Iraqi high court authority a state practice review of the source of high court authority and an asse by Matthew T Simpson

ISLAMIC LAW AND LAW OF THE MUSLIM WORLD at New York Law School Research Paper Series 07-01

Iraqi High Court Authority: A State-Practice Review of the Source of High Court Authority and an Assessment of 2005 Iraq Constitution

by Matthew T. Simpson Public International Law and Policy Group

This paper can be downloaded free of charge from the Social Science Research Network at: http://ssrn.com/abstract= 1061101 New York Law Schoolâ&#x20AC;&#x2122;s website can be accessed at http://www.nyls.edu

IRAQI HIGH COURT AUTHORITY: A STATE-PRACTICE REVIEW OF THE SOURCE OF HIGH COURT AUTHORITY AND AN ASSESSMENT OF 2005 IRAQ CONSTITUTION Matthew T. Simpson 1 November 2007 TABLE OF CONTENTS Introduction....................................................................................................................................1 Powers and Functions....................................................................................................................2 Independence..................................................................................................................................2 Separation of Powers...........................................................................................................3 Independence of Judges .......................................................................................................4 Authority of the Court...................................................................................................................5 Judicial Review ....................................................................................................................5 Judicial Review of Legislative Actions ...................................................................5 Judicial Review of Lower Courts ............................................................................6 Finality of Decisions ...........................................................................................................8 Structure of the Court ...................................................................................................................8 Judges ..................................................................................................................................9 Appointment ............................................................................................................9 Qualification ............................................................................................................9 Number ..................................................................................................................10 Term and Removal.................................................................................................10 Judicial Council .................................................................................................................11 Administration of the Court .......................................................................................................12 Claims ................................................................................................................................13 Initiation, Standing & Selection.............................................................................13 Transparency, Location & Administrative Procedures .....................................................14 Conclusion ....................................................................................................................................15 INTRODUCTION In 2005, the Iraqi Constitutional Committee drafted the Iraqi constitution, replacing the Law of Administration for the State of Iraq for the Transitional Period ("TAL"), the first governing law in Iraq since the Coalition Provisional Authority took control in 2003. Recognizing the 2005 constitution as a temporary document, the first parliament formed the Constitutional Review Committee (“CRC”) in September of 2006 to determine whether and how to amend the constitution.

Matthew T. Simpson is a Senior Research Associate with the Public International Law & Policy Group in Washington, D.C. He received his B.A. cum laude, with Highest Honors in 2004 from Hobart College, Geneva, N.Y. He can be reached at matthewtsimpson@gmail.com. The author would like to thank Kora Mehta and Paul Williams of the Public International Law & Policy Group. The views and opinions expressed herein are solely those of the author and do not represent the views of his firm or its affiliates.

In light of the CRC’s efforts, this article reviews state practice for the sourcing of high court authority, synthesizes the results to identify patterns where possible, and assesses the Iraqi constitution’s consistency with state practice. Specifically, this article examines whether states use constitutional provisions or domestic legislation to provide for their high court’s powers and functions, independence, authority, structure and administration, and identifies for the CRC those provisions that may be inconsistent. Powers and Functions Many states include a broad statement identifying the powers and functions of the high court. Such statements can include, on a very general level, which controversies a high court may consider, and what role the high court is to play in society. The powers and functions of a high court are typically set forth in the state’s constitution and reaffirmed in their legislation. For example, Algeria 2 and Portugal 3 each identify general powers and functions of their high courts in both their constitutions and legislation. In the Philippines, the constitution broadly charges the Supreme Court with settling “actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” 4 Likewise in Bulgaria, the constitution charges the judicial branch, namely the Bulgarian Supreme Court, with safeguarding the “rights and legitimate interests of all citizens, legal entities, and the state.” 5 Currently the Iraqi Constitution addresses the powers and functions of the Supreme Court in Article 93’s discussion of the Supreme Court’s jurisdiction. While most states opt for a separate provision for the powers and functions of the high court, grouping such statements together in a provision on jurisdiction is not inconsistent with state practice. 6

ALGERIA CONST. art. 139 (1976), available at http://www.oefre.unibe.ch/law/icl/ag00000_.html (last visited Feb. 21, 2007) (“The judicial power protects the society and the liberties. It guarantees, to all and to everyone, the safeguard of their fundamental rights.”); Regulations Setting the Functioning Rules of the Constitutional Council (Algeria, 2000), available at http://www.conseil-constitutionnel.dz/indexAng.htm (last visited Mar. 8, 2007) (“The Constitutional Council decides on the conformity of organic laws with the Constitution before their promulgation in accordance with the last paragraph of Art. 123 of the Constitution by issuing a mandatory opinion after having been called upon by the President of the Republic in accordance with the second paragraph of Art. 165 of the Constitution within the time limit set out in the first paragraph of Art. 167.”). 3 PORTUGAL CONST. art. 223 (1976), available at http://www.oefre.unibe.ch/law/icl/po00000_.html (last visited Feb. 21, 2007); Law on the Constitutional Court art. 1 (Portugal, 1982), available at http://codices.coe.int/ (last visited Mar. 7, 2007) (“The Constitutional Court has authority over all Portuguese jurisdiction...”). 4 PHILIPPINES CONST. art. VIII §1 (1987). 5 BULGARIAN CONST. art 117 (1991), available at http://www.oefre.unibe.ch/law/icl/bu00000_.html (last visited Feb. 21, 2007). 6 Despite the traditional aversion to double negatives, this article emplys them regularly. In these instances, differences exist between stating that a provision is “consistent” with state practice, is “not inconsistent” with state practice, and is “inconsistent” with state practice. Most importantly, “consistent” with state practice implies a positively analogous relationship between a provision and state practice, while “not inconsistent” does not go so far as to suggest a positively analogous relationship, but rather identifies the lack of a negatively analogous relationship.

