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Cablegate: Krg Law Establishes Framework for Increased Judicial

VZCZCXRO5402
PP RUEHBC RUEHDA RUEHDE RUEHIHL RUEHKUK
DE RUEHGB #1076/01 0981618
ZNR UUUUU ZZH
P 071618Z APR 08
FM AMEMBASSY BAGHDAD
TO RUEHC/SECSTATE WASHDC PRIORITY 6716
INFO RUCNRAQ/IRAQ COLLECTIVE

UNCLAS SECTION 01 OF 03 BAGHDAD 001076

SIPDIS

SIPDIS
SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PREL KJUS IZ
SUBJECT: KRG LAW ESTABLISHES FRAMEWORK FOR INCREASED JUDICIAL
INDEPENDENCE

This is an Erbil Regional Reconstruction Team (RRT) cable.
SUMMARY AND COMMENT
1. (SBU) In November 2007 the Kurdistan Regional Government (KRG)
passed a law separating the judiciary from the executive.
Specifically, the Judicial Power Law (JPL) establishes a Judicial
Council (KJC) to take over responsibility for the management of
judges and courts from the KRG Ministry of Justice (KMOJ), and
redefines the court structure. An efficient and independent
judicial system will contribute to addressing concerns about the
Kurdistan Region raised in the Department's Human Rights Report and
other assessments, including corruption, political party influence,
gender violence, and transparent free market engagement, by allowing
individuals and entities to advocate for their rights in a more
neutral forum.
2. (SBU) While the JPL represents a step forward in the development
of rule of law in the region, there will in practice remain ways
that the KRG executive branch might interfere with or limit judicial
independence, such as the appointment of judges. The new judicial
structures created by the law will also face the same problems with
developing administrative capacity that have been identified at the
national level. The USG should take steps to acknowledge and
support this move towards an independent judiciary, and assist in
developing the administrative and professional skills needed by the
KJC and other entities. END SUMMARY AND COMMENT.
The Justice System in Kurdistan Region Since 1991
3. (U) In 1991, the "no-fly zone" effectively severed the legal
system of the Kurdistan Region from the national Iraqi system. A
number of Kurdish political parties took advantage of the
opportunity afforded by the no-fly zone to establish a regional
government. Law 1 of the Kurdistan National Assembly (KNA) in 1992
enumerated the legal foundation for the region's government
autonomous from the central Iraqi government (GOI). All existing
national laws of Iraq prior to 1991 were reviewed by a committee and
only those that were endorsed by the KNA became law in the region.
After 1991, laws passed by the GOI could only become law in the
Kurdistan Region if the KNA endorsed them. In addition, the KNA
began generating its own regional laws at the rate of approximately
18 to 20 per year. The Iraqi Constitution of 2005 endorsed the laws
passed in the Iraqi Kurdistan Region between 1991-2003, including
the law that created an endorsement process for all subsequent
national Iraqi laws, and further acknowledged the region's authority
to generate laws outside of areas set aside for exclusive federal
authority.
4. (U) In 1994-96, fighting between the two largest Kurdish
political parties and their affiliates resulted in the division of
the regional government into two distinct administrations, one under
the Patriotic Union of Kurdistan (PUK), dominant in Sulaimaniyah,
and one under the Kurdistan Democratic Party (KDP), dominant in
Erbil and Dohuk. The divided administration continued for several
years after peace was restored, but in 2005 the parties agreed to
start combining administrations. The two party-led Ministries of
Justice merged into the KRG's Ministry of Justice (KMOJ) in 2007.
Prior to the passage of the JPL in late 2007, the KMOJ managed the
courts and judiciary. The court structure evolved to include a
regional Court of Cassation in Erbil as the highest court in the
Kurdistan Region, and two Courts of Appeal managing a lower system
of courts in their respective geographic jurisdictions of
Dohuk/Erbil and Sulaimaniyah.
5. (U) The KMOJ organic law includes a provision for a Justice
Council - not to be confused with the new Judicial Council. Chaired
by the Minister of Justice, the Justice Council controlled
budgeting, staffing, training and policy for judges, prosecutors,
and judicial investigators along with the courts, offices, labor
organizations and logistical considerations that are affiliated with
these positions. A 2006 report of the American Bar Association's
Iraq Legal Development Project concluded that in Kurdistan "[t]he
judiciary is completely dependent on the MOJ."
A More Independent Judiciary
6. (SBU) The Judicial Power Law (Law 23 of 2007) establishes a
structure with ten classes of courts in the Kurdistan Region. The
Court of Cassation, with six standing Chambers, remains the highest
court. Below it are four Courts of Appeal at the head of each
provincial governorate in the region, including a projected presence
in Ta'mim (Kirkuk) Governorate. (Comment: this legislative
overreach shows the outcome Kurdish legislators would prefer
regarding Article 140. End Comment.) Each Court of Appeal manages
eight classes of court within its jurisdiction, including felony,
personal status, juvenile and investigative courts. To date the KJC
has not moved to establish the new Courts of Appeal.
7. (SBU) Most significantly, the JPL establishes a Judicial Council
(KJC) with levels of independence that exceed in some respects those
enjoyed by U.S. state courts. Other provisions, however, assign the
MoJ and KRG Presidency roles that some members of the legal
community worry will be used to limit independence. For example,
the Director of Public Prosecutions, a ministry employee, holds a
seat on the KJC. (The Chief Justice of the Court of Cassation is
the Chairman of the KJC, and seven other members are active judges
from both the Court of Cassation and the four Courts of Appeal.)
Additionally, the JPL gives the KRG President the power to appoint
judges based on nominations received from the KJC. This power is
limited by the fact that the JPL delineates 10 criteria for lower

