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Cablegate: Rrt Erbil: One Iraq: The Judiciary Crosses the Great Divide

VZCZCXRO7759
PP RUEHBC RUEHDA RUEHDE RUEHIHL RUEHKUK
DE RUEHGB #2900/01 2521512
ZNR UUUUU ZZH
P 081512Z SEP 08
FM AMEMBASSY BAGHDAD
TO RUEHC/SECSTATE WASHDC PRIORITY 9302
INFO RUCNRAQ/IRAQ COLLECTIVE

UNCLAS SECTION 01 OF 02 BAGHDAD 002900

SENSITIVE BUT UNCLASSIFIED

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL KJUS PINR IZ
SUBJECT: RRT ERBIL: ONE IRAQ: THE JUDICIARY CROSSES THE GREAT DIVIDE

FOR USG ONLY. NOT FOR INTERNET DISRIBUTION.

This is an Erbil Regional Reconstruction Team (RRT) cable.
1. (SBU) Summary: Chief Justice Medhat on August 29 led a delegation
of nine judges from the Iraq High Judicial Council (HJC) to meet
with thirteen judges from the Kurdistan Region of Iraq who were
selected by the Kurdistan Judicial Council (KJC). This was the
first meeting between representatives of the national judiciary and
judges in the Kurdistan Region since the Kurdistan Region attained
autonomy in 1991. The meeting was sponsored by a local NGO with
funding from the International Republican Institute (IRI) and
facilitated by the Rule of Law (ROL) coordinator at RRT Erbil.
2. (SBU) The forum covered communication between federal and
regional justices; the current structure of the regional judiciary;
harmonization between the federal judiciary and the regional
judiciary; and coordination of prosecution, execution of judgments
and the administration of justice at the federal and regional
levels. A Memorandum of Understanding signed at the conclusion
commits to continued dialogue on the subjects covered at the forum.
More importantly, concrete results emerged shortly thereafter, with
an indication that Judge Medhat was working to help include Kurdish
Judges on the HJC. The Erbil RRT is encouraging our Kurdish
colleagues to seize this opportunity. This meeting, and the
follow-up it generates, represent important steps in consolidating a
coherent and effective legal framework for all regions of Iraq. End
Summary.
First Meeting of national and Kurdistan judges since 1991
---------------------- ----------------- ------------
3. (U) On August 29, 2008 Chief Justice Medhat led a delegation of
nine judges from the Iraq High Judicial Council (HJC) to meet with
thirteen judges from the Kurdistan Region of Iraq that were selected
by the Kurdistan Judicial Council (KJC). This was the first meeting
between representatives of the national judiciary and judges in the
Kurdistan Region since the Kurdistan Region began autonomous
government in 1991. The meeting was sponsored by a local NGO with
funding from the International Republican Institute (IRI) and
facilitated by the ROL adviser at Erbil RRT.
4. (U) The forum covered four topics: 1) communication between
federal and regional justices; 2) the current structure of the
regional judiciary; 3) harmonization between the federal judiciary
and the regional judiciary; and 4) coordination of prosecution,
execution of judgments and the administration of justice at the
federal and regional levels.
MAIN DISCUSSION POINTS
---------------------
5. (U) The judges discussed both electronic and courier-type
communication between federal and regional justices. While several
noted that electronic communication could be relatively secure,
others resisted over-reliance on this because of the Iraqi legal
system's dependence on seals and original signatures. This topic
was noteworthy in that the goal of creating a secure line of
communication was presumed in spite of the long separation. The two
bodies agreed to dedicate personnel to work on this issue.
6. (SBU) On the current structure of the regional judiciary, Chief
Justice Medhat informed the group that he had just attended a
meeting in Switzerland to explore the nature of the judiciary in a
federal Iraqi state. (Note: no specific information on this meeting
was available to the Erbil RRTOffs). Unfortunately, the organizers
of the event invited the regional Minister of Justice to the meeting
rather than the head of the regional judicial council. (Comment:
Although in this case the meeting was reportedly very positive,
international actors will need to exercise care in order to avoid
inadvertently undermining the independence of the judiciary in the
region.) The Chief Justice spoke at length about the importance of
regions in the Iraqi Constitutions and the need to empower them, and
called for a delineation of jurisdiction. The Chief Justice also
cleared his visit to the forum with KRG President Barzani, however,
which suggests that the independence of the regional judiciary
remains politically sensitive and the linkage between regional and
national courts will need political buy-in. To this end, the
drafting of the regional constitution and revision of the national
constitution merits close scrutiny vis a vis its impact on judicial
independence.
7. (SBU) The longest discussion on a criminal law issue was on the
execution of a Memorandum of Arrest issued by the national judiciary
in the Kurdistan region. In sum, the judges agreed to additional
discussions on the procedural issues related to the prosecution of
criminal cases that spanned provincial and regional boundaries.
8. (SBU) Regional judges directed much discussion toward their
concern over training and pay scales. Several noted that regional
judges have not had access to international or national training and
funding since 1991; while the reasons for this were not apparent,
Medhat said the regional executive had sent several invitations to
regional judges since 2003. Ultimately, the regional judges
requested assistance from the HJC in harmonizing regional and
national pay scales. (Note: pay scales for national judges are
several times those of regional judges in similar positions. On the
other hand, regional judges generally enjoy better security and
working conditions.) Medhat expressed empathy and noted that some
regional judges had requested re-assignment to the national system

