam is required for admission to the bars of all but three U.S.
jurisdictions (Maryland, Wisconsin, and Puerto Rico).388 Indeed, all respectable law schools
incorporate ethical training, or “Professional Responsibility(PR)” into their curricula, and
passing a standardized PR exam is a prerequisite to sitting for the bar exam in almost every state.
Almost all the states have their own Model Rules of Professional Conduct (ethical code)
for lawyers, judges and prosecutors as well. These rules are essentially identical from state to
state, with only minor differences. The Constitution is important to the formation of ethical codes 385 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 66. 386 UN Basic Principles on the Role of Lawyers, op. cit., Principle 15. 387 Warren E. Burger, The Role of the Law School in the Teaching of Legal Ethics and Professional Responsibility,
29 Clev. St. L. Rev. 378 (1980) < http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2157&context=clevstlrev>
388 Jurisdictions Requiring the MPRE, National Conference of Bar Examiners (2015). http://www.ncbex.org/exams/mpre#maincontent
75
for lawyers and judges. For example, the 6th Amendment sets forth general rules in criminal
cases, such as the requirement of representation for defendant in criminal prosecutions. The
purpose of these rules is not to restrict lawyer’s freedom; in fact, freedom of expression is
guaranteed for lawyers. For instance, Principle 23 of the UN Basic Principles spells out:
“Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.”389
3. Qualification Requirements For Lawyers
The qualifications for becoming a lawyer are not difficult in the Kurdistan Region. The
main conditions asserted in the Attorney Law of Kurdistan Region-Iraq No. 17 of 1999 are: a
candidate must have a degree in law from a recognized law school, art. (4)(1st); a candidate must
not exceed 55 years of age, art. (4)(4th); and he/she has not been convicted of any non-political
willfully committed felony or dishonorable misdemeanor, art. (4)(7th). When a candidate meets
these conditions, he/she should submit a petition to the bar council, art. (12)(1st); within (15)
days the bar council must approve or deny the petition, art. (12)(2nd). This decision is subject to
appeal before the Cassation Court within (15) days from the day of decision, art. (12)(5th). If the
petition is approved, the candidate must take an oath before appellate court, art. (12)(6th). Then
the candidate will receive the license. There is no Pro Bono program for lawyers in the Kurdistan
Region; nor is there a bar exam.
389 José Zeitune, International Principles on the Independence and Accountability of Judges, Lawyers and
prosecutors, (International Commission of Justices, Geneva, Switzerland, Practitioners Guide No.1, 2007), p. 67.
76
Lawyers in Kurdistan Region fall into three categories: Trainee, Active, and
Advisor, with Advisor being the highest and Trainee the lowest. New lawyers start at the
Trainee level and work for three years with an Active or Advisor lawyer to gain practice
experiences, art. (16)(1st). The trainee’s work permission is limited; in that trainee lawyers
can represent civil cases in which the amount of dispute cannot exceed to (1,500,000 ID =
$1,200), art. (16)(1st)(1). In criminal a cases the charge cannot exceed the level of
misdemeanor390. These areas of responsibility will increase along with the lawyer’s
category. Lawyers must serve in one category for a term of three years before they are
eligible for promotion to the next category.391 Unlike the judges and public prosecutors,
lawyers are not prohibited from joining any party or political organization or from
performing any political activity.
4. Lawyers Immunity for Official Actions
According to the article (23) of Attorney Law, “Lawyers shall not be Interrogated, or
refered to competent courts or prosecuted in the crime before obtaining the approval by the bar
council, unless the lawyer is caught in the act of committing a willful felony case. Also, the chair
of Kurdistan Bar Association or its deputy must be present in taking these actions.”392 In this
regard, lawyers in the Kurdistan Region, as is the case in the rest of Iraq, are assured immunity
from criminal prosecution for their official activities.
390 Misdemeanor is defined in Iraqi Penal Code No.111 of 1969 in article (26) states “ A misdemeanor is an offence
punishable by one of the following penalties: (1) Penal servitude or simple detention for a period of between 3 months and 5 years. (2) A fine.”