Independence Judicial independence is an essential characteristic of nearly all modern high courts and widely accepted as a prerequisite to successful governance. The Universal Declaration of Human Rights (1948) provides in Article 10 that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” 7 The separation of the judiciary (and therefore the high court) from any external influence is thus a necessary feature of most high courts. Most states also require the independence of judges from external influences. Separation of Powers Most states establish the independence of the high court from all other governmental entities in either their constitution or legislation, while some address the high court’s independence in both the constitution and legislation. Many states provide for the independence of the high court in the constitution. For example, in Portugal, the constitution establishes the independence of all federal courts, and separates the judiciary from other branches of government. 8 In South Africa, the 1996 constitution establishes an independent judiciary, including a Constitutional Court, with the power to review and to abolish legislation inconsistent with the constitution. 9 In the Philippines, the constitution defines the powers of the Supreme Court, 10 and prohibits the legislature from depriving the Court of such powers. 11 In Macedonia, the constitution proclaims the Constitutional Court independent and autonomous of all other government entities, 12 and the Algerian constitution makes a similar assertion. 13 In Bahrain, the constitution provides for an independent judiciary. 14 Some states, however, provide for the independence of the high court solely in 7

See Adel Oman Sherif and Nathan J. Brown, Judicial Independence in the Arab World, available at http://www.pogar.org/publications/judiciary/sherif/jud-independence.pdf, quoting General Assembly of the United Nations, Resolution No. 217 A (III) of December 10, 1948. 8 PORTUGAL CONST. art. 203 (1976) (“[t]he courts are independent and subject only to the law.”). 9 SOUTH AFRICA CONST. ch. 8, sec. 165(2) (1996), available at http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1 (last visited Feb. 21, 2007) (providing that “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”). 10 PHILIPPINES CONST. art. VII §5 (1987). 11 Id., art. VII §2 (1987) (providing that “The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof...No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.”). 12 MACEDONIA CONST. art. 98(2) (1991), available at http://www.oefre.unibe.ch/law/icl/mk00000_.html (last visited Feb. 21, 2007) (providing that “Courts are autonomous and independent. Courts judge on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution.”). 13 ALGERIA CONST. art. 138 (1976) (“The judicial power is independent.”). 14 BAHRAIN CONST. sec. 4, art. 104 (2002), available at http://www.oefre.unibe.ch/law/icl/ba00000_.html (last visited Feb. 21, 2007) (“No authority shall prevail over the judgment of a judge, and under no circumstances may the course of justice be interfered with. The law guarantees the independence of the judiciary, and the law shall lay down the guarantees of judges and the provisions pertaining to them.”).

legislation. For example, in Bosnia-Herzegovina, the Rules of Procedure of the Constitutional Court provides the Constitutional Court’s independence from all levels of authority and all state authorities. 15 In Canada the Supreme Court and Exchequer Courts Act 1875 established an independent Supreme Court. 16 In Hungary, Act No. XXXII establishes the independence of the Constitutional Court. 17 In other cases, states provide for the high court’s independence in both the constitution and legislation. For example, in Croatia, Article 117(2) of the constitution provides for the independence of the judicial power broadly, 18 while Article 2(2) of the Constitutional Act of the Constitutional Court provides for an independent Constitutional Court.19 Article 92(1) of the Iraqi Constitution briefly establishes the high court’s independence: “The Federal Supreme Court is an independent judicial body, financially and administratively.” Largely complete, this provision may benefit from greater emphasis on the importance of the separation of powers. Such language may be found in the Bosnia-Herzegovina constitution. Independence of Judges Most states include a provision emphasizing the independence of the high court judges to reinforce the independent nature of the high court decision-making process. Either the constitution or the legislation may contain this provision addressing the independence of the judges. The constitution of the Czech Republic sets forth the independence of the high court judges and emphasizes that no one may interfere with their impartiality. 20 Conversely, France 21

Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina arts. 2-3 (Bosnia-Herzegovina, 2004), available at http://codices.coe.int/ (last visited Feb. 21, 2007); Law on the Constitutional Court art. 2 (Slovenia) (1994), available at http://codices.coe.int/ (last visited Feb. 21, 2007). 16 Encarta Encyclopedia Online, Supreme Court of Canada, available at http://encarta.msn.com/encyclopedia_1741500815/Supreme_Court_of_Canada.html (last visited Feb. 22, 2007). 17 Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, Preamble (Hungary, 1989), available at http://www.mkab.hu/content/en/encont5b.htm (last visited Feb. 22, 2007). 18 CROATIA CONST. art 117(2) (1990), available at http://www.oefre.unibe.ch/law/icl/hr00000_.html (last visited Feb. 21, 2007) (“Judicial power shall be autonomous and independent.”). 19 The Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 2(2), No. 49/02 (Croatia, 2002), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“The Constitutional Court shall be independent of all state bodies, and shall independently distribute the assets approved in the state budget for the functioning of the activities of the Constitutional Court, in accordance with its annual budget and the law.”). 20 CZECH REPUBLIC CONST. art. 82 (1992), available at http://www.oefre.unibe.ch/law/icl/ez00000_.html (last visited Feb. 21, 2007) (“(1) Judges shall be independent in the performance of their duties. Nobody may threaten their impartiality.”). 21 Institutional Act on the Constitutional Council art. 7 (France, 1958), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“A decree issued in the Council of Ministers on a proposal from the Constitutional Council shall lay down the obligations placed on the members of the Council in order to guarantee the independence and dignity of their office. These shall include in particular an obligation on members of the Constitutional Council, for