BAGHDAD 00001076 002 OF 003


judges and several additional requirements, including at least 20
years of experience, for judges that are members of the Court of
Cassation. These types of checks and balances can be a healthy part
of the system, but it will take time for the KJC to perform its role
effectively in the face of a historically powerful and well-funded
executive.
8. (U) The JPL requirement for judicial education creates an
immediate need for the KRG to develop a training facility since the
region's judges have been isolated from the Judicial Training
Institute in Baghdad since 1991. The system will have to address
the issue of judges who were appointed out of necessity without the
requisite certification between 1991 and 2003. Moreover, the JPL's
lowering of the mandatory retirement age may create a shortage of
judges. For example, the law forced the retirement of both the
former Chief Justice of the Court of Cassation and one of the Deputy
Chief Justices.
9. (SBU) According to Article 34 of the JPL, the KJC is responsible
for creating a budget and submitting it to the KNA for approval. In
practice, the acting head of the KJC told RRTOffs that there was
pressure for the KJC to submit its budget to the KRG's Ministry of
Finance (KMOF), with review by the KMOJ, prior to submission to the
KNA. While not strictly in accordance with the JPL, this
arrangement may reflect a pragmatic effort to fill gaps in the KJC's
administrative capabilities. Recently, the KJC split the difference
by submitting its budget simultaneously to the KNA and the KMOF.
Challenges to Implementation
10. (SBU) The region's judiciary faces three key challenges in
implementing the new system. As noted concerning the development of
its budget, the KJC and existing courts are poorly positioned by
decades of dependence on ministries and other executive agencies to
create and execute budgets, and handle other administrative tasks of
an expanding court system. The courts in the Kurdistan Region are
aware of these challenges, but they do meet these new needs.
Another challenge stems from the ill-defined or rudimentary ways
legal institutions interact, such as clear procedures for the
judiciary to mandate police action in specific instances or judicial
police in line with European civil law systems. The final challenge
is political. As a result of the forced retirements and new
positions created by the JPL, the new KJC only has four of the
mandated nine members, and the process of filling the vacant seats
remains contentious. Several high level court contacts have
reported to RRTOffs that there are political and personal issues
involved in the stalemate. How these positions are filled and who
fills them will indicate how much independence the KRG leadership
and the dominant political parties will allow.
Lack of Linkages Between the National and Regional Judicial
Branches
11. (SBU) The law does not address the gaps in the civil and
criminal procedural codes between the regional and national justice
systems or more broadly clarify the relationship between regional
and federal (Iraqi) courts. Citizens and institutions in the region
remain unable to access national level legal institutions, including
the Supreme Court, via a transparent process since there is no
procedural framework for parties to appeal to the federal Supreme
Court. The ranking justice on the KJC told RRTOffs that he was
receptive to a much stronger professional relationship between the
KJC and the Higher Juridical Council (HJC) in Baghdad. This would
be a long-overdue first step towards reconciling systems that
ultimately need to be clearly and closely linked.
13. (SBU) There is a correlation between the increased profile of
judicial independence at the national level and developments at the
regional level. The primary differences in the enabling legislation
for the KJC and HJC are that: 1) the KJC has an executive branch
officer as a member whereas the HJC membership consists solely of
judicial officers; 2) the HJC has sole authority over the training
and certification of judges whereas in the Kurdistan Region a law
assigning this function has not been passed; and 3) the Kurdistan
Region's JPL allows the KJC to submit its budget directly to the
legislature whereas the HJC coordinates its budget with the Ministry
of Finance.
Proposed USG Action
14. (SBU) Judicial contacts acknowledge that the creation of an
independent judiciary in Baghdad with strong USG support spurred
similar action in the Kurdistan Region. The RRT recommends that the
USG acknowledges the progress demonstrated by the passage of this
JPL in conversations with KRG leaders and in annual human rights
reporting, encourages a transparent process for filling the current
vacancies in the KJC, and identifies technical and financial support
to develop the administrative capabilities and the infrastructure
necessary for an effective judicial branch in the Kurdistan Region.
We should also encourage European countries such as France and
Germany with civil code laws systems to support the regional
judiciary as they expand their presence in Erbil.
15. (SBU) In the short term the RRT is working with the KJC and Rule
of Law partners in Baghdad to foster a linkage between the KJC and
the HJC in Baghdad. The RRT proposes that the two institutions
should be encouraged to work together to solve shared problems
relating to court administration, judicial administration
(professional development and training) and procedural issues facing
a federal Iraq. This could begin with a series of video-conferences
between the two bodies to establish a foundation for later

BAGHDAD 00001076 003 OF 003


discussions.
COMMENT
-------
16. (SBU) Under the Judicial Power Law, the KJC is balanced by the
legislative branch through its budgeting process, and by the
executive branch in the final endorsement of judges. It has yet to
be determined what role the KJC or newly independent court system
will be able to have as an effective check on the legislative and
executive powers. A stronger role for the Judiciary, but also for
the KNA as a legislative body and balancing force, will be
increasingly important to put the Kurdistan Region on a path towards
transparent and accountably democracy. While the U.S. and others can
encourage this course, developing a truly independent judiciary in
the region, as in the rest of Iraq, will require strong political
will and cultural change after years of domination by the executive
branch. END COMMENT.
BUTENIS

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