391 Article (16)(First),(Third) of the Attorney law of Kurdistan Region-Iraq No. 17 of 1999. 392 Author’s translation.
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5. Fees
The judgment in a case determines the fees for their legal services. For example, in civil
cases the lawyers compensation must not exceed 20% of the total amount of the compensation
awarded by court, article (28)(1st). In fact, there is not any provision in the law to illustrate the
type of this compensation. For instance, can the lawyer get “advanced fee”393, "flat fee”394", or
"retainer”395. Advanced fees and flat fees are usually used as the way of compensating lawyers.
Rarely, if ever, is there a retainer type of fee or an hourly fee396.
6. Retirement of Lawyers
The Kurdistan Bar Association (KBA) is an independent, non-governmental
syndicate, art. (45)(1st). As a result, lawyers cannot become government employees. For
example, any judges, prosecutors, and jurists397 working for the government are not
members of the KBA, art. (6)398. In fact, only those currently practicing law are lawyers. If
a lawyer is appointed for any judicial position, or any other governmental position, he/she
must resign as a lawyer. In addition, lawyers have different a retirement scale than other
government employees. They retire according to the Law of Lawyers Pension Fund of
Kurdistan Region-Iraq No.18 of 1999.
393 Amount paid to a lawyer in contemplation of future services whether hourly, flat, or another basis. 394 A fixed amount paid to a lawyer for specific, agreed-upon services, or for a fixed, agreed-upon stage in a
representation, regardless of the time required of the lawyer to perform the service or reach the agreed-upon stage in the representation.
395 Amount paid specifically and solely to secure the availability of a lawyer to perform services on behalf of a client, whether designated a "retainer," "general retainer," "engagement retainer," "reservation fee," "availability fee," or any other characterization.
396 Payment for the attorney to work on a matter and to charge for the amount of time expended 397 Any person who has a Bachelor degree in Law and not practicing law, called “Jurist” in stead of Lawyer. 398 Article (1) of the 2nd amendment of the Attorney Law No.6 of 2007 replaced the old article (6) and the new
provision states “Shall not combine membership in lawyers syndicate and public employees” “Author’s translation.”
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According to the article 5 in the law, the revenue of the retirement fund comes
from different sources such as lawyers annual fees, stamp fees, fees collected in exchange
for legal advice, donations, and governmental contributions. The range of the retirement is
based on how long the attorney served.
7. Lawyers and Code of Ethics:
As pointed out before, the lawyers are mostly working in the private sector, so
there is usually not any judicial observation about their actions. Specifically, there is no
code of ethics for lawyers or, for example like the U.S. the Model Rules of Professional
Conduct, that exist in Kurdistan Region. However, many ethical concepts have been
incorporated into the legal system as binding provisions, which the lawyers have to
observe and apply in the performance of their functions. For instance, article (4) in the
Attorney Law states “Lawyer in the performance of their functions must follow
professional principles, and perform their duties in this law honestly and sincerely and not
do be dishonest” 399
Regarding that, there is not a clear guide to illustrate what is unethical and how to
complain. The only clear path in the complaint process is, the party who wants to file a
complaint against a lawyer must initially inform the bar council or its branch committees.
Thereafter, the committee reviews a complaint first and if it is necessary they will make a
referral decision to the competent courts. Of course, the complaint must be based on
legally specified grounds.
399 Author’s translation.
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D. AppointingCourtStaff:
Appointing court staff has to go through the same routine and bureaucracy as appointing
employees in other branches. However, the judiciary can appoint court support staff by itself
with the cooperation with the KR Ministry of Finance. Judges and prosecutors have sufficient
support staff or sometimes they might have more than necessary.400 The prosecutor’s staff is
appointed by the executive branch because the office of public prosecutor is part of the MoJ.
Further, the Judges staff is appointed by the KJC. Currently, there is no specific training made
available for the court staff, although, the KJI has the responsibility to train and prepare the
various legal staffs for the KJC, KMOJ, and other government bodies, article (2)(3rd).
There is no evidence that the court staffs are corrupt in the Kurdistan Region because the
evidence depends on individual moral standards and the economic situation in an area.401
Basically court staff corruption, if it exists, relates to paying small bribes to court employees in
order to expedite services, but such information is anecdotal.402 Undoubtedly, there is an
enormous gap in salary ranges between the court staff and judges or public prosecutors.
