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