and Hungary 22 set forth requirements for the independence of high court judges in their legislation. Article 88 of the Iraqi Constitution provides generally that judges are independent. “Judges are independent, and there is no authority over them except that of the law. No power shall have the right to interfere in the judiciary and the affairs of justice.” Though not specific to Supreme Court judges, this provision likely sufficiently emphasizes the independence of all judges, including those on the Supreme Court. Therefore, it is unlikely a constitutional amendment is necessary to specify the independence of the justices of the Supreme Court, though it is advisable that a statement to that effect be made in the legislation. An amendment to Article 88, however, may be appropriate to set forth a prohibition against interference with the independence of the judiciary. Such a prohibition may send a strong message against interference with the independence of the high court, and provide a cause of action should such interference occur. Authority of the Court States grant a broad array of authorities to their high court. Some states address the scope of the high court’s review, typically whether they can consider the constitutionality of legislative action or lower court decisions. Some states also address the binding nature of the authority of the high court, and whether the decisions of the court are final. Identifying the authority of the high court at the point of its establishment enhances the credibility of the institution and limits subsequent challenge of that authority. States, therefore typically set forth the high court’s authority in both the constitution and legislation. Usually, a state’s constitution includes broad, fundamental statements concerning the high court’s adjudicatory powers while legislation provides more detailed, specific powers. Judicial Review Typically high courts are permitted two types of judicial review: 1) judicial review of laws and actions of the state’s government; and 2) judicial review of decisions of the state’s lower courts.

the duration of their term of office, to refrain from adopting a position in public on matters which are or could be the subject of a decision of the Council and from engaging in consultations on such matters.”). 22 Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, art. 12 (Hungary, 1989) (“The Members of the Constitutional Court shall be independent, and shall base their decision solely on the Constitution and other Acts.”).

Judicial Review of Legislative Action Judicial review of the constitutionality of laws is often one of the most important means of establishing judicial authority. This type of review provides protection for core constitutional rights against the power of the majority or the executive. The judicial review of legislative action may be set forth in either the state’s constitution or its legislation. The constitutions of Armenia, 23 Latvia, 24 and Yemen, 25 permit their high courts to review all legislative action for its consistency with the constitution. In Slovenia, however, legislation provides that the Federal Supreme Court shall have jurisdiction over all such matters as are vested in the Court by statute. 26 Legislation also provides that the Federal Supreme Court shall have the authority to evaluate the conformity of the government acts and laws to existing statutes, the Constitution, and the international treaties of which Slovenia is a signatory. 27 Legislation in Spain sets forth the Constitutional Court’s jurisdiction in any action relating to the unconstitutionality of laws. 28 Judicial Review of Lower Courts The judicial review of lower court decisions may be set forth in either the state’s constitution or its legislation. The constitutions of Paraguay 29 and Malta 30 permit the Constitutional Court to review any decision by a lower court, particularly those involving a constitutional issue. In Tunisia, the constitution permits the high court to hear only allegations of treason by a government official. 31 According to Portugal’s constitution, individuals must go through an intermediary appeals court before they petition the Supreme Court to hear their

ARMENIA CONST. art. 100 (1995), available at http://www.oefre.unibe.ch/law/icl/am00000_.html (last visited Feb. 21, 2007) (providing that the Constitutional Court “shall decide on whether the laws, the resolutions of the National Assembly, the orders and decrees of the President of the Republic and the resolutions of Government are in conformity with the Constitution.”). 24 LATVIA CONST. art. 85 (1922) (providing that the constitutional Court “shall review cases concerning the compliance of laws with the Constitution.”). 25 YEMEN CONST. art. 151 (1991), available at http://www.oefre.unibe.ch/law/icl/ym00000_.html (last visited Feb. 21, 2007) (permitting the Supreme Court to “judge cases and pleas that laws, regulations, bylaws and decisions are not constitutional.”). 26 Law on the Constitutional Court art. 13 (Slovenia, 1994). 27 Id. art. 22. 28 Organic Law No. 2/1979 on the Constitutional Court art. 2.1 (Spain, 1979), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“The Constitutional Court shall have jurisdiction, in the circumstances and form laid down by this Law: a. in any action or question relating to the unconstitutionality of laws, legislative provisions or enactments having the force of law.”). 29 PARAGUAY CONST. art. 259(1) (1992), available at http://www.oefre.unibe.ch/law/icl/pa00000_.html (last visited Feb. 21, 2007) (authorizing the Supreme Court to “supervise every judicial branch organization and to decide, on an unappealable basis, conflicts of jurisdiction and competence, in accordance with the law”). 30 MALTA CONST. sec. 95(f) (1964), available at http://www.oefre.unibe.ch/law/icl/mt00000_.html (last visited Feb. 21, 2007) (permitting the Constitutional court to consider: “any question decided by a court of original jurisdiction in Malta together with any of the questions referred to in the foregoing paragraphs of this subsection on which an appeal has been made to the Constitutional Court”). 31 TUNISIA CONST. art. 168 (1959), available at http://www.oefre.unibe.ch/law/icl/ts00000_.html (last visited Feb. 21, 2007) (“The high court meets in a case of high treason committed by a member of the Government.”).