The region has developed in various areas of work methodology, but unfortunately court
administration is still not developed and doesn’t use technology. There is no uniform procedure
for filing information. For instance, in trials, the court staffs were sitting beside the judge,
entering the file notation and hearings by hand into a large ledger containing all case records.403
In addition, case filing and tracking systems in courts are manual, so the documents are not
preserved electronically which it is vulnerable to decay and loss of information.404 The court
deals with the paper file and simple methods for tracking file; where only parties names and case
number appear in the case files. Thus, there is an extraordinary need to reorganize the
administration system.
400 Judicial Reform Index For Iraq: Kurdistan Supplement, (American Bar Association, 2006), p. 27.401 Id.402Id.403 Id, p. 29.404Id.
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Chapter Four: Conclusion
The Kurdistan Region has made great advances in various sectors such as the economy,
politics, education, and legislation, but it has yet to develop a strong legal framework that will
support growth as the region matures. Strong challenges to the current system could halt
progress or even cause it to crash. In order to be stable and sustainable the Kurdistan Region
needs to reform its legal system and strengthen judicial independence.
First: Constitution
The Kurdistan Region does not have yet a valid constitution. It is crucial that the one
currently being written be a modern constitution, designed to protect the rights of all citizens in
this region of religious, linguistic, and ethnic diversity. Also it must guarantee the principles of
checks and balances, structuring a government and clearly drawing lines between the branches.
Specifically, this research addresses judicial independence, with an emphasis on the vital
importance of safeguarding and strengthening judicial independence for the KR.
I. The Separation of Power: The new constitution for the KR must forthrightly guarantee
and stipulate a separate judicial branch with powers equal to the two other branches. The
basic requirement for judicial independence is a court system autonomous from the other
branches of government. It should result in a judiciary free from influence, threats or
interference from any branch of government for any reason, and provides the climate
necessary for fair and independent judicial decisions.
II. Constitutional Court: The KR does not yet have a Constitutional Court. The new
constitution must create the Constitutional Court for the Kurdistan Region. This court has
a crucial role in stabilizing the democracy in the context of constitutional transitions, so
must include the following elements.
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A. In the structure of the court system, the Constitutional Court would be the highest
judicial power and its decisions would be final.
B. As such, the appointment of its justices must follow a uniquely vigorous process.
The sensitive role of this court requires strong filters and strict rules to ensure
independent and impartial justices are appointed. Typically, this court confronts
political issues and interests, so safeguards must be made to prevent the dominant
political party from unduly influencing appointments. To avoid having a
politically unbalanced judiciary, liberal democracies recommend creating balance
by building social and political pluralism into their judicial appointments, such as
South Africa does through the Judicial Service Commission.405 It is preferable
that the Constitutional Court justices be selected through a political institution,
such as parliament, in order to guarantee political pluralism.
C. In terms of jurisdiction, the Constitutional Court is exclusively able to determine
the constitutionality of laws and regulations—a “constitutional review”, and to
interpret legislative texts. In addition, because of the complex history and
adversarial nature of the KR political parties, the Constitutional Court would be
the court of last resort for such issues as authorizing the impeachment of
government officials and settling political party disputes over elections.
D. Regarding the independence and impartiality of justices, the KR might consider a
system of impeachment of judges by the Parliament in the event of severe
misconduct, corruption or criminal activity. The impeachment of judges by the
405 South Africa has Judicial Service Commission (JSC), which publishes a notice with the details of existing
vacancies, and calls for nominations then shortlists suitable candidates for interviews. Which, the constitutional justices must conduct in public.
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Parliament would eliminate the threat of abuse and political attacks on the
judiciary while still allowing for some accountability. Another alternative would
be through the Judicial Service Commission to ensure independence and
impartiality of a justice’s decision.
III. The Right of Defense: The right to a legal defense is a fundamental right, and must be
provided as soon as a case is initiated. The current KR legal system affords the right an
attorney, but practice diverges from theory and effective legal assistance has not been
delivered.
IV. The Right to Have a Fair Trial: To guarantee an impartial tribunal requires independent
judges who have no relationship to, vested interest in, or stake in a particular case; and who
also do not hold pre-formed opinions about the case or the parties involved. Specifically,
cases must be decided only on the basis of fact and in accordance with the law, without any
restriction.
