Justice

The Ministry of Justice controls the courts—civil, criminal and religious. Two systems of law exist in Iraq. In the towns the old Ottoman code is the basis of the law. There are at the same time religious courts which administer the Koranic law in certain matters and in addition there are Jewish or Christian tribunals which settle cases within these communities. The British occupation during the war brought in a stratum of Indian law, to cover fields that the Ottoman law did not touch. All these to-day form a law system which is administered by the National Courts and to which the average citizen is subject. Outside the towns, however, and outside this system of law, comes the tribesman. Hundreds of thousands of tribespeople, either settled as cultivators in various parts of the country or as nomadic wanderers, recognize only the law of the tribes. Over the centuries life in the desert has developed its own way of law-making and its own way of dealing with disputes and difficulties. In the nature of things desert customs differ from town customs, and when both appear side by side in a modern state the essential difficulty is that for countless generations the law of the tribes has had no sanction other than that enforced by tribal custom itself. Iraq has solved the problem, not unsatisfactorily, by giving tribal law a recognized place. If a tribesman is accused of a criminal offence he may claim trial by tribal law. This normally applies to the average unlettered tribesman, but tribal law was successfully pleaded in a cause célèbre in Baghdad in 1931 when a member of a great tribal aristocracy, a former deputy and an educated man, was accused of murder. The murder was a deliberate one but the plea raised was tribal custom. Instead of the death penalty the murderer was given a term of penal servitude which was later shortened, by Royal clemency, and finally washed out. ¹ Normally the penalty of murder is death by hanging, but murders committed to avenge the tribal notion of family honour are in practice never punished in this way. ² 191The Anglo-Iraqi judicial agreement of 1930 provides for a number of foreign judges—in practice these are British—sufficient to ensure that all cases in which foreigners are concerned will be tried by them or under their supervision. There are now no capitulations and the law is the same, and is administered in the same way, to all, Iraqi and foreigner alike. There is no question that the British judges have brought justice into courts that had not known it for centuries. Whether the Arabs appreciate the possibly bleak ideals of British justice is another matter. The Arab judges are not well enough paid to ensure their independence, especially in commercial cases where much money is at stake. Social influence, too, is unduly strong, as might be expected in a country where a semi-feudalism still persists. This influence is frequently exercised; most of the aristocracy seem to take it for granted that they are above the law. Actual bribery would possibly be hard to prove. Corruption is not usually directed to swaying the verdict of the court. But the strong man with a weak case can always buy adjournments, until his weaker opponent with the stronger case is forced, by the continued post-ponements, to come to terms. These adjournments, which in a big case, invariably mean financial benefit for someone, are open to the further objection that they clog up the business of the courts. Nor is the standard of advocacy high. The actual presentation of the case before the judge is usually done competently and at times brilliantly. But there is no Bar as distinct from the profession of solicitor, and the average quality is not high. Some advocates, appearing for one side, are not above making surreptitious approaches to the other suggesting that for a fee a settlement could be arranged. Two such cases ¹ came within my knowledge within a period of a few months. Moreover, as in most countries, the lawyer in Iraq makes a good politician, and the elective methods of the country ensure that the good lawyer with political leanings will go for politics rather than for the bench; while the eager politician may take up law because he is interested in politics.