cases. 32 In South Africa the constitution restricts their high courts to appellate review and allows lower courts to take up constitutional issues in regular proceedings. 33 In Argentina, the constitution gives the Supreme Court appellate jurisdiction in most cases, while allowing original jurisdiction for certain claims. 34 Some states also address this issue in legislation. For example, in Malaysia, the Courts of Judicature Act (Act 91) gives the Federal Court jurisdiction to hear and determine appeals against decisions made by the Court of Appeals (excluding several non-appealable matters.) 35 Legislation in Finland permits the Supreme Court wide jurisdiction over all lower court decisions. 36 Article 92(2) of the Iraqi constitution provides that the “work” of the Federal Supreme Court shall be determined by a law passed by the Council of Representatives: “[T]he work of the Court shall be determined by a law enacted by a two-thirds majority of the members of the Council of Representatives.” Further, Article 93 of the Iraqi constitution enumerates the jurisdiction of the Federal Supreme Court (in relevant part): “The Federal Supreme Court shall have jurisdiction over the following: First: Overseeing the constitutionality of laws and regulations in effect. ... Eight: A. Settling competency disputes between the federal judiciary and the judicial institutions of the regions and governorates that are not organized in a region. B. Settling competency disputes between judicial institutions of the regions or governorates that are not organized in a region.” On its own, the “work of the Court” in Article 92(2) is open to interpretation, such that it 32

PORTUGAL CONST. art. 210(3) – (5) (1976) (providing: “The courts of law of first instance shall be, as a rule, the district courts, to which the courts mentioned in Article 211(2) shall have an equivalent status. The courts of law of second instance shall be, as a rule, the courts of appeal. The Supreme Court of Justice shall operate as a court of first instance or of second instance in the cases prescribed by law.”). 33 South Africa Const. art. 174 (1996). 34 ARGENTINA CONST. sec. 117 (1853), available at http://www.oefre.unibe.ch/law/icl/ar00000_.html (last visited Feb. 21, 2007) (“The Supreme Court shall have appellate jurisdiction, with such regulations and exceptions as Congress may prescribe; but in all matters concerning foreign ambassadors, ministers and consuls, and in those in which a province shall be a party, the Court shall have original and exclusive jurisdiction.”). 35 Courts of Judicature Act (Act 91) (Malaysia, 1964), available at http://www.kehakiman.gov.my/legislation/Court_Of_The_Judicature_Act.shtml (last visited Feb. 21, 2007); MARTINDALE HUBBELL INTERNATIONAL LAW DIGEST, Malaysia (2006). 36 Supreme Court Act art. 3 (Finland, 1974), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“The Supreme Court shall examine and decide as the final instance: 1. all litigation which according to law or special decrees may have been brought before the judicial department of the Senate of Finland; 2. appeals against the decisions and actions of authorities, which until now have been subject to appeal to the judicial department of the Senate; 3. appeals against the judgments and decisions of the Land Court.”).

may either refer to the narrow administrative work of the Court, or to its broader review capacities. When read in conjunction with Article 93, however, the two articles provide a broad statement as to the authority of the Court to both review judicial and legislative decisions, subject to change by the Council of Representatives. This provision is not inconsistent with state practice. Further, in light of the political volatility in the state, and the on-going development of the Iraqi judiciary, it may well be advisable to permit the Council of Representatives a degree of control over the activities and jurisdiction of the Court so as to ensure the institution is as flexible as necessary. Finality of Decisions States often set forth the binding effect of their high court’s decisions in legislation. In Hungary, for example, legislation sets forth the binding nature of high court decisions. 37 Croatia’s legislation mandates that all decisions of the Constitutional Court are binding on all persons and provides guidance for their enforcement. 38 Spain similarly asserts the finality of Supreme Court decisions in its legislation, making them effective upon publication in the official gazette. 39 Some states, however, choose to include statements on the finality of the decisions of the high court in their constitutions. Armenia 40 and the Czech Republic 41 are example of this. Article 94 of the Iraq Constitution sets forth the finality of the decisions of the Supreme Court. “Decisions of the Federal Supreme Court are final and binding for all authorities.” While it may be more effective to set forth the binding nature of the Supreme Court’s decisions on all people, in addition to all authorities, a constitutional amendment is not necessary. It is sufficient to include such a statement in the legislation establishing the Supreme Court. 42 Structure of the Court Clarification of the structure of the high court at the time of its establishment provides the public with greater understanding of the workings of the court, and ensures its consistent 37

Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, art. 27.2 (Hungary, 1989) (“The decisions of the Constitutional Court shall be binding on everybody.”). 38 The Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 31, No. 49/02 (Croatia, 2002). 39 Organic Law No. 2/1979 on the Constitutional Court art. 38.1 (Spain, 1979) (“Judgments handed down in unconstitutionality proceedings shall have the force of res judicata, shall be binding on all public authorities and shall have consequences of a general nature from the date of their publication in the ‘Official State Gazette’".). 40 ARMENIA CONST. art. 102 (1995) (“The decisions and conclusions of the Constitutional Court shall be final and shall come into force following the publication thereof.”). 41 CZECH REPUBLIC CONST. art. 89.2 (1992) (“Enforceable decisions of the Constitutional Court are binding on all authorities and persons.”). 42 See The Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 31, No. 49/02 (Croatia, 2002) (“(1) The decisions and the rulings of the Constitutional Court are obligatory and every individual or legal person shall obey them; (2) All bodies of the central government and the local and regional self-government shall, within their constitutional and legal jurisdiction, execute the decisions and the rulings of the Constitutional Court.”).

operation. Provisions addressing the court’s structure include specific procedures for the appointment, number, qualifications and removal of judges, and oversight of the high court. States may provide for the composition of the high court either in the constitution or domestic legislation. In cases where the state’s constitution defines the composition of the court in general terms, legislation often fills in gaps or provides specific details. Some states define the composition of the high court solely in legislation. Judges In establishing a high court it is necessary to define the selection process for judges and how to remove a justice prior to the conclusion of their term if necessary. The process for selecting and appointing judges is often of constitutional significance and the choice of judges can make a significant difference in the area of constitutional review. Independent judges are better positioned to protect core constitutional values and principles. Appointment Most states set forth the procedures for appointing judges to the high court in their legislation. In Slovenia, the Law on Judicial Service provides that judges of the Constitutional Court shall be elected by the National Assembly. 43 Some states, such as Hungary, however, set forth their appointment procedures in their constitution.44 Qualification The majority of states include qualifications for the high court’s judges in their legislation. States such as Liechtenstein 45 provide for the qualifications of high court judges in legislation. Finland’s legislation requires that justices are persons of high intellectual integrity and qualified in law, and who have skill and experience from service in the judiciary. 46 Other states, however, provide for the qualification of their judges in their constitutions. According to the Afghanistan constitution, members of the Afghan Supreme Court “should have higher education in law or in Islamic jurisprudence, and should have enough expertise and experience in the judicial system of Afghanistan.” 47 In South Africa, the constitution provides 43

Supreme Court of the Republic of Slovenia (“Judges of the Constitutional Court shall be elected by the National Assembly in a secret ballot by a majority of all deputies.”). 44 Hungarian Constitutional Court, About the Court, http://www.mkab.hu/en/enpage1.htm (last visited on Jan. 20, 2007) (declaring that Constitutional Court judges shall be elected by a two-thirds majority of Parliament). 45 Constitutional Court Act - Law of 27 November 2003 on the Constitutional Court art. 5 (Liechtenstein, 2003), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (Citizens of the Republic of Liechtenstein who have an impeccable reputation, who are trained in law, and who have served, for at least 10 years, in the legal profession or in an area of education related to his or her qualifications as a lawyer, shall be eligible for appointment to Constitutional Court judge). 46 Supreme Court Act art. 2 (Finland, 1974) (requiring that justices be “persons who are of high intellectual integrity and qualified in law, and who have skill and experience from service in the judiciary.”). 47 AFGHAN CONST. art. 118 (2004) (unofficial English translation), available at http://www.af/resources/aaca/constitution/FinalDraftConstitutionEnglish.pdf (last visited Oct. 3, 2006).

for experience quotas for certain judges. 48 The Armenian constitution also limits the involvement of judges in certain political and professional activities. 49 Number States specify the number of active judges on the high court in either the constitution or in legislation. For example, in Armenia, 50 and France 51 legislation determines the number of judges on the court. By contrast, South Africa, 52 Bosnia Herzegovina, 53 and East Timor 54 make that determination in their constitution. Term and Removal The length of a justice’s term and the procedures for removing a justice prior to the expiration of that term may be found in either the state’s constitution or their legislation. Spain, 55 Latvia, 56 and South Korea 57 all include term and removal provisions in their legislation, while Malta, 58 Portugal, 59 and South Africa 60 include similar provisions in their constitutions. 48

