Tuesday, September 06, 2005

Iraqi Justice (Briefly)

So how does the revolving door of Iraq’s so called justice system help explain the new constitution? It comes down to legal experience. When America drafted its constitution, we already had a tradition of legal scholarship. The constitutional convention was primarily a gathering of lawyers. While it is true that during colonial rule, British appointed judges were singularly loyal to the crown, the adversarial system encouraged diversity of legal outlook.

Additionally the broad range of economic and social systems, and variety of political philosophies co-existed in the colonies. They all were flavors of the enlightenment thinking of the era, and heavily influenced by the tradition of common law inherited from Great Britain. Thus the American legal tradition was born in a society with a broad consensus of values, but an equally broad range of political particulars.

None of these factors exists in Iraq. Today the judgeships are still primarily held by former Baath party members. This is one reason that today we still can’t keep Insurgent forces in custody. Judicial participation is also required to conduct police investigations. Baathist judges often decline to participate in any inquiries. And many are corruptible by our standards.

In Dujail, a Baathist judge participated in the 1982 mass murder of Shiite men. A judge was on hand for the 1991 rape and torture of an entire family of women. Last year the sole Baathist judge in the city told a US Dept. of Justice Lawyer and a US Army Captain with legal experience, that he missed Saddam. He blamed the lawless spree on the US for outlawing judicial torture.

Baath party membership was not only a prerequisite for a judgeship under Saddam, it was also required for entry into the legal profession at all. Iraqi lawyers who were not Baathists are a rarity. The Shiites in particular were prevented from participating in the legal system.

So the Shiites, still a majority in Iraq, have sought refuge in the legal traditions they know and trust. The constitution provides for a very western set of rights and freedoms summed up in Article (14):

Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.

But the Shiites need a fallback position. They need to be able to participate in the judiciary. Hence they plan to rely on Sharia as a source of law, and on Islamic scholars as a source for the judiciary. Islam like Judaism is legalistic religion. The textual scholarship of the Koran is similar to constitutional scholarship. Especially as much of the Koran is prescriptivist in nature.

The Koran has long been a source of legal thinking in the Islamic world. Just as the Judeo-Christian tradition has informed ours. While we now forthrightly ban references to religion, it is silly to deny the influence of the Ten Commandments on western values, and the law is an embodiment of society’s values.

Islam’s values as embodied in the Koran are essentially humanistic. While man is meant to be subservient to the rule of God, man is also meant to live in peace. It is true that the tradition of Islam has not been fair to women, but that was long true of Christianity as well. And Islam has a much better record of dealing with other diversities of humanity. Color was not an issue under the Caliphate.

So the Shiites with nowhere else to turn see Islamic law as a buttress against Sunni dominance of the new court. This is an attempt to balance the scales of justice. For them there is nothing particularly troublesome about reliance on Islamic law. Iraqi Shiites often seek civil settlements amongst themselves from Imams rather than the Sunni dominated courts. The Imams are likely to be fairer and more impartial than the tribal justice system. When seeking tribal verdicts, paying bribes is an integral part of the process. For most Shiites, the Imams are the only even handed authority they know.

This also explains Sunni resistance to the constitution. After years of dominating the judiciary, they are loath to cede over the only branch of government they had a hope of retaining. In the long run Shiites will be able to develop a legal scholarship, that may or may not be so reliant on Sharia. For now they are wisely ensuring that the judiciary includes the closest thing to jurists that represent them. The Sunnis, again were probably grandstanding. I’m still predicting that the constitution will not be vetoed by Sunni voters. Unless it fails to pass, there is hope for further evolution of Iraqi law through compromise and process, the way democracies do it.

Worth a look today:

TMH's Bacon Bits


Blogger The MaryHunter said...

John, thanks for the link.

I hadn't known that about the Sunni/Baathist domination of the legal profession in Iraq. A tad disturbing, but it makes sense historically.

It brings to mind a semi-parallel in our own country, vis a vis the liberal elitists/Democrats and their domination of our court system. Now that the country is tacking Right, their fierce resistance to a realignment of our courts vis a vis Bush's nominees is reminiscent of the picture you paint of Sunnis in Iraq.

Tue Sep 06, 09:17:00 PM 2005  
Blogger NYgirl said...

I too didn't know about the Baathist domination of the legal system, but it does seem obviouse when you think about it. Also, the majority of Iraqi's are Muslim, & their laws muct reflect their beliefs.

Tue Sep 06, 10:40:00 PM 2005  

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