Identifier
Created
Classification
Origin
09BAGHDAD374
2009-02-13 07:37:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Baghdad
Cable title:  

KRG JUDICIAL INDEPENDENCE AT ISSUE IN DRAFT LAW

Tags:  KJUS IZ 
pdf how-to read a cable
VZCZCXRO1134
RR RUEHBC RUEHDA RUEHDE RUEHIHL RUEHKUK
DE RUEHGB #0374/01 0440737
ZNR UUUUU ZZH
R 130737Z FEB 09 ZDK
FM AMEMBASSY BAGHDAD
TO RUEHC/SECSTATE WASHDC 1679
INFO RUCNRAQ/IRAQ COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHDC
UNCLAS SECTION 01 OF 02 BAGHDAD 000374 

SENSITIVE
SIPDIS

DEPT FOR INL, NEA/I
JUSTICE PASS TO JOHN EULER, ANDREW NORMAN

E.O. 12958: N/A
TAGS: KJUS IZ
SUBJECT: KRG JUDICIAL INDEPENDENCE AT ISSUE IN DRAFT LAW

REF:
UNCLAS SECTION 01 OF 02 BAGHDAD 000374

SENSITIVE
SIPDIS

DEPT FOR INL, NEA/I
JUSTICE PASS TO JOHN EULER, ANDREW NORMAN

E.O. 12958: N/A
TAGS: KJUS IZ
SUBJECT: KRG JUDICIAL INDEPENDENCE AT ISSUE IN DRAFT LAW

REF:

1. (U) SUMMARY: The Kurdistan National Assembly (KNA) will
consider a draft bill to establish a Judicial Institute in the
Kurdish region, similar to the Judicial Training Institute of
Baghdad, after their winter recess in January. Rule of Law
representatives from the Erbil RRT and Baghdad PRT and the Office of
the Rule of Law Coordinator met with the Kurdistan Minister of
Justice, the Chief Judge of the Kurdish Regional Government (KRG)
Court of Cassation and head of the Kurdish Judicial Institute, and
the Kurdish National Assembly legal committee mid-December to
discuss the law. Drafting in the law stands at a crossroads, as the
Kurds determine whether to structure the institute under the
Executive or the independent judiciary. An educated, independent
judiciary is essential to Rule of Law efforts in the region.
Kurdish citizens will need to rely on the judiciary to resolve
commercial disputes, guard procedural rights of defendants, as well
as to protect human rights, women's rights, and the rights of
minorities. END SUMMARY.

BACKGROUND


2. (U) Since 1992, sectarian strife has prevented Kurdish
individuals from attending the Judicial Training Institute in
Baghdad. The resulting deficit of specialized judicial training for
a large swath of appointed judges in the Kurdistan region
potentially exacerbates problems common to the Iraqi criminal law
system, such as confession-based hearings and failure to enforce the
procedural rights of detained individuals. The newly established
Shura Council within the Kurdistan Ministry of Justice (KMoJ) has
drafted a bill to establish a judicial institute in the Kurdistan
region. This draft has been submitted to the Council of Ministers
and will be considered by the KNA after their winter recess. At an
earlier meeting with the representatives of the Office of the Rule
of Law Coordinator, the Director of the long-standing Baghdad
Judicial Training Institute (JTI),Dr. Ahlam Al-Jabiri, expressed
unofficial disapproval of the establishment of the Kurdistan
Judicial Institute because she believes there should be one central
institute in Iraq, but she confirmed that the JTI does not have
Kurdish student participation.


3. (SBU) Until 2007, judicial affairs were handled within the KMoJ.
The Kurdistan Region has been operating as a semi-autonomous region
since 1992 with two sets of parallel institutions to those in the

Federal Government. Until the Unification Agreement of January 21,
2006, the two main Kurdish factions, the Kurdistan Democratic Party
(KDP) and the Patriotic Union of Kurdistan (PUK),each had separate
administrations. KDP controlled the provinces of Erbil and Dohuk and
PUK, Sulemaniah. With Unification, the effort to establish an
independent judiciary in the Kurdistan Region followed. The
judiciary was made independent from the executive branch by the
Judicial Powers Act passed by the KNA in 2007.