V. Public and Media Access to Proceedings: Defendants have a fundamental right to public
proceedings, and the society has the right to observe the court hearings, whether in person
or through the media. A rare exception could be made if the judge determines a fair trial
would require a closed court. While current KR law provides for public hearings, judges
bow to pressure and the vast majority of cases are heard in private. Establishing this right
in the constitution ensures the right to a public hearing, to protect the rule of law and to
deliver a fair justice system.
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Second: Judicial Appointment
Multiple international bodies, including the UN, have repeatedly called on nation states to
take all necessary measures to create a judicial system free from outside influence at all levels—
from the first stages of appointment through retirement. They do this in response to efforts to
influence judges from carrying out their official responsibilities. It is common to see news
reports from around the world telling of efforts to suppress the judiciary through subtle and not-
so-subtle acts, including extortion, unlawful removal from office, torture and even killing.
I. Appointing Judges: Judges are pillars of the justice system and must represent the
Rule of Law. Independent and impartial judges are key to judicial independence.
Unfortunately, interference in individual judicial decision-making is common in
courts throughout the world. For instance, making judicial decisions based on
instructions received by telephone from a government official is known as “telephone
justice”. Countries have different methods of appointing Supreme Court justices and
lower court judges. In any model of judicial selection, the process must guarantee the
following.
A. The process of appointing judges must be transparent and integrated to provide
equal opportunity for candidates and to bring autonomous judges to the bench.
B. Based on the models of the judicial appointment addressed in Chapter Three, it
would be preferable for new judges in the KR to be appointed in a two-part
process. A body such as the Judicial Service Commission, whose members are
appointed by a political institution to guarantee political pluralism, would review
applicants and nominate suitable candidates to the Judicial Institute. After
finishing the JI, the final appointments would be made by the Judicial Council.
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C. Examples of judicial appointment through the participation of both the executive
and legislative branches can be found in Germany, Japan, and United States.
Precisely, a legislature with a plurality of political parties will nominate
candidates creating a balance of political ideologies represented at the court. It is
preferable for vacancies in the Constitutional and/or Supreme Court be nominated
by the legislative branch then appointed by the executive on the advice of the
Judicial Service Commission.
D. The lower court judges must be appointed based on objective criteria, such as the
passage of an exam, performance in law school, additional training, experience,
free of a criminal record, and/or professional reputation among the legal
community.
E. While political elements may be involved, the overall system should foster the
selection of independent, impartial judges. The appointed judges must be free
from any direct political influence personally and institutionally.
II. Preparing Judicial Officers: The creation of the JI in the KR was an important
decision, but additional steps still need to be taken. To prepare judicial officers,
specifically judges and public prosecutors, it is preferable to create a Judicial Service
Commission, or a similar commission, to give pluralism and transparency to the
judicial appointment process. For instance, the JSC could review applicants for the
KR JI, and then follow the their progress through graduation in the JI. Thereafter, the
KR Judicial Council on the advice of the Judicial Service Commission would appoint
the suitable candidate for a ten-year renewable term.
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Third: Judicial Institute
I. According to the Law, the Kurdistan Region Judicial Institute belongs to the KMOJ.
Preferably it would be belong to the judiciary because of its work.
II. Update the curriculum to stay current with legal and economic developments. For
instance, almost every oil contract contains a clause indicating all disputes will be settled
in Erbil courts and that KR laws apply. These contracts, written by foreign lawyers with
local advice, are based on specific legal principles in this area. New judges must train
based on current practice, and the training must continue to develop in conjunction with
future changes.
Fourth: The Impartiality of the Court and Justices
A court’s impartiality can be defined as the absence of bias, animosity or sympathy
towards either of the parties. However, there are cases in which this bias will not be apparent to
the public, but rather are obscure. That is the reason why the impartiality of courts must be
examined from a subjective as well as an objective perspective. To achieve that, the court must:
I. Have Judges step down from cases in which they think they may not be impartial or when
their actual impartiality may be compromised. In these cases, they should not expect the
parties in a case to challenge their impartiality, but rather should excuse themselves and
abstain from sitting on the case.
II. Establish the principle that any judge who has a legitimate reason to fear a lack of
impartiality must withdraw. A direct blood relation is the only disqualifier for judges in
current KR law. Indeed, having a blood relationship between the judge and any involved
party is not the only reason for judge to step down; it must be expanded to include any
interest between the judge and either party of the case.
