Iraqi Legal System Issues - Essay Example

The Legal System of Iraq Iraqi law is an integrated form of several Arab laws, Islamic jurisprudence, and some western laws. Under the provisions ofArticle 1 of the Civil Code, the law has supremacy over custom, Islamic Law, and equity. In most of the Arab nations, Islamic law or Sharia, constitutes the source of their legislation. This is expected to transpire in Iraq, in the future. The Sharia is uncodified and it is derived from the Holy Quran and the teaching of Prophet Mohammed. It developed several schools of Islam; the Hanafi School is the most important school for Sunni population of Iraq (Legal Guide to Doing Business in Iraq, 2003). Iraq’s legal system is based on Sunni and Shii fiqh sects and this is applied through the Sharia courts. Its legal system is an integrated form of various laws and customs; such as the constitutional law, legislation and statutory provisions, judicial precedents, customs, and juridical opinions. The Hanafi School of fiqh, originated in Iraq. In the 17th century, Iraq came under Ottoman rule, which introduced several new codes into Iraq’s legal system. These included civil, penal and commercial codes based on the European legal systems. After World War I, British Mandate was established in the region. This brought to an end, the control exercised by the Turkish Ottomans on Iraq. As such, Ottomans could not implement the Ottoman Law of Family Rights (OLFR) 1917 in Iraq (Legal History). The British administrators did not implement the OLFR because it was not a part of local law. In addition, there were an equal number of Shia and Sunni members in Iraq. After the Arab Revolt, King Faisal established a kingdom in Iraq in the year 1921. In 1932, Iraq obtained full independence from the British. The monarchy of King Faisal was overthrown in 1958, by a military coup; and Iraq became a republic. The Iraqi Law of Personal Status provides that the courts should deliver judgments, in accordance with the principles of Islamic Sharia law. Thus, the customary Islamic Sharia law constitutes the source of law in Iraq. This was confirmed by Article 1 of the Civil Code (Legal History). There are two important schools of fiqh in Iraq, namely the Jafari and Hanafi schools. In addition, Iraq contains other religious minority groups, like the Christians, Jews and Yezidis. It adopted a provisional constitution on 22 September 1968, and Article 4 of this constitution, declares Islam to be the state religion (Legal History). Iraq has adopted a legal system that is founded on European civil and Islamic law. However, the operation of the legal system has to follow the guidelines specified in the Iraqi Constitution. Iraq has not accepted the compulsory jurisdiction of the International Court of Justice (Central Intelligence Agency). In Iraq, the role of Islamic law has been restricted to family and inheritance law. It is not applied to businesses or commercial matters; because the Civil Code of Iraq, specifically deems statutes to be the principal source of law. Second in importance, in respect of the law, is custom and lastly, the Sharia law (Legal Guide to Doing Business in Iraq, 2003). The Sunni philosophical and legal doctrines dominate the Iraqi legal system. Since, the Shias are in the majority, Shiite principles may be incorporated into Iraqi law, in the future. The principles of the Shiite law are more flexible than those of the Sunni. The Islamic Law includes various rules of interpretation; which have been incorporated by the legal system of Iraq. These rules accord a higher priority to the expressed will of the parties, rather than to their latent intention (Legal Guide to Doing Business in Iraq, 2003). The UN Assistance Mission in Iraq’s Human Rights office stated that violence is on the increase in Iraq. The number of attacks, incidents of torture, and unlawful detentions were found to be growing in an unprecedented manner. Moreover, Iraq is beset with an increasing number of sectarian militias and death squads. Furthermore, women are being killed indiscriminately, in the name of honor killings. In 2006, the present government of Iraq was established. According to the report of the UN, this government is facing anarchy, as law and order have completely broken down (Torture in Iraq worse now than under Saddam?, 2006). This situation could cause irreparable harm to the important institutions of Iraq, such as the police, judiciary, and security forces. The Iraqi legal system accords greater importance to testimonial evidence, and does not consider the significance of forensic evidence. However, judges are slowly changing their way of thinking, and they are now deciding on the basis of forensic evidence, including blood samples and DNA mapping. In the area of forensics, Iraq’s legal system differs from the US legal system, and the laws of the former are based on the civil law. The Iraqi system depends on legal texts and relies on a code of laws (LeCappelain, 2009). On the other hand the US legal system is based on common law, which attaches greater importance to precedent and case law. The present legal structure of Iraq