SOUTH AFRICA CONST. art. 174(5) (1996) (“[A]t least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court”). 49 ARMENIA CONST. art. 98 (1995) (“Judges and members of the Constitutional Court may not hold any other public office, nor engage in any other paid occupation, except for scientific, educational and creative work. Judges and members of the Constitutional Court may not be members of any political party nor engage in any political activity.”). 50 Law of the Republic of Armenia on the Constitutional Court ch.1, art. 1 (Armenia, 1997), available at http://www.concourt.am/hr/armenia/arm/ccourt/lcc2e.htm (last visited Feb. 21, 2007) (establishing Armenia’s Constitutional Court has nine members). 51 Institutional Act on the Constitutional Council art. 1(1) (France, 1958) (establishing France’s Constitutional Council has nine members). 52 SOUTH AFRICA CONST. art. 176 (1996) (establishing the South African Constitutional Court has 12 members). 53 BOSNIA AND HERZEGOVINA CONST. art. VI(1)(a) (1995), available at http://www.oefre.unibe.ch/law/icl/bk00000_.html (last visited Feb. 21, 2007) (providing that the House of Representatives of the Federation chooses four Justices, the Assembly of the Republika Srpska chooses two, and the President of the European Court of Human Rights is entrusted with the choice of the remaining three of the nine member high court). 54 EAST TIMOR CONST. art. 125(2) (2002), available at http://www.constitution.org/cons/east_timor/constitutioneng.htm (last visited Feb. 21, 2007) (providing for provides for one Justice to be elected by parliament, and all others to be selected by a council comprised of representatives of the office of the president, the parliament, and the judicial profession) 55 Organic Law No. 2/1979 on the Constitutional Court art. 22 (Spain, 1979) (“The following shall be grounds for dismissal of Judges of the Constitutional Court: firstly, resignation accepted by the President of the Court; secondly, expiry of their term of office; thirdly, existence of any of the grounds of disability applicable to members of the Judiciary; fourthly, any incompatibility that may arise; fifthly, failure to perform the duties of their office with the requisite diligence; sixthly, failure to maintain the reserve pertaining to their office; seventhly, being found responsible for fraud in civil proceedings or being convicted of a willful wrong or of seriously negligent crime.”). 56 Law on the Constitutional Court art. 7.1 (Latvia, 1996), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“The term of office of a justice of the Constitutional Court shall be ten years as of the day when he/she took up his/her duties of office pursuant to Article 5 of this Law.”). 57 Constitutional Court Act art. 7 (South Korea, 2005), available at http://www.ccourt.go.kr/home/english/welcome02.jsp (last visited Mar. 7, 2007) (“(1) The term of Justices shall be six years and may be renewed. (2) The retirement age of a Justice shall be sixty-five: Provided, That the retirement age of the President of the Constitutional Court shall be seventy.”). 58 MALTA CONST. sec. 97 (1964).

Article 92(2) of the Iraqi Constitution describes the judges of the Federal Supreme Court: “The Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, [and] the method of their selection...shall be determined by a law enacted by a two-thirds majority of the members of the Council of Representatives.” This article leaves the appointment and number of justices to legislation, which is consistent with international state practice. 61 Though it is silent on the term or removal provisions for those justices, it is also consistent with international state practice to address these elements in legislation. 62 With respect to the qualifications of the judges, however, ambiguities exist that may result in the Council of Representatives interpreting this Article as requiring a Federal Supreme Court judge to be: (1) a judge, and an expert in Islamic jurisprudence, and a legal scholar or (2) a judge, or an expert in Islamic jurisprudence, or a legal scholar. The interpretation of this provision may affect the composition of the Court as the former interpretation is much stricter than the latter. Judicial Council Many states utilize a judicial council, which may have a role in the administration of the judiciary, selection of judges and general oversight. The structure of the judicial council may be significant in ensuring judicial independence. States almost always provide for oversight of the high court in their constitution. Constitutions may outline the composition of the judicial council and the selection of its members, specifying who is eligible to serve on the council (judges, representatives of other branches of the government, members of professional associations, academics), the number of members on the council, and the length of years served on the council. Constitutions also may include specific roles and duties of the judicial council, such as oversight of the judiciary’s budget, administration of the judiciary, selection of lower court judges, and training and policymaking. The Albanian constitution addresses the oversight roles of the Albanian High Council of

PORTUGAL CONST. art. 222.3 (1976) (“Judges of the Constitutional Court hold office for 9 years, nonrenewable.”). 60 South Africa Const. art. 177 (1996). 61 Supreme Court of the Republic of Slovenia, http://www.sodisce.si/eng/default.asp?id=1234 (last visited Feb. 21, 2007) (“Judges of the Constitutional Court shall be elected by the National Assembly in a secret ballot by a majority of all deputies.”); Institutional Act on the Constitutional Council art. 1(1) (France, 1958), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (establishing France’s Constitutional Council has nine members). 62 Organic Law No. 2/1979 on the Constitutional Court art. 22 (Spain, 1979); Law on the Constitutional Court art. 7.1 (Latvia, 1996) (“The term of office of a justice of the Constitutional Court shall be ten years as of the day when he/she took up his/her duties of office pursuant to Article 5 of this Law.”).

Justice. 63 In Slovenia the constitution includes the specific roles and duties of the judicial council, such as oversight of the judiciary’s budget, administration of the judiciary, selection of lower court judges, and training and policymaking. 64 Articles 90 and 91 of the Iraqi Constitution discuss the Higher Juridical Council. Article 90: The Higher Juridical Council shall oversee the affairs of the judicial committees. The law shall specify the method of its establishment, its authorities, and the rules of its operation. Article 91: The Higher Juridical Council shall exercise the following authorities: First: To manage the affairs of the judiciary and supervise the federal judiciary. Second: To nominate the Chief Justice and members of the Federal Court of Cassation, the Chief Public Prosecutor, and the Chief Justice of the Judiciary Oversight Commission, and to present those nominations to the Council of Representatives to approve their appointment. Third: To propose the draft of the annual budget of the federal judicial authority, and to present it to the Council of Representatives for approval. These Articles set forth the High Juridical Council in very general terms but for most purposes the degree of specificity is sufficient and not overly ambiguous. Article 90 is clear that the particulars of the operations of the Council are left to legislation, and having addressed the existence of the Council in the constitution, this is not wholly inconsistent with international state practice. 65 A conflict exists, however, between Article 90’s provision of oversight of the judiciary, and article 92(1) which says the Supreme Court is a wholly independent body. This inconsistency may lead to confusion surrounding the scope of authority of the Council and whether their oversight extends to the Supreme Court. If the intent is for the Council to have an oversight role of the Supreme Court, then an amendment to Article 92(1), stating as such, may be necessary. If, however, the intent is for the Supreme Court to be independent of the Council, Article 91 may need modification to clearly limit the Council’s oversight capacity. Administration of the Court Clarification of the administration of a high court at the time of its enactment can help 63