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Fifth: Public Prosecutor
The failings and weaknesses of public prosecutors are often in the news and are actively
debated among legal researchers in the KR. This is the important question, what are the major
obstacles blocking improvements in the Public Prosecutors Office in the Kurdistan Region?
Clearly, there is no simple or single response to this basic query, but I will address the primary
points below. First, the governance structure of the Public Prosecutor’s Office is confusing
because administratively they belong to both the KR MoJ and the KJC, which violates the
separation of powers principle.
Second, the law itself is uncertain and ambiguous in outlining the authority of public
prosecutors. Third, the public prosecutor has a duty to investigate any possible misuse of public
assets by any government or nongovernmental agency. Even though there is massive corruption
in the KR, the role of this office has been minimized or blocked by the political parties when it
deviates from party interests. For instance, they created competing institutions meant to diminish
the effectiveness of the Public Prosecutors Office such as the Integrity Commission for the KR.
Finally, the political parties influenced the Public Prosecutors Office by appointing people with
lack of legal knowledge who were subordinate and loyal to the political parties, rather than
competent professionals who would fight for transparency, rule of law, and independence.
Laws pertaining to public prosecutors are puzzling in the Kurdistan Region. Almost all
the political parties have used an association with public prosecutors, and their reputation as
pillars of democracy and champions against corruption, as a tool in their campaigns.
Paradoxically, the parties do not intend into improve the role of public prosecutors. Literally,
there are three or four drafts of public prosecutor bills in the KNA, but none of them have
passed. Specifically, these bills intend to change the role of the public prosecutors from the
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procedural role to “submit requests, clarifications, and appeals” into an attorney general system.
Basically in this system the public prosecutor will obtain the right of impeachment and
investigation.
There is a high demand by scholars, legal professionals and NGOs to improve the role of
public prosecutors. They advocate for a powerful and active public prosecutor in the KR. In
recent years a few regional conferences on this issue have been conducted.
Currently, the public prosecutor does not accomplish their role within the system. It will be
more helpful, professionally and financially, if they are granted impeachment and investigative
authority. Instead of judges conducting court investigations, all investigations would be handled
by the public prosecutor, in a manor similar to the District Attorney (DA) in the US criminal
justice system. After completing the investigation with police cooperation, cases would be
referred to the appropriate court, such as Misdemeanor or Felony courts.
Sixth: Lawyer/Attorney A number of private law schools have opened in the KR since the economic boom in
2005. It is important to meet the demand for higher education. But high academic standards must
be maintained, if not inadequately prepared graduates will be unable to perform their duties with
catastrophic results. The Kurdistan Region, with a population of approximately five million has
(17) law schools.406 The qualifications of new lawyers from these schools are not as
academically rich as they need to be. After getting to know lawyers from different countries in
the world, it is apparent that becoming a lawyer in the Kurdistan Region, as in the rest of Iraq, is
not difficult. The only necessary qualification to become a lawyer is to obtain the bachelor
406 According to the official statistics, there are 17 law schools (8 public and 9 private). This data was received from
the former secretary of KBA, Attorney Ahmed Abdulqader) on 08/07/2015.
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degree in law, or it’s equivalent, and then to apply to the KBA for a license. Specific training and
exams are not necessary to become a lawyer in the Kurdistan Region.
Lawyers play an important role in protecting human rights and upholding the rule of law.
As a professional responsibility lawyers must be precise and competent to provide the best
representation. To improve the position and professionalism of lawyers the KBA must:
I. establish strong cooperation between the KBA, the ministry of higher education, and the
council of ministers to develop a strategy and academic standards of legal education;
II. pass the ethical code, which includes professional standards, bar exams, pro bono
requirements, CLE and training so lawyers can improve and keep current with changes in
the legal profession (the KBA, with the legislature);
III. arrange for a bar exam two times a year for the new graduates, the passage of which is
required to obtain a license (the KBA, with the cooperation of Judicial Institute);
IV. guarantee seats for lawyers in new appointments, specifically appointments on the
Constitutional Court;
V. raise the standard of practicing law through the amendments to modernize KR law.
Seventh: Judicial Code of Ethics
As stated previously, the KR does not have a written code of ethics that includes specific
actions and consequent punishments. The Kurdistan legislature must pass a statute of judicial
code of ethics for the judges, public prosecutors, and lawyers to provide a necessary guide for
professional behavior. That would assist the judiciary to have grounds for removing and
disciplining judicial officer from the office. Normally, the basic grounds for removal are
misbehavior or incapacity, which include: the commission of a crime, acts of immorality,
serious or repeated violations of the judicial code of ethics or corruption.