GOI JUDICIAL INSTITUTE UNDER MOJ (or EXECUTIVE) CONTROL


4. A similar restructuring occurred in Baghdad with the federal
Higher Judicial Council (HJC) becoming independent from the
executive branch in 2003. However, the HJC was unsuccessful in its
efforts to regain control over the JTI, which trains new judicial
candidates. This has been a source of consternation for the
leadership of the HJC, as they consider Ministry of Justice (MoJ)-
management of the institute, executive interference in judicial
affairs, and because the status of a judge in a civil law system is
highly desired, control over the selection of judges is vulnerable
Qhighly desired, control over the selection of judges is vulnerable
to politicization. The student body of the Institute comprises the
majority of the incoming Iraqi judges, and although the Chief Judge
of the Court of Cassation, Judge Medhat Mahmoud, is the Chairman of
the JTI Governing Council, which is responsible for student
selection and curriculum development, there is still a valid concern
of executive influence in the vetting and training of Iraqi judges.
The Director General of the JTI is a MoJ employee, not a judge, and
is responsible for proposing curriculum updates to the governing
council.

KJC AND KNA LEGAL COMMITTEE CONCERNS FOR JUDICIAL INDEPENDENCE


5. (SBU) Discussions with the head of the Kurdistan Court of
Cassation, Chief Judge Ahmed, reveal that the leadership of the KJC
holds concerns similar to those of the HJC in regards to the current
KMoJ draft law. Chief Judge Ahmed said that he had discussed the
situation with Chief Judge Medhat Mahmoud. The current draft law
for the Kurdistan Judicial Institute arguably creates additional
concerns for judicial independence and politicization of the
judiciary as it provides the Kurdistan Minister of Justice with a
veto over the decisions of the Institute's Governing Council. The
KNA Legal Committee raised this concern with U.S. representatives.
They believe that structuring the judicial institute under the KMoJ
could potentially conflict with the Judicial Powers law. They
pointed out inconsistencies in provisions in the Judicial Powers law

BAGHDAD 00000374 002 OF 002


of 2007 guaranteeing financial and administrative independence to
the judiciary and provisions in the draft law locating the institute
under direction of the KMoJ.

U.S. REPS ADVISE STRUCTURING JUDICIAL INSTITUTE UNDER KJC


6. (SBU) In regards to judicial independence, Rule of Law
representatives from the Erbil RRT and Baghdad PRT and the Office of
the Rule of Law Coordinator pointed out that the law could also
potentially conflict with the Iraqi Federal Constitution and the
currently drafted Kurdistan Regional Constitution, and highlighted
the provision in the draft law giving a veto to the Ministry of
Justice. The Iraqi Federal Constitution states that the HJC is the
competent body to manage judicial affairs in Iraq. However, the
linkage between HJC and KJC has been weak to date. The HJC has room
for representation from the KJC, but preliminary discussions on
linkages between the two bodies have been held only recently. The
Kurdish Regional Constitution similarly states that the judiciary
has power over all juridical persons within the Kurdistan region.
The representatives asked the KNA legal committee if they had asked
for guidance from the KJC regarding the law. The Legal Committee
said they would involve the KJC in review of the law, particularly
because in their legal opinion, the judicial institute should be
located under the KJC and not the KMoJ.

LEGISLATING FOR INSTITUTE DEVELOPMENT ENCOURAGED



7. (SBU) The representatives said they were pleased by the
inclusion of commercial law and forensics courses in the initial set
curriculum and encouraged a substantial initial investment in
infrastructure. The draft law lacked an exception for waiving the
requirement of 3 years legal experience in Iraq for foreign
applicants. The representatives suggested that due to the relative
security of the North, the Kurdistan Judicial Institute had the
potential to become a center of learning of interest to surrounding
states, so it should perhaps not exclude foreign applicants, and
that the Ministry should also consider arranging continuing legal
education for judges at the institute. The Minister and KNA
appeared highly receptive to the suggestions for institute
development, and expressed interest in gaining the advice from
regional experts in developing the institute. Judge Mansour Hadidi,
General Director of the Judicial Institute of Jordan has agreed to
act as an advisor to Kurdistan government officials in the
development of a judicial institute.

CROCKER