ALBANIA CONST. art. 147 (1991), available at http://www.oefre.unibe.ch/law/icl/al00000_.html (last visited Feb. 21, 2007). 64 SLOVENIA CONST. art. 131 (1991), available at http://www.oefre.unibe.ch/law/icl/si00000_.html (last visited Feb. 21, 2007) (“[t]he Judicial Council is composed of eleven members. The National Assembly elects five members on the proposal of the President of the Republic from among university professors of law, attorneys and other lawyers, whereas judges holding permanent judicial office elect six members from among their own number. The members of the council select a president from among their own number.”); SOUTH AFRICA CONST. art. 178 (1996) (describing the composition of the Judicial Service Commission). 65 Constitutional Court Act art. 16 (South Korea, 2005).

promote consistency in the Court’s daily activities and strengthen the perception of the Court as an efficient institution. The administration of the high court is also an important element in potentially asserting judicial independence and assuring compliance with the rule of law. While the procedures for states’ high courts vary greatly from state to state, most states set forth the administrative procedures of the high court in legislation. When administrative procedure are found in the constitution, they are typically the broad or general procedures of the high court, leaving the more detailed, specific procedures of the high court for legislation. Such procedures include those concerning the initiation of claims, the selection of claims, transparency requirements, the location of the court, and other general administrative procedures. Claims How a high court addresses the claims for which it has jurisdiction is usually set forth in the state’s legislation. Elements to consider are how a claim may be initiated, who has the standing to bring a claim, and whether the high court may dismiss or refuse to consider a claim. Initiation, Standing & Selection Usually, a state’s legislation specifies the procedure for initiation of claims before the high court and who may bring a claim. For example, in Slovenia, legislation allows one-third of its members of the National Assembly to initiate a review of a law by its Constitutional Court. 66 In Algeria, only the President can call upon the Constitutional court to decide a case 67 while Canadian legislation permits broad access to the Supreme Court. 68 Some states locate this authority, however, in their constitution. For example, the constitutions of Spain and South Africa provide for private-party access to initiate claims in the Constitutional Court. 69 The French, 70 Armenian, 71 Bulgarian, 72 Lithuanian, 73 and Slovakian 74 66

Law on the Constitutional Court art. 23 (Slovenia, 1994) (allowing the National Assembly, at least one-third of the members of the National Assembly, the National Council, the government, a court of law, the state prosecutor, the Bank of Slovenia, the Auditor general, human rights ombudsman, representative bodies of local communities, and representatives of state-wide trade unions standing to initiate constitutional review of a law). 67 Regulations Setting the Functioning Rules of the Constitutional Council art. 9 (Algeria, 2000), available at http://www.conseil-constitutionnel.dz/indexAng.htm (last visited Mar. 8, 2007) (“The Constitutional Council is called upon through a letter sent to its President in accordance with the provisions of Art. 165 and 166 of the Constitution. The letter of referral shall be accompanied by the text submitted to the Constitutional Council for opinion or decision.”). 68 Supreme Court Act (Canada, 1985), available at http://laws.justice.gc.ca/en/S-26/text.html (last visited Mar. 9, 2007) (“Proceedings on an appeal shall... be in conformity with any order made, on application by a party to the appeal, by the Chief Justice or, in the absence of the Chief Justice, by the senior puisne judge present.”). 69 SPAIN CONST. Part IX, Sec. 159 & 161 (1978), available at http://www.oefre.unibe.ch/law/icl/sp00000_.html (last visited Feb. 21, 2007) (allowing individuals to lodge a direct complaint to the Constitutional Court when an individual has been “discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance, or in situations allowed by law”); see also SOUTH AFRICA CONST. ch. 8, art. 167 (1996) ( allowing individuals to bring cases to the Constitutional Court “when it is in the interest of justice and with leave of the Constitutional Court,” which has been instrumental in upholding minority protections.). 70 FRANCE CONST. art. 61 (1958), available at http://www.oefre.unibe.ch/law/icl/fr00000_.html (last visited Feb. 21, 2007) (allowing the President of the Republic, Prime Minister, President of the National Assembly, and President of

constitutions all allow certain percentages of elected officials to request a review of a law by the state’s high court. In Morocco, the constitution limits the High Court of Justice to reviewing only those indictments referred to it by a two thirds majority of both Houses of government. 75 How the high court determines if it will decide a complaint is typically set forth in legislation. For example, Slovenia and South Korea use a legislatively provided for panel system. 76 Likewise, in Albania, legislation permits the president of the Constitutional Court to assign judges to conduct a preliminary review of each case, after which the entire court then decides whether or not to initiate proceedings. 77 Bulgarian legislation simply states that only the Constitutional Court itself may decide whether it has the competence to hear a claim. 78 The Iraq Constitution is silent on the procedures for bringing a claim before the Supreme Court. Setting forth these procedures in legislation is consistent with international state practice. Transparency, Location & Administrative Procedures Most states include a provision emphasizing the transparency and public nature of their high court’s in their legislation. Albanian legislation sets forth the openness of all Court meetings, but provides the judges the power to close meetings under certain circumstances. 79 In Lithuania, legislation sets forth detailed openness requirements and procedures for the closure of meetings or the removal of persons from the Court. 80 In Slovakia, legislation provides that the