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Additionally, a code of ethics should provide the obligation to report any kind of judicial
misconduct to a specific agency. For example, according to the KR law only the litigant and their
lawyers407 have a right to file a complaint against a judge or any judicial officer alleged to have
violated judicial ethics provisions in any case, but it would be a more effective system if
everyone has a right to report violations.
Eighth: Judicial Officer’s Remuneration It was a good step when the government reformed of salaries in the KR. Absolutely,
judges and public prosecutors need to receive a sufficient salary to support a dignified standard
of living. On the other hand, there is a tremendous gap between the range of their salary and
benefits with those of regular employees. Such a disproportionately large remuneration could
encourage illicit acts or submitting to political influence to obtain the position. This can diminish
the efforts of judges and public prosecutors or can lead to telephone justice. To create pay equity,
the judiciary should outline the remuneration for judges and public prosecutors in a new law, as
required in article (39) in the KR Judiciary Law.
Ninth: Improve Knowledge of the Judicial Officers
Although JI law requires judicial officers train and prepare for their positions, no
organized training programs exist. There is not any provision in the law to obligate the judicial
officers to take continuing judicial education. It is in arguable that continuing education and
training in the law would make the judiciary more effective.
407 The Law of Civil Procedure, each of the litigants may file a complaint against the judge presiding in that case,
article (286)
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Tenth: Judicial Association
It was a positive step to create the Kurdistan Judges Union in 2006. Unfortunately, the KJU
has done little to accomplish their objectives. Although they are an independent professional
association, they receive funds from the executive branch. This might be the reason they have
not worked toward their essential role, which is to improve the judiciary and strengthen the rule
of law. Judicial advocates recommend that the JA be: completely independent from the
government; not subordinate to any governmental agency; and that funds for their activities be
secured directly from their membership which would lead to more accountability.
Eleventh: Financial Autonomy and Sufficient Resources
The independent financial resources must be guaranteed to free the judiciary from
subordination to any other branch of government. However, the judiciary would be audited by an
agency of the executive branch to ensure accountability for those public funds.
Twelfth: Administration of Judiciary
In addition to courtroom responsibilities the judicial branch has administrative duties.
Current administrative standards used by the KJC are outdated. For instance, there is no official
database or publication to record and maintain court decisions. Aside from the Iraqi Legal
Database408, there is not a specific database to collect laws passed by the KNA or court decisions
issued by the KR judiciary. For these purpose, the KJC must consider the following.
I. As mentioned previously, file notations and hearing records are entered by hand into a
large ledger containing all case records by a court staffer seated beside the judge. The
current system does not record all of what is being said during the hearings. After the
408 In 2004, the United Nations Development Programme (UNDP), launched a project to create an Iraqi Legal
Database (the “ILD”) to make the entire corpus of Iraqi law available to judges, lawyers, academics, lawmakers, and all other individuals. It is free accessible source. Read more: http://www.iraqld.iq/AboutEn.aspx
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parties speak the judge summarizes their statements and only the judges comments are
entered into the official record. The KR judiciary must launch a system-wide
administrative upgrade to electronically file notations in the hearings, so everything the
parties and their representative say can be recorded by the court clerk.
II. Case filing and tracking systems must be organized using current methods so files can be
stored and indexed for future reference. Unfortunately, current case filing and tracking in
courts are manual, so the documents are not preserved electronically which makes them
difficult to search, vulnerable to decay and at risk for loss of information. Modern
administrative methods must be implemented to maintain court files.
III. According to the KR Judiciary Law, article (56), the working hours must be determined
by the KJC. Currently, the official work schedule for the judiciary is from 8:00 to 2:00,
and is reduced by one hour during the month of Ramadan.409 However, these are not the
actual hours worked by judges, public prosecutors or even the court staff. For instance, I
was at the Erbil Courthouse on Thursday, June 18, 2015, and they pushed us to leave at
12:15 PM! Although the day starts at 8:00, judges do not typically see a case until well
after 9:00. It has become accepted practice for judges to exempt themselves from the
standard work hours; as a consequence other employees tend to reduce their hours also.
