Law of Iraq

TheRepublic of Iraq's legal systemis in a period of transition in light of theU.S.-led invasionin 2003 that led to the fall of theBa'ath Party.Iraq does have a writtenconstitution,as well as acivil,criminaland personal status law. In September 2008, theIraqi Legal Database,a comprehensive database that makes all Iraqi positive law freely available (only in Arabic) to users online, was launched.

Constitutional law

The currentConstitution of Iraqwas approved in a nationalreferendumin October 2005 and stipulates the format of the new republican government, and the rights and responsibilities of the Iraqi people. Despite the rejection of the provinces ofAnbar,Saladin,andNineveh,the overall turnout was 63 percent, with more than 90 percent voting for its adoption.

The Constitution promises severalcivil libertiesincludingfreedom of speech,freedom of religion,freedom of peaceful assembly,freedom of expression,afree press,and a right to have aprivate life.All such personallibertiescontain two main exemption clauses: the Iraqi Council of Representatives has the power to define what these freedoms mean, and, that no freedom may conflict withIslamicmorality.

Islamis the official state religion, and no law may be enacted or enforced that violates the "undisputed" teachings of Islam. An official English translation of the Iraqi Constitution is available online at the Iraqi government's homepage.

There are legal experts, however, who criticize the failure of the 2005 Iraqi Constitution, particularly with respect to its perceived disastrous political consequences. For instance, an evaluation of theInternational Crisis Grouprevealed that the federal system of government outlined in this fundamental law encouragesethnic divisionsand manufacturespluralism.There are also observers who cite the "excessive concessions granted to theKurdson the issues of federal government. "This is blamed for the so-called weaknesses of the new Iraqi Constitution.

Criminal code

In 2003,Paul Bremerled theCoalition Provisional Authority(CPA) and issued a series of binding "regulations" "memorandums" and "orders". On June 10, 2003, Bremer issued "Order Number 7" that stipulated that the binding Iraqi Criminal or Penal Code would be the 1984 vintage third edition of the law first enacted in 1969.Administrator Bremer made some amendments to both the Penal Code and the Criminal Procedure Code of 1971.

All the CPA orders, memoranda and regulations are available at the CPA Official Document Archive. AnEnglishtranslation copy of both codes prior to their CPA and subsequent amendment can be viewed online at theCase Western Universitywebsite.

Order Number 31 also provides several amendments to the penal code, including:

• The maximum penalty forkidnappingislife imprisonment,and themitigating circumstancesprovided in Penal Code Articles 426 Paragraphs 1 and 2 and 427 were repealed.
• The maximum penalty for rape andsexual assaultin Article 393 is now life imprisonment.
• The maximum penalty forindecent assaultin Article 396 is now fifteen years.
• The maximum penalty for the destruction ofpublic utilitiesin Article 353 is now life imprisonment.

Civil Code

The Iraqi Civil Code was principally drafted byAbd El-Razzak El-Sanhuri,a French-educated Egyptian jurist who was also the principal drafter of theEgyptian Civil Code.In 1943, almost a decade after the push for a comprehensive modern code began in Iraq, Al-Sanhūrī was invited to Iraq by the Iraqi government and asked to complete the Civil Code. Working as the chairman of a committee of Iraqi jurists, using the Egyptian Civil Code as a model, he completed a draft of what would become the modern Iraqi Civil Code. The Iraqi Civil Code was enacted on September 8, 1951 and became effective two years later on September 8, 1953.

The Iraqi Code is based on the Egyptian and before thatFrench Code Civil.Although it incorporates Islamic elements, its overall structure and substance is principally based on continental civil law. Therefore, it shares common substance and legal theory with other legal systems based on that model such as Egypt, France, Ethiopia, Spain, Italy, and the state of Louisiana.

The Iraqi Civil Code is divided into a preliminary part and two main parts, each main part composed of two books. The preliminary part contains definitions and general principles that find application throughout the rest of the code. Part I of the Code and its two books address obligations in general and subelements of that area of law, such ascontracts,torts,andunjust enrichment.Part II and its two books address property, ownership, and real rights.

Laws of personal status

The 1959 Iraq Law of Personal Status (as subsequently amended) governs the manner that religious courts may settle disputes among Muslims living in Iraq in the area of marriage, divorce, custody of children, inheritance, endowments and other similar religious matters. These rulings are binding, unless they conflict with some other provision of the Iraqi legal system. Christians, Jews and other minorities are covered partly by the Personal Status Law, partly the Civil Law and partly their own personal status legal systems.

In 2003 theIraqi Interim Governing CouncilissuedResolution 137on 29 December that expanded the power of Muslim courts to rule in all disputes among Muslims concerning marriage and divorce. It would appear that this Resolution was overruled by Administrator Paul Bremer after domestic and international human rights groups protested the resolution on the grounds that the imposition of Islamic law would erode Iraqi women's rights.

An English translation exists on theAmerican Bar Associationwebsite.

Military law

The current basis for the organization and discipline of the Iraqi military originates from Bremer Orders Number 22 and 23 issued in 2003.

Private Sector law

The fundamental definition of the private sector was mentioned in article 8 of the Law of Companies No 21 (1997) states: "A private-sector company is established on the agreement between two or more persons outside the nation sector, using private capital." Article 8, in addition, obtains a provision that includes private-joint stock or limited liability companies whenever the state gets a share of less than 25% of the capital. Internationally, it is universally accepted that the private sector represents the key part of the national economy that is not under direct state control and that is run for economic profit.

Election law

Paul Bremer legalized political parties andNGOs,and the specific rules regulating political parties were enacted by the 2004Independent Electoral Commission of Iraq.Under these rules an Iraqi political party must register with the Commission in order to be entitled to have its endorsed candidates appear on the election ballot. Registration of a political party (aka "political entities" ) includes paying a filing fee of 2.5 million Iraqi dinars, a second party registration fee of 7.5 million dinars and petition signatures from five hundred Iraqi citizens.

International law

The Iraqi government has ratified various international treaties and documents.

See also

• Iraqi Penal Code
• Law enforcement in Iraq
• Iraqi Police
• Iraqi nationality law
• Iraqi Local Governance Law Library
• Federal Supreme Court of Iraq

External links

• Law in Iraq: A Document Companion
• A Long Way From A Way Forward: Our Journey Through Legal Reform in Post-War Iraq
• The Iraqi Legal Database
• A collection of articles, drafts, studies and reports on the Iraqi constitution
• Global Justice Project: Iraq
• The Iraqi Higher Judicial Council
• The Iraqi Council of Ministers
• The Iraqi Council of Representatives
• United Nations Development Programme
• The Programme on Governance in the Arab Region
• United Nations Development Programme (Iraq Country Office)
• The United Nations Assistance Mission for Iraq
• Iraqi Local Governance Law library

Constitution

• Iraqi Constitution of 2005
• Iraq Constitution of 1990 & 2004Archived2006-04-18 at theWayback Machine

Iraqi Civil and Criminal Law

• CPA Documents
• Iraqi Law with Emphasis on Corporate Law
• A history and analysis of Iraqi Civil LawArchived2007-12-02 at theWayback Machine
• From Baton Rouge to Baghdad: A Comparative Overview of the Iraqi Civil Code, 65 LA. L. REV. 131 (2004)

Iraqi Election Law

• Iraqi Election Law

Personal Status Law/The Role of Islam in Iraqi Law

• "Debating Islam in Post-Baathist Iraq"