the Senate and sixty members of either the National Assembly or Senate standing to initiate constitutional review of a law). 71 ARMENIA CONST. art. 101 (1995) (allowing the President and at least one-third of the members of parliament standing to initiate constitutional review of a law). 72 BULGARIA CONST. art. 150 (1991) (allowing one-fifth of all Members of the National Assembly, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, or the Chief Prosecutor standing to initiate constitutional review of a law). 73 LITHUANIAN CONST. art. 106 (1992), available at http://www.oefre.unibe.ch/law/icl/lh00000_.html (last visited Feb. 21, 2007). 74 SLOVAKIA CONST. art. 130 (1992) (allowing one-fifth of the members of parliament, the President, the “Government of Slovak Republic” and the general prosecutor standing to initiate constitutional review of a law). 75 MOROCCO CONST. arts. 89-90 (1996), available at http://www.oefre.unibe.ch/law/icl/mo00000_.html (last visited Feb. 21, 2007). 76 Constitutional Court Act art. 72(1) (South Korea, 1988) (“The President of the Constitutional Court may establish the Panels each of which consists of three Justices of the Constitutional Court and have a Panel take prior review of a constitutional complaint”); Law on the Constitutional Court art. 54(1) (Slovenia, 1994) (“A decision on whether to accept a constitutional complaint and begin proceedings shall be brought by the Constitutional Court in a senate of three judges at an in camera session”). 77 Law No. 8577 of 10 February 2000 on the Organization and Functioning of the Constitutional Court of the Republic of Albania art. 31 (Albania, 2000), available at http://www.codices.coe.int (last visited Feb. 21, 2007). 78 Constitutional Court Act art. 13 (Bulgaria, 1991), available at http://codices.coe.int/ (last visited Feb. 21, 2007) (“The Constitutional Court itself shall decide whether an issue addressed to it is within its competence.”). 79 Law No. 8577 of 10 February 2000 on the Organization and Functioning of the Constitutional Court of the Republic of Albania art. 21 (Albania, 2000) (“1. Cases are heard at the Constitutional Court in open plenary sessions. 2. The Constitutional Court may bar the public from attending all or part of a session, in order to protect public morals, public order, national security and the right to private life or personal rights.”). 80 Law on the Constitutional Court of the Republic of Lithuania art. 18 (Lithuania, 1993), available at http://www.codices.coe.int (last visited Feb. 21, 2007).

Constitutional Court will hear cases in private unless otherwise decided by the court. 81 Likewise, in South Korea, legislation allows the pronouncement of final decision by South Korea’s court to be held in public, but restricts the oral arguments and deliberation to private sessions. 82 Many states chose to include in their legislation a provision specifying the physical location of their high court. Portugal 83 and Slovakia 84 both include such a provision in their legislation. States typically address in legislation the detailed administrative procedures of the high court. Such administrative procedures include oaths of office, 85 appointment of judges to hierarchic positions, 86 and the number of judges required to hear a claim. 87 The Iraq constitution is silent on the transparency, location and other administrative procedures of the Supreme Court. Addressing these provision in legislation is consistent with international state practice. Conclusion In almost all states, the authority for the highest court in the state, whether it be a Supreme or Constitutional Court, or some combination of both, is derived from a variety of sources, primarily the state’s Constitution, and domestic legislation. Fundamental principles and functions of the high court, such as the court’s powers and function, independence, and authority are typically found in the State’s constitution, while more specific elements of the high court such as its structure and administration are typically left to legislation. Multiple instances of state practice support these general trends.

Act on the Organization of the Constitutional Court of the Slovak Republic art. 30 (Slovakia, 1993), available at http://www.codices.coe.int (last visited Feb. 21, 2007) (requiring proceedings to be public unless otherwise decided by the Constitutional Court); Law on the Constitutional Court art. 38 (Slovenia, 1994) (requiring the court to explicitly decide to exclude the public from a hearing). 82 Constitutional Court Act art. 34 (South Korea, 1988). 83 Law on the Constitutional Court art. 1 (Portugal, 1982), available at http://codices.coe.int/ (last visited Mar. 7, 2007) (“[T]he head office of the court is in Lisbon.”). 84 Slovakia Constitutional Court Act art. 1 (Slovakia, 1993) (“The seat of the Constitutional Court is Košice.”). 85 Id., arts. 11-14 (Slovakia, 1993); Institutional Act of the Constitutional Council art. 1 (France, 1958). 86 See Slovakia Constitutional Court Act art. 7 (Slovakia, 1993) (establishing the president and vice-president of the Constitutional Court are appointed by the state’s president); Law on the Constitutional Court art. 10 (Slovenia, 1994) (establishing the president of Slovenia’s Constitutional Court is elected by secret ballot by the members of the Court itself for a term of three years). 87 Law on the Constitutional Court art. 35, 41 (Slovenia, 1994) (providing that only a majority of the judges have to be present in order to hear a case, but all of the judges must take part in the final decision.).