An independent and modernized judicial system remains the best benchmark of a civilized democracy. Progress remains to be made, although the government have admittedly been their own worst critic and have outlined the importance of a sound and respected judicial system, and their belief in the supremacy of the law. A prominent judicial system remains an interdependent component of society; one without Kurdistan will never become the democracy or place of civil rights that its own high-expectations demand.
The shift to democracy in Iraqi Kurdistan has been at times shaky but nonetheless historic. The region swiftly moved from contrasting rules, one designated by the authoritarian governance of Saddam Hussein, where basic human rights let alone civil liberties were at a premium, to the self-rule under the auspices of a new Kurdish parliament.
This unique opportunity to guide their own future has witnessed a number of fundamental milestones on the path towards a functioning democracy, but also a number of flaws and setbacks that have at times plagued the move towards a concept of democracy that Kurds want to model on Western standards but one that they believe could also serve as model for the greater Middle East.
The post Saddam era from 2003, was the ideal platform for much needed progress and to kick start the democratic project. Under the international spotlight and with pressure from their US allies, Kurdish leadership could hardly let the unique juncture slip from their grasp.
One of the fundamental pinnacles of a functioning democracy and a successful society is an affective judicial system and this is an area where Iraqi Kurdistan has had many a critic. Admittedly and to their credit, perhaps the government has been their own worst critic in this regard.
Criticisms of the government
Human rights organizations have often criticized the region for corruption, abuse of power and lack of the application of the rule of law.
With law enforcement mechanisms that require strengthening, this has meant little accountability, and the ability of individuals to manipulate the judicial system at times.
A frequent allegation is manipulation of power by the two main political parties that dominate government. Party associations even today mean that a level of immunity is afforded. There have been allegations of arrests without warrants and limited tolerance to opposition.
However, while stating the criticisms, one must also acknowledge the sound improvements that have been noted by international bodies and the productive progress that has been made on a range of issues.
The fulcrum of progressing on this range of issues and the cornerstone of ensuring that the rule of law is applied remains the presence of an affective and independent judicial system. The notion of an efficient judicial system is based on a number of intertwined aspects.
Firstly, the judicial system itself must be transparent and work within the remit of defined laws. It is only with the provision of such laws that the judicial system will have a roadmap and clear guidelines on to which to base the platform of its operations.
Although significant laws have been passed, especially in the last few years, there still lacks a greater basis for a working judicial system. Particularly before the downfall of the Iraqi regime in 2003, many of the laws applied in Iraq were based on Baathist laws at the time. This was hardly the ingredient or the inspiration for the model of civil democracy that the region craved.
For example, old Baathist press laws meant many journalists were imprisoned for criticism or accusations of “defamation”. For instance, under article 433 of the old law, many individuals were harshly punished.
Without a needed level of transparency and impartiality, at times court cases have been the subject of influence and judgments have been deemed arbitrary.
The key personnel of the system
The cornerstone of courts is the availability of experienced and independent judges. Many well known judges operate from the days of the Saddam Hussein regime and political interfere and influence of judiciary staffing naturally places the integrity of courts into question.
Judges should have the utmost credentials and integrity in the fulfillment of their important duty. Lawyers and Judges must themselves be protected by law. No judge or lawyer, however a controversial a case that they defend, should be a victims of the system themselves and become targets for abuse.
Training and qualification of judges must be an integral part of any government motion to shaping the judicial system.
Judges and lawyers must possess wide ranging knowledge, specifically in dealing with social and ethical issues. There must very clear guidelines and a transparent method for dealing with aspects such violence against woman, perjury and the abuse of power.
The title of judge carries a special responsibility and as such wrongdoing or corruption at this level, becomes a key frailty for all of greater society. As such impartiality is a firm prerequisite and courts and judges can only function and fulfill their duty when they work strictly within the remit of clearly defined laws.
Any outside interferences or corrupt judges should itself be punished by law.
Equal before the law
The fulcrum of the judicial system must be equality for all of the citizens that it serves. This virtue should be granted regardless of ones political background or ideology and regardless of their race or religion.
An effective judicial system can only work with a government committed in formulating the main rights of society and enshrining these into laws to ensure their protection. A civilized democratic system means the provision of freedom and rights and ensuring that they are protected.