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for the superior pay, but stressed that pay and security are
currently concerns for the regional government. Participants also
commented that administrative strengthening programs at the HJC in
Baghdad may become available to the KJC.
UNITY WITHIN AN INDEPENDENT JUDICIARY
-------------- -----------------------
9. (SBU) Several judges worried that political and security pressure
in both Baghdad and Erbil could threaten judicial independence.
Medhat repeatedly called for unity within an independent judiciary.
He elaborated on the unique nature of regions within the cultural
and constitutional context of Iraq, and said that "all regions"
should have regional judicial councils that ultimately harmonize
under the HJC. The Chief Justice outlined a potential Iraqi
justice system that includes several regional councils linked under
the HJC.
MEMORANDUM OF UNDERSTANDING AND FOLLOW-UP
--------------------- --------------------
10. (U) A short Memorandum of Understanding between the HJC and the
KJC commits to continued dialogue on the subjects of the forum. The
forum's closing comments included specific assurances that the
national judiciary would include regional judges in professional
development opportunities and institutions, specifically mentioning
the planned Judicial Education and Development Institute.
BACKGROUND AND COMMENT
---------------------

11. (SBU) Comment: According to writings by Chief Justice Medhat,
the Baathist regime began undermining the independence of the
judiciary starting in the late 1950s. Because the judiciary was
difficult to control, the Baathists sidelined the courts and pushed
investigative functions towards the police. At the same time, the
selection and training of new judges came under the executive in
order to apply policy direction to new judges. Prior to 1991, the
bulk of the area now referred to as the Kurdistan Region was
judicially administered as an appellate district. After gaining
autonomy, the Kurdistan Region in 1992 modeled its judicial
structure on that of the GOI at the time, with the judiciary managed
by the regional Minister of Justice. The regional minister
initially was an experienced judge and the structure retained a high
degree of respect, but over time, party influence and isolation from
professional training and external accountability took their toll.
Several judges at the forum noted that the regional judiciary is
still struggling with these issues even though the Kurdistan
National Assembly passed the Judicial Powers Law (JPL) in November
2007. The JPL created an independent judicial council in the
Kurdistan Region similar to the national HJC.

12. (SBU) Comment Cont'd: The judges' perceived inability to exert
constitutional and legislative power through the formal judicial
system is a fundamental challenge for Rule of Law programming
nationally, since most maturity models measure the extent to which
disputes are resolved through the courts. Judges from the HJC and
KJC agreed to improved coordination, but progress may be slow
without international support. Absent such help, Iraq's political
leadership is likely to resist a judicial system that can directly
deliberate on sensitive topics such as party involvement in
governance, binding interpretations of the constitutional, and
disputes between different levels of government. END COMMENT

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