was established after the collapse of the Saddam Hussein regime. It attempts to uphold concepts, like the supremacy of law, equality before law, predictability of law, and judicial independence. (LeCappelain, 2009). These elements were absent during the rule of Saddam Hussein. Iraq’s legal system followed the Egyptian legal system, and the French legal system had been the basis for the Egyptian legal system. As a matter of fact, the civil code of Iraq had been prepared by an Egyptian scholar, in the late 1940s. Iraq’s legal system, which is based on civil law, entails reference to legal texts. Moreover, the Iraqi courts follow an inquisitorial system of trial, and an investigatorial judge to deal with criminal cases (Al-Istrabadi, 2003). Iraq is an evolving country. In order, to attract foreign investments, Iraq will be compelled to change its legal system to conform to modern challenges and demands. The Coalition Provisional Authority (CPA) is taking several steps to restructure the existing legal system in Iraq. In this process, it had issued Regulations and Orders to suspend or to replace parts of existing laws (Legal Guide to Doing Business in Iraq, 2003). The CPA exempted the application of Iraqi law to its personnel, contractors and their subcontractors; and the contracts entered into by these entities. In association with the Ministry of Justice, various other organizations and government departments, the CPA has decided to develop strategies for implementing such reforms (Legal Guide to Doing Business in Iraq, 2003). These reforms will address issues, such as the absence of clear legal provisions in respect of modern business transactions, various enforcement issues, an inadequate Companies Law, lack of protection for Intellectual Property, dearth of laws in the areas of insurance and finance sectors, and the introduction of modern laws for investments. Iraq is not a signatory to most of the important international treaties. For instance, it had failed to ratify the New York Convention on the Enforcement of Foreign Arbitral Awards, the General Agreement on Tariffs and Trade (GATT), and treaties concerning intellectual property and foreign investment. Furthermore, Iraq had not entered into any bilateral agreements for the avoidance of double taxation (Legal Guide to Doing Business in Iraq, 2003). The other Arab nations in the region, had established their legal systems in the recent past; whereas, Iraq was in possession of a much older legal system. Its legal system was more developed than those of other Arab nations, and it was based on European models. Although the Iraqi legal system faced a number of regulatory and administrative restrictions, it operated efficiently until 1990 (Legal Guide to Doing Business in Iraq, 2003). Subsequently, legal proceedings were protracted and the implementation of rulings, experienced considerable delay. Moreover, the Iraqi courts were deprived of independence and were forced to depend on the executive. This resulted, in significant difficulty for the business partners of the Iraqi government; as they had to face great difficulty in finding impartial Iraqi arbitrators, who would ensure their commercial rights (Legal Guide to Doing Business in Iraq, 2003). Iraq suffers from a number of conflicts, such as those between rural and urban dwellers, Sunnis and Shias, landowners and peasants, and Kurds and Arabs. The legal system of Iraq has been seriously affected by these conflicts. Its effectiveness has been hindered, by these internecine quarrels. The courts were not allowed to function independently, and were used to further political interests. Iraq had incorporated human rights and equality before the law for all its citizens, into a number of its legal instruments (Johnson). However, in practice, these rights have not been honored by any government, till date. In recent years, human rights have been openly violated by the government. List of References Al-Istrabadi, F. (2003, May 13). The Iraqi legal system before Saddam. Retrieved November 19, 2009, from The New Iraq: http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_05-13.html Central Intelligence Agency. (n.d.). Legal System. Retrieved November 19, 2009, from The World Fact Book: https://www.cia.gov/library/publications/the-world-factbook/fields/2100.html?countryName=&countryCode=®ionCode=p Johnson, C. (n.d.). Iraq: Legal History and Traditions. Retrieved November 19, 2009, from The Law Library of Congress: http://www.loc.gov/law/help/iraq%20_legal_history_and_traditions.pdf LeCappelain, J. (2009, February 4). Iraqi Legal System Continues to Advance. Retrieved November 19, 2009, from Multi - National Force - Iraq: http://www.mnf-iraq.com/index.php?option=com_content&task=view&id=25260&Itemid=128 Legal Guide to Doing Business in Iraq. (2003). Retrieved November 19, 2009, from http://www.lexmundi.com/images/lexmundi/PDF/guide-iraq.pdf Legal History. (n.d.). Retrieved November 18, 2009, from http://www.law.emory.edu/ifl/legal/iraq.htm Torture in Iraq worse now than under Saddam? (2006, September 21). Retrieved November 19, 2009, from http://www.msnbc.msn.com/id/14939983/ Read More