The recommendation for the KJC is to have strict work hours which everyone must obey.
Thirteenth: Supervision of Judicial Officers Work
Even though a section in the KR Judiciary Law established the Commission on the
Supervision of Judiciary, there is a lack of strong supervision over judicial office workers and
their performance. Scholars and even the general public have pointed out that they are involved
409 The information received from the official speaker of the KJC, Judge Omed, on 08/08/2015.
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in scandals and acts of corruption. Ideally, the KJC or the other supervision agencies must set up
the strict mechanism to observe their duties and it is necessary to enforce the specific law as
required by the Judiciary Law.
Fourteenth: Coordination and Relationship Between the Judiciary and Other Branches of
Government
The weak and unorganized relationship between the judiciary and the other branches of
the government creates a lack of coordination and prevents the achievement of their goals. When
the people or NGOs criticize the judiciary for violating human rights and not guaranteeing rights,
they usually point to the lack of systematic cooperation between the judiciary and other
institutions. For instance, when there is no standardized, transparent relationship between police
investigators and judiciary, corrupt police can and do alter evidence and shape investigations
because they have enormous power to control the initial process. So, building a strong,
systematic relationship builds a clearer path to justice.
Fifteenth: Parties rights
In order to guarantee a key aspect of a fair trial parties should have the right to substitute
a judge to which they object or believe for some reason would not provide a fair judgment.
Sixteenth: Amnesty
The right of amnesty should be withdrawn from all other branches. The judiciary must
have the right of amnesty under specific circumstances in accordance of with criminal
rehabilitation principles.
In short, the KR judiciary needs serious reform to bring current practice in line with
accepted theory. Firmly establishing the rule of law and crafting and enforcing transparent
procedures will allow positive, substantive change to begin. The KR Judiciary with cooperation
of other branches to accomplish improving judicial independence needs to amend many statutes,
pass new modern statutes, and supersede many old statutes.
93
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BiographyofResearcher:
Kareem S. Salih was born and raised in Kurdistan, in northern Iraq. He is of Kurdish decent.
Mr. Salih attended school- elementary through the university- in Erbil, the capital of Kurdistan
Region. He received his bachelor degree in law from Salahaddin University School of Law and
Politics, where he graduated among the top five in his class in 2008.
Soon after graduation, he practiced law in civil, criminal and family law cases in Iraqi
Kurdistan Region courthouses. Besides practicing law, he worked with NGOs. His first success
was facilitating the bilateral signing of a pledge between Iraqi Supreme Judiciary and Kurdistan
Regional Judiciary councils to work jointly, after a 17 year-long period of no judiciary contacts.
Thereafter, he went to work for the United States Department of State, based at the Consulate
General Erbil, Rule of Law Section as an Attorney. Mr. Salih also worked as a Senior Legal
Officer with the International Rescue Committee, focusing on gender-based violence issues. He
worked with the Regional Legislative Observatory to prepare the, “Iraqi Kurdistan Region
Strategy Establishing & Strengthening Rule of Law.”
In 2012, he moved to United States. He interned in the Winnebago County District Attorney’s
office as an Attorney-Intern. Then, he enrolled as a graduate student and earned Master of law
(LL.M.LI) at University of Wisconsin Law School. He graduated in 2015.
He was columnist advocating for women rights. His published research includes “Concept of
Rule of Law in the State” and “The Democratic Principles in the Constitution; the U.S.
Constitution as an Example,” and his Master’s theses on “Judiciary Independence: the Bedrock
for Building a Bright Future for Kurdistan Region—Iraq (A Comparative Study),” to name a
few. Recently, he translated the United States Constitution into Kurdish. He is also writing a
book in Kurdish titled “ Introduction to the U.S. Legal system as an Example of Common Law
System.”
He is licensed attorney in Iraqi Kurdistan. He is member of the Wisconsin International Law
Society. Beside his native language, Kurdish, he speaks English and Arabic. Mr. Salih has years
of experience in practicing law, Rule of Law, drafting bills, human rights, international
relationships, gender-based violence, legal strategy planning in post-conflict states, and
translation and interpretation. He specializes in the Middle East and U.S. legal system.