Democracy and a functioning judicial system work hand in hand, the absence of any of them strongly promotes a system that can be distorted and manipulated to ones advantage against the loss of another. This is against the every essence of justice.
An affective and respected judicial system is the most effective deterrent to those who wish to break laws or abuse their legally attained powers. There should be no slip up or double standards in the application of law or the pressing of charges.
A court ensures that the rights of a person are protected and judges can make decisions on criminal and civil cases. Any criminal offenses or breakages of law should only be acted upon with the provision of evidence and relevant witnesses.
In any state, the police force is generally the body that protects the community from those who break the law, in other words they are the law enforcement body and the “guardians” of the civil society. Consequently the government must be the main sponsor in ensuring that breaks in law are dealt with in a systemic and non-prejudiced manner.
The judicial system should aim to serve the core aspect of justice and justice alone.
Government recognition and initiatives
Although at times progress has been slow, to their credit the Kurdistan Regional Government (KRG) have often openly discussed and acknowledged deficiencies.
The KRG has initiated a number of key measures to support the judicial system. For example, the establishment of the Kurdistan Judges Union in 2007 was an important benchmark that the KRG Prime Minister Nerchirvan Barzani hailed as an important step towards his goal of an independent judicial system.
Prime Minister Barzani painted a strong picture in his speech on the importance of a “strong, independent and impartial judicial system”. Without such concepts according to Prime Minister Barzani, “it (society) cannot become a socially progressive, modern or a civilized society, a politically prosperous or stable community, or a developed commercial or economic”. In other words the presence of a strong and respected judicial system envelopes almost every aspects of society.
According to Prime Minister Barzani, “an independent judicial system is one of the most important and remarkable features of a genuine civilized democratic system”.
KRG has often emphasized its reform programs and reaffirmed their commitment in building the kind of judicial system needed to carry the region forward. Prime Minister Barzani in particular has often spoken passionately about modernizing and creating a strong, respected and independent judicial system. However, reformation and implementation of initiatives has at times been slow
In a speech at a meeting around rule of law capacity building plan in February 2009, Prime Minister Barzani outlined six steps that were deemed highly necessary in achieving their goals. This included judicial training, simplification of the judicial process, developing investigative skills and technology, improvements to the prison system, public education curricula and benefiting from international initiatives conducted in the Middle East.
Prime Minister Barzani has been bold and dedicated to the renovation of the judicial system project as a one of the pillars of government. At the same speech, he focused on the judicial system as a major interdependent component, who’s failure to be achieved could “…hold back progress across a range of issues.”
Current situation
While some allegation by critics that there is an absence of the rule of law is somewhat exaggerated, Kurdistan lacks a number of aspects in regards to the application of law and also in the current judicial setup.
A principle step would be the advent of an official constitution when it is finally passed in parliament. After all, the blueprint of a democratic society as well as a judicial system is the presence of a constitution. This is followed by the onset of key laws to protect the rights of society. Such laws form as the fuel on which to operate the judicial vehicle.
Judges can pass judgments and lawyers can defend cases, but the ground level of the judicial system and protection of the rights of every individual is an organized, professional and experienced police force.
The current saturation of security forces must be reorganized with a much clearer delineation based on those protecting the region i.e. the Kurdistan Army and those installed to serve the law and the ensure the rights of the people are protected and respected. The police force must be trained to collect evidence, follow strict protocol and treat every individual with equality and respect
At the base of society, if the police themselves do not correspond to law or are not in turn subjected to the rule of law, then the main ‘guardian’ of the judicial system critically fails.
The onset of key laws
On the one hand, the implementation of the rule of law must be firm. On the other hand, the government must support and encourage bodies to form new laws and legislation.
Some of the key changes include ensuring that criminal records are kept for all individuals. Any act of harm or violence, outside of the right of defense as determined by law, should be punishable in due accordance with the case in question. Any undue harassment, infiltration or subjugation of any individual should be strongly discouraged by relevant laws.
Similar to European countries, Kurdistan must have a strong adherence to a high-way code to regulate traffic. Traffic offenses such as speeding, should be upheld, including introducing a points-system on licenses. Cars should not be driven that fail to pass important health and safety and environmental standards. Insurance for all drivers should be a prerequisite, to ensure protection for all citizens.
If people understand they can not “get away” with trespasses of the law or breaks in social boundaries, then such offenses will be naturally reduced. For instance, protection for woman has certainly increased in law, but more should be done to punish those who perpetrate domestic violence.
