Law of Iraq


The Iraq's legal system is in a period of transition in light of the U.S.-led invasion in 2003 that led to the fall of the Ba'ath Party. Iraq does have a written constitution, which was enacted in 2005, as well as a civil, criminal and personal status law. In September 2008, the Iraqi Legal Database was launched. This site is a comprehensive database that makes all Iraqi positive law freely available to users online.

History

The Ottoman Empire and Iraq

Under the rule of the Ottomans, Iraqi Law consisted of two components: Sharia and Kanun. Sharia dealt with matters of personal status, family matters, and religious affairs.
Kanun was secular laws issued by the Sultan which covered taxation, land, the military, and criminal law.
The judicial system consisted of Sharia, secular, and tribal courts, with the Qadis of Sharia courts ruling based on Islamic jurisprudence.
After the Tanzimat period, secular Nizami courts appeared and were based on European legal codes.

Iraq Under the Mandate System

Iraq's legal history as a state begins with the collapse of the Ottoman Empire after World War 1. Great Britain assumed political control of Iraq and the area was brought under the mandate system from 1921 to 1932. Iraq was then divided into several administrative districts and declared a constitutional monarchy.
Faysal Husayn was chosen to become the King of Iraq. Initially there was criticisms, especially in the Shi'ite south and Kurdish north, over having a Sunni sovereign who had no political roots in Iraq. The 1925 Iraqi constitution provided for three types of courts: Civil, Religious, and Special.
The religious courts were the Islamic Sharia and, for non-Muslims, confessional courts. The Islamic Sharia court would be tailored differently for respective Sunni or Shi'ite Muslims.

Post Independence

A new civil code was introduced in 1951, heavily influenced by Egypt's civil code, which blended Islamic, Ottoman, and European law traditions. This code did not cover matters of personal status and so, a few years later the Personal Status Code of 1959 was put into effect with Sharia law being most prominent. The laws of personal status covered marriage, testamentary disposition, and inheritance.
These rules, unlike previous law, were unitary regardless of religious sect. The biggest jump from Iraqi classical law was the issue of intestate succession. Prior to the reforms, after death an individual left 2/3 of their estate to their heirs, with males receiving two times the amount of land as females.
The reform stipulated that males and females would receive equal shares, however this was repealed in 1963 after significant backlash.
The second Ba'th revolution and the creation of the 1970 constitution defined Iraq as a democratic people's republic.
During this time Saddam Hussein changed the name of Sharia courts to the courts of personal status.
Article 7 of this constitution cements Islam as the official religion and ambiguosly cites it as a source of legislation. Furthermore, Article 12 includes a provision claiming equal rights before the law for all Iraqis regardless of gender, religion, nationality, sect, opinion, belief, or origin.
In 1978, Law 21 increased the possibility for women to obtain a judicial divorce in addition to giving them increased rights over matters of child custody

Ba'th Regime and Saddam Hussain

The Ba'th Party defined itself as revolutionary and categorized itself as having a secular ideology of Arab nationalism. In 1968 the party established a provisional constitution under the Revolutionary Command Council as the supreme governing body of Iraq, with both legislative and executive authority. Under the rule of Saddam Hussein, all government officials were members of the Ba'th party. Although an "independent" judicial system was established, it lacked the necessary provisions for the structure and all judges were appointed by the president. The regime's legitimacy was heavily derived from the nationalization of Iraq's oil industry. Once in power, they embarked on anti-imperialist development programs for socialism. Notable legal reforms included the codification of laws. The Iraqi Civil Code was kept in placed and influenced by European legal systems like the French Civil Code. Citizens were free to enjoy many social and economic rights as long as they were not deemed a threat to the party and did not belong to one of the outlawed parties, or ethnic groups. At the core of the changes occurring in Iraq at this time was the expansion, bureaucratization, and securitization of the Ba'th Party. Overall while these formal legal structures and codifications existed, their implementation was greatly overshadowed by the Ba'th Regime's authoritarian nature and repression of the people in general.
During the Iran-Iraq War The Ba'th party played a crucial role in maintaining the social cost for all Iraqi citizens. At this time there was a high level of female participation in wartime efforts and Iraqi women were also discouraged from wearing the traditional black robe because the party felt it was "backwards". These women were rewarded with the issuing of amendments to the Personal Status Law in 1983 and 1985. These amendments accorded more rights to individual women within a family.

