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Normative and practical recommendations toward improved judicial independence in contemporary Iraq: The question of embedding judicial independence

Jbara, Anes Ghanam (2017) Normative and practical recommendations toward improved judicial independence in contemporary Iraq: The question of embedding judicial independence. PhD thesis, Prifysgol Bangor University.

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Abstract

This study stands on the fact that the judicial independence is a fundamental element to achieve the rule of law. When it comes to building the rule of law in war-torn nations such as Iraq, several steps has to be taken in order to achieve this end. In this regard, the civil peace is a key, however; the researcher believes that Iraq needs to reform the judiciary concurrently with defeating terrorism and building civil peace. This study stems from an axiom that a weak and corrupted judiciary will hamper the other steps of establishing a modern and democratic regime. In addition, rule of law will not work properly with a weak judiciary. Therefore, the author doesn’t claim that building a strong and independent judiciary in Iraq would resolve all problems! Instead, the author presents this study claiming that judicial independence is a key part of the reform, which depends on the security and political stabilization. The researcher is aware that Iraq has not yet achieved the stage to be considered as a post conflict society; however, when Iraq defeat terrorism in the future this argument apply. This thesis acquires primary research data about current challenges, and potential solutions towards embedding judicial independence as part of democratisation, and increasing protection of human rights. Various research methods have been used including theoretical, doctrinal and empirical analysis. The research provides an examination of formal legal structures, the recent development of the judicial system, including the role of the Iraqi Federal Supreme Court and judicial oversight mechanisms. Proposals to reform relevant laws are made. The investigation develops a useful working definition of judicial independence and sets out practical principles in order to assess judicial independence in Iraq. These principles could be used to test other systems when considering judicial independence. It is argued that Iraq has insufficient institutions and processes to build and uphold the rule of law, to safeguard human rights, and to prevent recurring violence. Weakness of judiciary has created a poor reputation in respect of its capacity to investigate and prosecute human rights violations. Current operational deficiencies can be traced to decades of conflict, the country’s geographical and religious background, and a culture reluctant to accept judicial independence. Further, it is concluded that the weakness of the Iraqi judiciary is a function of the lack of a culture of independence alongside political and religious pressures upon iii judges. Recommendations which follow include; reforms to judicial appointments, training, ethics, discipline, security, tenure and removal from office; reforms to judicial leadership and the broader oversight of the judiciary; increased transparency in judicial processes, and increased engagement and communication with citizens; abolishing quasi-judicial bodies compromised by political interference; tackling corruption in society; defining spheres of civil and Islamic law at legislative level alongside a conclusion that embedded Islamic laws need not necessarily reduce judicial independence.

Item Type: Thesis (PhD)
Additional Information: EThOS opt-out
Subjects: Degree Thesis
Departments: College of Business, Law, Education and Social Sciences > School of Law
Degree Thesis
Date Deposited: 26 Mar 2018 09:05
Last Modified: 26 Mar 2018 09:05
URI: http://e.bangor.ac.uk/id/eprint/10892
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