The judicial system in Iraq and the collective construction


Abbas Ali Al-Ali

The fundamental problems in the construction of the judiciary system and organs of justice in Iraq revolve around the idea of ​​a qualitative representation of the competent authority, under judicial and judicial previous regimes for the year 2003 was the judiciary and the justice the focus of the government and its organs of the Executive through the Ministry of Justice, which controls all of the judicial process and so-called power interval of conflict in society and responsible from the application of good performance of the judiciary, and therefore the judge and the prosecutor and the employee of the judicial is an employee under the authority the minister and can not be him out for his opinion or judgment, including the law if the conflict between the government's interest with its opponents, so resorted to the last in a series of legislation and decisions that excluded a large segment of the state apparatus that her face litigation or be a party to an exhibition of litigation.
This case directed the government of being a legal entity truly capable of being quarreled and wasted a lot of rights that arbitrarily governmental administration in the exercise of its function resorting to breaking the law and violating the Constitution and under the protection of the legislator who is an opponent, a referee, a legislator, a port referee's decision, this combination of these functions has made elimination just a semi-paralyzed body would be unable to apply the law to all persons in their capacity as the moral and legal justice, and reflect the political establishment look to the value of justice and law and disregard for the basic controls of Justice or the so-called minimum natural human rights litigation.
At some point after 2003 and based on American standards as an occupying power and management, senior civil administrator Paul Bremer on the separation of the judiciary from the judicial organs in an attempt to repair the structural error in the authorities combination in Iraq on the basis of the principle of separation of powers and established the so-called Council of the Supreme Judicial Order Executive Managing No. 35 for the year 2003, for the purpose of establishing an independent judiciary has independently and impartially between the person Legal real person or among themselves, was then in 2004 the age of the State Administration Law for the transitional period and came to emphasize here is clear in the principle of separation of powers, and make the judiciary away from the effects of the legislative and the executive branch and give him a lot of jobs in the areas of litigation or in the field of construction of power itself.
The practical experience after 2003 a positive experience in the aspects of them and most importantly they liberated the elimination of the burden of resistance desire to extend Justice under the applicable laws and between the symptoms and intersections dictated by the executive branch and paralyzing her from exercising her job basis, but this never does not mean that the judiciary has been completely rode the effects of power judicial and Atcheraatha not even in how judicial work, known in the judicial systems management that a just judiciary has four basic pillars, the judge and the prosecutor and the defendant's legal group Ihtkman her, and can not be two parties are in one hand and together, which can not be the judge and the prosecutor or the defendant the one hand, a representative one, as is the case in the previous CPA is male while granting described the judiciary as consisting of judges and prosecutors Amyin Wu, and where the prosecutor is supposed that it is a public one hand, and sometimes have a party in the judicial process and has the right and duty to be claiming or claiming it, here we find that the judge and the prosecutor representing the one hand, but that the public prosecutor is part of the judiciary then can not be neutral and can not be to eliminate then to be fair and impartial nor independent.
Iraqi constitutional order continued construction of the judicial institution and deepen the separation of powers theory, and Minister of Justice, which is part of the executive branch and a member of the government administration serves as prosecutor, but was not in fact is the minister of justice, but prosecutor represents the community authority defender of the right of society and the political, legal and economic system and Social, and has full powers granted by the United States Constitution to move the complaint or raise issues and submit them and plead for public right, a real supervisor of all primary investigations that take place in criminal cases or on social security and has sufficient means and powers and devices to regulate the work of the community, and the power They are completely independent of the judiciary in its options and choices and dealing with the public prosecutor also deal with the average citizen or legal entity normal without having the right to interfere with her work or supervise the exercise only through control over the proper application of the law and impose justice authority. The error, which occurred when the US administrative legislator and followed by the Iraqi Constitution is the reverse direction to what was happening before 2003 and carries the same disadvantages as the judiciary turned into a dictatorship of the authority exercising hegemony over the society and prevented from continuing to work the principle of separation of powers when he took over as prosecutor and made functional caudal to eliminate operates under the authority and under its supervision and subject to its instructions and its own laws, and here has to be that the Iraqi judicial institution pay attention if you were keen on the full independence of the judiciary and the application of the principles of social justice and legal justice, to work on the separation of public prosecution system once and for all power and return it to its natural position is part of the executive branch that are responsible for the implementation of the general policy of the State in accordance with paragraph 78 constitutional, and encourage independence and show these four pillars of justice without truth Ttg one over the other.