Reconstruction of Iraqi Law After the Hussein Regime

Ba'thist Regime was overthrown in 2003 after a U.S. invasion of Iraq. The U.S. then led a Coalition Provisional Authority and an interim government was promptly established to operate under a transitional law. Several orders were instated as a temporary legal framework that included the De-Ba'thification of Iraq, the dissolution of the Iraqi army, and the restoration of an independent judiciary. When constructing Iraqi law, Egypt was used closely as a comparative tool or guide. The U.S. had appointed 25 Iraqis to form an initial governing council, which was intended to proportionately represent Iraq's ethnic and religious composition. The Iraqi Governing Council adopted an Interim Constitution in March 2004. This constitution guaranteed the rule of law, judicial independence, human rights and individual freedoms, and federalism and democratic elections.
A new, permanent constitution was ratified in a referendum in October 2005. This established Iraq as a federal, democratic, and parliamentary republic. Under this new constitution Islam was recognized as the official religion of Iraq and as a source of legislation. As with the interim constitution, the 2005 one sets out separation of powers, an independent judiciary, and human rights protections. The Constitution also established the Kurdistan Region as an autonomous federal entity.
Article 117 states "This Constitution, upon coming into force, shall recognize the region of Kurdistan, along with its existing authorities, as a federal region."

Fields of Law

Constitutional Law

The current Constitution of Iraq was approved in a national referendum in October 2005 and stipulates the format of the new republican government, and the rights and responsibilities of the Iraqi people. Despite the rejection of the provinces of Anbar, Saladin, and Nineveh, the overall turnout was 63 percent, with more than 90 percent voting for its adoption.
The Constitution promises several civil liberties including freedom of speech, freedom of religion, freedom of peaceful assembly, freedom of expression, a free press, and a right to have a private life. All such personal liberties contain two main exemption clauses: the Iraqi Council of Representatives has the power to define what these freedoms mean, and, that no freedom may conflict with Islamic morality.
Islam is the official state religion, and no law may be enacted or enforced that violates the "undisputed" teachings of Islam. An official English translation of the Iraqi Constitution is available online at the Iraqi government's homepage.
There are legal experts, however, who criticize the failure of the 2005 Iraqi Constitution, particularly with respect to its perceived disastrous political consequences. For instance, an evaluation conducted by the International Crisis Group revealed that the federal system of government outlined in this fundamental law encourages ethnic divisions and manufactures pluralism. There are also observers who cite the "excessive concessions granted to the Kurds on the issues of federal government." This is blamed for the so-called weaknesses of the new Iraqi Constitution.

Criminal Code

In 2003, Paul Bremer led the Coalition Provisional Authority and issued a series of binding "regulations", "memorandums", and "orders". On June 10, 2003, Bremer issued "Order Number 7" that stipulated that the binding Iraqi Criminal or Penal Code would be the 1984 vintage third edition of the law first enacted in 1969. Administrator Bremer made some amendments to both the Penal Code and the Criminal Procedure Code of 1971.
All the CPA orders, memoranda and regulations are available at the CPA Official Document Archive. An English translation copy of both codes prior to their CPA and subsequent amendment can be viewed online at the Case Western University website.
Order Number 31 also provides several amendments to the penal code, including:
The Iraqi Civil Code was principally drafted by Abd El-Razzak El-Sanhuri, a French-educated Egyptian jurist who was also the principal drafter of the Egyptian Civil Code. In 1943, almost a decade after the push for a comprehensive modern code began in Iraq, Al-Sanhūrī was invited to Iraq by the Iraqi government and asked to complete the Civil Code. Working as the chairman of a committee of Iraqi jurists, using the Egyptian Civil Code as a model, he completed a draft of what would become the modern Iraqi Civil Code. The Iraqi Civil Code was enacted on September 8, 1951, and became effective two years later on September 8, 1953.
The Civil Code governs civil transactions: contracts, property, obligations, torts, etc. Iraqi Civil Code is modeled after Egyptian Civil Code, which included the Civil Code for Mixed Courts and the Civil Code for the National Courts Egypt's Mixed Court Code was modeled after the French Code. Although the Iraqi Code incorporates Islamic elements, its overall structure and substance is principally based on continental civil law. For example, in the case of an absence of a provision, judges are to rule according to custom and then according to the principles of Islamic Sharia. Overall, Iraqi Civil Code shares common substance and legal theory with other legal systems based on that model such as Egypt, France, Ethiopia, Spain, Italy, and the state of Louisiana.
The Iraqi Civil Code is divided into a preliminary part and two main parts, each main part composed of two books. The preliminary part contains definitions and general principles that find application throughout the rest of the code. Part I of the Code and its two books address obligations in general and subelements of that area of law, such as contracts, torts, and unjust enrichment. Part II and its two books address property, ownership, and real rights.
See Also: Iraqi Penal Code