Critically, no matter how many laws are in place, if a climate of fear is not dropped then woman in particular will never be keen to approach the law enforcers. Currently many crimes go unpunished due to fear of reprisals.
Businesses operating outside of laws and regulations should be met with fines and reprimanded, for example selling of expired produce and medication or products that clearly do not meet quality standards.
Laws and regulations must not only take into account fundamental civil rights and freedoms, other offences that damage environment or private property should be contained within legislation. For example, littering is a serious issue in Kurdistan and should be punishable according to the guidelines of the law concerning the offence.
Laws surrounding general public life such littering and motor regulations, should be clearly marked with appropriate sign-posts in public locations. Other rights of an individual should be communicated via other relevant mediums. People must be aware of their rights in a free civil society as well as their obligations in turn to the same society.
Non-governmental organizations
The best way to “police” or oversee governorate bodies or the police itself is the encouragement and support for non-governmental organizations (NGOs). In principle, the KRG has been very open when it comes to scrutiny from international bodies and has strived for improvement at consistent intervals. However, the advent of truly independent and unhindered NGO bodies within the Kurdistan region, who work under the protection of the law, is highly essential. Kurdish NGO’s have often complained of interference and obstacles in the fulfillment of their work.
Such independent bodies are arguably the best gauge on which to analyze civil liberties of society and to evaluate the integrity of the judicial system. Similar to NGO’s, trade unions should be encouraged in the quest for attaining a modern civil society. Trade Unions should be independent and serve a broad range of interests.
The knowledge of a security and police force that has integrity and is itself not immune to the law is the best signal to society.
In Kurdistan, often who you know goes a long way. However, breaks in law should not be masked by one’s status. Cases were breaks in law are condoned or are “erased” due to influences higher up, should itself come under strong scrutiny and the law, without ramifications.
Economic and investment
Judicial system does not merely apply to ensuring civil rights, protection of freedoms and bringing criminals to justice. The judicial system must also strongly protect aspects of business and investment.
The economy is booming in Kurdistan and business interest is building rapidly, however for the government realization of strong foreign investment to take off, foreign companies must have the assurance that they are strongly protected under Kurdish law.
Furthermore, Kurdish business itself must be regulated and protected by law and clear guidelines. This ensures fiscal corruption is limited and no business can operate outside of the law or at the expense of another. Ensuring free trade in business is much like ensuring freedom in civil society.
Freedom and equality runs deep in business too. There will undoubtedly be lawsuits against business, but for the evolvement of Kurdish society, employees must be protected. This includes cases of wrongful dismal, sexual harassment or discrimination. These are all aspects that are protected by law in Western societies.
In reality, the move towards a western model of democracy and civil society will take time. However, the main factor for the KRG is to develop the foundations with great care. Its not east for a region that has only gained self rule for a very short period of time and in a historically hostile region, to meet their own high-expectations all too easily.
The first step is to change the mindset of the population and win their trust that breaks in law will be dealt with equitably, seriously and without exception.
The road to fulfillment of goals
By the lofty standards that they have set and improvements they have openly discussed, the government is still on the road to fulfillment but the journey has many strides to go.
Achievement and modernization, especially in a short period of time, is not easy but half the battle is a realization of your failings and discussing them in clear and frank terms. The other half of the battle may take time, but needs to be driven consistently and with determination.
Recent legislation to enhance judicial independence is most welcome, but this is only one cog in the greater judicial machine. The other cog is strengthening of sources of law that regulate rights, and sources that also serve to determine the level of punishment. As discussed, the principle of the rule of law must be clear and consistent, no matter the background, affiliation or status of an individual.
The most component, however, of the judicial vehicle are of course the drivers themselves. Without proficient, dedicated and highly respected judges and lawyers with the utmost integrity, the new all conquering judicial machine will simply stall.
With the onset and encouragement of NGO’s and regulatory authorities, this will further ensure that not only does the region have a productive and efficient judiciary system, but also one that is transparent, openly works independently, consistently and that itself functions to the rule of law.
As such individuals should have the right to retrials and appeals, and the system should be clear for taking cases to higher courts or even international courts.
After the fall of the brutal Saddam dictatorship, Iraqis chose the courts as the method to inflict justice. Justice through civilized channels echoes more strongly than any other form of retribution.