Iraqi justice system starts to mend
150 of Iraq's 400 courts have begun operating again, but the question of ex-Baathist judges remains.
More than once recently, accused criminals in Tikrit have skipped jail or simply not shown up for their trials. Those who do appear must stand throughout in a wooden pen, with their hands behind their backs.
The presiding judge, who dominates the process and calls all witnesses, is inevitably a veteran of ousted Iraqi leader Saddam Hussein's Baath Party.
"Before, judges had no freedom to make decisions. Now I have freedom," says Salah Khadar al-Jubouri, chief judge of the Salahaddin Provincial Court. "Gradually, like a recovering patient, the laws are being applied with justice," he says in his spacious Tikrit chamber.
In fits and starts, the gears are starting to churn again in Iraq's antiquated court system, badly looted and broken in the aftermath of the war. Already, about 150 of the nation's 400 courts have reopened for business. Reestablishing the justice system and rule of law is vital to efforts to build a democracy in Iraq, where general elections could take place as early as mid-2004.
"It is not unrealistic to think we could possibly have general elections by mid-2004 and that is when our work here will be done," Ambassador Paul Bremer, the top US civilian administrator in Iraq, told reporters in Baghdad on Thursday.
Still, so far, courts in cities such as Tikrit retain many of the trappings - and much of the substance - of the justice system that existed for decades under Mr. Hussein.
To be sure, the worst injustices of the old legal regime were recently abolished - on paper, at least - by the orders of Coalition Provisional Authority (CPA) chief Bremer. Reverting to Iraq's 1969 penal code, the June orders eliminate Hussein's network of special security, military, and other courts - to which he diverted cases important to the regime.
CPA orders also rule out the use of evidence obtained by torture, such as the forced confessions that experts say were common under the old system. "In the last five years, 30 percent of the cases involved documented torture," writes Richard Coughlin, a US federal prosecutor who led a study group of American judges and lawyers to Iraq in May.
Meanwhile, the orders grant new rights to Iraqis, such as the right to counsel upon arrest and the right to remain silent. A new public-defender program is also under way to ensure that low-income Iraqis have recourse to legal defense. Finally, the orders suspend the death penalty.
For the first time, judges such as Mr. Jubouri in Tikrit say they are free to hand down decisions without interference from the regime. Before the war, Hussein and his relatives and associates were "untouchable," says Jubouri, recalling a case he handled in the central city of Balad where a murderer was ordered released by the regime. Today, he says, no one is above the law.
"Before, many criminals escaped. Now all people have equality under the law and the judge tries his case to the end," Jubouri says.
Still, Baghdad authorities have proved slow in communicating such reforms in laws and legal procedures to Iraq's provinces. It took roughly two months since the fall of Baghdad in April for the CPA to purge the laws of the Hussein regime's worst abuses. It was another three to four weeks since those changes were translated into Arabic, and they still have not been published in the official Legal Gazette of Iraq. The upshot: Many judges are still unaware of the new rules.
Perhaps more important, with many of the prewar Baath Party judges such as Jubouri firmly in place, it remains unclear how effectively such reforms will be implemented. In Salahaddin Province, for example, all 52 of the prewar judges - all of whom were members of the now banned Baath Party - remain in their jobs.
"The courts came back into operation just about like turning on a light switch," says Capt. Mike D'Annunzio, a Harvard-trained lawyer with the US Army's 4th Infantry Division, who is overseeing the reopening of courts in Salahaddin.
Keeping on the Baath Party judges was a necessity, says Captain D'Annunzio, because all experienced Iraqi judges had been required to join the party prior to receiving education or jobs.
Jubouri, who joined the Baath Party in the 1970s before attending Baghdad College of Law, claims that he had been discriminated against under the old regime and denied the high position he holds now. If former Baath Party members are experienced and honest, he says, they should be allowed to serve.
"I have notes on every judge" in Salahaddin, he says, tapping a small notebook on his desk, "and I also look at their sources of income," he says, alluding to the corruption that experts say has pervaded the Iraqi justice system.
Still, the CPA's judicial review committee in Baghdad has recently indicated that as many as four of Salahaddin's current judges may have to be suspended if, as suspected, they were "Tier 4" Baath Party members. The US has declared Baath Party members at Tier 4 or above ineligible for office.